The Supreme Court Censoring History and Race Would Be a Mistake
The Supreme Court Censoring History and Race Would Be a Mistake
Race-conscious remedies, such as voting rights protections and affirmative action in college admissions, are supported by the Constitution, are a part of American history, and are essential to equal opportunity.
This term, the Supreme Court is hearing several cases designed to achieve the long-standing, radical right-wing agenda of prohibiting the government from using race conscious remedies to address pervasive racial injustices. This goal—which effectively seeks to reverse key protections granted by the 14th and 15th amendments to the Constitution—would continue a campaign by the court’s extreme majority to reverse rights, laws, and precedents that have stood for generations and pervert the intentions and explicit language of the Constitution itself.
In Students for Fair Admissions, Inc. v. University of North Carolina and Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, the Supreme Court will consider whether it should reverse its 2003 decision in Grutter v. Bollinger and, instead, prohibit colleges and universities from considering race when making admissions decisions. In Merrill v. Milligan, the court is reviewing what was described as an “easy” decision by a right-leaning three-judge panel that invalidated a congressional redistricting in Alabama for illegally diluting minority votes—in a state with a long and sordid record of racial discrimination. Each of these cases pivot on the question of whether the government and government-funded institutions can or—in some cases—must adopt race-specific remedies to address harms borne from intentional and targeted racial discrimination.
Extreme conservatives have long championed the misguided claim that the Constitution requires the government to be colorblind. They rely on an illogical definition of racial discrimination; a revisionist myth of American history; and an unfounded argument that race-neutral policies are as effective as race-conscious policies at achieving equal opportunity. To the contrary, these calls for complete race neutrality in government laws and policies are a grave threat to equal opportunity in America.
Removing race from policymaking is illogical
Attacks on all race-conscious policies as inherently racially discriminatory are grounded in a false equivalency between laws and policies that seek to subjugate a group of people based on race and those that seek to remedy the harms to those who have experienced racial subjugation. The former are both legally impermissible and morally reprehensible, while the latter are both legally permissible and morally necessary.
Following the Civil War, the Reconstruction Congress passed a series of laws and constitutional amendments that prohibited racial classifications intended to repress Black Americans as an inferior class while simultaneously promoting race-conscious policies to liberate Black Americans from the shackles of slavery and to provide equal opportunity. An unyielding devotion to race neutrality fails to grasp the simple yet fundamental idea that achieving a universal goal such as equal opportunity sometimes requires targeted solutions to bring Black Americans facing racial discrimination to the same baseline of opportunity as white Americans.
Race-conscious government policies reflect the reality that many current racial inequities result from deliberate policy choices to subjugate Black Americans and, accordingly, require equally deliberate and targeted policies to rectify these deeply harmful policy choices.
Removing race from policymaking is ahistorical
It is perverse to argue that the very laws meant to redress racial injustice prohibit the government from considering race when trying to create equal opportunity. It is also ahistorical. History is clear that the Constitution permits race-conscious laws and policies. A core purpose of the 14th Amendment’s equal protection clause was to ameliorate racial inequality for Black Americans resulting from slavery as well as from the Black Codes enacted to legalize racial subjugation after slavery. Prior to passage of the 14th Amendment, the drafters of that amendment passed several pieces of race-conscious legislation, such as the Civil Rights Act of 1866, that intended to provide Black Americans with the same civil rights “enjoyed by white citizens.” In addition, Congress passed the Freedman’s Bureau Acts of 1865 and 1866, which provided relief to recently freed Black Americans. In fact, providing constitutional support for the Civil Rights Act of 1866 was a major impetus for enacting the 14th Amendment.
During Reconstruction, conservative politicians chafed at the passage of these race-conscious laws and denounced them as special treatment for Black Americans and discrimination against white Americans. Yet, the historical record shows that the Reconstruction Congress explicitly considered and dismissed those concerns. For example, President Andrew Johnson vetoed the Civil Rights Act on the grounds that it “afford[ed] discriminating protection to colored persons” and because of its “distinction of race and color…operate[s] in favor of the colored and against the white race.” Congress overrode his veto, with members reaffirming in speeches the need for race-conscious protections. Today, some 150 years later, conservatives are making the same specious claims to try to strike down current affirmative action policies and the Voting Rights Act. The argument that the constitution requires race neutrality was made and resoundingly rejected then and should be again today.
The Voting Rights Act, which enforces the 14th and 15 Amendments, offers another example of Congress passing—and the Supreme Court repeatedly upholding—race-conscious legislation to remedy the sordid history of racialized voting suppression in the United States. Its general provisions in Section 2 (as amended) include both a broad prohibition on intentional discrimination based on race or color in voting and also a prohibition of any election practices that have the result of limiting the right to vote based on race or color.
On their face, these provisions necessarily offer stronger protections for voters of color than for white voters—i.e., a race-conscious remedy—precisely because the electoral practices in some states and localities were designed to abridge the rights of Blacks to vote.
All three branches have reaffirmed the need for and appropriateness of these provisions multiple times. Congress has voted four times to extend the Voting Rights Act. Each time, the extension was signed into law by a Republican president, and the most recent 25-year extension in 2006 was passed with unanimous bipartisan support in the Senate. The Supreme Court has also upheld the constitutionality of the Voting Rights Act in 1966 in its landmark case South Carolina v. Katzenbach; it later upheld the constitutionality of the Section 2 “results” test in Mississippi Republican Executive Opinion v. Brooks in 1984.
Indeed, any effort by the court’s radical majority to prohibit the consideration of race in government interventions would be jettisoning long-established precedents to upholding race-conscious laws and policies seeking to achieve equal opportunity. As such, it would be intentionally flouting its own principle of stare decisis—the court’s respect for its previous rulings—to achieve a long sought-after ideological goal.
In the case of affirmative action, for example, the court would be setting aside its own decisions in four major cases over the past 40 years that have upheld affirmative action. And any action by the court to limit the reach of Section 2 of the Voting Rights Act would not just be reversing long-standing precedent—it would also be unraveling its own reliance in Shelby County v. Holder on the protections of that section when it effectively blocked the use of preclearance requirements, which require states with histories of voting rights infringement to get federal approval before changing election procedures.
Removing race from policymaking is unfounded
The evidence belies claims that race-conscious policies are no longer needed or justified under the Constitution, or that race-neutral policies are as effective as race-conscious policies in achieving equal opportunity.
In the 2013 Shelby County v. Holder decision, Chief Justice Roberts suggested that some of the remedies in the Voting Rights Act (its special preclearance provisions under Section 5) were no longer needed—without fully recognizing what might happen if they were to be removed. In the wake of that decision, some states wasted little time in making it harder to vote. The U.S. Commission on Civil Rights notes in its 2018 report assessing minority voting rights access:
Within two hours after the Supreme Court issued its decision in the Shelby County case, the Texas state Attorney General tweeted that the state would immediately reinstitute its strict photo ID law, which had previously been struck down by a federal court under the VRA’s prior preclearance procedures. The day after the Shelby County decision, the North Carolina General Assembly amended a pending bill to make its voter ID law stricter, and added other provisions eliminating or restricting opportunities to vote that had been beneficial to minority voters…In the post-Shelby County era, new state restrictions on voting have resulted in at least 10 final findings of Section 2 violations by federal courts, and there are other indicia of ongoing discrimination in voting in the formerly covered jurisdictions and in other states…The impact of the loss of preclearance is also evident through intervening elections in both states. In both North Carolina and Texas, multiple elections were held, during which practices were applied that federal courts determined to have been intentionally racially discriminatory and in violation of longstanding constitutional and federal law.
The 2018 report concludes, however, that this is “not just a North Carolina and Texas problem” but one in which at least 23 states enacted newly restrictive laws after the decision in Shelby County was handed down. That doesn’t even tell the full story, however, as that report predated a wave of additional voter suppression and subversion laws that were passed in at least 21 states after former President Donald Trump knowingly made false and repeated allegations about election fraud in the 2020 presidential election.
A similarly strong rebuttal can be made to claims that consideration of race is not needed in selective college admissions. This has been disproven by a quarter century of state-level bans on affirmative action. For example, after California’s passage of Proposition 209 banning affirmative action, the University of California has poured over half a billion dollars into outreach to underserved students such as those who are low-income or the first in their families to go to college. However, it has not been able to achieve equitable outcomes.
At one of its most selective institutions—University of California, Berkeley—African American students made up less than 3 percent of the freshman class in 2019, compared to more than 6 percent before Proposition 209, according to the University of California’s amicus brief in the college admissions cases currently before the Supreme Court. Only 0.37 percent were Native American, which translated into 24 Native Americans in the class of over 6,400. Latino students made up 15 percent of their entering class, compared to the more than half of California high school graduates who are Latino.
While the court has not permitted specific demographic targets in admissions, University of California leaders noted that the court has recognized universities’ interest in preparing students for the workforce and society. And the fact that levels of admissions for Latino, Black, and Native American students are so low significantly undercut the educational benefits of diversity. Indeed, this mismatch is such that fewer than 4 in 10 Latino students at Berkeley feel that their race or ethnicity is respected, and fewer than half feel like they belong, according to a campus survey.
Researchers have begun to identify the long-term reverberations of distorting the admissions practices of the universities that play an enormous role in shaping leaders of the future. One study found that, in the wake of Proposition 209, fewer underrepresented minority students who had applied to the University of California earned bachelor’s degrees and graduate degrees, and that their average wages were 5 percent lower between ages 24 and 34 than they would have otherwise been.
Simply put, a fair and impartial Supreme Court that is plainly reading the language and intent of the 14th and 15th amendments—and striving to create a stable legal system that is built on precedent—cannot simply read race out of American law. Prohibiting race-conscious policies is illogical, ahistorical, and unfounded. Doing so could only be driven by brazen ideological aims.
More importantly, the consequences for people of color and for our nation as a whole would be dire. The vital protections added to the Constitution and our laws in the wake of the Civil War and at the height of the civil rights movement would be swept aside. Elections would be far less free and fair, with a dangerous and corrosive effect on our democracy at a particularly fragile time. And the promise of the equality of opportunity would be diminished, leaving too many of our children’s talents wasted needlessly and our economy worse off because of it. Our society cannot simply ignore or censor out race from policymaking if we truly hope to confront the blight of racial discrimination and build equal opportunity for all Americans.
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Nicole Lee Ndumele
Former Senior Vice President, Rights and Justice
Senior Vice President, Structural Reform and Governance; Senior Fellow
Racial Equity and Justice
We promote systemic reforms to dismantle structural racial injustices, give everyone an equal opportunity to thrive, and ensure society benefits from our nation’s diversity.