In 1964, the year of the landmark 1964 Civil Rights Act, the United States Supreme Court condemned racial designations on ballots required by a Louisiana law for encouraging divisive racial bloc voting. The Court elaborated in Anderson v. Martin (1964): “Louisiana may not bar Negro citizens from offering themselves as candidates for public office, nor can it encourage its citizens to vote for a candidate solely on account of race. [citation omitted]. And that which cannot be done by express statutory prohibition cannot be done by indirection…Race is the factor upon which the statute operates, and its involvement promotes the ultimate discrimination, which is sufficient to make it invalid.”
The underlying idea of Anderson v. Martin and the Civil Rights Act was that qualifications for electoral office, employment, or otherwise should be color-blind. If that standard were to be violated, the victim should be made whole by a remedy that places him or her in the position that would have been occupied absent the racial discrimination. Justice John Marshall Harlan wrote in his magnificent dissent in Plessy v. Ferguson (1896): “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. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guarantied by the supreme law of the land are involved.”
But tribalism never sleeps. There soon emerged a clamor for racial quotas or preferences for minorities that would benefit persons unhandicapped by past discrimination at the expense of persons equally situated but sporting a different race. There was no moral justification for such differential treatment of individuals exhibiting equal accomplishments and character. It was politically expedient—even if contradictory to Martin Luther King’s famous “I have a dream” address at the Lincoln Memorial in August 1963: “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.”
The United States Supreme Court nixed hard racial quotas, but approved making birth into a minority race a “plus” factor in school admissions, employment, or contracting. The magnitude of the “plus” was left infinitely opaque anywhere from featherweight to heavyweight. In application, racial preferences meant quotas by other means. The Court voiced scruples about what it had done in Grutter v. Bollinger (2003): “[R]ace-conscious admissions policies must be limited in time. This requirement reflects that racial classifications, however compelling their goals, are potentially so dangerous that they may be employed no more broadly than the interest demands. Enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle.” The Court added, “We expect 25 years from now the use of racial preferences will no longer be necessary to further the interest [in student body diversity] approved today.”
Twenty years have elapsed since Grutter, and an end of racial preferences is nowhere in sight. As President Ronald Reagan observed, “Nothing lasts longer than a temporary government program.” United States District Judge Reggie Walton delivered a speech recently defending racial preferences based on his personal experience. He was arrested three times for juvenile delinquency, twice fairly he admitted. His LSAT score was poor. Juvenile delinquency combined with poor LSAT scores afflict all races, not just blacks. They might justify admissions or employment preferences without reference to race. Judge Walton gained admission to Howard University Law School under a Council on Legal Education Opportunity program extended to black applicants. He gained a law degree and spent a career in public service as a public defender, federal prosecutor, deputy drug czar, and highly regarded judge, now on senior status.
Judge Walton worried that if racial preferences end, “the doors of opportunity for young Black guys like me or young Black women may not be available.” The worry is contrived. Nothing in the Constitution prohibits government preferences for persons who have overcome hardships, disadvantage, or stumbles. Preferences for orphans or individuals raised by a single parent, in a low-income household, or with no books in the home are unobjectionable and race neutral.
Racial distinctions are uniquely incendiary in the Untied States because they provoked the Civil War and gave birth to the Civil War Amendments. The Supreme Court will assuredly end the nation’s 50 year experiment with racial preferences in the twin pending cases of SFFA v. Harvard and SFFA v. University of North Carolina by the end of its October 2022 Term in June. A constitutional amendment could override those decisions and reinstate racial preferences like the Fourteenth Amendment overturned the odious Dred Scott v. Sanford (1957) precedent concerning black citizenship. But I do not think an amendment will even be proposed because the moral case for racial preferences is so anemic.