Colorblind Constitution

By Jason Lim

It is only appropriate to quote from the American Declaration of Independence for a column

This passage takes on an added meaning today in light of last week's Supreme Court ruling against Harvard and the University of North Carolina that overturned affirmative action by finding that these schools' use of race-conscious admission policies went against the Equal Protection Clause of the 14th Amendment. Justice Clarence Thomas called this decision a "defense of the colorblind Constitution" in order to clarify that "all forms of discrimination based on race ― including so-called affirmative action ― are prohibited under the Constitution."

The Supreme Court found Harvard and UNC de facto discriminated against Asian Americans by implementing an admissions decision process that favored Blacks and Hispanic applicants over Asians in order to increase diversity that would conceivably lead to a more robust exchange of ideas and result in a better educational experience for the students. That argument won the day in the 2003 decision in Grutter v. Bollinger whereby the court upheld the University of Michigan Law School's consideration of race "as one factor among many, in an effort to assemble a student body that is diverse in ways broader than race."

However, in 2023, Chief Justice John Roberts wrote in his majority opinion that the schools' stated goals ― such as "training future leaders in the public and private sector" and "promoting the robust exchange of ideas" ― are too vague for courts to measure. They are not measurable, and there is no end date. Then, he poses the question, "Even if these goals could somehow be measured, how is a court to know when they have been reached, and when the perilous remedy of racial preferences may cease?"

In fact, Roberts submitted a more fundamental assertion back in 2007 in the case Parents Involved v. Seattle, where the court struck down a Seattle plan focused on desegregating schools. Roberts wrote, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

Ultimately, this boils down to the simple question of "What's fair and to whom?" In a way, "to whom" is actually the more important question because it determines what's fair.

What Harvard did wasn't fair to Asian American students who had to excel in every facet of their application ― including grades, extracurricular activities, sports, tests, etc. ― far more than Black and Hispanic students who were offered admissions over them. What Harvard did to advantage the legacies, children of the donors and athletes wasn't fair because this group of applicants was mostly white, and their admittance took away the opportunity from other more qualified candidates, namely Asians.

On the other hand, what happened to Blacks in the history of America is certainly not fair. What a weak word to describe the horrendous crime against humanity that they suffered. No reasonable person can argue that the hundreds of years of slavery and state-sponsored discrimination against Blacks in the U.S. have no impact or lingering resonance in the lives and opportunities of today's Blacks in America. Recognizing this, Affirmative Action was meant to redress the disadvantages associated with past and present discrimination so as to create an environment whereby Blacks can rightfully exercise their pursuit of Happiness.

In that sense, giving a Black candidate a leg up in the admissions process to Harvard based on his or her race is fair. But to that Asian applicant who was not admitted because of his or her race, it isn't fair. So, this case essentially became an evaluation of whose "fairness" the court values more as society changes.

Add to that the recognition that college admission, especially to the prestigious ones that directly translate into wealth, status and opportunities, is a zero-sum game where you win at the expense of another. This is exactly the argument that Justice Samuel Alito made during last October's oral argument when he said, "Suppose you have a race. If one of the two runners gets to start five yards closer to the finish line, he said, "the one who doesn't get that plus factor is disadvantaged, right?"

In a sense, this judgment tracks how the American notion about race and fairness is evolving in today's America where (as of 2020) 50 percent of U.S. children are White, non-Hispanic; 26 percent are Hispanic; 14 percent are Black, non-Hispanic; 5 percent are Asian, non-Hispanic; and 5 percent are non-Hispanic "All other races." Coming out of this case and as a natural end state of the ongoing shift of mainstream narrative about American society, the much bigger question that the country will face in the coming years is whether "race" is still viable or useful as a label for classifying and balancing her diverse citizens' respective interests and wellbeing in the midst of the heightened zero-sum socioeconomic environment that we find ourselves in. If not race, then what?

Jason Lim (jasonlim@msn.com) is a Washington, D.C.-based expert on innovation, leadership and organizational culture.