The Supreme Court Decision on Affirmative Action
Two months ago, the Supreme Court struck down affirmative action. In reading the majority opinion by Justice Roberts, the three concurrences by Justice Thomas, Justice Kavanaugh and Justice Gorsuch, and the two dissents by Justice Sotomayor and Justice Jackson, I was struck by the complexity of the issue.
On the one hand, I’m moved by the ideal, expressed by the majority, that we want to build a country where we focus more on the content of one’s character and less on the color of one’s skin. On the other hand, Justice Sotomayor is right to write that “from this Nation’s birth, the freedom to learn was neither colorblind nor equal.”
It is true that, according to Justice Jackson, racist policies from the past have created “gulf-sized, race-based gaps with respect to the health, wealth, and well-being of American citizens.” And it wasn’t just slavery and Jim Crow. Throughout the mid-20th century, the U.S. government dolled out billions of dollars of subsidies to White America while sidestepping Black America. Jackson observes that, between the years 1934 and 1968, 98 percent of federal housing loans went to White Americans, while whole cities that mainly housed Black Americans were deemed ineligible. Jackson also points out how the G. I. Bill, which gave $95 billion to veterans and their families between 1944 and 1971, was designed to accommodate the racist structures prevalent in America at the time. As Jelani Cobb writes in the New Yorker, “Half a century after the end of the civil rights movement, the median net worth of white households is ten times the median net worth of Black households—a disparity driven by decades of restricted access to education, employment, and housing.” Justice Jackson eloquently sums it up: the gaps exist because “freedom was denied far longer than it was ever afforded.”
These disparities limit educational opportunities for racial minorities. As Justice Sotomayor argues in her dissent, “Since school funding systems rely heavily on local property taxes and since residential segregation remains a fact of life in America, racial minorities attend schools with fewer resources, less qualified teachers, less challenging curricula, fewer extracurricular activities, and fewer advanced placement courses.” According to Sotomayor, it isn’t an act of stereotype to “acknowledge that there is something special about a student of color who graduates valedictorian from a predominantly white school.”
Given the horrendous treatment Blacks received starting in 1619, I believe the Supreme Court got it right with its first two decisions (Regents of University of California v. Bakke in 1978 and Grutter v. Bollinger in 2003) that upheld affirmative action. It made sense, back then, that historically oppressed minorities received a leg up in the college admission process.
In Bakke, Justice Powell said that “the attainment of a diverse student body” is a “compelling” and “constitutionally permissible goal for an institution of higher education.” But Powell drew a line, arguing that while race could be considered in the college admissions process, it must be one factor of many in an applicant’s file. He also argued that quotas were unconstitutional and that a university use not use race to deny an applicant from consideration. In other words, race could only be a positive, not a negative.
Twenty five years after Bakke, the Supreme Court took up a case that involved University of Michigan’s law school. In Grutter v. Bollinger, the Court reaffirmed that “student body diversity is a compelling state interest that can justify the use of race in university admissions,” but the Court made clear—just as Justice Powell had in Bakke—that the law school was limited in the means that it could pursue. Specifically, universities could not discriminate against racial groups.
Here is where the rubber meets the road. The recent Supreme Court decision, written by Justice Roberts, didn’t ban colleges from trying to build diverse classes. The court banned the approach used by University of North Carolina and Harvard, because both Harvard and UNC treated some applicants worse because of their race. These schools actively discriminated against Asian applicants.
Also, keep in mind that, in Grutter, the Supreme Court said that Universities could not operate their admissions programs on the “belief that minority students always (or even consistently) express some characteristic minority viewpoint on any issue.” This is where I depart with Justices Jackson, Sotomayor, and Kagan.
As we look out at America in 2023, it is important to acknowledge that skin color doesn’t tell the whole story. As Justice Thomas writes, “It is incorrect to believe that immutable characteristics somehow conclusively determine a person’s ideology, beliefs, and abilities. Members of the same race do not all share the exact same experiences and viewpoints.” Thomas continues: “If an applicant has faced racial discrimination, then surely a university may take that into account. What it cannot do is use the applicant’s skin color as a heuristic, assuming that because the applicant checks the box for “black” he therefore conforms to the university’s monolithic and reductionist view of an abstract, average black person.”
Also, it’s important to remember that race is a social construct and that, over time, these categories have shifted. For instance, American Jews weren’t considered “White” for most of our nation’s history. And remember that the millions and millions of Italian immigrants were not considered “White” either. As Brent Staples writes in the New York Times, “Italians were sometimes shut out of schools, movie houses and labor unions, or consigned to church pews set aside for black people. They were described in the press as ‘smarty,’ ‘kinky haired’ members of a criminal race and derided in the streets with epithets like 'white nigger’ and ‘nigger wop.’”
I can hear your objection: the Black experience in America cannot be compared to the Jewish or Italian experience in America. I agree. African-Americans have faced categorically different types discrimination and injustice. Still, things have changed and are continuing to change, especially as American families have become increasingly multicultural and intermarriage rates of increased.
Simply put, I don’t think the skin color check box on a college application means the same thing as it did fifty or even twenty years ago. As Justice Gorsuch writes, the checkbox covers everyone from a “descendant of enslaved persons who grew up poor in the rural South, to a first-generation child of wealthy Nigerian immigrants, to a Black-identifying applicant with multiracial ancestry whose family lives in a typical American suburb.” (Note: Nigerian immigrants are one of the most successful ethnic groups in America).
I think of a quote from Barack Obama. When asked whether his daughters, Malia or Sasha, should receive special treatment from college admission officers because of their race, Obama said his daughters should probably be treated as “folks who are pretty advantaged.” Or what about Will Smith’s children? I don’t think the actor’s children, Jaden and Willow, applied to college. But if they did, should they get points just for their skin color while a white child, who grew up in West Virginia without a father and with a mother on drugs, doesn’t get any points?
To be sure, I agree with the court in Bakke and Grutter that it is important to have a diverse student body. As Roberts writes, “We need to distinguish taking race into account as race itself and taking into account challenges bested and hardships over come because of one’s race….The touchstone of an individual’s identity isn’t about the color of their skin. It is about challenges bested, skills built, or lessons learned.” And yes, of course, the color of one’s skin can impact one’s life. But let’s hear from applicants about that impact. Let’s treat students based on their own lived experiences.
While there will now be challenges to create ethnically diverse classes, universities should make the job easier by doing away with points for legacy admissions and, instead, adopt University of Virginia’s new approach. (My alma mater has added an essay prompt that allows applicants to talk about a personal connection to the school.)
Colleges should also design an “affirmative action” program based on socioeconomic status. Lower income students should receive points in the same way affirmative action gave points to ethnic minority groups. Even better, schools should adopt adversity score that that UC Davis medical school has adopted. The scale rates applicant based on their circumstances, family income, and parental education. Admissions decisions are based on that score, combined with the usual portfolio of grades, test scores, recommendations, essays and interviews. This approach has helped U.C. Davis maintain its ethnic diversity in a state that to ban affirmative action in 1996.
In short, the emphasis on college admissions should focus less on the color of one’s skin and more on the life experience. If Black children and teenagers face racial discrimination, let them talk about it in their application. While I recognize there is a danger in creating a “victimhood Olympics” in which applicants race to beat their competitors on showing how they’ve struggled, we should reward applicants who have faced adversity and who have faced racial discrimination and overcome it. But we need to remember that not all of life’s outcomes can be ascribed to the color of one’s skin.