With the oral arguments in the Harvard and UNC racial-preference cases just two weeks away, it’s instructive to recall Chief Justice Roberts’s response to the claim that the use of race “for beneficent rather than malicious purposes” should be subject to a more forgiving standard of review than strict scrutiny.
The legal question in Parents Involved v. Seattle School District No. 1 (2007) was “whether a public school that had not operated legally segregated schools … may choose to classify students by race and rely upon that classification in making school assignments.” The Chief Justice wrote the lead opinion (majority in most parts, plurality in two parts) answering that question in the negative.
In his dissent, Justice Breyer argued that “a more lenient standard than ‘strict scrutiny’ should apply in the present context, where “race-conscious criteria” are being used “for inclusive purposes.” (Breyer actually seemed to vacillate between contending that he was applying strict scrutiny and advocating “a standard of review that is not ‘strict’ in the traditional sense of that word.”) In his lead opinion, the Chief disagreed with Justice Breyer’s argument. The Chief pointed out that the Court had “recently reiterated that all racial classifications … must be analyzed by a reviewing court under strict scrutiny” (cleaned up) and that the Court’s cases “clearly reject the argument that motives affect the strict scrutiny analysis.” The Chief observed that one reason “for rejecting a motives test for racial classifications” is that the notion of “benign” racial classifications betrays an unwarranted “confidence in the ability to distinguish good from harmful uses of racial criteria.” (He was quoting Justice O’Connor in the last passage.)
Whether racial preferences in college admissions can be said to be benign is highly dubious for at least two reasons. First, racial preferences for members of favored races inevitably operate to the detriment of members of disfavored races—including, as the Harvard and UNC cases highlight, Asian Americans who have their own histories of being discriminated against.
Second, the effect of racial preferences on their intended beneficiaries may well be mixed at best. In their powerful book Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It, law professor Richard Sander and legal journalist Stuart Taylor Jr. present compelling evidence that large racial preferences in college admissions programs “systematically put minority students in academic environments where they feel overwhelmed” and “end up having high academic attrition or failure, thereby earning fewer degrees, obtaining fewer professional licenses, giving up on aspirations, and emerging from higher education with a deep-seated”—but mistaken—“sense that they didn’t have what it takes to succeed.” In fact, “nearly all of these students do have what it takes to succeed”: “If they were at good but less-selective schools, their chances of achieving long-term success in school and in life would be higher.” (Taylor has submitted an amicus brief on behalf of Sander in the Harvard/UNC cases.)
The group of parents that successfully challenged the racial balancing in Seattle schools did not ask the Court to overrule its 2003 decision in Grutter v. Bollinger that allowed racial preferences in university admissions, and the Chief Justice instead explained why the Seattle school district did not prevail under Grutter. That said, the Chief’s memorable concluding section of his opinion strongly indicates that he believes that Grutter is both fundamentally wrong and deeply damaging.
The Chief first explained that the “costs” of racial classifications are “undeniable”:
“[D]istinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” Adarand, 515 U. S., at 214 (internal quotation marks omitted). Government action dividing us by race is inherently suspect because such classifications promote “notions of racial inferiority and lead to a politics of racial hostility,” Croson, supra, at 493, “reinforce the belief, held by too many for too much of our history, that individuals should be judged by the color of their skin,” Shaw v. Reno, 509 U. S. 630, 657 (1993), and “endorse race-based reasoning and the conception of a Nation divided into racial blocs, thus contributing to an escalation of racial hostility and conflict.” Metro Broadcasting, 497 U. S., at 603 (O’Connor, J., dissenting). As the Court explained in Rice v. Cayetano, 528 U. S. 495, 517 (2000), “[o]ne of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities.”
The Chief then drew this bottom-line lesson in colorblindness from Brown v. Board of Education (1954): “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”