Evading a Race-Conscious Constitution
U of Penn Law School, Public Law Research Paper No. 09, 2023
University of Pennsylvania Journal of Constitutional Law Online, Vol. 25, 2022
17 Pages Posted: 9 Mar 2023
Date Written: March 7, 2023
The idea of a “colorblind” Constitution is front and center in cases before the Supreme Court this term, including Students for Fair Admissions v. President & Fellows of Harvard College, and Students for Fair Admissions v. University of North Carolina (UNC). In these cases, the same plaintiff organization, Students for Fair Admissions (SFFA), has asked the Supreme Court to rule that the Equal Protection Clause and Title VI of the Civil Rights Act of 1964 prohibit universities from considering race as one of many factors in admissions to pursue the educational benefits that flow from diversity. In support of this argument, SFFA invokes the Supreme Court’s landmark decision in Brown v. Board of Education of Topeka to support its colorblind approach. This essay argues that SFFA’s reliance on Brown ignores the role of courts enforcing desegregation in the face of white resistance through the use of racial classifications. Brown and its progeny thus made clear that racial classifications are a necessary remedy for addressing racial discrimination in K-12 public education. Moreover, while SFFA and other conservative plaintiff organizations claim to be opposed to the use of racial classifications—and not the broader goal of pursuing racial diversity and equity in education—these same organizations are simultaneously opposing attempts to pursue diversity and equity through race-neutral means in K-12 education, demonstrating a broader agenda of maintaining the existing racial hierarchy and segregation in schools, while relying on the formal legal principle of colorblindness.
Keywords: Racial segregation, school desegregation, integration, diversity, institutional racism, racial equity, civil rights, discrimination, Brown v. Board of Education, affirmative action, college admissions, Supreme Court of the United States, SCOTUS, race consciousness, colorblindness
Suggested Citation: Suggested Citation