The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
One originalist argument in favor of allowing the government to engage in "race-conscious" policies is that the post-Civil War Freedmen's Bureau was established to assist freedmen and refugees, the vast majority of whom were black, as Congress was well aware.
During oral argument on Monday, the plaintiff's attorney replied, "The Freedmen's Bureau for the most part did not draw any racial classifications. It was classifications on the basis of being a former slave or a refugee." A law professor tweeted in response, "It's one of the most ridiculous things I've heard in legal argument."
And yet the distinction drawn by the attorney is not ridiculous at all. Imagine an Allied policy in 1946 to help former inmates of Nazi camps, 95% of whom were Jews. This is, on the one hand, "about" race (the Nazis having considered Jews an inferior race), i.e., race conscious. On the other hand, the policy does not single out Jews for assistance based on them being Jews, as such.
Such would be a clear precedent for the notion that you can give assistance to a group that suffered horrific discrimination, knowing that the group is overwhelmingly composed of Jews. It's a much weaker precedent for the notion that the government can in the future, especially 160 years in the future, single out Jews specifically for special treatment, regardless of whether their ancestors were ever persecuted by the Nazis.
It would be an even weaker precedent that one could single out ANY ethnic or religious minority for differential treatment. In the affirmative action context, state universities give preferences to all black applicants, even if they were born in the Caribbean or Africa–and note that African immigrants may be descendants of slavers rather than slaves. They also give preferences to Hispanics, even if they are "white" (of European ancestry). The connection between these policies and the Freedmen's Bureau precedent is far from obvious.
This raises an important point. Lawyers often refer to the question of whether the government can use racial preferences as a question of whether the government may engage in "race-conscious" policies. But this is a misnomer (and one I am guilty of using myself). Affirmative action policies involve not simply consciousness of how a policy affects putative racial groups, but classifying individuals by race.
Imagine two scenarios. The first scenario involves a local government with three high schools. One high school is 60% Hispanic, 20% Black, and 20% White. The second is 60%Black, 20% Hispanic, and 20% White. And the third is 60% White, 20% Black, and 20% Hispanic. The government decides that sound social policy dictates that each school should be 1/3 each group. It therefore proceeds to classify each student by race/ethnicity, and buses them around town to achieve racial balance.
In the second scenario, a town is deciding where to place two new high schools. If it places the high schools in locations A, one school will be 90% White and 10% Black, and the other school will be the reverse. Under plan B, each school will be 50-50. Even though other factors (cost, convenience, etc) slightly favor plan A, the town considers de facto integration to be a value, and therefore decides to go with plan B.
Both scenarios depicted above involve "race consciousness." But scenario A involves different considerations than scenario B. Scenario A involves classifying individuals by racial and ethnic categories, and changing many of their school assignments based on which group they are classified into. Scenario B involves simply placing a school in one location or another, without anyone's assignment specifically being based on his or her racial classification. If demographics naturally shift over time such that the schools move away from the 50-50 preferred balance, no one is going to be forced to switch schools based on race.
Some might argue that both scenarios involve unconstitutional "race consciousness." But it strikes me that the better view is that the classifications involved in school assignment in scenario A are far more troubling under the Equal Protection Clause. Indeed, my inclination would be to say that scenario A is unconstitutional while scenario B is permissible. Being conscious of how government policy may or may not affect social policy seeking integration or relieving the isolation of specific minority groups is just not the same as dictating an individual's rights and remedies based on a government classification of his or her racial status. The latter is both a much greater intrusion on individual rights, and a much more dangerous power to give the government.