Within a few months, it’s likely that the Supreme Court will eliminate the explicit consideration of race in college and university admissions in the consolidated cases of SFFA v. Harvard and SFFA v. UNC. This is a big deal, and should be celebrated, if for no other reason than it pushes the law in the right direction. At the same time, while listening to the oral arguments, I got a sinking feeling that the coming decision may have certain unintended consequences as a result of not going far enough. This could lead to institutions that are less explicitly conscious of race, but more left-wing and less meritocratic due to a desire to indirectly take it into account. If this is the end result of SFFA, it will be the latest in a long line of Supreme Court decisions that sought to push back race- and gender-based governance while only making it stronger. In order to get around this problem, the Supreme Court should make clear that attempts to achieve a racially balanced student body are themselves in violation of the Civil Rights Act and the Equal Protection Clause.
Imagine that there was a Southern municipality with a history of discriminating against black people. It is taken to court, at which point a judge decrees that while the city cannot simply refuse to hire blacks, it’s fine for it to only recruit from white areas in hopes of achieving a certain demographic composition of its workforce. This would never be accepted. The principle of disparate impact of course goes much furtherthan this — practices that have the effect of excluding racial minorities from a job or other kind of benefit can be prohibited regardless of the intent of the accused.