Dreadful facts, debatable law doomed affirmative action

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There's an old saying in the legal profession: Bad facts make bad law. Courts and lawmakers will often react to extreme facts in unhelpful ways, by fashioning rules that are difficult or unjust to apply in more normal circumstances. The war on drugs, for example, has spawned a host of legal overreactions that have diminished American civil liberties. A perceived crisis can empower a draconian response.

Sometimes, however, bad facts highlight the need for better law. On Thursday, the Supreme Court ruled that, in the case of college admissions, the bad facts of racial discrimination created the necessity of a new standard. The defendant, Harvard University, had repeatedly undermined its own case for race-conscious affirmative action, and the court's new precedent outlaws racial discrimination in admissions while still preserving the state's ability to respond to the legacy of past injustice.

To understand why Harvard lost — and why race-based affirmative action in public colleges and federally funded private schools is now unlawful — it's necessary to understand two key facts about the case. First, the evidence is overwhelming that Harvard actively discriminated against Asian applicants. As Chief Justice John Roberts noted in his majority opinion, a Black student in the fourth-lowest academic decile had a higher chance of admission to Harvard than an Asian student in the top decile.

This discrimination wasn't unique to Harvard. As Roberts makes clear, the University of North Carolina — which was a defendant in a separate case about its admissions process — also imposed dramatically tougher admission standards on Asian students. Compounding the injustice, Asian Americans were already historically marginalized. As Justice Clarence Thomas details in his concurrence, "Asian Americans can hardly be described as the beneficiaries of historical racial advantages."

There is no American population that should face discrimination because of its race. But it's particularly unjust to target a community for discriminatory treatment that's been targeted for so much of American history. Asian Americans faced immigration restrictions and segregation. The U.S. government even interned many of its Japanese American citizens in government camps during World War II.

These advantages "undoubtedly benefit white and wealthy applicants the most," Gorsuch writes, and perpetuate a system in which Harvard both favored certain classes of predominantly white applicants and discriminated against Asians, a historically disadvantaged minority. These were dreadful facts to defend in court.

Where does this leave the law? The top-line answer is simple, but the consequences are complicated. The court struck down the use of race as a factor in college admissions, but it left in place a number of alternative admissions measures that can both increase diversity and address real injustice. First, as Thomas explains, "Even today, nothing prevents the States from according an admissions preference to identified victims of discrimination." In such a case, the preference is related to a specific injustice.

Thomas provided additional examples of acceptable preferences: "If an applicant has less financial means (because of generational inheritance or otherwise), then surely a university may take that into account. If an applicant has medical struggles or a family member with medical concerns, a university may consider that too. What it cannot do is use the applicant's skin color as a heuristic."

Again, these are all individualized determinations, but those individualized determinations would still have systemic effects. As Justice Ketanji Brown Jackson eloquently argued in her dissent, "Gulf-sized race-based gaps exist with respect to the health, wealth and well-being of American citizens. They were created in the distant past, but have indisputably been passed down to the present day through the generations." She is exactly right, but those gulf-sized gaps can be addressed with race-neutral policies targeted at wealth, income and in some circumstances health.

In other words, because of past injustice, race-neutral policies can have race-disproportionate outcomes without engaging in invidious discrimination against innocent applicants. To treat all economically disadvantaged kids the same, regardless of race, results in both systemic change — Black and Latino youths would benefit disproportionately — and individual fairness. Moreover, by preserving the ability to consider specific accounts of racial discrimination, schools retain the ability to provide advantages to people who've confronted concrete acts of racial injustice.

The consequences of the Supreme Court's Harvard decision will reverberate throughout American law. There is no longer any such thing as "good" racial discrimination. There can be redress for actual discriminatory acts, but the idea that race by itself can be utilized as a proxy for achieving social progress is now almost certainly wiped away. Programs designed specifically around the race of the participants are going to face renewed scrutiny.

Dating from the first university affirmative action case — the Supreme Court's 1978 decision in University of California v. Bakke — colleges had more than 40 years to fashion benign or benevolent schemes of racial classification. Yet Harvard and UNC both demonstrate that even supposedly benevolent discrimination can look quite malevolent to applicants, in this case Asians in particular, who faced negative double standards because of their race.

No one doubts America's dark history of racial discrimination. No one credibly doubts that racial discrimination continues to this day. But universities can respond to the legacy and reality of discrimination without creating new racial classifications and inflicting new racial harms on a new generation of Americans. There are better ways to achieve justice and fairness than by discriminating against any person because of the color of their skin.