The decision has prompted much hand-wringing by progressives still interested in judging people by the color of their skin rather than the content of their character. But progressives should also understand that the court’s Students for Fair Admissions cases effectively sound the death knell for the race-based reparations movement.
The Fourteenth Amendment declares that no state shall “deny to any person . . . the equal protection of the laws.” Early Supreme Court decisions understood that this meant that “the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States.”
In 1896, the court’s odious decision in Plessy v. Ferguson deviated from that early understanding, upholding the notorious policy of “separate but equal” discrimination. But in 1954, Brown v. Board of Education restored the court’s colorblind view. The Supreme Court has consistently held since then that any government policy involving the use of race must be held to the exacting standard known as “strict scrutiny.” Even in Regents of Univ. of California v. Bakke, the first case to allow “affirmative action,” Justice Powell explained that “[r]acial and ethnic distinctions of any sort are inherently suspect,” and that “antipathy toward them was deeply “rooted in our Nation’s constitutional and demographic history.”
The Students for Fair Admissions decisions reaffirmed the legal principle that law and government policies must be colorblind. All government programs will now be assessed by what Roberts calls “the Equal Protection Clause’s twin commands: that race may never be used as a ‘negative’ and that it may not operate as a stereotype.”
Government payments made based on someone’s race — also known as reparations — fail this same common-sense test. Reparations advocates publicly call for governments at the local, state and even federal level to make payments with taxpayer dollars only to Black or African American individuals who descended from slaves. Those of all other races would be ineligible.
That means that a government-funded reparations policy would use race to the detriment of some and the benefit of others. Whether that policy proposes paying $1.2 million per recipient such as the plan California has been considering, or the $25,000 per Black resident that Evanston, Illinois agreed to pay last month, it is a clear violation of Roberts’s rules and the principle of ensuring colorblind laws and government programs.
Government may not provide subsidies or bonuses to whites because they are white. By the same token, it cannot deny them subsidies because they are white.
Reparations programs would do exactly that. If put to the test judicially, they should meet the same ill judicial fate as race-based college admissions policies. After all, as Roberts observed, the Constitution’s Equal Protection Clause is “universal in [its] application,” and “eliminating racial discrimination means eliminating all of it.”
Reparations proponents should take Roberts at his word.
