MOSF 18.6 Affirmative Action: SCOTUS and the Dominant Culture Tell on Themselves (Part 2)
Memoirs of a Superfan, Vol. 18.6 Affirmative Action: SCOTUS and the Dominant Culture Tell on Themselves (Part 2)
by Ravi Chandra. Posted on July 13, 2023.
A dude on Twitter called even my last – less emotional – article on this topic “histrionic” for saying that the mental health of the nation was set back by SCOTUS’s recent Affirmative Action decision. Well, that downplays the psycho-socio-cultural impact of yet another display of the dominant culture in action, and tells us that our emotions don’t matter. I did have a lot of feels as I read all the opinions in SFFA v Harvard and UNC. Here’s where I landed. I have hopes that public and private college admissions will continue to foster racial, ethnic and other forms of diversity, and hopefully move further towards remediation of past and current disparities and injuries. Education scholar OiYan Poon just released her co-edited book on the topic, Rethinking College Admissions, which I hope to get to soon. But on this topic and many others, we are in the fight of our lives. We gonna have some feels, y’all. All of them fuel for compassionate action. You might also appreciate the article I co-authored with psychiatrist/psychoanalyst Constance E. Dunlap for Psychiatric News, “SCOTUS Deals a Blow to American Diversity by Overturning Affirmative Action.”
SCOTUS’s decision on Affirmative Action adds to the penalty of early death to millions of Black, but also likely Latinx, Indigenous, Asian and Pacific Islander lives. As poet Terrance Hayes said of Donald Trump, “I think this dude is trying to kill me.”
(This essay does not deal so much with key principles such as stare decisis, judicial restraint, and standing, which this court neglected in its rulings overturning Affirmative Action and furthering homophobia this session – see references to Jay Kuo’s writing to learn more about these.)
Adobe stock image by Rudie, licensed by Ravi Chandra
Pro tip for SCOTUS-watchers in the current era of conservative revanchism: read the dissents first. You will learn actual history. You will learn actual law. You will hear an affirmation of your identities and communities. You will be spared (some) outrage and despair.
You will not be spared the revanchists’ decisions, which defend the dominant cultures and castes, and which further set the stage for conflict and violence which will impact all of us for the foreseeable future.
You will hear a call to action. But I do not yet know if we are at daybreak or twilight.
Justice Ketanji Brown Jackson writes,
“With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat. But deeming race irrelevant in law does not make it so in life.” (Emphasis mine, RC)
The ripcord has been pulled, and not everyone has a parachute. This decision will cost lives, by narrowing the pathways to train BIPOC physicians, and in derailing our progress towards a just and diverse future. As poet Terrance Hayes said of Donald Trump, “I think this dude is trying to kill me. Can I still love him? Can I write a sonnet for my assassin?”
Can we?
Our sonnet begins with a roar.
(“5th of July Poem – for everyone left out of the first 4th or who were called 3/5ths” – read July 10, 2022)
***
I spent most of the week fuming over the opinions of Justices Roberts, Thomas, Gorsuch, and Kavanaugh, who were joined in their majority decision by Justices Alito and Barrett. I realized, in the end, that my anger was not simply because I disagreed with their blinkered reality, but also because I had been dropped into an empathy gap, a great chasm of not seeing, understanding or caring about identities, chosen families, or racialized experiences shared by millions. My identity. My chosen family. My racialized experience.
At best, the conservatives lived in a flatland of assumptions, perceptions, and perspectives.
At best, they praised diversity in a shallow, “some-of-my-best-friends-are-black” kind of way.
At best, they spoke from the “all lives matter” wing of American thought.
At best they said while diversity is great and all, we don’t want to hear why, and besides, you can’t get there. Or maybe you can get there, but Not. So. Fast. We need our racism just a little while longer. Maybe forever.
RTGK(AB) present a narrow, superficial, and incorrect understanding that effectively defends their grouping, while claiming to defend the law, while redefining the law. They profess outrage that schools like Harvard and UNC supposedly discriminated against whites and Asians, when in fact, after “lengthy trials,” District Courts determined they had not. In my eyes, they acted not as a court of review, but as a court of specious first-looks and perfunctory hot takes, all based on predetermined, foregone conclusions. The majority seemed to argue backwards from their biases, and not forward based on the case before them, evidence, history, and a proper reading of the law.
I couldn’t help but think that their invalidation of Affirmative Action subtly or not-so-subtly invalidates the presence of Justices Sotomayor, Jackson, Kagan, and even Thomas and Barrett themselves, since they would not be where they are today had not Affirmative Action opened doors.
The majority is saying, “you shouldn’t be here, especially those who disagree.”
I shouldn’t be here.
We shouldn’t be who we are.
Our groupings, affiliations, affinities, and affections are suspect, and possibly illegitimate.
We are a bastard people, impure, unwelcome, and unworthy.
Or perhaps we are worthy, and therefore intimidating to them. We are worthy enough to gaslight, divide, and conquer.
Who will they be, when we are fully ourselves? How will we see them? What will “we” do to “them”?
I say we would create a bigger “us.” I seek a world that includes “them” in a bigger us.
I wish they could say the same.
I think they carry a paranoid, hidden fear of enslavement, even erasure. What they have done and tried to do to us. They seek to forestall their fear of reversed fortune, “reverse discrimination.” I am heartened by the fact that we are strong, and we are numerous. We don’t always agree, but we can take heart from each other. We can inspire each other. We are creative, and we can keep creating, beyond this rift, enmeshed in the deeper traumatic rift crafted on this continent 400 years ago.
We will create. To wit:
“This piece is an excuse to gather. It is a reason to know someone better and a chance to share a moment with them. It is an opportunity to listen, chat, and perhaps consider that in this us-versus-them world, we are free to redraw the boundary of us at any time to include more them.”
– Paul Wiancko, Only Ever Us, Kronos Quartet’s Fifty for the Future
“Unity is the foundation of survival!”
***
Perhaps the psyche of the dominant culture is in the grips of an impostor syndrome or a grave insecurity, and feels that diversity and conscience will forever damn it to second tier and faults it cannot reconcile with its desire for a pure, puritan, and pristine façade. “Out, out, damn spot!” she shrieks, like a tortured Lady Macbeth, intent on rubbing out the “wrong” by rubbing out the evidence of past crime, denying the ongoing murders in the Palace, all the while proclaiming she is advancing a colorblind, race-neutral ideal which will inevitably only foster more death.
In the minds of those who laud this decision, none of the minoritized Justices, or President Obama, or anyone not supporting White Male Christian Supremacy, deserve power, influence, or sway. Be sure that this opinion barely veils hatred and deep misunderstanding of who we are and what we represent.
The decision striking down Affirmative Action threatens the very metabolism of change in the new body of America we are creating. A metabolism which has produced increasingly significant diversity in the halls of power. Ameliorated still-extant disparities in health, wealth, and well-being. A growing ability to question, to call out, to call in.
I don’t think they like any of that. They don’t like who we are becoming.
Unity. Adobe stock image by New Africa, licensed by Ravi Chandra
***
I wrote stridently, point-by-point, against Chief Justice Roberts’ opinion in part 1 of this series, complete with references. I should have just started by reading Justices Sotomayor and Jackson’s dissents. Or just listened to Alfre Woodard read Jackson’s dissent in toto. They make it clear that Roberts’ foundational assumptions are just plain wrong and bizarre. I would say that his perverse viewpoint could only be considered racist, and the fact that his words hold sway is clear proof of the Critical Race Theory view of our legal system.
Chief Justice Roberts, and Justice Thomas, argue that the Constitution and its amendments are “colorblind.” What Justice Sotomayor made clear is that this is “revisionist history.” The 14th Amendment and Civil Rights Act of 1866 were meant to help Black people (and white refugees) in a country that was already finding ways to discriminate against them. They were both passed over the veto and objections of President Andrew Johnson, who said they would give an advantage to Blacks. He, in fact, favored colorblind, race-neutral alternatives – which would have given even more room to leave untouched existing biases. As it was, the Reconstruction Congress was not strong enough to prevent revanchism and the Jim Crow, “separate-but-equal” era that followed.
Scholars Jayakumar and Kendi write in The Atlantic, of the era that Roberts has ushered in: “race-neutral is the new separate-but-equal.”
***
Sotomayor takes issue with Roberts’ read of ‘strict scrutiny’ requirements. He calls for
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.”
He essentially called Justice Powell’s 1978 Bakke focus on diversity an “imponderable” end that cannot satisfy strict scrutiny.
“Classifying and assigning” students based on their race “requires more than . . . an amorphous end (diversity, RC’s clarification) to justify it.” Parents Involved, 551 U. S., at 735.
She writes:
“In fact, this Court has recognized as compelling plenty of interests that are equally or more amorphous, including the ‘intangible’ interest in preserving ‘public confidence in judicial integrity,’ an interest that ‘does not easily reduce to precise definition. Williams-Yulee v. Florida Bar, 575 U. S. 433, 447, 454 (2015) (ROBERTS, C. J., for the Court); see also, e.g., Ramirez v. Collier, 595 U. S. ___, ___ (2022) (ROBERTS, C. J., for the Court) (slip op., at 18) (“[M]aintaining solemnity and decorum in the execution chamber” is a ‘compelling’ interest); United States v. Alvarez, 567 U. S. 709, 725 (2012) (plurality opinion) (“[P]rotecting the integrity of the Medal of Honor” is a ‘compelling interes[t]’); Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 126 (1989) (“[P]rotecting the physical and psychological well- being of minors” is a ‘compelling interest’).’”
Furthermore, Justice Jackson writes at length that diversity improves outcomes in academic, business and health care settings, citing amicus briefs from numerous organizations – which Roberts somehow willfully ignores or carelessly dismisses.
We, image by John Hain on Pixabay
Sotomayor also defers to the District Court’s lengthy trial on Roberts second strict scrutiny point, that the government’s use of race is “’narrowly tailored,’ i.e., ‘necessary,’” to achieve that interest.
After making detailed findings of fact and conclusions of law, the District Courts entered judgment in favor of Harvard and UNC. See 397 F. Supp. 3d 126, 133–206 (Mass. 2019) (Harvard I ); 567 F. Supp. 3d 580, 588–667 (MDNC 2021) (UNC). The First Circuit affirmed in the Harvard case, finding “no error” in the District Court’s thorough opinion. 980 F. 3d 157, 204 (2020) (Harvard II ). SFFA then filed petitions for a writ of certiorari in both cases, which the Court granted. 595 U. S. ___ (2022).23
The Court granted certiorari on three questions: (1) whether the Court should overrule Bakke, Grutter, and Fisher; or, alternatively, (2) whether UNC’s admissions program is narrowly tailored, and (3) whether Harvard’s admissions program is narrowly tailored. See Brief for Petitioner in No. 20–1199, p. i; Brief for Respondent in No. 20– 1199, p. i; Brief for University Respondents in No. 21–707, p. i. Answering the last two questions, which call for application of settled law to the facts of these cases, is simple: Deferring to the lower courts’ careful findings of fact and credibility determinations, Harvard’s and UNC’s policies are narrowly tailored. (Emphasis by RC.)
Roberts also states:
“Affirmative Action programs cannot discriminate against racial groups or involve stereotyping (Grutter).”
Sotomayor and Jackson make it clear that after “lengthy trials,” the District Court found no such discrimination. Sotomayor says the majority “misunderstands basic principles of statistics.” Wow. Ya burnt.
Finally, Roberts cuts an endpoint rule out of whole cloth, stating Affirmative Action programs “must have an end point.” (based solely, it seems, on Justice Sandra Day O’Connor’s unevidenced, crystal ball-like 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.” I mean… how would she know? She herself has apparently distanced herself from her words in recent years.
Sotomayor and Jackson make clear that no one can predict how long racism would affect outcomes in health, wealth, and well-being. Justice Jackson offers that measuring these outcomes would provide guidance on the ongoing necessity for Affirmative Action programs.
That makes sense to me, as a reasonable and well-informed citizen. Why did it not make sense to the majority?
Assuming they are intelligent enough to see the obvious – I am left to conclude that they don’t care.
I’ll quote Terrance Hayes again: “I think this dude is trying to kill me.” Trying to kill us, trying to kill how we got here, how others are trying to get here, trying to kill us, as we try to get beyond.
And Audre Lorde: “to survive in the mouth of this dragon we call America, we have had to learn this first and most vital lesson – that we were never meant to survive.”
Black people with just 10% fewer Black Primary Care Providers in their county will suffer a 31-day loss in life expectancy. (See Snyder, et al. in references.)
They are trying to kill us and the vulnerable people we care about.
In America, we are guaranteed unequal protection under the Law of Death. The Affirmative Action decision furthers the divide. Believe this: if the Supreme Court and Silicon Valley’s longevity drive have their way, wealthy whites will live forever and the rest of us will simply not exist.
Hey Twitter-dude: I’m not histrionic. I’m accurate.
(Please take the time to read the references here, and in my last article. We are strong, and we are in the right.)
Adobe stock image by peterschreibermedia, licensed by Ravi Chandra
For further reading:
Supreme Court opinions in SFFA v Harvard and SFFA v University of North Carolina. June 29, 2023
Chandra R, Dunlap CE. SCOTUS Deals a Blow to American Diversity by Overturning Affirmative Action. Psychiatric News, published online July 14, 2023
Moran M. APA Speaks Out Against Supreme Court Ruling on Affirmative Action in Higher Education. Psychiatric News, July 13, 2023
Chandra R. MOSF 18.5 Affirmative Action: SCOTUS and the Dominant Culture Tell on Themselves (Part 1). East Wind eZine, July 1, 2023
Chandra R. MOSF 16.10: Assassin. Abattoir. Academia. America. The Poetry of Truong Tran and Terrance Hayes. East Wind eZine, December 30, 2021
Justice Ketanji Brown Jackson’s Affirmative Action Dissent Read by Actress Alfre Woodard. The Beat with Ari Melber, July 5, 2023
Snyder JEUpton RDHassett TCLee HNouri ZDill M. Black Representation in the Primary Care Physician Workforce and Its Association With Population Life Expectancy and Mortality Rates in the US. JAMA Netw Open. 2023;6(4):e236687. doi:10.1001/jamanetworkopen.2023.6687
Wiley LF, Yearby R, Mohapatra S. Eliminating Racism In Health Care Before And After The Supreme Court’s Affirmative Action Decision. Health Affairs, July 7, 2023
Editorial Board, Scientific American. The Supreme Court’s Affirmative Action Decision Harms Science, Education and Health. Scientific American, July 6, 2023.
Affirmative action ruling raises concerns over impact on medical school diversity. PBS NewsHour, July 10, 2023
Adams C. Why experts say the affirmative action ruling is harmful for health care. NBC News, June 29, 2023
Essien UR, Ly DP, Jena AB. Op-Ed: Why affirmative action bans hurt health equity. LA Times, May 3, 2022
Tsanni A. What the end of affirmative action means to a fourth-year medical student. StatNews, July 3, 2023
Worsham C, Jena B. Who will be tomorrow’s doctors? Random Acts of Medicine Substack, July 6, 2023
Ly DP, Essien UR, Olenski AR, Jena AB. Affirmative Action Bans and Enrollment of Students From Underrepresented Racial and Ethnic Groups in U.S. Public Medical Schools. Annals of Internal Medicine. June 2022. 175:6 https://doi.org/10.7326/M21-4312
Stern N, Vela M, Nakae S. Eliminating the Pipeline Metaphor in Framing Workforce Equity for American Indian and Alaska Native Communities. JAMA Netw Open. 2023;6(7):e2321926. doi:10.1001/jamanetworkopen.2023.21926
Brown CE, Marshall AR, Snyder CR, et al. Perspectives About Racism and Patient-Clinician Communication Among Black Adults With Serious Illness. JAMA Netw Open. 2023;6(7):e2321746. doi:10.1001/jamanetworkopen.2023.21746
Gibson K. Ending Affirmative Action Would Be Bad for Our Health. The Progressive Magazine, April 26, 2023
Lorde A. The Transformation of Silence into Language and Action. In Sister/Outsider, and available online.
AAMC Deeply Disappointed by SCOTUS Decision on Race-Conscious Admissions. June 29, 2023
AAMC Resources on Race Conscious Admissions in Medical School Admissions, including the amicus brief filed by the AAMC and co-signed by 45 medical organizations, including the AMA, American Psychiatric Association, and Asian Pacific American Medical Student Association
American Psychological Association amicus brief on SFFA v Harvard/UNC
Kuo J. The Supreme Danger. Status Kuo Substack, July 2, 2023
Kuo J. Unprecedented. Status Kuo Substack, July 3, 2023
Photo by Bob Hsiang, 2022
Ravi Chandra is a psychiatrist, writer, and compassion educator in San Francisco, and a Distinguished Fellow of the American Psychiatric Association. For fourteen years, he was lucky to have his MOSF posts published by the Center for Asian American Media, and is now at work broadening and building a diverse creative community and coalition through reflecting on culture and psychology for East Wind eZine. Sign up for updates here, and see all the posts here. He writes from the metaphorical intersection of The Fillmore and Japantown in San Francisco, where Black and Asian communities have mingled since the end of the incarceration of Japanese Americans during World War II. He literally works there, between two Indian restaurants, go figure. His debut documentary was named Best Film (Festival Director’s Award) at the 2021 Cannes Independent Film Festival. The Bandaged Place: From AIDS to COVID and Racial Justice is available on-demand, and with the discount code “Awake” you can get a 20% discount. His nonfiction debut, Facebuddha: Transcendence in the Age of Social Networks, won the 2017 Nautilus Silver Award for Religion/Spirituality of Eastern Thought. You can find him on Psychology Today, Medium, Twitter, @ravichandramd on Threads, Facebook, Instagram, YouTube, SoundCloud, or better yet, in the IRL.