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Ryan McMaken
Ryan McMaken is executive editor at the Mises Institute. Send him your article submissions for the Mises Wire and Power and Market, but read article guidelines first. Ryan has a bachelor’s degree in economics and a master’s degree in public policy and international relations from the University of Colorado.
The U.S. Supreme Court on Thursday rejected race-based admissions in higher education at Harvard University and the University of North Carolina at Chapel Hill (UNC). The ruling likely calls into question the legality of most race-based college admissions policies, especially at elite colleges.
In the ruling (Students for Fair Admissions v. Harvard) a majority of the justices ruled that the use of racial preferences in the admissions process at the two colleges violated the Equal Protection Clause of the Fourteenth Amendment. Federal law did not require racial preferences in admissions at the time of the ruling, but the federal government tolerated the discriminatory use of racial preferences by higher education institutions. This toleration persisted for decades in spite of the scheme’s apparent violation of federal legislation that educational institutions – among many other institutions and private businesses – cannot discriminate against applicants based on membership within any particular racial or ethnic group.
Thus, opponents of affirmative action – most of them conservatives – have fallen all over themselves to praise Thursday’s decision as a great victory. For those who hope for Supreme Court decisions that actually do something to limit federal power or protect private property, however, this decision contains little to praise. Rather, the court’s ruling this week reiterates the power of the federal government to govern virtually every institution in America in the name of fighting discrimination. Even worse is the fact that the court could have – and should have – ruled against Harvard and UNC using nothing more than Title VI of the Civil Rights Act. That would have actually limited federal power. Instead, the court took a different path designed to solidify federal power and re-assert federal prerogatives.
In other words, opponents of affirmative action have won a small skirmish for their little cause, but opponents of regime power have won nothing at all.
The Problem with the Equal Protection Clause
One of the most pernicious developments in the history of federal law was the adoption of the so-called “Equal Protection Clause” (found in the Fourteenth Amendment).
This new section of the constitution, adopted in 1868, turns the Bill of Rights on its head. The Bill of Rights, of course, was written to limit federal power only. It’s why the First Amendment begins with the phrase “Congress shall make no law…” Note there is no mention of state legislatures. It was only after the adoption of the Fourteenth Amendment that federal courts took upon themselves new powers to force every state and local government to comply with federal courts’ novel interpretations of the Bill of Rights. Known as “incorporation” this new legal doctrine ensured that the Bill of Rights functioned to expand federal power rather than limit it. As a result, the United States ceased to be a true confederation of states – as described by the Constitution as ratified in 1788 – and moved much further toward becoming a unitary state.
[Read More: “End the Incorporation Doctrine” by Ryan McMaken]
Moreover, over time, federal courts began to apply the Equal Protection Clause far beyond even the deeds of state and local governments. Legal scholar Allen Mendenhall has summed up the damage done:
the Supreme Court would later turn to the Equal Protection Clause and the Due Process Clause to strike down state laws under the Fourteenth Amendment. But the Supreme Court has not stopped at state laws: gradually it has used the Equal Protection Clause and the Due Process Clause as a pretext for regulating private citizens and businesses. The Fourteenth Amendment, which was intended to reduce discrimination, has even been used, ironically, to uphold affirmative-action programs that discriminate against certain classes of people.
Ceding power to federal judges does not predispose them to liberty. Because Section Five of the Fourteenth Amendment permits Congress to pass amendments or enact laws dealing with state infringements on individual liberty, it isn’t necessary or constitutionally sound for the federal judiciary to assume that role. Members of Congress, unlike federal judges who enjoy life tenure, are accountable to the voters in their states and are thus more likely to suffer from their infidelity to the Constitution.
Thus, it has become commonplace for federal judges to justify federal meddling in private businesses and other private institutions. Unfortunately, so-called conservative judges are no different, and they have been more than happy to preserve and expand the reach of the federal government using the Equal Protection Clause as justification.
This Is No Victory Against Federal “Anti-Discrimination” Schemes
We see this in this week’s ruling from the Supreme Court. The court’s opinion bases its ruling against the University of North Carolina and Harvard University – a state institution and a private university respectively – on the Equal Protection Clause. This is clear in the ruling as written by the ultra-establishment judge John Roberts (who also ruled in favor of Obamacare):
For the reasons provided above, the Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause … Respondents’ admissions systems – however well intentioned and implemented in good faith—… must therefore be invalidated under the Equal Protection Clause of the Fourteenth Amendment.
Remember, federal law does not mandate affirmative action at UNC or Horvard. So, to rule against these affirmative action schemes is not to rule against any federal law, nor does such a ruling limit federal law in any way. Rather, the ruling asserts that federal courts get to decide what state legislatures and the Harvard governing boards do with their property.
Of course, this won’t bother most conservative opponents of Affirmative Action, few of whom could possibly care less about abuses of federal power so long as that abuse and arbitrary power is directed against the other side. Those who have no long-term strategy against federal power – and who lack any principled position in support of private property, local control, or true federalism – will not have any problem with the court’s ruling.
The fact that the conservative wing of the court chose to double down on the Equal Protection Clause shows its centralist leanings because it could have just as easily ruled against affirmative action based on Title VI of the 1964 Civil Rights Act. Title VI states:
No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
Were Harvard University a truly private organization, it ought to be completely up to that institution as to how it chooses to admit students. Similarly, if UNC were truly a state-level institution, how the University of North Carolina conductions its admissions process ought to be a matter for people in North Carolina.
Yet, as is well known, both of these institutions have received enormous piles of federal money in recent decades. This has come both in the form of outright grants, and in the form of federal student loans which allows colleges and universities to hike prices well beyond what students could pay without those loans. When it comes to grants, the dollar amounts are impressive to say the least. In 2019, federal dollars made up 70 per cent of Harvard’s $800 million in research grants. The University of North Carolina received more than $700 million in federal research dollars in 2019.
In other words, both of these institutions are quasi-federal installations, and certainly fall under the provisions of Title VI. The fact that these institutions were using race-based admissions policies – i.e., discriminating against applicants without the “correct” demographic background – means those who pay federal tax were forced to pay for these institutions’ discriminatory practices. The whole point of Title VI is to end such abuses.
A final note: lest the reader have any lingering doubts that Roberts’ ruling is careful to not actually limit the federal government in any way, we can highlight footnote 4 on page 22:
The United States as amicus curiae contends that race-based admissions programs further compelling interests at our Nation’s military academies. No military academy is a party to these cases, however, and none of the courts below addressed the propriety of race-based admissions systems in that context. This opinion also does not address the issue, in light of the potentially distinct interests that military academies may present.
Had the court based its opinion on Title VI instead of the Equal Protection Clause, it would have been extremely difficult to deny that the military academies – which are, of course, federally funded – must cease any and all race-based preferences in admissions or any other aspect of administration. Yet, by minimizing the role of Title VI, the court found a convenient way to avoid the obvious.
Not all of the SCOTUS judges chose to strategically ignore this fact. In his concurring opinion, Justice Gorsuch, the least-bad member of the court, specifically invoked Title VI as a sufficient reason to reject race-based admissions schemes at Harvard and UNC. He writes:
Title VI bears independent force beyond the Equal Protection Clause. Nothing in it grants special deference to university administrators. Nothing in it endorses racial discrimination to any degree or for any purpose. … And no one can doubt that both schools intentionally treat some applicants worse than others at least in part because of their race.
Gorsuch concludes “Title VI of the Civil Rights Act of 1964 does not [tolerate]” the discriminatory practices used at Harvard and UNC.
In other words, the court could have ruled against affirmative action without relying on freedom-destroying provisions like the Equal Protection Clause. Had the court ruled strictly along the lines of enforcing Title VI, the court’s decision would have sent the message that the decades-old policy of shoveling federal taxpayer money to bigoted admissions officers was at an end. If the court’s conservative wing actually respected private property and true federalism it would have made it clear that – as far as federal law is concerned – institutions would still be free to discriminate as they see fit provided they receive no federal money.
But that’s not what the court did. Instead it chose to perpetuate the court’s well-established and disastrous use of the Equal Protection Clause to ensure the federal government possesses nearly untrammeled power in the name of combatting discrimination.
