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In theory, the Supreme Court ruled against affirmative action in Students for Fair Admissions v. Harvard. In practice, it was, like Steven Farron predicted on this website, a “catastrophe.” In essence, the Supreme Court told employers, colleges, and other institutions that want to racially discriminate against whites and Asians that they simply need to disguise their intensions a bit more. It also did nothing to challenge the idea that “diversity” is a compelling state interest that justifies abolishing the equal protection of the laws.

Of course, asking Diversity, Equity, and Inclusion (DEI) bureaucrats for subtlety is probably still too much. The Thomas Jefferson High School for Science and Technology in Fairfax, Virginia, was once a prestigious magnet school for the gifted. However, high standards for academic institutions are de facto illegal in America. They will necessarily cause a “disparate impact” because not enough blacks and Hispanics will be able to gain admission.

Thomas Jefferson High School

In 2012, various “civil rights” groups filed a lawsuit against the school, alleging discrimination. There was coverage from the Washington Post, the Huffington Post, CNN, and others. The federal government’s Department of Civil Rights dutifully opened an investigation. By 2020, the school changed its admissions policy, including scrapping a standardized test. Not surprisingly, the school admitted fewer Asians.

In 2022, the Pacific Legal Foundation and the Coalition for TJ sued on behalf of Asians. “Conservatives Open New Front in Elite School Admission Wars,” was the way the New York Times framed it. A judge initially sided with the plaintiffs, but an appeals court threw out that decision. “We are satisfied that the challenged admissions policy does not disparately impact Asian American students and the Coalition cannot establish that the Board adopted its race-neutral policy with any discriminatory intent,” it said. This is the main reason why the Appeals Court approved the new admissions policy. It also said that the school’s policy didn’t have a “disparate impact” because most of the students at the school were still Asian, though significantly fewer than were admitted under the old standards.

Of course, the assumption that a policy is legal if it didn’t have “discriminatory intent” does not apply in most other contexts, which is why the mere finding that an objective test leads to a “disparate impact” results in institutions being held liable if not enough blacks or Hispanics benefit. Indeed, Grigg v. Duke Power (1971) explicitly found that a “disparate impact” makes something illegal even if there is no intent to discriminate. Chief Justice Earl Warren Burger wrote:

We do not suggest that either the District Court or the Court of Appeals erred in examining the employer’s intent; but good intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as “built-in headwinds” for minority groups and are unrelated to measuring job capability.

The Company’s lack of discriminatory intent is suggested by special efforts to help the undereducated employees through Company financing of two-thirds the cost of tuition for high school training. But Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation. More than that, Congress has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question.

The facts of this case demonstrate the inadequacy of broad and general testing devices, as well as the infirmity of using diplomas or degrees as fixed measures of capability. History is filled with examples of men and women who rendered highly effective performance without the conventional badges of accomplishment in terms of certificates, diplomas, or degrees.

Not surprisingly, the Appeals Court didn’t reference that decision. Perhaps the judges don’t know about it; more likely, they just don’t care. The truth is that applying disparate impact doctrine in this case would benefit the wrong group. Therefore, it was not applied.

If the Supreme Court really wanted to enforce its own decision in Students for Fair Admissions v. Harvard, it would take up the appeal of the Thomas Jefferson High School case. However, it refused to do so without explanation. The Court also refused to stop West Point from discriminating based on race in its own admissions policy. The Washington Post quoted an expert who said the Court is “where the American public is,” because the people don’t want racial preferences, but want diversity.

The solution to this quandary is what the Court has done — allow racial preferences to achieve diversity, but don’t admit it. It’s unclear if the people truly want diversity, but many in our political, social, and media elite would not have careers without set-asides and diversity programs. Therefore, they will remain. Too many powerful people have too much to lose, regardless of the law.

Justice Samuel Alito wrote a dissent against the decision to refuse to hear the case. Justice Clarence Thomas joined it. “What the Fourth Circuit majority held, in essence, is that intentional racial discrimination is constitutional so long as it is not too severe,” Justice Alito said. “This reasoning is indefensible, and it cries out for correction.” However, since the Court won’t do it, from whence will it come?

Justice Alito noted that “a factually discriminatory policy is automatically subject to heightened review,” even if is “race neutral on its face.” We might not like it, but this is the law, and it has transformed the way American institutions operate. According to Justice Alito, the District Court “noted the stark change effected by the new policy, the unusual decision-making process that led to the change, and the fact that the change bore ‘more heavily on’ Asian Americans than members of other groups.” In contrast, the Fourth Circuit court “completely distorted the meaning of disparate impact.” “As far as the Fourth Circuit was concerned, the Board could have adopted a policy designed solely to reduce the Asian-American offer rate and still evaded liability,” he said.

He posited a hypothetical case where a majority black basketball team in a majority white school district is forced to replace members of the team in the interests of diversity. If we accept the Circuit Court’s ruling, Justice Alito said, this would be allowed. “I cannot imagine this Court’s sustaining such discrimination,” he said, “but in principle there is no difference between that imaginary case and the one now before us.”

Of course, there is such a difference. The difference is that blacks are conscious of themselves as a collective group with interests, vote and politically mobilize based on those interests, and work to fill the legal system with judges who feel the same way. Whites do not. It’s difficult to imagine the Court undermining black collective interests in any case, whatever the law says, because justices would pay a collective price.

It’s perhaps not coincidental that Justice Clarence Thomas is currently under media attack, notably by late-night host John Oliver, who offered to pay the justice to resign his seat. This actually is a crime, especially because John Oliver said “I am not joking,” yet we simply take for granted that the law does not apply to him. Comedy didn’t apply when it came to the case of Douglass Mackey, aka Ricky Vaughn, on Twitter.

Justice Alito warned:

In addition, the Fourth Circuit’s reasoning is a virus that may spread if not promptly eliminated. Indeed, the First Circuit has already favorably cited the Fourth Circuit’s analysis to disparage the use of a before-and-after comparison in a similar equal protection challenge to a facially neutral admissions policy.

Yet this is precisely the point. “The Court’s willingness to swallow the aberrant decision below is hard to understand,” said Justice Alito. It is not. It is precisely because it allows a way for institutions to keep using affirmative action without making it too blatant that the other justices do not want to confront it. It is precisely because it will “spread” that it was permitted to stand.

If the Supreme Court told institutions that they could not racially discriminate to achieve diversity, many powerful interests would challenge the legitimacy of the Court itself. Therefore, the Court is not picking this fight. Law has little power in itself; political will matters more. Racial consciousness is the most powerful political force in the world today. Therefore, the side with greater racial consciousness wins, regardless of whether “conservatives” or “liberals” have a theoretical majority on the Supreme Court.