When is it fair to favor one person over another because of race?
The U.S. Supreme Court has given muddled guidance on that question over the last fifty years.
In 1990, the court ruled the federal government could favor minority race applicants for radio and television broadcast licenses. Five years later, it said the federal government could not favor minority-owned contractors for government building projects.
In 1987, the court allowed the Santa Clara County transportation authority to give preference to a woman because no woman had held such a position before. In 2009, however, the court prevented New Haven, Connecticut, from favoring Black firefighters in promotions because, of the 21 senior officers, only one was Black.
In 1978, the University of California Medical School in Davis was prohibited from setting aside 16 seats out of the 100 for Hispanics, blacks, and native Americans. In 2003, the University of Michigan’s Law School was allowed to deny a white woman admission because it wanted to create more racial diversity in its entering class.
The University of Texas was told, in 2013, that it could not keep out a white woman applicant unless Texas’ desire to create racial diversity could not be achieved any other way. Three years later, the court ruled against the same white woman applicant, saying Texas had shown its other mechanisms were not producing the number of minority race students Texas wanted.
In the most recent of these rulings, in 2009, the court held that the New Haven fire department could not make race-based promotion decisions unless there was a “strong basis in evidence that race conscious actions were necessary to remedy past racial discrimination.”
In New Haven, 40% of the population was black, but only 9% of the senior firefighter officers were; the Hispanic numbers were 20% and 9%, respectively. Nevertheless, a “threshold showing of a significant statistical disparity and nothing more is far from a strong basis in evidence,” the court ruled.
New Haven had thrown out the list of candidates for promotion because it contained no blacks. Some of those on that list sued, pointing out they had lost their chance of promotion simply because of their race. Trying to reflect racial population statistics could not justify the harm to those individuals, the court held.
The employment provision of the 1964 Civil Rights Law stated: “Nothing contained in this subchapter shall be interpreted to require any employer . . . to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer . . . in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community.”
By contrast, that part of the 1964 Civil Rights Act dealing with recipients of federal aid (the part applicable to admitting students to colleges) did not include such a warning. Hence, in other cases, the court allowed colleges to consider race to achieve “diversity” in its student body without having to prove it was responding to specific previous discrimination. Some white college applicants would be kept out; but student-body diversity, the court ruled, was a sufficient justification for doing so.
The Supreme Court might soon address this issue again. Its ruling could be narrow or broad. If narrow, the court would continue the confusing mosaic of how race can be used to disadvantage some in the name of helping others, trying to distinguish employment from college admissions, and “diversity” from discrimination. If the court rules broadly, it can adopt a consistent rule that in 1964, as a nation, we chose not to treat people differently based on their race. It is time to do the latter.
Tom Campbell is a professor of law and a professor of economics at Chapman University. He was a law clerk on the U.S. Supreme Court the year the first affirmative action case, Bakke v. University of California, was decided. He served five terms in Congress and helped draft the 1992 Civil Rights Act.
