Roberts court rules against race in college admissions, but uses it in electoral boundaries

Incoherence on a key issue in American life

October 17, 2023 6:00 am

Photo by Phil Roeder/Getty Images.

As the 2023-24 term of the U.S. Supreme Court ramps up following its start in the traditional first Monday of October, court watchers are still reeling from some of the tribunal’s decisions during its past nine-month session.

One of them was the court’s marquee case, Students for Fair Admissions v. Harvard, in which the court invalidated affirmative action programs in college admissions. The reverberations from that ruling included the prompt elimination of those racial preferences and legacy admissions advantages by many higher education institutions, including the University of Minnesota and Carleton in the private sector, among others. 

Chief Justice John Roberts, the author of the opinion, once wrote in a school desegregation case that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” a vacuous catch phrase. 

That mantra is already extending to other spheres beyond higher eduction, including affirmative action in public and private sector employment, as forecast in this space before the ruling. 

 ‘Color-blind’ concurrence

Roberts did not actually use the phrase “color-blind” in his opinion for the six-member conservative majority of the court in the college admissions case.

Rather, he held that government decisions under the Equal Protection Clause of the 14th Amendment — as well as those in the private sector under the Federal Civil Rights Act — must not be “based on race.”

Justice Clarence Thomas was not so restrained. He trotted out the term “color-blind” in his concurring decision, which secured the phrase “color-blind” in the annals of the law and as a rallying cry for those opposed to any preferential treatment for historically disadvantaged, marginalized, or underrepresented peoples.

But to what degree does the high court resist taking race into account in its decisions?

A series of contemporaneous decisions indicates race actually remains a significant factor in its decision making. 

With support from the four of his colleagues in a 5-4 decision in Allen v. Milligan, Roberts directed the Alabama Legislature to come up with a more equitable congressional redistricting map. The current map packs Black voters — who comprise about 27% of the state’s population — into a single congressional district among the state’s seven U.S. House districts.  

Roberts explicitly stated that race should be taken into account  in redistricting, an edict the court also issued in a related racially-gerrymandered Louisiana scheme.

With an opportunity to rectify the blatant inequity, the Alabama Legislature, encouraged by the GOP Gov. Kay Ivey, doubled down and came up with an even more racially skewed plan that jeopardized the electability of the state’s sole Black member of Congress, U.S. Rep. Terri Sewell.

The Legislature’s defiance was regrettably reminiscent of the wave of “massive resistance” by many Southern states to racial integration rulings in schools and other facilities by the federal courts from 1954’s Brown v. Board of Education to the early 1970s, led by Alabama, whose Gov. George C. Wallace once famously declared segregation to be the official policy of the state “now, tomorrow and forever.”

The state’s latest in-your-face maneuver drew a curt directive from the court recently, denying an “emergency” appeal from the Alabama Legislature and ordering state officials to proceed with a hearing before a specially appointed judicial officer to address three options for more equitable representational redistricting. They are now required to do precisely what the court said was impermissible in the school admissions litigation: base a decision upon race.

The author of that one sentence dismissive directive? Thomas!

These cases leave the high court in the awkward position of proscribing considerations of race in academic admissions, but requiring that it be considered in setting electoral boundaries.

But, wait, there’s more!   

The court upheld the requirement in the Indian Child Welfare Act, a federal law — mirrored in Minnesota by our own version — that grants preference to Native American families in contested adoptions of Indigenous children, which one could argue is an explicit racial preference. 

The federal measure was challenged by three white couples, including one from Minnesota, but the court rebuffed their claim. 

Joined by six other jurists — including the “stop discrimination based on race” chief justice — Justice Amy Coney Barrett, who has two adopted children from Haiti among her seven, deemed the statutory racial preference a permissible exercise of congressional authority. 

The upshot is that the court talks a tough game when it comes to the theory of “color-blind” decision-making, but reality sets in when recognizing that in certain circumstances, taking race into account is not only reasonable, but in some instances, necessary to remedy past wrongs.

Roberts and his conservative allies seem perfectly able to recognize the role of racial hierarchy in America’s past and present injustices, but they refuse to develop a coherent, consistent pattern of adjudication of racially related cases.

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Marshall H. Tanick
Marshall H. Tanick

Marshall H. Tanick is a Twin Cities employment law attorney with the law firm of Meyer Njus Tanick.