The End of Racial Discrimination and the Beginning of National Self-Knowledge

A guest essay by David Sacks

“Racial discrimination has no part in a just society.” That sentence, from the following essay by Stanford Law student David Sacks, is simple on its face. It expresses a sentiment with which most people would readily agree. But, as a matter of fact, we have never lived in a society free of racial discrimination. For the first two centuries of our nation’s history, overt discrimination against non-whites by the government, enforced by law, was widely practiced. What is more, if we understand race-based affirmative action as a discriminatory policy—which it quite clearly is—then the Supreme Court’s Students for Fair Admissions decision, which invalidates racial affirmative action, shows that the struggle against de jure racial discrimination in America remains relevant to this day.

Perhaps that struggle is now nearing its culmination. As David points out, limited affirmative action may have been necessary to rebalance the scales after centuries of racial injustice. But that was a state of exception that should not be tolerated indefinitely. Now, in the early twenty-first century, the time for rebalancing is over. The Court has rightly ruled that race-based affirmative action runs afoul of the Fourteenth Amendment. So it may be that the last major vestige of explicit, legally legitimated discrimination is gone. 

David’s essay highlights the strength of the Court’s ruling, and especially of Clarence Thomas’s magisterial concurring opinion. But despite the significance and correctness of that decision, this is not quite a kumbaya moment. It’s not as though, with racial discrimination under the cover of law a thing of the past, we are entering a new era of harmony and concord. The problem of race will be with us for a while. We will struggle to understand and manage the consequences of the Court's decision for some time. But, two things are certain: A nation that permits racial discrimination cannot truly know itself; and, self-knowledge is not always an easy thing to accept. Yet, given the choice between the delusion that discrimination can somehow make our society more just and the challenge that we Americans would finally learn who we truly are as a people, we should opt for the latter—without hesitation, and regardless of what may come.

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The New Era of Race-Neutrality: Faithful to Our Constitution and Our National Ethos

by David Sacks

SFFA v. Harvard and its companion case, SFFA v. UNC, felled the murky, forty-five-year-old race-conscious system promulgated by a solitary Justice in Regents of California v. Bakke and narrowly sustained in Grutter v. Bollinger. Justice Powell’s tenuous saving solution was always just that—tenuous. He rightly rejected the premise of benign discrimination, reasoning that doing so would reinforce stereotypes about disadvantaged groups’ inability to achieve success and force innocent people to bear the brunt of rectifying a past injustice with which they have no real connection. And unlike school districts, which, particularly in the South, were subject to massive de jure segregation and appropriately tailored race-conscious remediation, colleges and universities had not been found to discriminate in the same way—at least not enough to justify reverse discrimination in return. As Justice Thomas explains in his extraordinary SFFA concurrence, race-conscious measures require “past governmental discrimination” that is “concrete and traceable to [a] de jure segregated system” that has “some discrete and continuing discriminatory effect that warrants a present remedy.”

Remediating past discrimination is a noble objective on its face. The colorblind ideal espoused in Justice Harlan’s famed Plessy v. Ferguson dissent is profoundly virtuous; we as a nation must embrace it. Racial discrimination has no part in a just society. It is hard to fathom a more arbitrary and despicable practice. As Justice Thomas writes, introducing affirmative race-based measures is only acceptable when they are logically and narrowly tailored to a clearly identifiable race-based problem. Section 2 of the Voting Rights Act, for example, warrants reasonable affirmative measures to remediate discriminatory impact beyond colorblind adherence the Fourteenth Amendment’s typical prohibition on discriminatory intent. It was introduced in the wake of massive racial segregation in the South. So it was, too, for busing in response to long de jure racial segregation in education. Absent such compelling rationales for race-based distinctions, and narrowly tailored solutions, the implementation is bound to be unjust. That is why racial line-drawing is subject to strict scrutiny. In general, people should be evaluated by more precise and less problematic metrics—namely, “his or her experiences as an individual.” Individual, specific injustices suffered can thus be rectified without racial line-drawing.

Racial line-drawing, even if remedial, is inherently problematic. As Justice Powell notes, it stereotypes groups by attributing uniform characteristics to unique individuals. Moreover, the Courts have applied heightened scrutiny to all racial classifications for a reason: The circumstances that justify any race-based action, even remedial, are few, and the risks involved are great. Discrimination not narrowly tailored begets more discrimination. Even narrowly tailored discrimination may pose that risk. And, in Justice Thomas’s words, “today’s youth simply are not responsible for instituting the segregation of the 20th century, and they do not shoulder the moral debts of their ancestors.” Worse, still, Asians, and Jews to a lesser extent, pull the short straw in affirmative action regimes. This country has a rather sordid history of discrimination against those groups, too. Discrimination in higher education against Jews was widespread, and the Chinese Exclusion Act, similar restrictions, continuing anti-AAPI and antisemitic violence should remind us that Asians and Jews, as well as blacks, have faced and continued to face significant racism.

In view of this reality, Justice Roberts’ plurality-endorsed aphorism in Parents Involved in Community Schools v. Seattle School District no. 1 is worth remembering: “The way to stop discriminating on the basis of race is to stop discriminating on the basis of race.” Similarly, it is hard to argue with Justice Scalia’s scathing, sardonic declaration in Grutter v. Bollinger: “[S]urely private employers cannot be criticized–indeed, should be praised–if they also ‘teach’ good citizenship to their adult employees through a patriotic, all-American system of racial discrimination in hiring. The nonminority individuals who are deprived of a legal education, a civil service job, or any job at all by reason of their skin color will surely understand.” His point is inescapable: Nonminority individuals deprived of education and employment opportunities because of their skin color will quite likely not understand, and racial discrimination in education or employment is not, and never was, a patriotic value.

Justice Thomas’s learned concurrence in SFFA engages with the history and framing of the Fourteenth Amendment. It makes clear that the Fourteenth Amendment’s framers aimed to codify racial equality—nondiscrimination—into the constitution, “safeguarding legal equality for all citizens ‘of every race and color’ and providing the same rights to all.” The concurrence highlights a number of cases that closely followed the Fourteenth Amendment’s ratification and demonstrated the Court’s conception of colorblindness. Indeed, as Michael McConnell explains, it is plausible that extending this conception to the context of schools and universities was within the contemplation of the Fourteenth Amendment’s framers. “[F]ar from being an accepted part of national life,” “[a] close examination of the debates and votes on segregation” immediately following the Fourteenth Amendment’s ratification demonstrates that racial segregation and inequality in schools was viewed as “‘caste’ legislation” and inconsistent with the Fourteenth Amendment. Substantial majorities of both houses of Congress wished to pass the 1875 Civil Rights Act, which prohibited segregation in schools under the Fourteenth Amendment. Thus, it is quite convincing that “persons well situated to know and understand the original meaning of the Fourteenth Amendment” understood it as requiring colorblindness specifically in schools.

Justice Thomas’s concurrence also discusses the practical effects of affirmative action, which, he contends, are not nearly as beneficial as its supporters would like to believe. He cites Thomas Sowell, the great social scientist, to show that affirmative action’s “racial policies simply redistribute individuals along institutions of higher learning”—and that in so doing, they “sort at least some” Blacks and Hispanic applicants “into environments where they are less likely to succeed academically.” In his view, the mismatch hypothesis’s validity is “self-evident”: “Simply treating students as though their grades put them at the top of their high school classes does nothing to enhance the performance level of those students or otherwise prepare them for competitive college environments.” Moreover, he thinks that affirmative action policies erase any distinction between those “who are admitted as a result of racial discrimination” and those of “the same race” who are admitted purely on their individual merits.

We must reckon with the words of Justice Thomas, who famously stuck a 15-cent sticker from a cigar package on the frame of his Yale law degree due to its affirmative action policies. We should seriously consider the work of Thomas Sowell, one of the most brilliant social scientists of all time and a black man. And we should listen to another great black social scientist, Glenn Loury, who skewered affirmative action as being “not about equality,” but “covering ass.” The university can still reward those who overcome profound difficulties, thrive in extraordinary or especially interesting circumstances, or otherwise show an ability to thrive at university outside of the most conventional benchmarks without embracing the crude and unjust metric of racial discrimination. No person deserves a boost or demerit dependent on an immutable characteristic with no bearing on her individual qualities. We should not endorse policies that enable university admissions officers to “deliberately consult race when deciding whom to admit”—and evince patently racist attitudes in so doing. Affirmative action violated the constitution, and it violated the American ideals of colorblindness and individualism. In the face of still persistent social inequality and unequal treatment, it is imperative that our law, as a rule, not permit drawing lines based on race—the discrimination the Fourteenth Amendment was meant to estop. Thankfully, the Supreme Court has rectified its well-intentioned mistake in Bakke and taken a step toward an era of race neutrality.

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