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Class Is Not Enough

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Partly in response to Richard Kahlenberg, I argue that the Obama administration was right to defend the consideration of race in university admissions in its UT Austin brief:

Even if we assume for the sake of argument that Kahlenberg’s preference for purely class-based affirmative action is the better public policy, this is not the question the Supreme Court is considering. What the Supreme Court will be determining is not whether the UT Austin affirmative action program is optimal public policy but whether it is constitutional. And on this question, the Obama administration’s position is clearly correct. As Justice John Paul Stevens put it, “[t]here is no moral or constitutional equivalence between a policy that is designed to perpetuate a caste system and one that seeks to eradicate racial subordination.”

Nothing in the text, history, or structure of the equal protection clause of the 14th Amendment requires the Supreme Court to treat Jim Crow laws and UT Austin’s admissions system as being constitutionally equivalent. In the almost 150 years since the ratification of the 14th Amendment, no Supreme Court has ever held that the 14th Amendment requires absolute “color-blindness.” From an originalist standpoint, it is clear that affirmative action policies are constitutionally permissible (even if the self-described “originalists” on the Supreme Court have decided to subordinate their stated constitutional principles to their political preferences.) And for those of us who are not originalists, it should be evident that UT Austin’s admissions system does not contradict the text of the 14th Amendment and is more consistent with its underlying purpose than the alternative of requiring the state of Texas to ignore the effects of racial discrimination entirely. Moreover, a determination that the 14th Amendment requires that states be entirely “color-blind” would likely undermine class-based affirmative action.

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