Op-Ed: Supreme Court’s affirmative action decision elevates principle over preferences



The U.S. Supreme Court’s decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College demonstrates why it is essential for courts to base their rulings on principles, not circumstances.

The decades-long debate over affirmative action policies in the United States has been consistently distorted by consequentialist arguments – claims that the policies are justified because of their expected outcomes, regardless of whether they obey the Constitution and respect our individual rights.

The general tenor of the discussion has been that these laws and policies are justified because the good outweighs the bad. If they violate people’s rights, that’s a small price to pay for those benefits, we are told.

That sentiment may be laudable, but it opens the door to injustice. Small violations of individual rights are perhaps easily dismissed as annoyances. Efforts to draw the line between justifiable inconveniences and unjustified oppression are fraught with anguish, however, because people naturally differ in their assessments of the benefits and costs of government schemes to promote equality. They also differ greatly in how the policies affect them.

The underlying problem is that these assessments are based on preferences, which vary, and not on principles, which are fixed. Consequentialist arguments are a crucial tool in the elevation of preference over principle.

Associate Justice Ketanji Brown Jackson’s dissent in the Harvard case is a good example. Jackson ferociously castigates the majority justices for tyrannically preventing the good people of Harvard University and the University of North Carolina (UNC) from using taxpayer money to support admission of students of one color rather than another.

“With let-them-eat-cake obliviousness, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat. But deeming race irrelevant in law does not make it so in life,” Jackson stated.

Jackson is factually correct in that second sentence. The Court’s acknowledgment of the fundamental truth that race is and must be “irrelevant in law” will not remove all differences in circumstances among races. The latter is not a proper goal of law, however, and it is a thoroughly destructive maxim for courts to pursue.

Jackson wants governments to equalize the conditions of various groups of people. That goal requires the government to treat people unequally, via policies of forced discrimination. The road to equality thus requires a long detour through the land of inequality. Jackson’s position is obviously incoherent.

The Fourteenth Amendment explicitly established “the view adopted in the Court’s opinion today, requiring ‘the absolute equality of all citizens’ under the law,” Justice Clarence Thomas notes in his lengthy concurring opinion in the Harvard case. If an individual or institution accepts government support, it becomes an instrument of government and is subject to constitutional limits. Harvard, as a private enterprise, has a natural right to choose whomever it likes for admission on any basis whatever. The government, by contrast, must be colorblind, and institutions that accept its benefits must agree to that limitation.

Harvard could certainly afford to do without taxpayer money. The university has an endowment of $53 billion, more than the gross domestic product of many countries. What Harvard wants, and what the courts have decreed for decades, is for the government to require every other college and university to do what Harvard wants, and to use taxpayer money to lure them all into a scheme to make that happen. It involves using the force of government to impose a severe financial hardship on any competitor who might gain an advantage by not accepting the same restrictions Harvard chooses to adopt.

That system has enabled Harvard to shine as an example of altruism while ensuring it can still have the most talented student body possible. Affirmative action in college admissions is a scheme to benefit elite institutions and inhibit competition. The use of taxpayer money and government power to support such an arrangement is unjust.

The reduction of economic and social inequality is surely a desirable goal in many places at many times, but it is never a justification for unequal treatment under the law. Thomas’s concurring opinion foregrounds that principle. The defenses of affirmative action in the Harvard and UNC cases, by contrast, exemplify how arguments based on consequences unleash unequal treatment under the law and create intractable disputes over such laws’ widely different effects on various parties.

Equal treatment under the law cannot mean anything if it does not mean equal treatment under the law. That means the laws cannot favor one person over another under any circumstances whatsoever. The Harvard decision is a serious defense of equality under the law, and the principled reasoning in Thomas’s concurring opinion should be the Court’s guide for the future in all cases involving government action.

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