Race-Neutrality, Baselines, and Ideological Jujitsu After Students for Fair Admissions

Abstract

Before the Supreme Court’s 2023 ruling that equal protection and Title VI bar expressly race-based plus factors in higher education admissions, many critics of affirmative action had pointed to facially race-neutral admissions criteria (such as guaranteed college admission for high school graduates near the top of their classes) as lawful alternatives that resulted in substantial racial diversity and thus rendered expressly race-based criteria unnecessary. This Article argues that diversity’s proponents can deploy “ideological jujitsu” to re-purpose their opponents’ prior claims. It explains that there remains room in the law to distinguish benign from invidious purposes with respect to facially race-neutral practices. Nevertheless, recognizing the conservative judiciary’s potential hostility to that distinction, the Article practices ideological jujitsu by redeploying Palmer v. Thompson, 403 U.S. 217 (1971), in which the Court infamously allowed Jackson, Mississippi to close all of its public swimming pools in the face of a desegregation order. Although the Palmer Court was wrong to see the particular impact as race-neutral, it was right about one extremely important point: the correct baseline for measuring disparate impact is not whatever policy happened to precede the challenged practice. Cases involving statutory disparate impact do not provide a one-size-fits-all definition of the proper baseline, but they make clear that the racial distribution that preceded the challenged practice is not, merely in virtue of its prior use, the right one. The Article also explains that if one recognizes racially disparate stigma as the real flaw in Palmer, the argument against a status quo ante baseline does not carry with it the disturbing implication that adoption of race-neutral means to achieve invidious ends is lawful.

Keywords: equal protection, race-neutral, race-based, discrimination, antidiscrimination, affirmative action, baselines