Ending Racial Discrimination: New strategies for a new age

Our nation was founded on the self-evident truth that “all men are created equal” and deserve equal dignity.

Our failings to live up to that ideal are obvious, but this founding principle provides the seed and motive force for our redemption. The current era brings us even closer.

Striving for Equality

Abolitionists in the mid-19th century used the Declaration of Independence’s language as a powerful cudgel to end slavery and enact sweeping amendments to our Constitution. Alas, the equal treatment guarantees in the post-Civil War amendments and other laws were negated by executive branch officials and courts for generations.

The civil rights movement of the mid-20th century promised to finish the job. Landmark court rulings and legislation led to significant legal and social advancement toward the ideal.

Steadily increasing rates of interracial marriage are one undeniable sign of progress. While interracial couples and children in America used to be rare enough that they stood out, they are now an unremarkable fact of everyday life, and it’s a mark of pride that this is so.

But even as racial barriers were lifted in the last 60-75 years and our most intimate relations were transformed, the urge to arbitrarily classify and discriminate on the basis of race proved irresistible to many college and other government officials, albeit for new groups. Despite strong opposition to any form of racial favoritism across all ethnic groups, racial preference policies proliferated. CIR’s work over three decades limited the worst such practices, but the Supreme Court’s previous, mixed signals gave discriminators reason to hold out.

The newest landmark decision in Students for Fair Admissions (SFFA) v. Harvard (2023) provides much-needed clarity, not just that racial preferences in college admissions are illegal, but that racial preferences in any sphere can’t be justified on the flimsy grounds normally proffered.

As Chief Justice Roberts famously wrote, “Eliminating racial discrimination means eliminating all of it.” The political ground is shifting too, but our struggle is far from over.

CIR’s History of Action

Though any fair reading of our civil rights laws prohibits racially preferential treatment, by the 1990s, many colleges virtually guaranteed admission to students of favored races with test scores that would result in denials for others, especially Asians. Yet this discrimination was masked with a thick veil over admissions deliberations.

Challenging this discrimination required hard-fought, strategic litigation, and CIR swiftly emerged as the leader—with five high-profile lawsuits designed to limit the use of race preferences in college admissions. In 1996, we successfully challenged the University of Texas’ discriminatory program in Hopwood v. Texas.

It was the first successful challenge to racial preferences in decades. Hopwood was followed by Grutter and Gratz v. Bollinger in 2003, which prohibited the use of scoring systems that mechanically assigned a race based point value to students.

While Gratz and Grutter were not a complete victory, they inspired renewed efforts toward that goal. Racial preferences became a national controversy, with Americans of every race and ethnicity roundly condemning them. Gratz and Grutter also energized a generation of attorneys, writers, and civic groups. SFFA’s victory over the preference schemes at Harvard and UNC in 2023 is the culmination of that effort.

Within months of the SFFA decision, CIR’s longstanding challenges to complex racial preferences in government contracting also yielded a major victory. In Ultima Services Corp. v. USDA, we brought down the Small Business Administration’s Section 8(a) program, one of the largest racial set-asides in federal law.

CIR’s New Sword and Shield Approach

The victories against admissions preferences and CIR’s knock-out punch against a massive federal set aside program mark a new phase in the fight to end racial preferences.

The latest battles often involve challenging government officials who combine blatant racial preferences with illegal retaliation for speech that questions or opposes such discrimination. Thankfully, the pressure to accept extreme diversity, equity, and inclusion (DEI) measures is being met by a righteous resistance to the illegal mandates these bullies impose.

Americans who value genuine diversity oppose coercion under the guise of diversity. They know that inclusion doesn’t justify race-exclusive hiring and promotion decisions. And men and women of good faith who believe deeply in equal treatment and equal opportunity for all rightly reject the notion that equal results, or “equity,” is the proper measure of justice. Indeed, equality of results can only be achieved with massively unequal treatment, which is decidedly unjust.

That’s why, in several of our recent lawsuits, CIR has deployed a “sword and shield” strategy: A sharp sword challenges entrenched activists who refuse to follow the non-discrimination commands of the Constitution, and a thick shield protects critics who speak out against racial preferences.

The Trump administration’s executive actions to end illegal racial preferences are extremely important.
But government preference zealots know that if they resist long enough, as they did during Trump’s first term, the next administration can reverse those actions. What one president does another can undo.

That’s why litigation remains so important. CIR’s attorneys work daily to root out numerous implicit racial preference programs, such as multi-billion-dollar contract, grant, and loan programs for “disadvantaged” enterprises that automatically include certain racial groups and effectively exclude others. Wins in these cases will help establish clear legal precedents that a later administration can’t simply ignore.

CIR is also representing more individuals who were wrongly punished for criticizing DEI policies and racial preferences—like our lawsuit on behalf of Dr. Norman Wang, who was punished for an academic article criticizing racial preferences in medical education programs.

Lastly, CIR is pushing federal agencies to adopt new regulations to eliminate existing racial preference programs. New rules will create durable policy change that lasts beyond one administration, making it much harder to restore and defend race based programs.

Just as Lincoln declared that our nation could not long endure half slave and half-free, we cannot endure as mostly equal and with racial preferences. The equality ideal demands actual equality.

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