The end of positive discrimination, one year later

A year ago, the Supreme Court banned universities from considering race in admissions, sparking a nationwide reassessment of the use of race in many contexts. A survey of America a year later shows the nation vacillating between racial neutrality and racial preferences.

For those hoping for a rebirth of racial neutrality, there is both good news and bad news.

First, the good. The public supports racial neutrality. The obsession with using quotas and discrimination to equalize outcomes between racial groups—often referred to by the left as “equality”—captures only a small and extreme group. Most people know, admire, trust, and love people of all races and understand intuitively that skin color and ethnicity do not determine character.

People also know that fewer and fewer of their neighbors fit the racial boxes that the government and institutions like Harvard try to force them into. More and more people are biracial, living in interracial marriages, and resisting reductionist stereotypes about how people of a particular race think and act.

The Supreme Court recognized this in perhaps the most important part of its opinion in last year’s Harvard case. America’s racial pigeonholes, it said, are “inaccurate,” “opaque,” “overbroad,” “arbitrary,” and “non-inclusive.” These pigeonholes have no “meaningful connection” to real diversity, and no meaningful connection to any other policy goal. They are pure arbitrariness.

Lower courts have applied this observation to racial preferences in other contexts and declared them invalid. If there is one thing the law will not tolerate, it is arbitrariness.

And now the bad news. Although most people support racial neutrality, the small and extreme group that does not have a lot of power. They teach at prestigious universities, run large companies, and work in government agencies. They are well positioned to exercise power and are rarely deterred from doing so.

Schools have come up with all sorts of clever ways to get around the Supreme Court’s Harvard decision, such as using proxies for race. Unfortunately, the Court has refused to stop them.

Meanwhile, the Biden administration, filled to the brim with members of this zealous little group, has made racial preferences one of its highest priorities. “This has to be a whole-of-government issue,” the president said. He is enforcing racial preferences wherever he reaches.

Congress has given him many of the tools he needs to do so. Most Democrats support Biden’s racial preferences, and most Republicans pay lip service to opposing them. Time and again, Republicans in Congress let their colleagues slip racial preferences into bills on other issues. They have made no serious efforts at reform (although some Republicans at the state level have).

Still, there is reason for hope. There is no longer a good argument that racial preferences are constitutional. Of course, any victory in the courts is a rearguard action, and of course there are not enough people fighting racial preferences in the courts. But victories are more certain than ever.

And we’ve discovered a force powerful enough to deter the bigots: money. Those who have left the nurturing environment of the Ivy League and decided to change the world from the boardrooms of the Fortune 500 cannot ignore the financial cost of their ideology. Companies have begun to eliminate unlawful racism-based programs and fire some of the bigots who staff their profit-losing diversity, equity and inclusion departments.

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Of course, the zealots working in government or universities – the ones who play with other people’s money – won’t be deterred in this way. But they could be deterred by law enforcement at the state and federal levels. Suggestions abound.

In conclusion, the Harvard case has revived the race-neutral ideal, but whether it endures will depend on whether America embraces it. That is a decision no court can make, only the people and the institutions that teach and govern them.

GianCarlo Canaparo is a senior legal fellow at the Meese Center for Legal and Judicial Studies at the Heritage Foundation.