MOSF 18.5 Affirmative Action: SCOTUS and the Dominant Culture Tell on Themselves (Part 1)
Memoirs of a Superfan, Vol. 18.5: Affirmative Action: SCOTUS and the Dominant Culture Tell on Themselves (Part 1)
by Ravi Chandra. Posted on July 1, 2023.
Adobe stock image by Dzmitry, licensed by Ravi Chandra
Why is it that BIPOC people are always put on their back foot about Affirmative Action and the idea that racism, casteism, and hierarchy have impacted them, historically and in the present day? Why isn’t the dominant culture put to task and called on the carpet more often? Why is it that the mechanisms of deciding questions of great import to minorities are left to the majority, who frequently have a blinkered view of the questions at hand? Why is it easier for the majority to pull up the ladder rather than build a stairway, or even an elevator?
Gee…could it be racism? CRT, anyone?
While the Pew Center found a majority of Americans opposed to Affirmative Action, my take is that it all depends on how the question is asked, particularly of Whites and some Asians. The question’s phrasing can ping different regions of the psyche. You can get back a spectrum of answers ranging from racist self-interest to racial resentment to superficial “fairness” to thoughtful and responsible conscience and compassion. See the figures below for evidence of that. Either 69% of Asian American registered voters support Affirmative Action to help vulnerable groups get better access to higher education … or only 53% say it’s “a good thing.” Supposedly objective surveys are hardly that. A supposedly objective Supreme Court is hardly that.
What exactly is the American psyche “on”? Certainly not “cultural humility,” based on the SCOTUS ruling.
Three polls with different results. See references.
I will take it as a baseline that there are some problems with Affirmative Action. Some point out that current programs sometimes tend to foster a superficial visual diversity, while not getting into the weeds of really helping those who are demonstrably disadvantaged or impacted by racism. For example, Blacks who are descendants of enslaved people do not always benefit in the ways that Black Caribbean and African immigrants do (but the latter have faced their own historical discrimination from colonialism and racism of course.) Socioeconomically disadvantaged BIPOC people do not seem to benefit in the ways that BIPOC people from wealthier backgrounds do. This strikes me as a possible shortcoming – a reason to revamp and re-envision but not abolish Affirmative Action – but I am not a University official, so I lack wisdom and precision on this question.
Finally, we all get by on the kindness of strangers. We all get by on the affirmations, if I may, of strangers. Affirmative Action acts to affirm those who have been historically denied affirmation and instead have received and continue to receive aggression, misunderstanding, and misanthropy. The cultures of Harvard, UNC, and other selective private and public institutions are far kinder to legacy admits, certain athletes, and children of faculty and staff – who are disproportionately White – than they are to BIPOC applicants, even under Affirmative Action. This should assail our consciences and sense of American premises and promises on equity and justice.
I want to give Chief Justice Roberts the benefit of the doubt, and not suggest his overt motives come from racist self-interest or racial resentment. However, it seems that he has at the very least aligned with superficial “fairness,” and that once again, the majority doesn’t seem to view thoughtful, responsible compassion as constitutional to our Republic. Instead, Roberts and the majority has doubled down on what sociologists call “hierarchy enhancing” and legitimizing myths, and have acted to undermine still nascent attempts (nascent because they are 60 years on the preceding 340) to remedy past injustice and foster a society that is responsive to the needs of an increasingly diverse future. These hierarchy enhancing and legitimizing myths include colorblind “fairness” (the new separate-but-equal), meritocracy, the supposed “zero-sum game” of college admissions, and individualism.
Moreover, Roberts has overturned the precedent of Justice Powell’s “controlling opinion” in Bakke which made diversity the pillar for Affirmative Action. He professes that it is “imponderable” for courts to know whether diversity’s admirable goals are being met. He also backhandedly rejects the idea that an applicant from a minority background might bring something to the table that a white applicant does not, something which Powell viewed as a buttress of the argument for diversity.
The Roberts court has doubled down on privilege and entitlement, and possibly has put us in jeopardy of losing the inclusion and egalitarianism that are critical for the success of democracy.
In this lengthy first article, I will explore the summary “syllabus” which mainly reflects Chief Justice Roberts’ opinion, and also the Roberts opinion, both released on June 29th, in detail. However, I’m not a lawyer or legal scholar. I am simply a citizen and psychiatrist who has benefited personally, intellectually, professionally, and relationally from Affirmative Action. The fact that I had to spend hours, days, and a lifetime to wrestle with these questions reveals the exhausting work of being a minority in this country. But I’m glad to do it – because otherwise I would lose myself to the subordination implicit in the American project as currently constructed.
Roberts’ eight-page opinion states “the question presented is whether the admissions systems used by Harvard College and UNC are lawful under the Equal Protection Clause of the Fourteenth Amendment.” He says these admissions systems are in fact unlawful. The Syllabus and Roberts conclude that
“Because Harvard’s and UNC’s admissions programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points, those admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause.”
These assertions appear largely without what I would consider solid evidence. I’m not sure if this is typical for the Supreme Court, but it is alarming.
He starts off with a brief overview of the admissions process. Harvard takes race into consideration at several stages of the admissions process, from first reader to regional subcommittees to the 40-member full admissions committee. This is said to uphold numbers of minorities in Harvard’s entering class, year-on-year. (However, the number of Asians has increased over a period of many decades, a fact which Roberts dismisses.) Considerations for the final “lop list,” or those whom Harvard considers not admitting include “legacy status, recruited athlete status, financial aid eligibility, and race.” Roberts states “In the Harvard admissions process, “race is a determinative tip for” a significant percentage “of all admitted African American and Hispanic applicants.” However, he does not say how legacy and athlete status might weigh on either the lop list or those who are admitted before the admissions committee gets to the lop list. From what I know, Harvard’s entering class consists of an overwhelming percentage of students in these first two categories. It’s unclear to me how these aren’t ruled discriminatory against Asians, other BIPOC, low-income students, and otherwise qualified whites, but somehow the admits of Affirmative Action are.
Roberts professes to understand the role of the 14th Amendment’s Equal Protection Clause, “stating that the Fourteenth Amendment provides that no State shall ‘deny to any person . . . the equal protection of the laws.’ He places this ideal against the reality of the country’s and Court’s overt and explicit discrimination after the Civil War up to the Brown v Board decision, a time period which had enshrined “separate but equal” while propagating inequality and vastly disparate systems in education, housing, transportation, business, and other aspects of American life.
He writes, “[d]espite the early recognition of the broad sweep of the Equal Protection Clause, the Court—alongside the country—quickly failed to live up to the Clause’s core commitments.” “By 1950, the inevitable truth of the Fourteenth Amendment had thus begun to reemerge: Separate cannot be equal.” he concludes.
However, he then creates a false equivalency. “Eliminating racial discrimination means eliminating all of it,” suggesting that the supposed discrimination against Asians and Whites (which he presumes isdue to affirmative action) is somehow equivalent to the discrimination that affirmative action is meant to remedy. Though he doesn’t say it, he seems to believe in reverse racism.
He effectively argues that any preference meant to redress past wrongs or achieve societal goals such as diversity cannot discriminate against any race (most specifically whites, but SFFA prominently uses Asians to advance their goal). Since he argues that college admissions are a “zero sum game” where “advantaging” (my word) a marginalized group necessarily comes at the expense of other groups, and is inherently discriminatory, in this case, against Whites and Asians.
A (presumably white) commenter named Frank Knarf on Darren Walker’s NYT Op Ed (referenced below) asked, “Please explain why a middle-class Chinese-American kid must have far stronger credentials than an upper middle-class black kid to be admitted to a top school.”
My response: why are you pitting these two against each other? Is it because… uh… anti-Black racism? Why not ask why a middle-class Chinese American kid has to have much stronger credentials than a legacy case, athlete, or child of faculty and staff? Is it because… uh… pro-White bias, since these groups are disproportionately White?
I find Roberts’ understanding thoroughly weak. First, I reject the idea that college admissions are a zero-sum game. In fact, college admissions seeks to produce a student body which is greater than the sum of its parts. The only way it can do this is by recognizing the power of education to change individual lives, group trajectories, and society writ large, towards the laudable ideals which society has affirmed yet remains horribly divided about: specifically, diversity, equity and inclusion, and changing the inherited karma of centuries of racial violence, bias and discrimination that has unquestionably created a racial hierarchy and caste system in the United States. There are specific, proven, praiseworthy, and measurable societal outcomes of Affirmative Action. It doesn’t simply pit minority groups against other minorities or even the majority. Instead, Affirmative Action seeks to eventually erase numerous disparities related to race that have been voluminously detailed and which are millstones on the promises and premises of democracy. Affirmative Action, I think, seeks to make egalitarian a historically hierarchical American society.
I think this is measurable.
Adobe stock image by aaabbc, licensed by Ravi Chandra
Roberts goes on to argue that any acceptable program must meet three criteria:
Strict scrutiny, which asks “first whether the racial classification is used to “further compelling governmental interests,” Grutter Bollinger, 539 U. S. 306, 326, and second whether the government’s use of race is “narrowly tailored,” i.e., “necessary,” to achieve that interest, Fisher v. University of Tex. at Austin, 570 U. S. 297, 311–312.”
Affirmative Action programs cannot discriminate against racial groups or involve stereotyping (Grutter).
They must have an end point. (based solely, it seems, on Justice Sandra Day O’Connor’s unevidenced rhetorical flourish in the 2003 Grutter case that “in 25 years, “the use of racial preferences will no longer be necessary to further the interest approved today.”
Let’s take Roberts point by point. I hope to address the other concurring and dissenting opinions in later essays.
Affirmative Action must meet “Strict Scrutiny”
Roberts puts much weight on Justice Powell’s opinion in the 1979 Bakke case, which argued that the government’s interest in “obtaining the educational benefits that flow from a racially diverse student body” allowed for affirmative action. He states:
“First, the interests that respondents view as compelling cannot be subjected to meaningful judicial review. Those interests include training future leaders, acquiring new knowledge based on diverse outlooks, promoting a robust marketplace of ideas, and preparing engaged and productive citizens. While these are commendable goals, they are not sufficiently coherent for purposes of strict scrutiny… the question whether a particular mix of minority students produces “engaged and productive citizens” or effectively “train[s] future leaders” is standardless.”
It seems these are not quantifiable enough to satisfy Roberts. However, a slew of sociologists could easily have offered a number of metrics that have been affected by affirmative action, including the ways mentioned. It is possible that the fruits of diversity could have been more concretely defined. It’s unclear to me if the defendants made this case, or if Roberts simply wasn’t interested. He simply declares it all “imponderable.”
Roberts professes confusion over racial categories and thus throws out the baby with the bathwater. This is one part reality, and another part divide-and-conquer strategy. Sure, there is ongoing debate about broad and sweeping categories (such as Latino and Asian, but also Black), but also a political movement designed to amplify cohesion and accommodate plurality as well. Might I suggest we call this “E Pluribus Unum.” I think Roberts uses the first debate to subvert the second objective. His is an essentially racist reckoning.
Powell’s solitary yet “controlling” opinion in Bakke rejected the remediation that four other Justices would have allowed, and four others rejected. “Justice Powell next observed that the goal of ‘remedying . . . the effects of ‘societal discrimination’ ‘ was also insufficient because it was “an amorphous concept of injury that may be ageless in its reach into the past.’” However, it seems plainly obvious that remediation has become much more culturally acceptable, with far more evidence and specific notions of what remediation and reparations would look like.
So, past Justices and legal scholars have hardly accepted that diversity is the only goal of Affirmative Action. Remediating past and current sociocultural and historic injuries also seem to be acceptable goals. This leaves open the possibility that remediation with specific and measurable outcomes might be another basis of Affirmative Action that the Court would allow. Or at least they would become the basis of another case which might be decided differently than Bakke.
And anyway… why are we relying on conservative 40 year old precedents without tuning into new understandings and experiences? After all, we do try to do better than our forebears. Instead, SCOTUS taking up this case became a means to double down on conservativism, rather than be conservative, judicious, or even, heaven help us, enlightened.
Powell’s opinion in Bakke further specified that a quota system to advance minority admission was unconstitutional, but allowed that race could be used as a “plus” or a “tip” in an applicant’s favor, to achieve the aforementioned goal of diversity. This seems to really get under Roberts, uh, skin. But apparently, it’s ok with him for whites to get the tips of privilege.
Well this made my day. I wrote this after watching Jonathan Capehart on the NewsHour, discussing Affirmative Action and SCOTUS.
Affirmative Action must not use race negatively or stereotypically
In Grutter v Bollinger, the court stated “[a] university’s use of race, accordingly, could not occur in a manner that “unduly harm[ed] nonminority applicants.”
Roberts opens his comments on this imperative by asserting that Asian Americans have been harmed. This seems to be based on the fact that Asian Americans admitted to Harvard had higher SAT scores than other groups, and thus many Asians who would have been admitted based on their test scores were not admitted and thus “harmed.” However, lower courts previously rejected the claim that the Harvard admissions office discriminates against Asian Americans, after examining practices in great detail. Roberts gives no evidence for his claim of harm – he seems to take the plaintiff’s word at face value, correct me if I’m wrong.
Yes, it’s true that not everyone gets into Harvard. Or UNC, or Berkeley, or even San Francisco State University. In fact, we may not have enough educational opportunities for all who would benefit. And I think it’s true that even the most selective colleges could fill their classes many times over with qualified applicants. When my alma mater used alumni interviews in their process, many alumni I spoke with stated that it felt like the admissions office was throwing darts at a board to determine who got in. Candidates we felt strongly about were not admitted. That’s just the way it is. I’m sure that many of these candidates were disappointed – but in my experience, the students I communicated with who did not get into Brown nonetheless seemed quite happy with where they ended up, and excited to be moving on. Questions linger in my mind about the type of young person who is so overwrought about not getting into Harvard or UNC that they file suit to bring down all of Affirmative Action. Without knowing any details, I feel that these plaintiffs were manipulated by Students for Fair Admission, Inc. to fulfill that organization’s primary racist motives: to harm Black, Latinx, and Indigenous students.
So what is harm, exactly?
It’s highly ironic that SFFA and their recruits think that the system was rigged against them, when in fact, society and education are demonstrably rigged against Black, Latinx, Indigenous, and many Asian students. Their motives smell a lot like racial resentment and entitlement to me, based on a fundamental and probably willful misunderstanding of the American milieu. Maybe their callous misunderstandings showed up in the admissions process somehow, making them fair game to be lopped for their poor reasoning skills.
Written after the decisions on Affirmative Action, student loans, and the homophobic web designer.
By striking down these programs, Roberts has harmed many minority students in the name of a superficial “fairness.” Minority applicants will be “unduly harmed” by society first, and then by the admissions process second, as has happened in California and Michigan where Affirmative Action programs were banned over the last 27 years.
I have argued against the “zero-sum” myth above. I would suggest that blaming one’s disappointments in life on Blacks and other minorities who seem to have gotten “ahead” is inherently racist and resentful. The zero-sum myth then is inherently racist, and also reinforces the model minority and performance-achievement myths of self-worth.
Your happiness and sense of not being harmed should not depend on getting into Harvard, IMHO.
Moreover, Roberts is supposedly all-in on what he seems to presume is an objective meritocracy. Grades and test scores make the man, woman, or person. This is plainly not true. It wasn’t true of my admission to Brown, and it’s not true in general. Roberts mocks the respondents when he states, “on Harvard’s logic, while it gives preferences to applicants with high grades and test scores, “that does not mean it is a ‘negative’” to be a student with lower grades and lower test scores.” Yes, sir, that is literally true. It is not necessarily a negative to have lower grades and test scores.
“There are more things in heaven and Earth, Horatio, Than are dreamt of in your philosophy.”
In his opinion, Roberts reveals his true disdain for diversity. He tells on himself.
“Harvard’s admissions process rests on the pernicious stereotype (emphasis mine – RC) that ‘a black student can usually bring something that a white person cannot offer.’ Bakke,438 U. S., at 316 (opinion of Powell, J.)”
Maybe we should define Blacks as oboists for racial consciousness, and Asians as bassoon players. Maybe that would make it clearer what our diversity brings to the orchestra of the future. Drum majors for justice, anyone?
But Roberts simply isn’t musical, is he?
Grutter yields another takeaway for Roberts: “Admissions programs could thus not operate on the ‘belief that minority students always (or even consistently) express some characteristic minority viewpoint on any issue.’ Grutter, 539 U. S., at 333.”
“Respondents admissions programs are infirm for a second reason as well: They require stereotyping—the very thing Grutter foreswore. When a university admits students ‘on the basis of race, it engages in the offensive and demeaning assumption that [students] of a particular race, because of their race, think alike.’ Miller v. Johnson, 515 U. S. 900, 911–912.”
This is presented without evidence. Perhaps, subconsciously, he is referring to the reality that years of education are correlated with liberal and egalitarian views. It is likely that minority students are among the most progressive and egalitarian in the student body. Thus I think Roberts is subconsciously or consciously threatened by Affirmative Action which will place progressive minority students in positions of leadership.
“Let’s take those positions away, Stan.”
Roberts later concludes that
“nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university. Many universities have for too long wrongly concluded that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned, but the color of their skin. This Nation’s constitutional history does not tolerate that choice.”
In my mind, asking applicants to game the system and mine their trauma does potentially call on them to perform a stereotype. It also asks them to say they have bested the challenges of racism, and thus act as advocates and apologists for the system. It also might preclude them from talking about their identities, interests, and achievements in other ways. It might prevent them from talking about how they still struggle with racism.
Affirmative Action must have a Constitutional end point
The Syllabus and Roberts contend:
“Respondents suggest that the end of race-based admissions programs will occur once meaningful representation and diversity are achieved on college campuses. Such measures of success amount to little more than comparing the racial breakdown of the incoming class and comparing it to some other metric, such as the racial makeup of the previous incoming class or the population in general, to see whether some proportional goal has been reached. The problem with this approach is well established: “[O]utright racial balancing” is “patently unconstitutional.” Fisher, 570 U. S., at 311. Respondents’ second proffered end point—when students receive the educational benefits of diversity—fares no better. As explained, it is unclear how a court is supposed to determine if or when such goals would be adequately met. (Emphasis mine – RC.) Third, respondents suggest the 25-year expectation in Grutter means that race-based preferences must be allowed to continue until at least 2028. The Court’s statement in Grutter, however, reflected only that Court’s expectation that race-based preferences would, by 2028, be unnecessary in the context of racial diversity on college campuses. Finally, respondents argue that the frequent reviews they conduct to determine whether racial preferences are still necessary obviates the need for an end point. But Grutter never suggested that periodic review can make unconstitutional conduct constitutional.”
This reasoning demonstrates Roberts (and possibly the respondents?) lack of initiative in defining end-points that could be assessed periodically by the courts. If racial balancing on campuses is unacceptable (I’m not sure why not), then perhaps socio-economic status of different groups, or representation in elected office or the judiciary, or voting rights, or leading indicators of health and well-being, or a happiness index – would be, in combination or toto.
From my corner, I would simply suggest the standard should be “when all God’s chillun gonna be as one,” or alternately, “when the circle is unbroken, by and by, by and by.”
In conclusion, Roberts’ opinion fails on all the measures which he himself puts forward. He overturns precedent while claiming to uphold it. He also demonstrates a failure of insight and vision. A different court might have offered a progressive and broader view of Affirmative Action, and thus given hope to a younger generation. Instead, they see more clearly what they are facing: a great and abusive blind spot in the systems of power.
We have to be here for them. As a psychiatrist, I know that mental health outcomes are greatly improved when the workforce matches the population, in language and cultural understandings. Affirmative Action is necessary to advance and retain BIPOC and other clinicians from historically marginalized groups.
This SCOTUS ruling is a setback for the mental health of the entire nation. And a constitutional, electoral, spiritual and moral call to action.