2023 06 29 Equal Protection Clause Letter

ATTORNEY GENERAL OF MISSOURI
ANDREW BAILEY
June 29, 2023
To Whom It May Concern:
I write to inform you that the United States Supreme Court has finally
provided clarity about the practice—common among universities and some
employers—of disfavoring certain applicants because of race. In recent years,
the Supreme Court has created confusion by acknowledging that racial
classifications are presumptively unconstitutional while simultaneously
upholding so-called “affirmative action” college admission programs that
systemically disfavor applicants because of race. Today’s Supreme Court
decisions against Harvard and the University of North Carolina resolve this
previous contradiction.
These rulings make clear that disfavoring some applicants because of
race is not only deeply unpopular; 1 it is unconstitutional. As the Court put it
today, “Eliminating racial discrimination means eliminating all of it.” “Many
universities,” the Court held, “have concluded, wrongly, that the touchstone of
an individual’s identity is not challenges bested, skills built, or lessons learned
but the color of their skin. Our constitutional history does not tolerate that
choice.”
Today’s decision finally affirms the promise the Court made 70 years ago:
The Constitution requires that “education … be made available to all on equal
terms.” Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954) (emphasis added).
That means institutions subject to the U.S. Constitution or Title VI must
immediately cease their practice of using race-based standards to make
decisions about things like admissions, scholarships, programs, and
employment. As Chief Justice Roberts put it years ago, “The way to stop
discrimination on the basis of race is to stop discriminating on the basis of
1 Far-left activists almost uniformly favor racial discrimination in college admissions, but
their view is widely rejected by bipartisan majorities. Even in liberal states, their views have
proven unpopular. The people of California, for example, have twice rejected race
discrimination in college admissions—most recently in 2020 by 15 percentage points even
though the Democrat Party establishment favored discrimination.
Supreme Court Building
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race.” Parents Involved in Community Schools v. Seattle Sch. Dist. No. 1, 551
U.S. 701, 748 (2007) (plurality op.).
These decisions also make clear that the Constitution prohibits more
than just overt discrimination in application processes. Also unlawful is
adopting a policy that is racially neutral on its face but has the purpose and
effect of disfavoring applicants based on race. The students challenging
Harvard’s unlawful admissions policy, for example, established that Harvard
introduced “personality” scores to its admissions process and then
systematically ranked Asian-American applicants as having poor personalities
to make it harder for high-achieving Asian-American students to gain
admission. The Court condemned that policy today, noting that the admissions
policies at Harvard and UNC are founded on “offensive and demeaning
assumption[s].”
Under the decisions handed down today, similar pretextual policies if
implemented in Missouri are unlawful. For example, advocates of race
discrimination in college admissions are currently urging schools to abandon
reliance on standardized tests and GPAs. See, e.g., James Naughton,
Testocracy: The Undemocratic System of Standardized Testing in the United
States, 31 Kan. J.L. & Pub. Pol’y 263, 292 (2022) (“[I]t is time to abolish the
standardized testing regime that propagates and perpetuates racial, gender,
economic, and other disparities in higher education and career trajectory
choices.”); see also André J. Washington, Race-Based Admissions are
Meritocratic Admission, 83 U. Pitt. L. Rev. Online, at 12 (2022) (suggesting
that schools should abandon reliance on GPAs for racial reasons). They urge
this to make it easier for schools to discriminate without detection. See Coal.
for TJ v. Fairfax Cnty. Sch. Bd., 68 F.4th 864 (4th Cir. 2023) (slip op., at 48)
(Rushing, J., dissenting) (noting that schools “achieve discriminatory ends
under cover of neutral means”). To the extent these policies are designed to
evade the clear constitutional prohibition on disfavoring applicants because of
race, these policies are unlawful. As the Supreme Court made clear today,
“What cannot be done directly cannot be done indirectly. The Constitution
deals with substance, not shadows.”
Institutions in Missouri must implement the Supreme Court’s decisions
immediately. In today’s rulings, the Court held that there are no legitimate
reliance interests created by past rulings that seemed to bless affirmative
action. There is thus no justification for Missouri institutions to “grandfather”
in existing programs that disfavor applicants based on race. All Missouri
programs that make admitting decisions by disfavoring individuals based on
race—not just college admissions, but also scholarships, employment, law
reviews, etc.—must immediately adopt race-blind standards. All Missouri
2
programs must adhere to the promise of Brown that the Constitution
guarantees that opportunities “be made available to all on equal terms.”
That is true not just for public institutions in Missouri, but also entities
that are subject to Title VI of the Civil Rights Act because they accept federal
funds. Harvard is not a public institution, but today the Supreme Court
declared Harvard’s racial discrimination unlawful because Title VI
incorporates the constitutional standard.
In light of today’s twin rulings by the Supreme Court, Missouri
institutions must identify all policies that give preference to individuals on the
basis of race and immediately halt the implementation of such policies. More
than 300,000 individuals currently attend institutions of higher education in
Missouri. In addition, countless Missourians are employed at or will seek
employment at institutions that have adopted affirmative action employment
policies. As the chief legal officer for the State of Missouri, I intend to ensure
that the constitutional rights of all Missourians are protected, including those
who would be harmed by race-based policies that are unlawful under the
rulings issued today.
Respectfully,
ANDREW BAILEY
Attorney General of Missouri

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ATTORNEY GENERAL OF MISSOURI

June 29, 2023

To Whom It May Concern:

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