2. The Implications of Strict Colorblindness
The implications of this observation have the potential to reverberate far beyond public university admissions processes like the one in Fisher. Should the Supreme Court, echoing Justice Harlan, determine that our Constitution is truly colorblind, it follows that all considerations of race by government actors are unconstitutional. But the reach of a full-throated endorsement of strict colorblindness need not end there. Though Fisher and Grutter arose out of admissions regimes of public institutions-which are subject to federal antidiscrimination laws per the Fourteenth Amendment-a Supreme Court decision underscoring the constitutional necessity of colorblindness and construing the consideration of race in Fisher to be a proscribable form of “discrimination” could reverberate far beyond regulating admissions processes at state schools and other direct state action.
Under 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 To the extent that race-conscious procedures are deemed “discrimination,” any entity that pursues diversity through race-conscious measures and receives any federal financial assistance could potentially place its funding at risk. This includes private universities that receive federal research grants or federal financial aid assistance or enjoy tax-exempt status, schools, companies, or law firms that contract with or do any work for the federal government, and small businesses seeking any form of assistance through the United States Small Business Administration. In the face of such a threat, one can assume that many of such institutions and organizations would curtail, if not eliminate, their pro-diversity efforts.
Moreover, under a theory of strict colorblindness, all consideration of race in hiring could be construed as violating 42 U.S.C. § 1981, which relates to the equal rights of “[a]ll persons within the jurisdiction of the United States . . . to the full and equal benefit of all laws” and is applicable to both the “impairment by nongovernmental discrimination and impairment under color of State Justice Ginsburg raised the possibility of the petitioner's argument being read in this way during the Gratz oral argument. Under this theory, reading colorblindness into the Constitution would mean that any employer, private or public, that considered race in its hiring practices could find itself in violation of § 1981 and possibly subject to sanctions under Title VII. Pursuant to this interpretation, even employers who do not receive direct assistance from the federal government would need to think twice before implementing or continuing race-conscious efforts aimed at promoting diversity.
All of which is to say of the recently enacted federal legislation promoting diversity discussed above. Based on a reading of strict colorblindness into the Constitution, these portions of the Dodd-Frank Act, Affordable Care Act, and others would virtually impossible to implement if race could no longer be considered in furthering their diversity objectives (that is, assuming they would not be struck down entirely). In sum, selecting for diversity is antithetical to strict colorblindness, and to the extent that the Supreme Court determines that the Constitution requires colorblindness in all realms touched upon or otherwise regulated by federal law, race-conscious diversity efforts would whither. Should the Supreme Court endorse strict colorblindness by deeming all considerations of race to be “discrimination” in deciding Fisher, it could drastically impact a wide swath of society and result in a marked decrease in diversity within thousands of organizations, both public and private.
