Continued confusion about the Constitution and race

Why is race a forbidden consideration in college admissions but permitted, indeed required, in redistricting?

In its most recent term, the U.S. Supreme Court found that the 14th Amendment forbids the use of race in college admissions. 

Earlier in the term, the court found not only that the 14th Amendment permitted the use of race in drawing political boundaries, but that the Voting Rights Act, in some circumstances, required it.

How can the same language forbid the use of race in college admissions but countenance it in drawing political boundaries? Logically, it can’t. 

The relevant language reads as follows: “(N)or shall any State … deny to any person within its jurisdiction the equal protection of the laws.”

The key to consistently applying the provision is to understand and accept it as the grant of an individual right, in the Lockean tradition of the Declaration of Independence and the Bill of Rights. 

The 14th Amendment was adopted to achieve a societal, and race-conscious, purpose: After the abolishment of slavery, prevent the Southern states from treating the emancipated as second-class citizens. But the method chosen was to establish an individual right to be treated by government the same as any other citizen. In this context, without regard to race.

This was a constraint on government. Law is the province of government. The 14th Amendment requires government, in its official actions, to treat everyone the same.  

In the college admissions case (SFFA v. Harvard), the practices of the University of North Carolina and Harvard were at issue. UNC is a public university. Its admissions decisions are an official action by a governmental body. Discrimination in favor of some because of race is discrimination against others because of race. Which the 14th Amendment, read as the establishment of an individual right afforded to all, does not permit.

Harvard, however, is a private university. A libertarian argument could be made that, as a private institution, if it decides racial diversity is an objective it wants to achieve, it should be free to do so. 

Here, however, the sorry fate of the 14th Amendment for too much of our history intrudes. 

Despite the 14th Amendment’s grant of an individual right to be treated the same as any other citizen by government, de jure segregation quickly settled in, in the South and elsewhere. It persevered until Brown v. Board of Education and the triumph of the civil rights movement in the 1960s.

Until Brown, judges failed to enforce the 14th Amendment’s individual right to be treated the same as any other citizen against Jim Crow laws, rationalizing their way out of it. 

To break the back of Jim Crow, the federal government adopted a structure of civil rights laws governing behavior in the private sphere, including commerce and employment. In education, the scope includes any institution accepting federal money of any sort. While there are differences, all prohibit discrimination on the basis of race. 

Harvard accepts various forms of federal money. So, even if an argument could be made that it shouldn’t be constrained by the 14th Amendment, it is clearly subject to the education civil rights law. And there is no escaping the ironclad logic that discriminating in favor of some on the basis of race is discriminating against others on the basis of race.

The court for years has tried to escape that logic. While there is much that is disturbing in the primary dissent by Justice Sonia Sotomayor, I think she has a point about past court precedents allowing the consideration of race in college admissions as practiced by UNC and Harvard. As the court flinched from enforcing the 14th Amendment’s individual right to equal protection of the laws against Jim Crow, it has flinched from enforcing that right against attempts to remedy the effects of Jim Crow through racial preferences.

It continues to flinch with respect to redistricting, as official and consequential an act of government as there can be.

In a democracy, people have a right to vote for whomever they want. But they don’t have a right to have their preferred candidate win. That’s not the way democracy works.

According to the way the court has interpreted and applied the Voting Rights Act, however, some people, in some circumstances, purportedly do have that right.

The question before the court (Allen v. Milligan) was whether Alabama had to create a second congressional district in which blacks were the majority. Doing so would require breaking up the Gulf Coast region, a clear community of interest in traditional redistricting terms.

The criteria the court employs to determine whether additional majority-minority districts have to be formed are far more invidious than what colleges were doing to achieve a greater degree of racial diversity within their student bodies. According to the court, Alabama has to break up the Gulf Coast region and create a second majority black district because, in Alabama, both whites and blacks vote in blocks, and blacks are entitled to a second district in which whites cannot outvote them. 

Now, block voting is a reality. But it is attenuating. And while outlawing barriers to voting is commendable, and to defeat Jim Crow was necessary, this collective right not to be outvoted is a legal briar patch.

The court has also said that race cannot be too much of a factor in redistricting. And that the creation of majority-minority districts cannot violate traditional redistricting criteria. And that minorities can’t be crammed into too few districts. 

So, how much block voting justifies another majority-minority district? To what extent can traditional redistricting criteria be stretched to create one? How much consideration of race is too much? How many minorities in a district are too few? How many are too many?

And, most importantly, how can a claimed statutory collective right not to be outvoted be reconciled with the 14th Amendment’s individual right to equal protection of the laws? 

It can’t. Rights in the United States are individual, not collective. 

We are at a crossroads in the country. Our aspiration and ethic has been to be a meritocracy buttressed by expanding opportunity. 

We may have made a mistake in saying that the aspiration included “equal opportunity”, an impossible achievement. But the country abounds in opportunity.

Those not getting into UNC or Harvard – whether black, Latino, Asian, or white – have abundant opportunities to get a quality college education. And the value-added of a degree from one of the proclaimed elite institutions has been rapidly depreciating. In reality, far too much attention and energy – legal and political – has been invested in the question of college admission practices.

There are those who want to abandon the aspiration and ethic of being a meritocracy buttressed by expanding opportunity, citing the remaining achievement gaps based upon group identities. Instead, they argue, positions and privileges should be apportioned more based on group identity. 

That’s what the woke movement is all about. And it has become a powerful force – in politics, business, media, and culture. It has become the defining ethos in academia. 

Paradoxically, if we are to prosper as a multicultural country and society, it is even more important that the law treat people as individuals, rather than as members of a group. Group affinity is real and important. But legal rights should be individual and the same for all.

The 14th Amendment, properly understood, enshrines and defends that principle. But only if judges don’t flinch from enforcing it.

Reach Robb at robtrobb@gmail.com.