Last year, a federal district court struck down the admissions policy as racially discriminatory. But in May, a federal appeals court reversed that decision and upheld the policy. The case is not over: A petition to the Supreme Court is expected to come soon, and many observers expect the court to take up the case.
If the plaintiffs in the Thomas Jefferson case — or in any of three similar lawsuits their lawyers have filed elsewhere — were to prevail, it would jeopardize a fundamental distinction embedded in Supreme Court doctrine: the difference between the means policymakers use and their ends.
When the government (or an entity that receives federal funds, like a school) treats individuals differently based on race, it must overcome a demanding legal test called strict scrutiny. Until last month, the Supreme Court had, within limits and begrudgingly, said that university-level affirmative action passed this test. Going forward, it will be nearly impossible for affirmative action policies to do so.
But the Supreme Court has long condoned policies that don’t entail classifying individuals by race, even if the goal of the policy is race-conscious. For example, incorporating geographic or socioeconomic preferences into a college’s admissions policy has never been considered constitutionally suspect, even if the college is doing it in part to promote racial diversity. Traditionally, when a policy’s language and implementation are race-neutral but its goals are race-conscious, courts apply strict scrutiny only when those goals are invidious — promoting racial disparity rather than fighting it.
Eliminating the distinction between means and ends would threaten an enormous range of policies. Consider, to pick just one example, No Child Left Behind, President George W. Bush’s signature education reform. The educational standards it set drew no racial distinctions. Indeed, uniform standards for all students were the law’s hallmark. But concerns about race gaps in educational achievement were central to arguments for the law, and the law’s accountability standards required assessments of schools’ progress in closing those gaps (a requirement that remains in the successor legislation in effect today).
To be sure, many people disagree about the merits and effectiveness of this kind of policy. There’s ample room for public debate. But it is — and as I have argued elsewhere, should remain — constitutionally permissible to consider race-related effects when engaging in that debate.
You might take some comfort in knowing that, should the Supreme Court side with the plaintiffs in the Thomas Jefferson case or a similar case, many litigation-savvy government actors would keep trying to lessen racial disparities — they just wouldn’t say that’s what they were doing. They would talk about, for instance, the need to address socioeconomic inequality in education — a serious concern in itself, of course — while keeping silent about any potential effects on diversity.