Is it over for affirmative action?
The Trump administration’s Justice Department is hiring lawyers to look into a civil rights complaint filed by 64 Asian-American groups back in 2015. The department will investigate and perhaps sue colleges and universities that engage in intentional race-based discrimination in admissions.
You don’t need a telescope to see where this is going. The project is a hothouse to grow test cases, at least one of which will eventually reach the U.S. Supreme Court.
It has always been fiercely disputed whether affirmative action — the practice of achieving diversity by considering race and gender in admissions, hiring and contracting — was constitutional. The Fourteenth Amendment states, “No state shall … deny to any person within its jurisdiction the equal protection of the laws.”
But it’s a fact of U.S. history that the Constitution has never actually been amended to ban discrimination on the basis of race. The framers of the Fourteenth Amendment, and the state legislatures that ratified it in 1868, were very vocal in their desire to preserve segregation and other racially discriminatory laws and practices.
It was during the 20th century, after everyone who debated and voted on the Fourteenth Amendment was safely dead, that the U.S. Supreme Court began to apply the Equal Protection Clause to get rid of the discriminatory laws and practices which the authors of the Fourteenth Amendment had left in place.
This created the legal ground for affirmative action policies to take root. On one hand, discrimination on the basis of race is unconstitutional. On the other hand, nothing in the Constitution actually says that.
The Supreme Court’s first decision on affirmative action was in 1978: Regents of the University of California v. Bakke. The justices divided 5-4, and the majority divided on its reasoning. The court held that affirmative action was permissible but rigid quotas were not.
In Grutter v. Bollinger in 2003, the…