"It Is a Sordid Thing, This Divvying Us Up by Race"

The use of race by government or in government-funded programs divides our politics. On one side, some citizens, predominantly but by no means exclusively Republicans, want the government to reject racial preferences in benefits and education. Others, principally Democrats, want the government to be race-conscious, even pervasively so. It is hard to think of an issue more important to the future of classical liberalism, because that philosophy of government presupposes that individuals, not groups, are the bearers of rights.

This issue is coming to head because the current Democratic Congress is enacting more race-conscious programs and the Biden administration is happily implementing them. Yet the federal judiciary, newly stocked with Trump appointees, is poised to interpret the Constitution as colorblind and strike them down.

This confrontation may be coming at an opportune time for the friends of liberty. The colorblind position is not only sounder legally, but more popular politically. When proponents of affirmative action got the legislature to put on the ballot a proposition repealing California’s law that banned preferences in government programs and schools, the initiative lost by over 14 percentage points. And the defenders of colorblindness won despite having to campaign in one of the bluest states of our union, being outspent fourteen to one, and facing the opposition of major corporations and the mainstream media.

Democrats may threaten to pack the Supreme Court. But standing for the proposition that individuals should be judged on their merits, not their race, will increase rather than drain the Court’s political capital. The Court is on the safest political ground when it strikes down legislation that passes because of its concentrated appeal to special interests but remains unpopular among the general public because of its more diffuse social costs. In those cases, the judiciary acts as the tribune of the people against their rulers, correcting a failure in the political process.  

The First Skirmish

The battle between the Biden administration and the opponents of preferences has already been joined. In the most recent coronavirus package, the Democratic Congress provided funds for restaurant owners to meet payroll and other expenses, because many had been shut down by government orders. Given the limited availability of funds, it is important to apply as soon as the window for applications opens.

Timing is where race counts. “Disadvantaged businesses” have 21 days to apply before anyone else. If the fund is depleted by the first set of applications, other businesses do not receive help. There is no automatic replenishment.

The definition of disadvantage turns on race. A person is considered “socially disadvantaged” if he has been “subjected to racial or ethnic prejudice” or “cultural bias.” The Small Business Administration (“SBA”) has defined social disadvantage solely in terms of race or ethnicity. If you are a Black American, a Hispanic American, Asian Pacific American, Native American, or a Subcontinent Asian American you will be presumed disadvantaged. If the business is more than 51 percent owned by one of the groups, it gets to go to the front of the line.

Antonio Vitolo’s restaurant did not go to the front, because he was white. While his wife was Hispanic, the couple jointly owned the restaurant and thus she had only a 50 percent share—slightly too small to qualify for the priority. Vitolo, therefore, sued Isabel Guzman, Biden’s administrator of the SBA, claiming racial discrimination. While he lost in district court, the Sixth Circuit Court of Appeals late last month enjoined the preferences.

The majority opinion was written by Amul Thapar, one of the most impressive of Trump’s appellate court appointees. Thapar began his analysis on the merits bluntly:

Government policies that classify people by race are presumptively invalid. To overcome that presumption, the government must show that favoring one race over another is necessary to achieve a compelling state interest. And even when the government can show that it has a compelling interest, it must narrowly tailor its remedy to advance that interest. This is a very demanding standard, which few programs will survive.

Thapar then showed why the government’s policy was supported by no compelling interest. He conceded that if the government had intentionally discriminated against these individuals in the past, it might have such a compelling interest in justifying preferences, but the government had provided no such evidence. Even if restaurants owned by some minorities had fared worse in the pandemic, the government had not shown that this was the result of any intentional discrimination, let alone discrimination by the government. Gesturing to general societal discrimination was not enough to sustain the program.

Our rights against the government do not disappear in times of emergency. Indeed, some of the worst civil rights decisions of the Supreme Court were justified on emergency grounds.

Nor was the program narrowly tailored to advance a government interest while minimizing discrimination. While the government argued that many minority-owned businesses had not taken advantage of the previous coronavirus relief efforts, that claim provided no justification for excluding other businesses who had also not gotten previous relief. The government could have given priority to all those who were applying for the first time rather than prioritizing by race.

Thapar also poked holes in the government’s definition of the minorities who were substantially disadvantaged, noting that it “included Pakistanis but not Afghans; Japanese but not Iraqis; Hispanics but not Middle Easterners.” The government was not only discriminating, it was doing so arbitrarily.

Thapar’s opinion is a tour de force. Its power was underscored by the frailty of Judge Bernice Donald’s dissent. After spending most of her opinion on various procedural complaints, she argued that the program was justified because of the emergency of coronavirus. But our rights against the government do not disappear in times of emergency. Indeed, some of the worst civil rights decisions of the Supreme Court, like that upholding the detention of Japanese Americans, were justified on emergency grounds. And in this case, there is no connection at all between discrimination and the emergency. There were other means to help those most in need at a difficult time.

Disadvantaged Farmers and Ranchers

Vitolo v. Guzman will not be the last case to rule on a discriminatory provision of Biden’s coronavirus relief bill. Another provision provides four billion dollars of direct payments to pay off the debts of “disadvantaged farmers and ranchers.” And here the disadvantaged farmers are again defined by race, much as in the SBA program.

Republicans tried to remove this provision in the Senate but lost in an essentially party-line vote. A white rancher in Texas, however, has already sued for discrimination. Thapar’s opinion provides a road map for the judges. The Fifth Circuit, which will hear any appeal, is likely to produce yet another opinion moving the law toward colorblindness.

If the Biden administration decides to appeal, such cases may well end up in the Supreme Court, where the prospect for decisions that move toward colorblindness is very good—perhaps the best in the entire history of the Court. Even Chief Justice John Roberts is a stalwart on the issue. As he put in a voting rights case, “it is a sordid thing, this divvying us up by race.”

Diversity in Higher Education

The harder question is whether the Court will modify its doctrine in higher education, where it effectively makes an exception to its general doctrine that racial classifications are presumptively unlawful by declaring “diversity” in higher education to be a compelling interest.

The Supreme Court will get a chance to reconsider because this month it is deliberating on a petition for certiorari in Students for Fair Admissions v. Harvard. The petitioners complain that Harvard has discriminated against Asian Americans, admitting fewer than their test scores and other accomplishments would warrant. If the Court takes the case, it will be a major legal test of the legality of affirmative action in education or what now is called “diversity and inclusion.”

The petition calls for overruling Grutter v. Bollinger, in which the Court upheld diversity as a compelling interest that may trump the Fourteenth Amendment’s guarantee of racial equality. (While Harvard is a private institution, it is common ground that Title VI, which forbids racial discrimination by private colleges that receive federal funds, is to be interpreted congruently with the Fourteenth Amendment.)

The claim that discrimination can be justified by its supposed potential to inject diverse ideas into the classroom is deeply problematic. It is based ultimately on the notion of stereotypes. People of one race do not all think similarly, but there is every reason to believe that if such a view is encoded in law it will entrench race consciousness in society. It is ironic that the same universities that tout diversity are in fact bubbles of uniformity when it comes to political identity—an identity that is a much better proxy for different worldviews, having been determined by reason rather than ethnicity.

Even if the Court does not overrule Grutter, it could use the Harvard case to tighten up on the substantial discretion it now permits universities in implementing their diversity plans. Harvard’s practices illustrate that such discretion can easily use diversity as camouflage for racial balancing. Harvard uses what it calls a “holistic review “of candidates where inherently hard to quantify leadership and character evaluations just happen to consistently disfavor Asians in relation to other groups. This keeps their numbers lower than they would be if admission were based on grades and test scores. Harvard used a similar notion—that Jews would not be good contributors to the leadership class—when it imposed a Jewish quota a century ago.

The Court is likely to address racial and ethnic preferences through the doctrinal framework of strict scrutiny, which is entrenched in its precedent. But even were it to consider the whole area anew by reference to original meaning, the result would likely be no more favorable to the idea that the promotion of diversity merits an exception to the constitutional mandate of equal treatment. While some have argued that the federal government’s provision of benefits to the newly freed slaves after the Civil War shows that affirmative action is constitutional, these were not race-based benefits but instead, as Michael Rappaport shows, aid provided to a group defined by their previous enforced servitude.  

There is actually a better originalist argument against colorblindness when the federal government creates racial preferences, namely that the Fourteenth Amendment does not apply to the federal government. But the Court has long applied its equal protection jurisprudence of race to the federal government on a reverse incorporation theory. It seems very unlikely to overturn settled precedent in a way that would permit the government to discriminate.   

A return to the colorblind Constitution (the famous formulation of the first Justice John Marshall Harlan’s great dissent in Plessy v. Ferguson) would help tamp down on America’s discontents. The ability of politicians and institutions to give benefits to groups defined by race and ethnicity entrenches racial consciousness and fuels identity politics. Ethnic and racial preferences in government programs or government-funded institutions are far from the only source of our divisions, but they may be the cause most amenable to legal abolition.