In 1979, the noted legal scholar and philosopher Ronald Dworkin published How to Read the Civil Rights Act, a short essay analyzing the Supreme Court’s then-recent decision in Steelworkers v. Weber. That case centered on whether the use of racial quotas in private employment training programs violated Title VII of the 1964 Civil Rights Act. The majority opinion, written by Justice Brennan, upheld race-conscious affirmative action plans “designed to eliminate conspicuous racial imbalance in traditionally segregated job categories.” However, in dissent, Justice Rehnquist argued that, based on both its plain text and surrounding legislative history, the statute prohibited all racial discrimination since “no discrimination based on race is benign.”

Dworkin responded to the Weber dissents by suggesting that Title VII’s prohibition against “discrimination” could apply to 1) all classifications based on race or 2) only racial classifications that are “invidious,” “arbitrary,” or that “reflect favoritism.” In his opinion, the latter sense of “discriminate” would not preclude the selection of an African American actor to play Othello or the institution of affirmative action programs designed to promote true racial equality. After asserting that neither the text nor the legislative history of Title VII clearly pointed to one of these definitional alternatives, Dworkin concluded that, in hard cases like Weber, “judges must decide which of the two competing justifications is superior as a matter of political morality.”

Unfortunately for Dworkin, his alma mater, Harvard University, may have fatally undermined the assumption that racial classifications can be “non-invidious,” at least in the educational admissions context. Next term, the Supreme Court will decide Students for Fair Admissions v. Harvard, a challenge to Harvard’s use of race as a factor in admission decisions. The petitioners present substantial evidence that Harvard’s admission policies and practices, by considering race, effectively stereotype and penalize Asian applicants. Harvard responds that “universities have a compelling interest in pursuing the educational benefits that flow from student bodies that are diverse along many dimensions, including race.” This assertion is little more than a Dworkinian variant as it presents the consideration of race in admissions as not discrimination at all.

Even if we assume that certain classifications based on race are benign, can affirmative action ever truly fall into this category? Indeed, Dworkin begs the question by conflating two vastly different scenarios, one involving artistic integrity and expression in acting—potentially protected by the First Amendment irrespective of the Civil Rights Act—and the other centering on the ability of an individual to be considered for a job based on individual merit, not race. Affirmative action programs necessarily result in favoritism as certain otherwise qualified individuals are denied opportunities for no other reason than their race. Dworkin could respond that this is not actually favoritism since affirmative action serves the ostensibly legitimate purpose of establishing “genuine racial equality,” but that is merely semantic sleight of hand.

In affirmative action programs, achieving racial equality generally involves striving towards some preferred racial balance. Even for Harvard, which explicitly disclaims any use of a racial quota, it would seem the percentage of Asian students is capped somewhere at or below 20%, while a race-neutral process would result in 31%. Favoring a particular racial composition necessarily entails “treat[ing] members of one race with more concern than members of another.” Harvard’s consideration of race implicitly involves a judgment that an Asian applicant with stellar credentials is less deserving of admission because of their race. Whatever may be said about acting, there are no external characteristics or requirements about the role of a student that make individuals of a particular race more qualified for selection or likely to succeed. To assert otherwise would be the very definition of racial discrimination.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. To join the debate, please email us at