The Supreme Court ruled two years ago, in Students for Fair Admissions v. President and Fellows of Harvard College, that colleges and universities may not use race as a factor in admissions lest they violate the Equal Protection Clause of the Fourteenth Amendment. The ruling also cited Title VI of the Civil Rights Act of 1964, which forbids discrimination by institutions receiving financial support from the federal government.
Because the ruling was based upon the Fourteenth Amendment, not just Title VI, its effect was not limited to college admissions but also has implications for a range of hiring and promotion practices in schools, corporations, tax-exempt institutions, and organizations receiving federal funds. The ruling also implies that neither could colleges use other protected categories to decide admissions: the Court ruled as early as 1886 that the Equal Protection Clause applies “without regard to any differences of race, of color, or of nationality” and that “these provisions are universal in their application.” In addition, the Civil Rights Act forbids discrimination on the basis of “race, color, religion, sex, or national origin,” thereby prohibiting universities from using such factors to influence admissions decisions.
In another important step, the court held that diversity is not a sufficiently compelling state interest to justify the use of race as a factor in college admissions, thereby overturning a series of precedents going back to the Bakke case in 1978, when it was first ruled that universities could, with limitations, take race into account to promote campus diversity. As a result, institutions can no longer cite diversity as a reason for discriminating on the basis of race, gender, religion, or national origin.
Following the Harvard decision, corporations, schools, and tax-exempt organizations began to roll back their diversity bureaucracies, many of which had expanded and become more aggressive after the George Floyd incident in 2020. Some abandoned race- or gender-based programs under threat of lawsuits filed in the wake of the Harvard decision. The Gates Foundation, by far the largest charitable foundation in the country, revised a race-based scholarship program because it was threatened by a lawsuit challenging its tax-exempt status, under the principle set forth by the Supreme Court in Bob Jones University v. United States (1983) that tax-exempt institutions may not violate “fundamental national public policy.” On top of this, the Trump administration has cited the Harvard decision as a basis for freezing payment of federal funds to several academic institutions that (the administration charges) have run afoul of civil-rights law, particularly Title VI.
The far-reaching implications of the court’s decision have yet to be fully seen, as countless organizations around the country implemented “diversity, equity, and inclusion” programs in recent years under pressure from activist groups or the federal government. They have now been awakened to the reality that most of these programs are unconstitutional or in conflict with civil-rights law.
The decision may even challenge the internal practices of the Democratic Party, which are in open conflict with the antidiscrimination principles set forth by the Supreme Court.
According to the delegate-selection rules for last year’s Democratic National Convention, each state was required to give “priority of consideration . . . to African Americans, Hispanics, Native Americans, Asian Americans and Pacific Islanders and women” in order to meet affirmative-action goals. Presidential candidates were required under the rules to institute affirmative-action plans to select members of these groups for their slates of delegates. The document goes on to say that “Such remedial action is necessary in order to overcome the effects of past discrimination.” In other words, it provided the same rationale that was determined by the court to be insufficient for justifying race-based college admissions. Delegate slates were open to challenge on grounds that they did not fairly represent some or all of the above groups, with the Democratic National Convention’s Rules and Bylaws Committee given authority to rule on those challenges.
These so-called affirmative-action plans would no longer pass muster in college admissions under the nondiscrimination guidelines set forth in the Harvard decision. According to the Supreme Court, stated organizational aims such as diversity, set up to provide benefits for one protected group or another, are little more than subterfuges for prohibited forms of discrimination. These institutions can no longer justify such practices in order to promote diversity or “to overcome the effects of past discrimination,” as the DNC’s current rules state the case.
But, of course, the Democratic Party is not an educational institution or a corporation or a tax-exempt organization but a political institution and a voluntary association, free to set its own internal rules. On those grounds, it is not bound by the principles set forth by the Supreme Court. But is this really true?
The Supreme Court has ruled that the freedom of association provides a political party with some latitude in establishing its internal rules and processes for selecting candidates for national office. It has said in Eu v. San Francisco County Central Democratic Committee (1989), for example, that “a State cannot justify regulating a party’s internal affairs without showing that such regulation is necessary to ensure an election that is orderly and fair.” It has also ruled, in Tashjian v. Republican Party of Connecticut (1986), that a state cannot prohibit a party from opening up its primary elections to independents. One can find other rulings of this kind preventing the state from regulating a political party’s affairs. But these cases do not attend to the question of whether or not parties may adopt internal rules that discriminate for or against various groups defined by race, gender, religion, or national origin.
There is the principle set forth in the Bob Jones case that tax-exempt institutions, effectively funded by taxpayer dollars, must not adopt practices that violate “fundamental national public policy.” There is little question that the party’s affirmative-action rules are adverse to current national public policy, though party leaders would not acknowledge this or would claim that the rules set forth by the Supreme Court are misguided. Nevertheless, it is still true: the party is swimming against the tide of national policy.
A more pertinent precedent may be found in the case of Smith v. Allwright (1944), in which the Supreme Court struck down the “white primary” system in Texas. This decision followed a series of cases in which the court addressed various tactics used to limit the franchise to white voters, including the “grandfather clause.”
At first, the state of Texas enacted a statute stating that only whites were eligible to vote in primary elections, but this was overturned in Nixon v. Herndon (1927). In order to keep Negro voters away, the state delegated the rulemaking to the Democratic Party of Texas, which then established its own internal rules according to which only whites could vote in its primaries. It could do this because, as leaders claimed, the party is a private, voluntary association not bound by the requirements of the Fourteenth or Fifteenth Amendments. The system was challenged in federal court by Lonnie Smith, a black voter from Houston, who argued that the white primary violated his rights under the Fourteenth Amendment. The Supreme Court eventually ruled in his favor, declaring that, because the Democratic Party operated its system under authority granted by the state of Texas, the state was effectively permitting unconstitutional discrimination in public affairs. That being so, Smith was right to claim that the state had denied him the equal protection of the laws.
These judicial precedents suggest that the Democratic Party, if it keeps these rules in place for the next presidential election cycle, may be subject to lawsuits by would-be delegates claiming they were denied seats at the national convention by procedures that have been outlawed by the Supreme Court. It is also possible that some party members will file lawsuits in federal courts seeking to overturn the party’s delegate selection rules. It is a good question how long the party can hold on to these rules when they run against the grain of national policy, judicial decisions, and public opinion.
The party faces a larger challenge in this regard, as do many schools, colleges and universities, and tax-exempt organizations that have defined their missions in terms of affirmative action and “diversity, equity, and inclusion.” For such an organization, DEI operates as an all-encompassing ideology that defines not only its mission and internal operations, but also its entire view of the world. That ideology is exemplified in the claim that certain groups have suffered discrimination in the past and so are entitled to preferred treatment today to rectify the sins of history. That ideology, to the extent that it informs admission, hiring, and employment practices in many organizations, including the Democratic Party, has been ruled out of order and contrary to the Constitution by the Supreme Court.
This raises several tantalizing questions yet to be answered: Where do these organizations go from here? Can they throw off the diversity ideology? What might they adopt to replace it? Prominent universities are now on the firing line, required on short notice to address these questions. In due course, such questions will confront the Democratic Party as well.
