Equality Under The Law Project

Discrimination is discrimination

On June 29, 2023, the United States Supreme Court decided that colleges and universities may no longer use race as a factor in admissions. This practice, commonly called “affirmative action,” was declared unconstitutional in Students for Fair Admissions v. Harvard.

The decision, however, has much broader implications: it confirms that our Constitution is “colorblind” and that governments may not treat their citizens differently based on race. The Court explained that the Constitution demands “absolute equality of all citizens.” Exceptions to this rule are exceedingly rare, reserved for situations like preserving order in a prison, or to remedy the government’s own past intentional discrimination. Governments may not use race to cure “societal discrimination,” “systemic racism,” or to advance modern-day notions of “diversity” and “equity.” In the Court’s words, “eliminating racial discrimination means eliminating all racial discrimination.”

Additionally, the Court’s broad language implicates practices outside the bounds of the Constitution—namely, private affirmative action programs or “diversity, equity, and inclusion” initiatives. Harvard, after all, is a private college and its program was evaluated under the law governing programs receiving federal financial assistance (Title VI). The Court concluded that this statute contains the same protections against discrimination as the Constitution’s Equal Protection Clause, and that Harvard’s use of race in admitting students was unlawful under that statute. Title VI contains language that is identical to or functionally similar to a variety of federal laws, including, for example, the statute prohibiting discrimination by private businesses (Title VII). The Students for Fair Admission decision, therefore, has the potential to upend not only government-sanctioned discrimination, but even race-based private conduct pursued in the name of “diversity, equity, and inclusion.” Put simply, the decision calls into question a whole panoply of race-based programs in the public and private sectors.