What if Civil Rights Laws Mean What They Say?

I want to start by doing something that might seem boring, but it’s important. I’m going to quote statutes and a constitutional provision. Here is Title VI of the Civil Rights Act of 1964:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. (Emphasis added.)

Here’s the relevant portion of 42 U.S.C. Section 1983:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. (Emphasis added.)

And, finally, here’s the key portion of the 14th Amendment to the United States Constitution:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (Emphasis added.)

I know that I have a lot of lawyer readers, but even the non-lawyers can understand plain English. Beginning shortly after the Civil War and extending to the statutes that dealt a decisive blow to Jim Crow and legalized southern segregation, American law has attempted to codify principles that are vital to the functioning of a free, pluralistic, multiethnic society—citizens enjoy legal equality, including on the basis of race, and the law should provide substantial and effective mechanisms for enforcing those principles of equality and nondiscrimination. 

Yet for generations American courts have looked at those statutes, pondered them, and responded with a resounding, “Nope!” 

Nondiscrimination or equal protection? Sorry. America’s universities—key drivers of American opportunity and prosperity—have explicitly put a racial thumb on the scale for years, empowered by Supreme Court precedents that have tried to admonish schools not to engage in crass racial quotas but have enabled race-based stereotyping all the same. 

Substantial or effective enforcement mechanisms for violations of civil rights? Sorry. An entirely judge-made doctrine called “qualified immunity” has created a legal regime where countless Americans have suffered civil rights violations and received exactly zero compensation for their profound loss.  

Good intentions backstop both race-influenced admissions and qualified immunity. Years of legalized racial oppression created terrible academic gaps, and it’s a matter of national necessity that we pour energy and resources into closing those disparities. At the same time, public officials (especially police officers) have a difficult job. Shouldn’t they enjoy some leeway to make hard calls? 

But theory and practice are two different things. So are intentions and outcomes. Earlier this week the Supreme Court of the United States accepted review in two critical cases—one against Harvard University and the other against the University of North Carolina—that could (at long last) breathe new life back into Title VI and the 14th Amendment.

In both cases the plaintiffs make a compelling case—that efforts to increase the diversity of the student body have resulted in sometimes-crass discrimination, mostly against Asian students. The evidence is disturbing. For example, as the plaintiffs in the case against Harvard have documented, the school appears to pay “meticulous attention to race.” For example here’s the racial breakdown of admitted students for a full decade:

Since academic qualifications (such as test scores and grade point averages) aren’t evenly distributed across all American demographics, Harvard’s race-based admissions decisions end up benefiting every major American demographic (including white Americans) at the expense of Asian applicants:

Moreover, even though the Supreme Court is hearing arguments against Harvard and North Carolina only, consider these statistics, from the entire Ivy League. As the percentage of Asian-Americans in the U.S. population has doubled, Asian-American Ivy League enrollment has remained flat:

Why would Caltech be an outlier? Perhaps because California bans consideration of race in admissions, and its voters recently reaffirmed the state’s ban on affirmative action in the 2020 election. 

But charts don’t tell the whole story. To get the numbers “right,” the evidence indicates that both Harvard and North Carolina engaged in rather gross racial stereotyping. The plaintiffs in the Harvard case allege that Harvard systematically penalized Asian applicants by downgrading their so-called “personal rating”: “Asian Americans receive the lowest personal ratings among all races, and the ‘negative relationship between Asian American identity and the personal rating’ is ‘statistically significant.’”

The North Carolina case contains lurid evidence of explicit racialization. The quotes below are from the plaintiff’s cert petition to the Supreme Court:

• “I just opened a brown girl who’s an 810 [SAT].” 

• “If its brown and above a 1300 [SAT] put them in for [the] merit/Excel [scholarship].” 

• “Still yes, give these brown babies a shot at these merit $$.”

• “I am reading an Am. Ind.” 

• “[W]ith these [URM] kids, I’m trying to at least give them the chance to compete even if the [extracurriculars] and essays are just average.” 

• “I don’t think I can admit or defer this brown girl.” 

• “perfect 2400 SAT All 5 on AP one B in 11th” 

“Brown?!” 

“Heck no. Asian.” 

“Of course. Still impressive.” 

• “I just read a blk girl who is an MC and Park nominee.”

Longtime readers know that I’m an advocate of institutional responsibility, including institutional responsibility that can last generations, to right the wrongs of America’s racist past and to remedy any ongoing racial discrimination in our imperfect present. But there is a profound difference in asking Harvard—with its immense endowment and bottomless well of intellectual capital—to creatively take steps to increase opportunity for marginalized communities and telling 18-year-old Asian kids (many of them immigrants or children of immigrants with challenging stories all their own) that they must endure racial discrimination, for the “greater good.” 

Indeed, if there is one thing we know from long and painful experience, it’s that racial discrimination isn’t “merely” unjust, it’s profoundly painful. It creates deep wounds and fosters justified resentment. 

As the Supreme Court ponders the Harvard and North Carolina cases, however, it needn’t even ponder all the profound political and cultural effects of race discrimination. It need only read English. America’s legislators—including individuals who’d freshly experienced the profound consequences of the most vicious discrimination in American history—said, “Enough!” They wrote it down. Their words were clear.

And that brings me to qualified immunity. If watering down Title VI and the Equal Protection Clause is judge-made law that imposes injustice on, say, young Asian students, watering down Section 1983 imposes disproportionately profound consequences on America’s most vulnerable communities, including minority communities. 

We have seen that extreme examples of police brutality can destabilize a city—and a nation—but we miss the more mundane rhythm of injustice that teaches generations of Americans that the law just doesn’t really apply to law enforcement. They enjoy a status and an immunity enjoyed only by other agents of the state. Everyone enjoys “equal protection,” but some people are more “equal” than others. 

And what can that mean in the real world? Something like this: 

In the early morning hours of July 15, 2012, a young man named Andrew Scott was up late, home with his girlfriend. They were playing video games when they heard a loud pounding on the door. Alarmed, Scott grabbed a pistol and opened the door. He saw a man crouching outside in the darkness. Scott retreated, gun still at his side, pointing down to the ground.

Almost instantly, the crouching figure fired his own weapon. The encounter was over in two seconds. Scott lay on the ground, dead. The man who fired? He was a police officer. He was at the wrong house. Andrew Scott was a completely innocent man who had done nothing more than exercise his constitutional right to keep and bear arms in defense of his own home.

As for the officer? Well, not only was he at the wrong house, but he had no search warrant even for the correct house, he had not turned on his emergency lights, and he did not identify himself as police when he pounded on the door.

The officer was never prosecuted. The state ruled that the shooting was “justified” — in part because it said the police had no obligation to identify themselves. Then, when Scott’s estate sued the officer for money damages, the court threw out the lawsuit. A panel from the Eleventh Circuit Court of Appeals affirmed the dismissal. Then last year the entire court rejected en banc review.

Andrew Scott’s family lost. The police did everything wrong. He did nothing wrong. No prosecution. No compensation. 

Because I write often about civil rights and race, I’m frequently asked about my “plan” for addressing American inequality and race. To be honest, I’m suspicious of any person who claims to have all or most of the answers. Our challenges are almost impossibly complex. 

But here’s one thing we should try—enforcing the laws as written. Let’s give nondiscrimination a chance. Let’s give equal protection a chance. Let’s give accountability a chance. The Supreme Court has a golden opportunity to correct its mistakes and address discrimination in higher education. It should also (soon!) take the chance to correct the mistake of qualified immunity. 

In short, it’s time to get the answer to one of the most important questions in American culture and law. What if we tried equal protection, for a change?

One last thing …

It’s almost impossible for words to express the drama of last weekend’s NFL playoffs. As a Titans fan, I’ve felt sick for days over our loss. But each losing team endured its own gut punch, and I ask my Twitter followers to vote on who should hurt the most. This what they said:

I get their point. Truly I do. But the 75.7 percent are wrong, and the 15.5 percent are right. It’s the Packers. A dominant team lost in a heartbreaking way, and they’ve probably lost their franchise quarterback. We might not see the Packers in the NFC divisional round for a while.

The Bills? They’ll be back. And they’ll be hungry. Don’t tell Steve Hayes, but the Packers just might collapse, and if they do, they’ll look back on a terrible loss on a snowy day as the end of an era. Now that’s a heartbreak.