When Is It Legal to Consider Race in Regulating?
Two upcoming Supreme Court decisions will tell us rather a lot in regards to the answer.
On Halloween, the Supreme Court heard oral argument in cases brought by Students for Fair Admissions (SFFA) against Harvard and UNC. These cases seem prone to move the Court closer to requiring colorblindness. How would that impact EPA’s ability to pursue environmental justice?
Based on comments of the Justices in the course of the arguments within the Harvard and North Carolina cases, observers imagine that the Court will sharply in the reduction of on the usage of affirmative motion by colleges and universities, possibly eliminating diversity entirely as a basis for those programs. This wouldn’t impact EPA directly. EPA isn’t a school and doesn’t regulate with the goal of accelerating diversity. But depending on how far the conservative majority goes in its opinions, a color-blindness mandate would impact EPA.
Under current law, if a regulation refers to race in any way, the federal government must show that the regulation is narrowly tailored to a compelling government interest. It is a very difficult standard to fulfill. Other than diversity in the tutorial context, the Court has only recognized remedying prior intentional discrimination as a compelling interest. As an example, if EPA adopted a rule giving higher priority to waste sites that impact black communities, EPA would wish to indicate that the owners, operators, or local government of the positioning were motivated by race in selecting that location or failing to take precautions. This has proved very difficult to do in practice.
The harder query is posed by a regulation that doesn’t itself confer with race but is partly based on considerations of race. For instance, before issuing a regulation, EPA checks to be sure that it won’t have a disparate impact on communities of color. As one other example, when determining the danger posed by a substance, EPA relies on studies by epidemiologists, and a few of those studies use race as a consider modeling health impacts in numerous areas. Are these practices prone to remain legal? There may be a paper containing a more detailed legal evaluation of those issues, but here’s a a boiled-down version for non-lawyers:
There can be a certain logic to striking these practices down. If the conservative majority desires to take color blindness to its logical extreme, it could ban any consideration of race at any point within the regulatory process. The query is whether or not the conservatives are willing to push the logic of colorblindness that far.
We will’t ensure until we see the opinions, but there are strong indications that these types of race consciousness won’t be imperiled by the upcoming decisions. In previous cases, conservative Justices have referred favorably to race neutral rules that were at the very least partly intended to extend racial diversity. One example was a University of Texas plan that admitted the highest tenth of graduates from every highschool. The motivation behind the plan was that by admitting more students from poorer school districts, it will increase minority representation. These race-neutral alternatives also figured within the oral arguments last October, and the Justices again looked as if it would find them acceptable as a substitute.
When the 2 most up-to-date affirmative motion cases are decided, the fate of race conscious college admissions programs will receive probably the most attention. But for those whose interest is in regulation, probably the most relevant aspect of the opinions could also be what the Court says in regards to the use of race-neutral programs to attain racial justice.