Supreme Court would be wrong to reverse course, impose 'colorblind' college admissions

The conservative majority on the U.S. Supreme Court appears ready to jettison another five decades of settled law. At least, that was the impression from the recent oral arguments concerning diversity and its use by Harvard and the University of North Carolina in admissions decisions.

Such an abandonment of precedent would be a shame, though unlikely to echo as loudly as the court overturning last summer the right of women long established in Roe v. Wade. The country has yet to confront fully the brutal legacy of slavery and discrimination, inequities evident today, for example, in patterns of housing, education and wealth.

That’s right, even centuries later.

In 1978, a fractured court majority struck something of a compromise. It rejected the use of quotas or other measures to ensure admissions of black students. Thus, the court denied a direct remedy for many decades of exclusion. Instead, it ruled race could be a factor, among many, in building a diverse student body, emphasizing that diversity brings enduring benefit to campus and country.

The court reaffirmed such thinking in 2003 and, again, in 2016. This is the precedent the majority now would cast aside­.

Why?

Enough justices seem persuaded by the notion of a colorblind 14th Amendment. Those who have taken Harvard and North Carolina to court insist the amendment allows no room for considering race, or race-conscious policies, even in the pursuit of something as worthy as diversity.

All of it echoes those words from Chief Justice John Roberts in a 2007 majority opinion rejecting the efforts of public schools to promote classroom integration: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Things are more complicated, need it really be said?

The conservative majority likes the role of “originalists,” claiming allegiance to the concepts of the founders, fastening rulings to “history and tradition,” as the court did, notably, in expanding gun rights last term. The trouble is that the majority’s application of the past has been selective. The justices and their clerks are not historians, no matter how much they pretend to be.

In ending the right to choose an abortion, the majority neglected the compelling friend-of-the-court brief submitted by historians. They seem ready to do the same in this case, along with ignoring the voluminous record and rulings from the district court trials, in which Harvard and North Carolina both prevailed.

A group of distinguished historians and professors of legal history, specializing in the Civil War, slavery and Reconstruction, submitted a brief explaining just what the framers of the 14th Amendment were thinking. The Reconstruction Congress did not view the amendment as colorblind. To the contrary, lawmakers saw race-conscious policies as necessary to deliver a broad assurance of equality.

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As the brief stresses, “the Reconstruction Framers recognized that there exists an important distinction between, on the one hand, racial designations that denigrate and harm, and, on the other hand, race-conscious laws that ameliorate discrimination and advance equality of opportunity.”

Those framers responded as many Southern states, in the immediate aftermath of the Civil War, enacted laws discriminating against Blacks, aiming to keep Blacks at the lowest levels of a caste system. Congress approved the Civil Rights Act of 1866, which, among other steps, barred states from enforcing racial discrimination. Lawmakers reinforced this measure four years later, putting more muscle behind the 14th Amendment guarantee of equal protection.

They created the Freedman’s Bureau knowing it wasn’t enough to say: You’re free. Now go forth. The bureau provided assistance to help Blacks navigate the transition and overcome the fierce resistance. The aid included educational programs and a savings and trust.

The Southern Homestead Act allowed Blacks to have land in preference to those from Europe and elsewhere.

The historians and legal scholars stress that these and other policies are all race-conscious, and hardly reflect “an unbending vision of colorblindness.”

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Another striking aspect of the brief arrives in recounting the familiar objections to such measures, critics citing “special treatment” for Blacks at the expense of whites. Congress rejected calls for strict race neutrality, overriding presidential vetoes along the way.

This is the original thinking. As we know, events didn’t go well from there, white racism prevailing through Jim Crow, Blacks still subjugated, denied equality and opportunity. Finally, a century later, in the 1960s, Congress acted.

Today, universities want to preserve the option of race as one factor in constructing a diverse student body. That is a modest proposition, and yet also part of the larger project to achieve the truth and reconciliation required in communities and across the country, given its ugly past.

Unfortunately, the conservative majority of the high court isn’t keen on the history or the settled law.

Douglas was the Beacon Journal editorial page editor from 1999 to 2019. He can be reached at mddouglasmm@gmail.com.

This article originally appeared on Akron Beacon Journal: Supreme Court ponders history in college admissions policies