Colleges will racially discriminate no matter how the Supreme Court rules

The oral arguments the Supreme Court will hear Monday concern two cases that are momentous, even though the desirable outcomes would not prevent the losing parties from continuing reprehensible practices. The cases concern racial preferences in admissions to Harvard and the University of North Carolina. By holding that such preferences violate the Constitution’s guarantee of equal protection of the laws and the 1964 Civil Rights Act’s prohibition of racial discrimination by recipients of federal funding, the court can bolster the wholesome belief held by a large, diverse American majority: That the nation’s laws should be colorblind.

Affirmation of this precept is urgently needed by a nation saturated with the racial obsessions that identity politics encourage, especially on campuses. The precept can block today’s expanding racial spoils system, which is perpetrated in the name of “equity.” However, a ringing denunciation of the “sordid business” of “divvying us up by race” (Chief Justice John G. Roberts Jr.’s words in a 2006 congressional redistricting case) will be unavailing: Colleges will continue allocating opportunity through racial discrimination, thus continuing their adversarial stance regarding the national aspiration for a colorblind society.

In 1978, in the Supreme Court’s first consideration of universities’ racial preferences, four justices considered them permissible to compensate for historical injuries and current disparities. Four justices opposed preferences as unjust discrimination. Justice Lewis F. Powell Jr. put the nation on the descending path to today’s dilemma by holding that race could be one “plus factor” in admissions, but only to serve society’s compelling interest in diverse student bodies.

In two 2003 cases from the University of Michigan, the court ruled against the undergraduate admission policy of adding 20 points to each Black applicant’s admissions index (the equivalent of adding a full letter grade to the Black applicant’s record). But the court upheld the law school’s practice, which avoided such inconvenient explicitness: The law school considered race as part of what the court called a “holistic” evaluation of applicants.

The court thereby endorsed a vocabulary that can nullify the legal consequences of any ruling against racial preferences. Preferences continue if the sordidness is obscured by a semantic fog.