Goldwater to Supreme Court: Government Shouldn’t Discriminate Based on Race—Even on the Sly

The Goldwater Institute joined a coalition of anti-discrimination groups to file a brief yesterday asking the U.S. Supreme Court to consider a case brought by a parents’ group against Boston officials who created a policy seeking to discriminate against students based on race…but in a clever way. The case represents just the latest in the trend of government officials trying to keep their race-preference policies in effect despite the court’s ruling in last year’s famous Harvard case.

In the Harvard case, the justices made clear that it’s unconstitutional for schools to discriminate in favor of some races and against others in their school admission policies. But Boston school bureaucrats want to keep these discriminatory policies, so they devised a new admission policy that bases school admission on zip codes, in order to boost students who come from neighborhoods where residents are predominantly non-white and non-Asian. Lawyers call this “discrimination by proxy,” and courts have occasionally said it’s illegal. But when parents sued Boston for devising this clever method of racial discrimination, federal judges said that the policy was “completely race neutral”—even though they admitted that “the Plan was chosen precisely to alter racial demographics.” The judges reasoned that since Asian and white students still earned a high number of seats under the zip-code plan, they could not complain that the plan was discriminatory.

But as we argue in the brief—written by our friends at the Beacon Center of Tennessee—the constitutional ban on racial discrimination doesn’t depend on whether one group as a whole receives better or worse treatment than another group as a whole. The Constitution protects individuals, not groups—and it prohibits discriminating against any particular student based on the color of his or her skin. To dismiss the Boston case just because, on the whole, white and Asian students still scored highly under the zip-code test is to entirely ignore the fact that the zip-code test was designed to perpetuate the government’s racial discrimination against individual students.

Unfortunately, race-preference schemes are an almost dogmatic obsession with certain government officials, who have already announced their intention to keep discriminating despite the ruling in the Harvard case. Who can forget Dean Erwin Chemerinsky of the U.C. Berkeley Law School telling an audience last year that the school discriminates based on race in hiring faculty, but adding, “if ever I’m deposed, I’m going to deny I said this to you”? Or the article by two Boston medical doctors boasting of their intention to discriminate against white people, Asian people, and others when it comes to medical treatment? These and other instances show that the courts will need to be vigilant in enforcing our nation’s bans on government discrimination based on race. And the justices should start by taking up this lawsuit.

You can read the brief here.

Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.