Cara McClellan* | Vol. 25 | Online | Citation: Cara McClellan, Evading a Race-Conscious Constitution, 25 U. Pa. J. Const. L. Online (2023).

Read Full Essay

The idea of a “colorblind” Constitution is front and center in cases before the Supreme Court this term, including Students for Fair Admissions v. President & Fellows of Harvard College, and Students for Fair Admissions v. University of North Carolina (UNC). In these cases, the same plaintiff organization, Students for Fair Admissions (“SFFA”), has asked the Supreme Court to rule that the Equal Protection Clause and Title VI of the Civil Rights Act of 1964 prohibit universities from considering race as one of many factors in admissions to pursue the educational benefits that flow from diversity. In support of this argument, SFFA invokes the Supreme Court’s landmark decision in Brown v. Board of Education of Topeka to support its colorblind approach. This essay argues that SFFA’s reliance on Brown ignores the role of courts enforcing desegregation in the face of white resistance through the use of racial classifications. Brown and its progeny thus made clear that racial classifications are a necessary remedy for addressing racial discrimination in K-12 public education. Moreover, while SFFA and other conservative plaintiff organizations claim to be opposed to the use of racial classifications—and not the broader goal of pursuing racial diversity and equity in education—these same organizations are simultaneously opposing attempts to pursue diversity and equity through race-neutral means in K-12 education, demonstrating a broader agenda of maintaining the existing racial hierarchy and segregation in schools, while relying on the formal legal principle of colorblindness.

***

*Cara McClellan is Director and Associate Practice Professor of the Advocacy for Racial and Civil (ARC) Justice Clinic at the University of Pennsylvania Carey Law School. She previously served as Assistant Counsel at the NAACP Legal Defense & Educational Fund, Inc., (LDF), where she was a member of the legal team representing Harvard students and alumni as amici-plus in support of race-conscious admissions in Students for Fair Admissions v. Harvard. She wishes to thank Taylor Ross and Karla Talley who provided invaluable research assistance and Michaele Turnage Young, Esquire for her comments, but also for her thought-provoking presentation at the LDF’s 2022 Civil Rights Training Institute.