Honor human dignity and equality by ending affirmative action

Writing for the U.S. Supreme Court in 2003, Justice Sandra Day O’Connor predicted “that 25 years from now, the use of racial preferences will no longer be necessary” to creating a critical mass of minority students in America’s colleges and universities.

At closer to the 20- than the 25-year mark, the Supreme Court will evaluate whether her prophecy has become a reality, setting up a blockbuster case when the justices hear challenges to affirmative action policies at Harvard University and the University of North Carolina.

Higher education stands out as one of the few places where the law and our society still allow explicitly racial preferences. Usually, courts apply a strict scrutiny standard to race-based classifications, which means the government must have an absolutely compelling interest like national security and no other way to accomplish its goal.

Lawyers sometimes joke that strict scrutiny is strict in theory but fatal in fact: It’s virtually impossible for government classifications to survive such rigorous judicial review. But in the area of race, court rulings are much more mixed.

On the one hand, as courts have responded to a surge in government-funded, race-based benefits stemming from the new equity agenda gripping the left, courts have acted promptly to strike them down. For example, federal judges put on hold a national program to forgive U.S. Department of Agriculture loans restricted to minority farmers. The 6th U.S. Circuit Court of Appeals enjoined a similar program pushing minority owners of restaurants to the front of the line for COVID-19 relief funds. And lawsuits were recently launched or threatened against granting special preferences based on race in access to COVID-19 vaccines.

And in the K–12 school context, the Supreme Court has emphatically rejected racial classifications in placement. Chief Justice John Roberts phrased it famously in Parents Involved v. Seattle Schools (2007): “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Yet, even as courts insist on colorblind treatment in all these contexts, the justices continue to countenance affirmative action for certain preferred groups in higher education, most recently in 2016 (Fisher v. University of Texas). The only other instance of such allowance is the preferences for minority-owned companies in government contracting, which the court begrudgingly approved in limited circumstances in 1995, and these programs remain widespread throughout government today.

But today’s court may see these issues quite differently because the composition of the court has changed. In the 2016 Texas case, the majority included Justices Anthony Kennedy and Ruth Bader Ginsburg, who have been replaced respectively by Brett Kavanaugh and Amy Coney Barrett. This will be our first insight into their attitude on race-based classifications as justices. As Justices Kavanaugh and Barrett come to this case, they should start from this foundational truth, as memorably put by Justice Antonin Scalia: “In the eyes of government, we are just one race here. It is American.”

This truth is found in the Declaration of Independence’s promise that all of us are created equal, and the Constitution’s guarantee that each of us is entitled to equal protection under the law, regardless of our race. These principles of political philosophy embody a deeper truth, founded on our faith, that we are all endowed with the same imago Dei regardless of our race, ethnicity, or status in society. Each of us is a child of the same heavenly Father, who does not condition His love on our skin color.

None of that is to discount the strength or beauty found in our diversity. Our communities are enriched by embracing the fullness of our different heritages, stories, and perspectives. Colleges and universities can take many steps to encourage and celebrate a healthy, racially, and intellectually diverse community and must act to stop racially motivated bullying or discrimination.

But celebrating diversity is not the same as enforcing racial privilege or preference. We can embrace our own cultural heritage and learn from and enjoy the cultures of others without assigning people a boost (or a harm) in college admissions simply because of the racial box they check.

Our government, including our public universities, owes each of us equal justice, equal treatment, and equal dignity under the law.