America’s colleges and universities have a dirty open secret: they have never given Black people an equal chance to succeed.1
There was never anything wrong with affirmative action.2 There was never anything wrong with colleges and universities recognizing their own race discrimination, and other forms of discrimination, and taking small steps to include those previously excluded. The remedy for exclusion is inclusion. Affirmative action offered the beginnings of inclusion, even if it consisted only of small steps relative to the harm caused by long-time exclusion. Affirmative action was, and remains, the morally correct thing to do.3
In its affirmative action jurisprudence, a majority of the Supreme Court has never been willing to engage seriously with the history of discrimination against Black people. After Brown v. Board of Education, and during the 1960s, many educational institutions began recognizing their own roles in discriminating against Black and Latino students. As a partial remedy, many colleges and universities began to admit small numbers of Black and Latino students. Their principal motive was to provide a small measure of remedy for their own histories of race discrimination and the race discrimination of other like institutions. These institutions understood the simple proposition that the remedy for exclusion is inclusion.
Since the Bakke decision, the most powerful justification for affirmative action—to remedy the anti-Black discrimination engaged in by most educational institutions—has gone by the wayside. Instead, the Court has required universities to defend their affirmative action programs based on the “educational benefits of diversity.” The problem here is that the Court has ignored the most powerful justification for affirmative action in favor of a truly “amorphous,” difficult to prove, and weaker justification.
Turning to Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA), the Court now rejects the “educational benefits of diversity” as a compelling, narrowly tailored justification for affirmative action. In SFFA, Chief Justice Roberts describes Harvard’s carefully constructed affirmative action program as toxic race discrimination or “reverse discrimination” against Asian students and unidentified white students. And he asserts that the Constitution demands “colorblindness,” a concept wrested from Justice Harlan’s dissent in Plessy v. Ferguson. According to Roberts, colorblindness requires rejecting the possibility of using race as one element among many in making admissions decisions. The majority’s description of racial history and racial discrimination are superficial and uninformed, at best.4
The Court continues to ignore history, and this ignorance facilitates its decision. In this essay, I discuss the difference history makes in evaluating the Court’s reasons for striking down affirmative action. First, I present a brief history of educational discrimination against Black students. I then use this and other historical evidence to debunk the idea that affirmative action constitutes race discrimination or reverse discrimination. Finally, I evaluate critically the majority’s use of the concept of “colorblindness” by examining what Justice Harlan meant by the term in Plessy.
I. A BRIEF HISTORY OF EDUCATIONAL DISCRIMINATION AGAINST BLACKS
In the United States, this history extends back to the seventeenth century, when colonists enacted restrictions on teaching enslaved people to read and write.5 The history of educational deprivation is intertwined with the long history of economic exploitation and abuse of enslaved and formerly enslaved Black people.6 Most educational institutions in the United States, for most of United States history, discriminated against Black students by denying them admission altogether or by admitting only token numbers of Blacks. In the South, Jim Crow led to well-funded colleges and universities exclusively for white students and small, underfunded historically Black institutions for Black students.7 “Southern colleges, virtually without exception, barred black students from attending, and the situation was only marginally better in elite northern colleges.”8
Northern institutions, too, were mostly closed to Black students. Harvard, for example, admitted only a handful of Black students at most.9 The University of Pennsylvania, the most inclusive Ivy League institution at the time, admitted only forty-six Black students among nine thousand students, about one-half of one percent.10 Among elite universities, Princeton was the worst because of its “systematic policy of excluding blacks.”11 A 1942 survey found that sixty-two percent of Princeton students opposed admitting Black students, while thirty-eight percent favored admission or were neutral. One-third of the students who did not oppose admitting Black students wanted to impose limitations on them, including “dormitory segregation, exclusion from the eating clubs, the imposition of higher standards than those used for whites, and definite quotas.”12
The national failure to provide education for Black students had stark consequences. In 1934, there were only 1,230 Black lawyers, while 159,375 lawyers were white.13 A 1947 federal report concluded that only 75,000 Black students of 2.3 million students were engaged in higher education. “Of these, approximately 85 percent were enrolled in segregated institutions.”14 The report found similar racial disparities in years of education attained and completion of seventh grade.15
It is worth remembering Charles Hamilton Houston’s and the NAACP’s campaign of litigation that attempted to gain admission for single Black students to white institutions of higher education. The plaintiffs were Lloyd Gaines,16 Lois Sipuel,17 George McLaurin,18 and Heman Sweatt.19 At the time, Black students could attend only one of forty-one law schools, one of thirty medical schools, and none of thirty-six engineering schools.20
The NAACP’s campaign culminated in Brown v. Board of Education,21 in which the Court found that “separate but equal” in education violated equal protection and was therefore unconstitutional. Notwithstanding the Court’s salutary decision, most white people were unwilling to share their well-funded schools with Black students. Attempts to integrate schools were met with white parents and mobs rioting. It took well-armed federal troops to quell rioters and to begin to integrate Central High School in Little Rock, Arkansas, and to begin to integrate the University of Mississippi. Author Adam Harris provides a succinct summary of the situation: “Black people have had to fight to get into institutions with white students, so that they might be afforded the same resources as white students. When they tried to enroll, the government fought back as hard as it could in courtrooms and on campuses to prevent them from doing so.”22
Several factors triggered the beginnings of desegregation at different schools.23 The NAACP’s litigation campaign against segregation played a role. The declaration in Brown v. Board that segregated education was unconstitutional played some role. Other factors, such as the achievements of the movement for Black civil rights and the murder of Dr. Martin Luther King Jr., also played roles in motivating the desegregation of higher education.24
Unsurprisingly, medical schools of the time were just as segregated as the rest of higher education. In 1968, there were just 783 Black medical students in the entire United States.25 Seventy percent of them attended medical school at historically black institutions such as Howard University and Meharry Medical College.26
The University of California, Davis opened its medical school in 1966 and had an entirely white inaugural class in 1968. The medical school staff was aware of the legacy of past discrimination in education. The institution decided it needed to do something more. Accordingly, the medical school adopted an affirmative action program to “enhance diversity in the student body and the profession, eliminate historic barriers for medical careers for disadvantaged racial and ethnic minority groups, and increase aspiration for such careers.” Davis instituted a special admissions program in which sixteen of one hundred seats in the medical school class were set aside for students from disadvantaged backgrounds.27
This was the program attacked by Alan Bakke, a white man who claimed that unqualified minority applicants were being admitted and that a “new racial bias in favor of minorities is not a just situation.”28 His claims found a sympathetic ear among five justices in the first major affirmative action case, Bakke v. Regents of University of California.29
Justice Powell, whose partial concurrence and partial dissent in Bakke was later adopted by a majority of the Court in the Grutter30 case, largely agreed with Alan Bakke.31 Powell agreed that an affirmative action program such as UC Davis’s constituted “reverse discrimination” against white males like Bakke.32 Powell’s influential opinion ignored the history of race discrimination against Black people. He posited that the United States was a “nation of minorities,” many of whom had suffered some discrimination, and suggested that all had suffered the same.33 He discussed in detail only the discrimination suffered by white ethnic groups, with only token references to the nation’s “legacy of slavery and racial discrimination” and to the “continued exclusion of Negroes from the mainstream of American society.”34 He also ignored entirely Justice Marshall’s rich, poignant dissent, which describes the history of severe discrimination against Blacks in the United States.35
Because of the program’s allegedly discriminatory aspect, Powell concluded that it had to be analyzed using strict scrutiny, the highest standard of review reserved for racial and national origin classifications in equal protection analysis. Powell blithely dismissed the most important and most widely used justification for affirmative action: remedying past discrimination by the educational institutions themselves. He wrote that “remedying the effects of ‘societal discrimination[]’ [is] an amorphous concept of injury that may be ageless in its reach into the past.”36 Therefore, he concluded, such a remedy is not a compelling government interest. Instead, he recognized only diversity and its educational benefits as a compelling government interest.
“Amorphous” means without shape or structure, lacking detail and particularity. There is nothing “amorphous” in the history of educational discrimination against Black people. There is nothing amorphous about the University of Missouri law school rejecting Lloyd Gaines because he was Black. Or the University of Oklahoma rejecting Lois Sipuel and George McLaurin because they were Black. Or the University of Texas law school rejecting Heman Sweatt because he was Black. Or the millions of other instances of race discrimination keeping Blacks out of higher education.
Many educational institutions participated in this history of discrimination against Black students. The obvious remedy for this intentional exclusion was to begin including members of groups previously discriminated against because of their race. Notwithstanding affirmative action, the original segregated design persists today:
Higher education is organized so the institutions with the fewest minority students have the most money, the best services for students, and the highest prestige—and not merely private colleges, but public ones as well. That is not a coincidence; it is by design. From its inception, the state higher-education system we recognize today was built not on equality, or even an ethos of broad accessibility, but on training a white workforce. Black students were excluded.37
II. AFFIRMATIVE ACTION AND RACE DISCRIMINATION
The linchpin of the Court’s reasoning in SFFA is the assertion that considering race in Harvard’s affirmative action program constitutes race discrimination against Asian American applicants. In previous cases, such as Bakke, Grutter, and Fisher II, the linchpin was that affirmative action constituted arguable race discrimination against white candidates for admission.38
A lot is riding on this assertion that affirmative action constitutes race discrimination. The only reason for applying strict scrutiny to analyze affirmative action programs is the notion that these programs constitute invidious race discrimination, or “reverse discrimination” against Asians or whites. Under current law, if affirmative action is not race discrimination, then there is no basis for the Court’s application of strict scrutiny. Under the more permissive forms of scrutiny, either rational basis or intermediate scrutiny, colleges and universities would enjoy more latitude in the analysis of their admissions programs and a greater likelihood of constitutionality.
We begin with a discussion of what race discrimination is. Race discrimination, on an individual basis, can be defined as adverse action taken against someone solely because of the color of that person’s skin or other perceptible features. Virtually the entire course of American history, from its colonial origins to the present, can be described as a history of race discrimination against Blacks, Native peoples, and later Latinos and Asian Americans.39 Whites attempted to justify their practices of racial slavery and race discrimination with defamatory allegations of Black inferiority and Black unfitness for equality, with similar allegations targeted at other groups of people of color.40 These racially discriminatory and defamatory prejudices continue to be significant in our culture, in the form of racism and both conscious and implicit bias.
Race discrimination can also be identified on a group basis. In employment discrimination law, the disproportionately negative impact of an institution’s employment practices upon statutorily protected groups, such as racial groups, creates an inference that those practices are discriminatory.41 For example, suppose a large, desirable company has a workforce consisting of ninety-five percent white employees and five percent Black employees. Assuming that our company is located in a region with a well-qualified population that mirrors national demographics, that all eligible adults apply, and that the company has nondiscriminatory hiring practices, we would expect that about thirteen percent of its employees would be Black, reflecting the demographics of the region (and the nation). In our example, the company’s hiring practices have a disparate negative impact upon Black applicants. Frustrated Black applicants can bring a lawsuit under Title VII asserting that this disparate impact is evidence of discriminatory employment practices. Once the plaintiffs show such a disparate impact, the burden of proof shifts to the employer to prove a business necessity for its hiring practices.42 If the employer fails to do so, then the plaintiffs win their discrimination case.
Similar principles should apply in the context of university admissions decisions. On a group basis, if the results of an institution’s admissions process include a disproportionately negative impact upon a historically discriminated-against group, then this finding should give rise to a rebuttable presumption that the university’s admissions standards may be discriminatory. The university would then have the burden of proving the necessity for its standards.
The demographics of student-body composition at a university, therefore, are relevant and can provide some evidence of race discrimination. As noted above, Princeton’s systematic exclusion of Black students resulted in an all-white student body, with zero Black students, until the institution began integrating in the 1960s. The composition of Princeton’s student body reflected the results of its discriminatory stance.
As previously described, northern schools were not much better than statutorily segregated southern schools. Race prejudice against Blacks thrived at Princeton until the mid-1960s. One incident demonstrates the situation. Bruce Wright came from a family of very modest means. He was an excellent student and a member of his high school’s track and hockey teams. As a track athlete, he set a school record for the mile run at an invitational tournament. With assistance from his track coach, Irwin Weiss, Wright received a letter from Princeton awarding him a full scholarship to the university. His family had a great celebration, for without the scholarship, his family never could have afforded to send him there. Bruce was to be the first in his family to attend college.43
In September 1936, he arrived at the Princeton campus to register. He took his place in line and chatted with a fellow registrant. An upperclassman arrived and told him he needed to speak to the Dean of Admissions, Radcliffe Heermance. Wright, a Black man, described the experience:
[Heermance] seemed to tower over me and my bowed legs. He had a rather harsh expression on his face, I thought. He looked down upon me as though I was a disgusting laboratory specimen. He was the first man ever to address me as “mister.” “Mr. Wright,” he scowled, “Mr. Weiss never told us you were colored when your scholarship was awarded.” He then told me that when King George issued the charter of Princeton, there was no provision for racial discrimination, but that there were too many southerners at Princeton, and I would be unhappy at the university and under no circumstances could I attend.44
Wright was then escorted to meet with the Dean of the Chapel, Robert Russell Wicks. Wicks asked Wright if he was attempting to embarrass the university by engaging in a trick. Wicks concluded their conversation by stating that, even if Wright was acting in good faith, “Princeton had never had a negro student and was not likely to.”46
Wright persisted, later writing Heermance a letter asking why he had been denied admission after having been accepted.47 Heermance’s response cited Princeton’s “policy of nondiscrimination because of race” and concluded, “My personal experience would enforce my advice to any colored student that he would be happier in an environment of others of his race.”48 Wright described this incident as “one of the most destructive moments in my life.”49
Subsequently Wright applied to Notre Dame, thinking he might be treated better at a Catholic institution. He was wrong. Notre Dame rejected him because of his blackness in much the same way as Princeton. The President of Notre Dame was later quoted as saying, “The University of Notre Dame maintains today, as in the past, a policy of non-discrimination regardless of race, color or creed.” Wright eventually enrolled at Lincoln University, a historically black institution.
This is race discrimination. Being pulled out of line and informed, with hostility, by the Dean of Admissions that you are unwelcome at Princeton. Being prohibited from enrolling. Having your excellent credentials ignored. Having your good faith and integrity questioned. Being told that you need to attend an institution for “your own kind.” And, in the end, having your scholarship revoked and your hopes of attending Princeton shattered. All of this because your skin is Black.
Princeton demonstrates what race discrimination looked like in an educational setting during the segregation era: during Jim Crow and after, overt segregation and discrimination against Black students resulted in all-white or virtually all-white student bodies with zero or a token number of Black students. Such a negative disparate impact upon Black students correctly raises an inference that these institutions were discriminating because of race. In Bruce Wright’s case, such demographics were coupled with brutal treatment that humiliated him publicly, ignored his potential, and constituted “one of the most destructive moments in [his] life.”
I do not mean to suggest that race discrimination needs to be as extreme as the treatment Bruce Wright received to be recognized as race discrimination. I offer his story to illustrate how bad race discrimination in education has been in the United States and to support the idea that the demographics of an institution’s student body can provide evidence of the institution’s discriminatory admissions policies.
Contrast the experience of alleged “reverse discrimination.” Suppose a white, male applicant is turned down for admission at an elite, majority-white university. He is informed that his application has been rejected. If he asks why his application was rejected, the answer will not be “because you’re white.” In all likelihood, the university conducted a fair appraisal of his academic potential. There is no hostility toward him because of his race. He is not told he is unwelcome. He is not told that he should attend an institution for “his own kind.” He is not accused of attempting to trick the university or of bad faith. He is told simply that he didn’t get in.
And, contrary to Bruce Wright’s experience at Princeton, the institution admitted many white students other than our disappointed applicant. In most university settings, the composition of the student body will be majority or plurality white. If these institutions had admissions standards that discriminated against whites, then we would never expect to see a majority or plurality of white students on campus. Rather, we would expect to see the disproportionate impact of such standards reflected in a small number and percentage of admitted white students. There is no disproportionate negative impact upon whites of such a university’s admissions practices, which might include affirmative action. Because there is no disparate impact, there is no presumption that the university’s admissions practices are racially discriminatory against whites. In addition, white candidates are not subject to treatment that suggests their racial inferiority, subordinate status, or unfitness to attend classes with their classmates. As described by Professor Randall Kennedy, “[affirmative action] is in no way the result of an effort to humiliate, ostracize, or stigmatize whites. No one can plausibly believe that an affirmative action program signals that whites are thought to belong to an inferior race and must be kept “in their place.”50
Affirmative action does not, and never did, constitute discrimination against whites because of their race.51 The most common and well-understood reason for affirmative action is to remedy the past discrimination engaged in by most educational institutions. This past discrimination has “diminished the educational, financial and other resources that marginalized groups can call upon, and [has] thus disadvantaged them in competition with whites.”52 Affirmative action is a small way to redress these injuries by distributing opportunities more fairly.
The intention to remedy one’s own past discrimination is entirely different from an intention to exclude white applicants because of their race. As Justice Stevens, dissenting, wrote,
There is no moral or constitutional equivalence between a policy that is designed to perpetuate a caste system and one that seeks to eradicate racial subordination. Invidious discrimination is an engine of oppression, subjugating a disfavored group to enhance or maintain the power of the majority. Remedial race-based preferences reflect the opposite impulse: a desire to foster equality in society.53
Affirmative action can also be understood as a countermeasure that corrects for the current disadvantages that past discrimination has caused.55 Affirmative action is often misleadingly characterized as a “preference” for minority students who gain access to majority-white schools. In the oft-neglected footnote 43 of his opinion in Bakke, Justice Powell wrote the following:
Racial classifications in admissions conceivably could serve a fifth purpose, … [the] fair appraisal of each individual’s academic promise in the light of some cultural bias in grading or testing procedures. [If] race and ethnic background were considered only to the extent of curing established inaccuracies in predicting academic performance, it might be argued that [affirmative action] is no “preference” at all.56
Many current, race-based disadvantages interfere with the fair appraisal of Black and brown students’ academic performance. Many majority-Black or majority-brown schools are under-resourced and staffed by relatively inexperienced teachers, limiting the achievement of their students on standardized tests and other indicators of academic performance. In majority white high schools, students of color will likely be subject to implicit bias, microaggressions, stereotypes, lower teacher expectations, and negatively biased evaluations, recommendations, and guidance.57 In addition, evidence shows that a teacher’s implicit bias can negatively affect the standardized test scores students of color.58 As Devon Carbado has written, “if [B]lack students are systematically vulnerable to negative action because of race-based implicit biases and white students are not, [B]lack students and white students are not competing on equal terms.”59 Black students are also vulnerable to the psychological burden of stereotype threat, which lowers their performance on standardized tests relative to white students.60 Affirmative action, then, does not interfere with an otherwise objective, racially neutral process. Rather, affirmative action is a countermeasure that corrects for a biased process that typically downgrades a Black student’s academic performance.61
While affirmative action produces a fairer appraisal of academic performance with Black and brown students, it has little or no negative effect on Asian American students. Rather than affirmative action, the source of Harvard’s “Asian penalty” appears to have been negative action—intentional discrimination against Asian American applicants for the benefit of white applicants.62 The evidence showed that the scores of Asian American applicants were lower than the scores of white applicants on three race-neutral aspects of the admissions procedure: the personal rating, the overall score, and selection for admissions.63 Because these aspects of the admissions process were race neutral, SFFA was required to prove intentional discrimination.64 It failed to prove intentional discrimination in the district court, a finding that was upheld in the court of appeals.65
SFFA even admitted in the lower courts that affirmative action was not to blame for lower Asian American admissions. Before the trial court, in its motion for summary judgment, SFFA noted that “preferences for African-American and Hispanic applicants could not explain the disproportionately negative effect Harvard’s admission system has on Asian Americans.”66 Capitalizing on some Justices’ discomfort with and distaste for affirmative action,67 SFFA conflated the harm from negative action with the harm from Harvard’s affirmative action program, a claim that the Court’s conservatives accepted.68
So why has a majority of the Court labeled affirmative action as race discrimination against whites (in previous cases) and Asian Americans, even when it is not? In SFFA, if the Court had not used strict scrutiny to attack the affirmative action program, it would have had to use rational basis review in the absence of proof of discriminatory intent. Affirmative action programs would then be either constitutional or more difficult for the Court to invalidate.
The Court has long labeled affirmative action as “race discrimination” and has consistently applied strict scrutiny in evaluating these programs. This stance fuels the unhelpful and unhealthy idea that whites and Asian Americans are victims of race discrimination every time they are disappointed in a competitive process.69 Most of us have heard white students blame affirmative action and students of color for their failure to be admitted to highly selective schools.70 But affirmative action simply doesn’t make as much of a difference as they think it does; their scapegoating is false as well as emotionally unhealthy, leading to greater victim blaming and resentment of racial minority students.71
In addition to denying opportunities to deserving students of color, the Supreme Court has encouraged this false victimhood. Indeed, many whites perceive anti-white bias to be a bigger problem than anti-Black bias.72 This perception is totally contrary to evidence, which shows that “by nearly every metric—from employment to police treatment, loan rates to education—statistics continue to indicate drastically poorer outcomes for Black Americans compared to White Americans.”73
III. JUSTICE HARLAN’S COLORBLINDNESS
Having ignored the history of educational discrimination against Blacks and having mischaracterized affirmative action as race discrimination, the majority then implements “colorblindness” as the remedy. The source of the term “colorblindness” is Justice Harlan’s well-known dissent in Plessy v. Ferguson. Here is the most-often quoted passage from Harlan’s opinion:
But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.74
The importance of this quote, and the colorblindness concept, is evident from the number of times this language is quoted in the majority and concurring opinions in SFFA. Chief Justice Roberts’s opinion quotes Harlan’s language twice. Justice Thomas, the maven of colorblindness, quotes Harlan a whopping six times and mentions the term “colorblindness” twenty-five times in his concurring opinion! Such loyalty to the term makes it practically a mantra for the Court majority and the political right.
The SFFA majority and Justice Thomas’s dissent quote from Harlan’s dissent, but they omit the first three sentences of the paragraph containing the “colorblind” language. Here are the sentences quoted by the majority and Thomas, but including the first three sentences that begin the paragraph:
The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage, and holds fast to the principles of constitutional liberty. But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.75
Harlan’s language, touting both white supremacy and colorblindness, can be confusing. While he asserts that “our constitution is color-blind,” clearly Harlan is not. Harlan is color-conscious, not color-blind: he describes the white race as dominant, “in prestige, in achievements, in education, in wealth, and in power.”
Confusion arises because Harlan both recognizes white supremacy and describes the Constitution as color-blind. Today we understand colorblindness to be a doctrine that professes not to take color into account and so treats people equally without regard to race. Yet Harlan clearly did not mean that colorblindness means being blind to race. Indeed, quite the opposite. He brags about white supremacy in many of the most important areas of life: prestige, achievements, education, wealth, and power.
One key to understanding Harlan is to recognize that, at the time that he wrote, equality was understood to exist in separate spheres. Civil equality meant equality before the law: the law treats everyone the same without regard to racial distinctions. Political equality meant equal access to voting without regard to race. Social equality meant equality in virtually everything else, including education, prestige, and marriage.76 Our contemporary sense of “equality” is much broader than in Harlan’s time. For us, equality means all of these taken together.
During and after Reconstruction, it was possible to protect one kind of equality legally without protecting the other kinds. One could protect civil equality as part of the meaning of the Fourteenth Amendment without protecting political or social equality. This is why the Fifteenth Amendment was necessary: to protect political equality in addition to civil equality. At this time, however, the realm of social equality—the realm of education, marriage, wealth, prestige—was left largely undisturbed.
The first three sentences reflect Harlan’s observations and predictions of white supremacy in the social realm:
The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage, and holds fast to the principles of constitutional liberty.
Then Harlan made a crucial transition in the paragraph.77 Having established white supremacy in the social sphere, Harlan wrote, “But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens.” The legal sphere, that of the Constitution and “the eye of the law,” is entirely different from the social sphere.78
While Harlan was comfortable, even celebratory, with regard to the vast inequality that prevailed between whites and Blacks socially, Harlan argued forcefully that the law alone should not be unequal in the same way. The Constitution should apply to everyone equally in the civil domain: “in respect of civil rights, all citizens are equal before the law.” The law should support neither caste nor explicit race discrimination: “There is no caste here.” Accordingly, Harlan objected to the majority’s support for state separate-but-equal laws. Racially explicit segregation laws violated legal equality, and the colorblind Constitution, by allowing the state to regulate access to public spaces explicitly by race, to the detriment and humiliation of Black Americans.
At the same time, Harlan understood that enforcing civil equality did not threaten white supremacy. Nominally fair laws do nothing to change a status quo in which the white race is dominant “in prestige, in achievements, in education, in wealth, and in power.” Earlier in his opinion, Harlan described the fear that civil equality would somehow diminish social inequality between the races as an argument “scarcely worthy of consideration”79:
[S]ocial equality no more exists between two races when traveling in a passenger coach or a public highway than when members of the same races sit by each other in a street car or in the jury box, or stand or sit with each other in a political assembly, or when they use in common the streets of a city or town, or when they are in the same room for the purpose of having their names placed on the registry of voters, or when they approach the ballot box in order to exercise the high privilege of voting.80
In context, then, Harlan’s dissent celebrated white supremacy and predicted its undiminished power under the rule of law. White supremacy and social inequality were so well-entrenched that Harlan saw race-conscious segregation laws as unnecessary. Accordingly, he rebuked the majority and advocated strongly for civil equality under law, which he saw as still-unfinished business from the Reconstruction.84
Harlan was very comfortable with respect to white advantages “in prestige, in achievements, in education, in wealth, and in power.” On another occasion, a fund-raising event for the historically Black Wilberforce University, Harlan again touted white supremacy in his closing remarks:
The white race is the dominant race in this government and in the world today. But the negro is making great strides and I am unable to say how far he will go. There was a time in the history of the Anglo-Saxon race when its members were little above savages. But the race has developed wonderfully.85
Three years after Plessy, Harlan authored the opinion in Cumming v. Richmond County Board of Education.89 In that case, the Court upheld the Richmond County school board’s decision to close down, for economic reasons, Ware High School, which served sixty Black students and charged tuition of $10 per year.90 The school board used the space formerly occupied by Ware to provide education to three hundred elementary school children who did not have access to school.91 Three other high schools were available to the displaced Black students, with each school charging the same $10 tuition as Ware.92 The school board used public funds, raised through taxation, to support a high school for white girls and a coed, denominational, white high school.93 The plaintiffs, taxpayers, complained that they were denied the privilege of sending their high-school-aged children to a free school and that their tax dollars were being used to support all-white high schools to which Black students were not admitted. The Court concluded that the school board had not violated the Equal Protection Clause.94 Harlan relied on the fact that the governing regulation gave the school board discretion regarding the funding and location of high schools. Harlan wrote:
We may add that while all admit that the benefits and burdens of public taxation must be shared by citizens without discrimination against any class on account of their race, the education of people in schools maintained by state taxation is a matter belonging to the respective States, and any interference on the part of Federal authority with the management of such schools cannot be justified except in the case of a clear and unmistakable disregard of rights secured by the supreme law of the land.95
This holding, while characterized by some writers as “an enduring puzzle” or a “curious position,” is fully consistent with Harlan’s view of colorblindness.97 Manifest inequality is permissible as long as no overt race discrimination is inscribed in the law. Further evidence of Harlan’s comfort with inequality comes later in his dissent, when he commented favorably on discrimination against the Chinese: “There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race.”98
Colorblindness is merely an argument against unnecessary race-conscious segregation laws. Colorblindness is neither necessary nor mandated by the Constitution. As stated by Professor Randall Kennedy,
The Constitution does not compel color blindness and should not be seen as harboring an aspiration for color blindness. The Fourteenth Amendment directs states to offer all persons “the equal protection of the laws”—a malleable formulation that is sufficiently capacious to accommodate affirmative action.99
It is right to acknowledge Justice Harlan as the most prominent and powerful defender of Black civil rights in his time.100 Had the Court followed the advocacy of his forceful dissents in The Civil Rights Cases and Plessy, it is likely that we would enjoy greater racial equality today, since some forms of integration might have occurred sooner. Harlan has also been celebrated for his prescience in predicting, in his famed dissent, the dire consequences of the majority opinion in Plessy: that the denial of Black civil rights would put at risk the civil rights of all, and that planting the seeds of race hate in the form of segregation laws would lead to strife.101
It is easy to understand why the Court in SFFA, and many commentators, embrace some of Harlan’s words and his foresight. Yet it seems neither right nor intellectually honest to credit Harlan’s ideas and his foresight and, at the same time, omit the crucial beginning sentences in what is perhaps Harlan’s single most crucial paragraph. It is misleading to suggest, as the SFFA majority does, that colorblindness represents both a solution to its understanding of race discrimination and a step toward greater equality. It is also misleading for the majority to remove three sentences that would have invited us to reflect on the likely consequences of colorblindness.
If we are to credit Harlan’s foresight, then why strip the foresight contained in the missing three sentences from Harlan’s paragraph? On what logical basis does it make sense to celebrate Harlan’s foresight regarding the harms of statutory racism and then to ignore his foresight regarding white supremacy? Given the current state of white supremacy, it appears that Harlan’s prediction about white dominance was as correct as any of his other predictions. The fact that his actual, uncensored words might make some jurists, writers, and readers uncomfortable does not seem an adequate justification for not taking his words seriously.102
Harlan recognized white supremacy in the social realm and predicted that adherence to his notion of colorblindness would result in the continuation of white supremacy “for all time.” That insight, and foresight, makes perfect sense. A colorblind approach, as enforced in SFFA, does nothing to improve the distribution of educational and other resources to persons who have been, and continue to be, deprived of these resources.
Any truly meaningful discussion of legal colorblindness should grapple with its consequences, as predicted by Harlan. His prediction of continuing white dominance under a colorblind regime might actually enhance his already great stature based on his accurate foresight.
CONCLUSION
Brown v. Board of Education began to end the world sustained by Plessy, the world of state-supported Jim Crow racial discrimination. The Roberts Court’s decision to eliminate affirmative action in the name of anti-discrimination suggests that the Court believes that fairness is defined not as equality or even meaningful equal opportunity but rather as a state of undisturbed white supremacy.
The Court’s embrace of the diversity rationale for affirmative action steered us away from discussing the need for a remedy for our nation’s long history of race discrimination in education. But at least the focus on the diversity rationale provided a small way to offer more equal opportunities to persons historically excluded from higher education because of their race.
The Court’s decision in SFFA will probably result in fewer Black, Native, and Latino students attending prestigious institutions.103 Instead of making progress toward greater equality, the Court has forced greater inequality by ending the practice of race-based affirmative action. And the Court ended affirmative action in a particularly insidious way. The Court suggested, contrary to evidence, that the injury suffered by a disappointed white or Asian applicant because of affirmative action, though probably minimal, is the same as the present generational injuries and disadvantage caused by the long history of race discrimination against Black and brown students. The Court confuses the remedy for racism with one of racism’s most damaging results, the disproportionately low access by persons of color to higher education. The Court’s embrace of colorblindness takes us closer to Plessy and ever further away from Brown.
Notes
Adam Harris, The State Must Provide: Why America’s Colleges have Always Been Unequal—And How to Set Them Right 85 (2021).
This is not to say that affirmative action is uncomplicated or uncontroversial. I assert only that affirmative action has been a morally correct response to the educational deprivation that white people imposed upon Black people throughout American history.
See Randall Kennedy, For Discrimination: Race, Affirmative Action and the Law 11 (2013) (“Past wrongs have diminished the educational, financial and other resources that marginalized groups can call upon, and have thus disadvantaged them in competition with whites. Hence, it is not enough simply to end racial mistreatment. Reasonable efforts to rectify the negative legacy of past wrongs are also required.”); id. at 80 (“Making amends for the cruel, debilitating, racially motivated wrongs imposed upon racial minorities, particularly Blacks, over a long period is the single most compelling justification for racial affirmative action.”).
Angela Onwuachi-Willig, Roberts’s Revisions: A Narratological Reading of The Affirmative Action Cases, 137 Harv. L. Rev. 192, 194 (2023). (“Chief Justice Roberts has forced a new understanding of what the Equal Protection Clause requires in the affirmative action landscape by revising history, precedent, and reality through omissions, misstatements, and untruths. … Second, [Roberts’s reading] involve[s] a simplistic understanding of race and racism that is not grounded in the substantive realities of life for people of color.”).
M. Eugene Sirmans, The Legal Status of the Slave in South Carolina, 1670–1740, 28 J.S. Hist. 462, 471–72 (1962); Michael Byrd, “Negro Harry’s School”: A Monument to Equal Rights to Education, 90 Soc. Serv. Rev. 434, 436, 439 (2016); Antonio T. Bly, “Pretends He Can Read”: Runaways and Literacy in Colonial America, 1730–1776, 6 Early Am. Stud. 261, 272–73, 281 (2008).
Like educational deprivation, this history of economic exploitation is directly accessible and demonstrable. As just one example, the World War II–era G.I. Bill provided billions of dollars of educational and subsidized housing benefits to veterans returning from the war. The overwhelming majority of these benefits, however, went to white veterans. Black veterans were turned away from most educational institutions and received essentially no housing benefit because of the blatant racism in both the educational and banking sectors of the economy. As with other programs designed to benefit only whites, the G.I. Bill actually worsened the educational gap and wealth gap between Blacks and whites. See Juan F. Perea, Doctrines of Delusion: How the History of the G.I. Bill and Other Inconvenient Truths Undermine the Supreme Court’s Affirmative Action Jurisprudence, 75 U. Pittsburgh L. Rev. 583, 590–604 (2014); James D. Anderson, The Education of Blacks in the South, 1860–1935 28, 44 (1988).
Harris, supra note 1, at 4–5.
Meyer Weinberg, A Chance to Learn: The History of Race and Education in the United States 266 (1977).
Jerome Karabel, The Chosen: The Hidden History of Admission and Exclusion at Harvard, Yale, and Princeton 52, 236 (2005).
Id. at 130, 134.
Id. at 232.
Id. at 235.
Harris, supra note 1, at 85.
Id. at 113 (quoting Truman Commission on Higher Education report describing discrimination in higher education; see https://www.trumanlibrary.gov/library/public-papers/235/statement-president-making-public-report-commission-higher-education).
Id.
Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938).
Sipuel v. Bd. of Regents, 332 U.S. 631 (1948).
McLaurin v. Okla. State Regents, 339 U.S. 237 (1950).
Sweatt v. Painter, 339 U.S. 629 (1950).
Erwin Chemerinsky, Constitutional Law 652 (7th ed. 2024) (citing Richard Kluger, Simple Justice: The History ofBrown v. Board of Educationand Black America’s Struggle for Equality 257 (1977)).
Brown v. Bd. of Educ., 347 U.S. 483 (1954).
Harris, supra note 1.
William T. Trent, Student Affirmative Action in Higher Education: Addressing Underrepresentation, in The Racial Crises in American Higher Education 105, 109–10 (Philip G. Altbach & Kofi Lomotey eds., 1991).
Id.
Harris, supra note 1, at 171.
Id.
Harris, supra note 1, at 171–72; Joel Dreyfus & Charles Lawrence III, The Bakke Case: The Politics of Inequality (1979).
Among other factors, Bakke was significantly old for a student seeking admission to medical school, he essentially flunked his personal interview at Davis, and his application was rejected by every one of the other ten medical schools to which he applied. There were ample reasons besides affirmative action to reject his application.
Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 269–70 (1978) (discussing Bakke’s challenge to the University of California at Davis Medical School’s affirmative action program).
Grutter v. Bollinger, 539 U.S. 306, 325 (2003).
Bakke, 438 U.S. at 272–20 (Powell, J., concurring in part and dissenting in part).
Id. at 289–90.
Id. at 292.
Id. at 293–96.
Id. at 387–402 (Marshall, J., dissenting). Similarly, in SFFA, Chief Justice Roberts largely ignores the history of racial discrimination described in dissents by Justices Sotomayor and Brown Jackson.
Id. at 279, 307.
Harris, supra note 1, at 5.
Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181 (2023).
See generally Juan F. Perea et. al., Race & Races: Cases and Resources for a Diverse America (4th ed. 2022); Jennifer M. Spear, Race Matters in the Colonial South, 73 J.S. Hist. 579, 581–83 (2007); Linda Martín Alcoff, Latino/as, Asian Americans, and the Black-White Binary, 7 J. Ethics 5, 6–7, 9, 13 (2003).
See sources cited in note 39, supra; see also Heather A. O’Connell, The Impact of Slavery on Racial Inequality in Poverty in the Contemporary U.S. South, 90 Soc. Forces 713, 715, 729 (2012); Locksley Edmondson, Trans-Atlantic Slavery and the Internationalization of Race, 22 Caribbean Q. 5, 7, 8, 11 (1976).
See Griggs v. Duke Power Co., 401 U.S. 424 (1971).
Id.
Weinberg, supra note 8, at 266; Bruce Wright, Black Justice in a White World: A Memoir 31, 32–33 (1996).
Wright, supra note 43, at 34.
Id.
Id. at 35.
Karabel, supra note 9, at 233.
Id.
Wright, supra note 43, at 35.
Kennedy, supra note 3, at 110–11.
Id. at 111–12.
Id. at 11. Historically Black colleges and universities stand on an entirely different footing, since they were established to educate Black students who were systemically excluded from white institutions. See Stacy Hawkins, Reverse Integration: Centering HBCUs in the Fight for Educational Equality, 24 U. Pa. J.L. & Soc. Change 351, 356–57 (2021).
Adarand v. Peña, 515 U.S. 200, 243 (1995).
Id. at 245.
See Devon W. Carbado, Footnote 43: Recovering Justice Powell’s Anti-Preference Framing of Affirmative Action, 53 U.C. Davis L. Rev. 1117 (2019).
Bakke, 438 U.S. at 306 n.43 (Powell, J.)
See Carbado, supra note 55, at 1140–49.
See id. at 1147 & n.88.
Id. at 1148.
Id. at 1149–56.
Id. at 1162.
Jerry Kang, Negative Action Against Asian Americans: The Internal Instability of Dworkin’s Defense of Affirmative Action, 31 Harv. C.R.-C.L. L. Rev. 1, 3 (1996) (defining “negative action” as “unfavorable treatment based on race, using the treatment of Whites as a basis for comparison”).
See Jonathan P. Feingold, SFFA v. Harvard: How Affirmative Action Myths Mask White Bonus, 107 Calif. L. Rev. 707, 722 (2019); see also Vinay Harpalani, The Need for an Asian American Supreme Court Justice, 137 Harv. L. Rev. F. 23, 33 (2023) (revealing that the evidence showed that there were some stereotyped comments, and Asian Americans were rated the lowest of all groups on Harvard’s personal rating.).
Under Washington v. Davis, to establish a violation of equal protection, a plaintiff must prove that a race-neutral rule was adopted intentionally to burden a particular group. In SFFA, the Court adopted the view that standards under the Equal Protection Clause were the same for Title VI.
Harpalani, supra note 63, at 33–34.
See Feingold, supra note 63, at 725 & n.100 (quoting Plaintiff’s Memorandum of Reasons in Support of Its Motion for Summary Judgment at 13, Students for Fair Admissions, Inc., v. President & Fellows of Harvard Coll., No. 1:14-cv-14176-ADB (D. Mass. June 15, 2018)).
Grutter v. Bollinger, 539 U.S. 306, 349 (2003) (Thomas, J., dissenting); Fisher v. Univ. of Tex. at Austin, 570 U.S. 297, 315 (2013) (Thomas, J., concurring); id. at 380, 407–08 (2016) (Alito, J., dissenting); Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 320 (1978) (Powell, J.); id. at 413 (1978) (Stevens, J., concurring in part and dissenting in part); id. at 325 (1978) (Brennan, White, Marshall, and Blackmun, JJ., concurring in the judgment in part and dissenting in part).
Harpalani, supra note 63, at 31–32.
See generally Osamudia R. James, White Like Me: The Negative Impact of the Diversity Rationale on White Identity, 89 N.Y.U. L. Rev. 425 (2014); Kennedy, supra note 3, at 112–14.
See Kennedy, supra note 3, at 109–10.
See Goodwin Liu, The Causation Fallacy: Bakke and the Basic Arithmetic of Selective Admissions, 100 Mich. L. Rev. 1045 (2002) (describing “one simple statistical truth: In any admissions process where applicants greatly outnumber admittees, and where white applicants greatly outnumber minority applicants, substantial preferences for minority applicants will not significantly diminish the odds of admission facing white applicants”); Christopher K. Marshburn et al., Dominance Motivated Delusions: Whites with High Social Dominance Orientation Perceive Equal Amounts of Institutional Racism Between Blacks and Whites, 26 Grp. Processes & Intergroup Rels. 1244 (2023); Cheryl R. Kaiser et al., Diversity Initiatives and White Americans’ Perceptions of Racial Victimhood, 48 Personality & Soc. Psych. Bull. 968 (2022); Michael I. Norton & Samuel R. Sommers, Whites See Racism as a Zero-Sum Game That They Are Now Losing, 6 Persps. on Psych. Sci. 215 (2011).
See sources cited in note 71, supra.
See Norton & Sommers, supra note 71, at 215.
Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting).
Id. at 559.
Jack M. Balkin, Plessy, Brown, and Grutter: A Play in Three Acts, 26 Cardozo L. Rev. 1689, 1694–95, 1696 (“In short, the basic assumption of most of the framers and ratifiers of the Fourteenth Amendment was that all citizens were equal before the law even if they were not political or social equals. Equality before the law simply meant civil equality, nothing more. Furthermore, some citizens did not enjoy full civil rights because of their status (minors) or because they willingly surrendered those rights (married women, whose rights were merged into those of their husbands under the coverture rules).”)
Phillip Hutchinson, The Harlan Renaissance: Colorblindness and White Domination in Justice John Marshall Harlan’s Dissent in Plessy v. Ferguson, J. Afr. Am. Stud. 426, 429–30 (2015).
Id.
Plessy, 163 U.S. at 561.
Id.
See also Kennedy, supra note 3, at 151 (stating that Harlan’s principles “posed no real threat to white supremacy”).
Plessy, 163 U.S. at 560.
Balkin, supra note 76, at 1700.
Id.
For Negro’s Uplift: President Taft Pleads for Higher Education, Evening Star, Mar. 9, 1910, col. 3.
Balkin, supra note 76, at 1040 (“But Harlan’s theory of racial superiority did not, for the most part, lead him to disregard the rights of those persons whom he considered to be racially inferior.”).
Davison M. Douglas, The Surprising Role of Racial Hierarchy in the Civil Rights Jurisprudence of the First Justice John Marshall Harlan, 15 U. Penn. J. Const. L. 1037, 1040–41 (2013).
Id. at 1041–42.
Cumming v. Cnty. Bd. of Educ., 175 U.S. 528 (1899).
Id. at 532.
Id. at 544.
Id. at 533.
Id. at 542–43.
See id.; Ruth Colker, The White Supremacist Constitution, 8 Utah L. Rev. 651, 676–77 (2022).
Cumming, 175 U.S. at 545 (emphasis added).
Another interpretation is that Harlan wrote the decision in order to narrow its scope and prevent a broader decision that would support the doctrine of separate but equal. See Peter S. Canellos, The Great Dissenter: The Story of John Marshall Harlan, America’s Judicial Hero 366–67 (2021).
Hutchinson, supra note 77, at 434–35.
See generally Gabriel J. Chin, The Plessy Myth: Justice Harlan and the Chinese Cases, 82 Iowa L. Rev. 151 (1996).
Kennedy, supra note 3, at 13.
Douglas, supra note 87, at 1037–38.
See Canellos, supra note 96, at 3 (lauding “Harlan’s prescience—his ability to look over the horizon and envision … a hundred years in[to] the future”); id. at 487 (explaining that Harlan’s Plessy dissent “rings down through the centuries not because it was legally sound but because it was morally right”).
Interestingly, one of Harlan’s biographers, Peter Canellos, manages the missing three sentences similarly to the Court majority and Thomas dissent. The three sentences are entirely absent from the principal discussion of Harlan’s dissent in chapter 15 of The Great Dissenter. See, e.g., id. at 349. The only mention of these sentences is on page 3 of his book. He quotes the first sentence, “The white race deems itself to be the dominant race in this country,” omits the next two sentences, and then continues with language from later in the paragraph that suggests that Harlan disagrees with what he wrote in the first sentence. See id. at 3. Again, this presentation is misleading. The three sentences speak for themselves as a recognition of white supremacy and the likelihood of its continuation under a colorblind regime.
Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181 at 336, 362 (2022).
Author notes
The author wishes to thank Blanche Cook, Jonathan Feingold, Vinay Harpalani, Sheldon Lyke, Martha Minow, Steve Ramirez, and Jennifer Rosato Perea for helpful comments. Thanks to my superb research assistant, André Moore, Loyola University Chicago Law School class of 2025. He left no stone unturned and discovered more along the way. All errors remain mine.