One of the more interesting, but less reported, aspects of the Supreme Court’s decision in the landmark affirmative action case Students for Fair Admissions v. Harvard was its criticism of universities’ racial categories in admissions policies.
That critique opens a new way to challenge racial discrimination in court. Lawyers and litigants who care about racial equality should take full advantage of it.
The high court’s perspective on racial categories arose out of what is known among lawyers as “the diversity rationale,” which comes from a 1978 opinion by Justice Lewis Powell.
Subsequently adopted by a majority of the court, it holds that colleges had some latitude to discriminate on the basis of race to achieve “genuine diversity” on campus.
Genuine diversity means diversity of thought, culture, experience, religion, philosophy, and so on. The Supreme Court and colleges such as Harvard University and the University of North Carolina assumed that racial diversity was a good proxy for genuine diversity.
The thinking went something like this: Most people of a particular race share the same or similar experiences, thoughts, religions, and philosophies, so if colleges racially balance their student bodies, they’ll guarantee genuine diversity in their student bodies.
For about 45 years, the assumption that race was a good proxy for diversity was considered gospel among college administrators and judges. In fact, to hear proponents of racial preferences talk about diversity, it often sounds like race is diversity. Yet few judges and fewer college administrators stopped to ask if that claim was true.
That changed in Students for Fair Admissions v. Harvard.
The Supreme Court asked: What, exactly, is the relationship between the racial categories we think we’re familiar with (which are defined by the federal government) and diversity?
The high court found there was no relationship at all, ruling that the categories are “imprecise,” “opaque,” “overbroad,” “arbitrary,” “underinclusive,” and without a “meaningful connection between the means they employ and the goals they pursue.”
Consider who is included in each category. “White” includes people from Italy, Norway, Algeria, Israel, Iran, and Afghanistan. “Asian” includes 60% of the world’s population and groups together those from Pakistan, Indian, China, Japan, Korea, and Indonesia.
“Hispanic” includes anyone who comes from a country once colonized by Spain (but not Portugal). And “black” includes dark-skinned people from Africa but not from other places, such as Australia and Melanesia.
Under these categories, an Israeli Jew provides the same contribution to diversity as an Iranian Muslim and a Swedish Christian. A Chinese farmer provides the same diversity as an Indian computer scientist. A Spanish monarchist provides the same diversity as a Venezuelan socialist.
And a wealthy African immigrant provides the same diversity as a poor black person from Harlem. An aboriginal Australian fits in no category, and so provides no diversity at all.
Each of those claims is patently absurd, of course, but if race is diversity, those are the conclusions that follow.
It seems astonishing to think that 2023 was the first time a majority of the Supreme Court recognized the arbitrariness of America’s racial categories. Informed observers, notably former slave-turned-author and abolitionist Frederick Douglass, have been criticizing our categories since at least 1867.
But now that the Supreme Court finally has gotten around to recognizing the obvious, it has opened a new way of attacking racial discrimination in all sorts of contexts. This is so because what the court recognized in the context of diversity is not limited to that context.
Put simply, if America’s racial categories are bad proxies for diversity, they may be bad proxies for other things too. And now, courts must consider that question.
Consider a common sort of case, one that challenges preferences for certain racial groups in government contracting. The logic behind them goes like this: The government has discriminated against people from certain racial groups in the past, so it must now give people from those groups a remedial preference.
In one such case that went to the Supreme Court, the city of Richmond, Virginia, gave a preference, among other minority groups, to black and Aleutian contractors. The preference purported to remedy historical discrimination against black contractors, but the court struck it down because there was no evidence of such discrimination against black contractors.
As for Aleutians, the court was at a total loss as to why a hypothetical black victim of discrimination should have to “share this ‘remedial relief’ with an Aleut citizen who moves to Richmond tomorrow.” The court found the preference unlawful because it purported to give a remedy to a group who hadn’t suffered any harm.
This logic applies equally on two levels—the individual as well as the group. Thus, if some of the black contractors in Richmond today are also recent arrivals who never suffered discrimination, they aren’t entitled to the remedy even though they too are black.
With a growing population of African immigrants, an increasingly mobile population, and increasing rates of interracial marriage producing multiracial children, the odds that our categories don’t group together those who are actually alike in relevant ways are high and rising.
This arbitrariness within racial categories is, after Students for Fair Admissions v. Harvard, a live issue for litigants to raise. One court already has struck down a contracting preference in part on this basis, and it cited Students for Fair Admissions.
Make no mistake, however, in thinking that this newfound focus on the arbitrariness of racial categories marks some novel shift in the doctrine of equal protection.
There is an argument (made here) that the doctrine always has required courts to consider the arbitrariness of categories; courts just haven’t been doing it because they didn’t realize how arbitrary America’s categories actually are.
The upshot of all of this is that lawyers challenging racial categories have a powerful new arrow in their quiver. Powerful not only because it comes from the Supreme Court’s latest decision, but also because it has a well-established foundation in very old doctrine.
If lawyers use it, then Students for Fair Admissions may mark not only the beginning of the end of racial preferences in university admissions, but the beginning of the end of racial preferences everywhere.
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