Susan Shelley: Understanding the Supreme Court’s affirmative action ruling

For decades, U.S. employers and university admissions officers have wandered in a legal minefield, never fully certain whether racial discrimination is allowed, prohibited or mandatory.

It appears that the answer now is “prohibited.” On Thursday the U.S. Supreme Court struck down the race-based admissions programs at Harvard and the University of North Carolina.

The 6-3 decision in the case, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, overruled the court’s 2003 decision in Grutter v. Bollinger, in which the justices held that student body diversity is a compelling state interest that justifies the use of race in university admissions, with some limits, and not forever.

No longer. “The student must be treated based on his or her ex­periences as an individual—not on the basis of race,” the majority opinion states. “Many universities have for too long done just the oppo­site.”

Civil rights groups raged over the decision. The NAACP said the court was trying to “turn back the clock,” the League of United Latin American Citizens decried “a historic civil rights setback” and a coalition of Asian American civil rights groups complained that the court “has chosen to ignore long-standing legal precedent.”

But there’s a longer-standing precedent that Chief Justice John Roberts cited in his opinion for the court, which was joined by Justices Thomas, Alito, Gorsuch, Kavanaugh and Barrett. Before the affirmative action cases, there was Brown v. Board of Education. “In that seminal decision,” Roberts wrote, the Supreme Court “set firmly on the path of invali­dating all de jure racial discrimination by the States and Federal Government.”

Brown v. Board of Education was the landmark desegregation decision in 1954 that overruled earlier precedents to hold that racially segregated schools violated the equal protection clause of the Fourteenth Amendment.

So that’s at least three times since 1954 that precedents have been overruled on the subject of whether the Constitution does or does not allow racial discrimination: the Supreme Court rejected categories based on race in Brown, allowed them in Grutter, and rejected them again in SFFA v. Harvard.

Why has it been so unclear and subjective?

It’s because the U.S. Constitution has never actually been amended to state that “there shall be no discrimination…on account of race.”

And it wasn’t by accident. Those exact words originally appeared in the Civil Rights Bill of 1866, but the House of Representatives removed that sentence before the final vote after members voiced concerns that a court might use it to strike down racial segregation laws.

The legislative history of the 1866 law is relevant because the Fourteenth Amendment was written in part to constitutionalize it, to protect those civil rights from repeal by a future majority in Congress. But the same resistance to anti-discrimination language was evident during the drafting of the amendment. Rep. Thaddeus Stevens of Pennsylvania proposed this language in January 1866: “All laws, state or national, shall operate impartially and equally on all persons without regard to color or race.” That sentence was rejected by the drafting committee.

Justice Clarence Thomas referred to this history in his concurring opinion on Thursday. He wrote, “In April [1866], Representative Thaddeus Stevens proposed to the Joint Committee an amendment that began, ‘no discrimination shall be made by any State nor by the United States as to the civil rights of persons because of race, color, or previous condition of servitude.’”

But those words didn’t make it into the Fourteenth Amendment, either.

“Stevens’ proposal was later revised to read as follows,” Justice Thomas wrote, “‘No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.’”

That’s the language that made it into the Fourteenth Amendment. Nothing specific about racial discrimination.

This is confirmed by Justice Thomas’s citation of a 1995 Virginia Law Review article by Michael W. McConnell, who wrote of the Civil Rights Act of 1866, “Note that the bill neither forbade racial discrimination generally nor did it guarantee particular rights to all persons. Rather, it required an equality in certain specific rights.”

In 1954, the Brown v. Board of Education decision was highly controversial. Critics, including the Virginia Commission on Constitutional Government, said the court was amending, not interpreting, the Constitution. They pointed out that in the fifteen years following the ratification of the Fourteenth Amendment in 1868, state lawsuits challenging school segregation were brought in Ohio, Indiana, Nevada, California and New York, and a federal lawsuit was brought in Louisiana. They all failed.

Those were the precedents that led up to Plessy v. Ferguson, the now infamous “separate but equal” decision of 1896, overruled by the Supreme Court in 1954. “The Court finally cor­rected course in Brown v. Board of Education,” Justice Thomas wrote. And the chief justice wrote for the majority, “The conclusion reached by the Brown Court was thus un­mistakably clear: the right to a public education ‘must be made available to all on equal terms.’”

The Brown decision was written by Chief Justice Earl Warren, the former governor of California, who wrote in his 1977 memoirs that the decision “was grounded solely on the Fourteenth Amendment.” But the authors of all the earlier decisions upholding segregation could have said the same thing. So in effect, what the 1954 court said is, “Segregation? We’re not doing that anymore.”

And that’s essentially what the current Supreme Court just said about affirmative action.

Chief Justice Roberts wrote, “Universities may define their missions as they see fit. The Constitution defines ours. Courts may not license separating students on the basis of race without an exceedingly persuasive justification that is measurable and concrete enough to permit judicial review.”

That sounds like an invitation to more lawsuits that could open these issues again. Absent a constitutional amendment that bans discrimination, precedents only control until they don’t.

Write Susan@SusanShelley.com and follow her on Twitter @Susan_Shelley