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Affirmative Action and the Long Road to Justice: Are We There Yet?

photograph of paths converging on college quad

The Supreme Court will soon decide the fate of affirmative action. On October 31, 2022, the Court heard oral arguments for cases that Students for Fair Admissions (SFFA) has brought against Harvard and the University of North Carolina arguing that their race-conscious admissions policies are unconstitutional. The Court’s decision is expected to be announced by the end of June, and many expect that the ruling will forbid race-conscious admissions altogether, limiting colleges and universities to recruiting diverse student bodies through race-neutral means.

While it was always clear that this day would come eventually, on the eve of the Court’s decision a central question looms large: Are we ready for the end of affirmative action?

When the Supreme Court ruled on Grutter v. Bollinger (2003), its most recent affirmative action case, the Court made it clear that the practice of race-conscious admissions should not continue indefinitely. While upholding a race-conscious admissions program at the University of Michigan’s Law School, Sandra Day O’Connor wrote for the majority that “race-conscious admissions policies must be limited in time,” speculating that “25 years from now, the use of racial preferences will no longer be necessary.” Jeffrey Lehman, the Dean of Michigan’s Law School, agreed, saying that “The question is no longer whether affirmative action is legal; it is how to hasten the day when affirmative action is no longer needed.”

Justice O’Connor’s thought that affirmative action should have a limited lifespan is far from novel, as many defenders of affirmative action have supported its eventual dissolution. Supreme Court Justice Harry Blackmun, in his Regents of the University of California v. Bakke (1978) opinion allowing for certain forms of race-conscious admissions, anticipated a day that affirmative action programs would be a “relic of the past,” hoping that day might come “within a decade at the most.”

And the idea that affirmative action should come with an expiration date is still the clear opinion of the Court. In October’s oral arguments, Justice Elena Kagan said that “everybody would rather achieve all our racial diversity goals through race-neutral means,” adding that all the Court’s affirmative action cases “indicate that race-neutral means are better.” Even though affirmative action is currently legal, the consensus is that such policies are merely temporary.

This, of course, raises the important question why a ruling about what is just and fair would only be temporary. If everyone agrees that race-neutral policies are what is ultimately fair, then why allow preferential treatment for some in the short term?

One way to think about this question is through the lens of what the political theorist John Rawls calls “transitional justice.” Rawls observed that, even after we identify what an ideal society would look like, there is still the remaining issue of how we should transition from our current society to one that is completely just. For this reason, questions of transitional justice ask what steps we can take to create a society that more closely mirrors the ideal.

Just like it can be difficult to decide what is ideally just, it can also be very challenging to identify what sorts of policies help us most effectively transition to that ideal. Suppose, for example, that there is a society where hate crimes against religious minorities are particularly widespread and rarely prosecuted. In order to create a more just society, it is obvious that the court system needs to punish such wrongdoing. However, if a new leader comes to power and cracks down on these crimes, the political backlash may well make the society even more unjust than it was before. How should the society respond? By prosecuting only some of the most egregious crimes? By punishing all offenders, but only with a lenient sentence?

Along with showing the difficulty of crafting transitional justice policies, this example also reveals that the demands of ideal justice and transitional justice can easily come into conflict. In the ideal case, justice might ultimately demand that all religious hate crimes be met with a harsh sentence, but perhaps the best transitional policy for a given society is to only punish the worst of those crimes. And if a society adopts this latter policy in hopes of one day reaching the ideal, the question will always remain of when the society should move from this transitional policy to one that more closely embodies the ideal.

With the contrast between transitional and ideal justice in hand, we can make sense of the fact that, while the Supreme Court has historically endorsed affirmative action, such policies have always been thought to come with an expiration date. The practice of race-conscious admissions was never meant to be the ideal, but rather a way to move from a world of overt racial discrimination and exclusion to one where all students can be considered on their individual merits.

Adopting race-conscious admissions policies, though, does raise the difficult issue of when to end them. We have not yet reached O’Connor’s 2028 cutoff, but we are far past Blackmun’s 1988 deadline. Is eliminating affirmative action the next step in making the United States more just?

Some defenders of affirmative action think that race-neutral policies cannot yet ensure diverse student bodies. In October’s oral arguments, Justice Sonia Sotomayor observed that, of the nine states that have eliminated affirmative action altogether, “the numbers for underrepresented groups have fallen dramatically.” After the passage of Proposition 209 in 1996, outlawing affirmative action in California’s public institutions, the percentage of Black students at Berkeley fell from 6.4% to 3.6%, and the percentage of Hispanic students was reduced from 16.3% to 9.4%. Other defenders of affirmative action have argued that race-conscious admissions should not be just about creating diverse student bodies, but righting historical injustices.

On the other side of the debate, those who think that affirmative action has run its course hold that the supposed benefits of race-conscious admissions no longer justify departing from the ideal. Affirmative action policies can increase racial tension, raising the odds of a backlash against racial minorities instead of reversing racial discrimination. There is also evidence to suggest that affirmative action can actually hurt the students that it is intended to help, as students who enter college with less competitive academic credentials have markedly higher rates of attrition than if they attend institutions where their qualifications are more comparable to their peers.

According to these affirmative action critics, we have reached a point where race-conscious admissions policies make our society less rather than more just. In their minds, the next step in our journey towards creating a just society is to no longer employ racial preferences in college admissions. In the words of Chief Justice John Roberts, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

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To Slay Affirmative Action, Justice Alito Discovers Racial Skepticism

photograph of Harvard's campus gates closed

There was a fascinating moment last Monday in the oral argument for Student for Fair Admissions v. University of North Carolina. During his colloquy with Ryan Park, the North Carolina solicitor general representing UNC, Justice Samuel Alito raised the hypothetical case of an Afghan applicant who is not admitted because, having indicated that he is Asian on his application, he doesn’t receive the “plus factor” the university gives to African Americans or Hispanics as part of its affirmative action program. “What,” the Justice asked, “is the justification for lumping together students whose families came from China with someone — with students whose families came from Afghanistan? What do they have in common?” Pressing his point, Justice Alito asked Park what exactly UNC learns about a student from the “mere checking of a box.” “Why — why do you give a student the opportunity to say one thing about me [sic], I’m Hispanic, I’m African American, I’m Asian? What does that in itself tell you [about the student]?”

The discussion was pregnant with irony. The Court’s six conservative justices seem poised to strike down policies premised on the rejection of a philosophy of race known as racial naturalism — the discredited view that racial categories pick out heritable, biological features which are shared by all and only members of a given race and explain behavioral, characterological, and cultural predispositions in individual persons and groups. This conception of race underpinned centuries of trans-Atlantic slavery and racial apartheid in the United States and elsewhere. Yet Justice Alito’s line of questioning suggested that at least ostensibly, one motivation for his opposition to these policies is a line of thought diametrically opposed to racial naturalism — racial skepticism.

According to racial skeptics, because racial naturalism is false, there is nothing in the world that answers to our racial terms. Put another way, for racial skeptics, either terms like ‘Black,’ ‘White,’ and ‘Asian’ refer to races as that notion is understood by racial naturalists, or they refer to nothing at all.

Because races don’t exist, those terms have no referents, much as the terms ‘witch,’ ‘ghost,’ or ‘Zeus’ do not refer to anything real in the world. When Justice Alito suggested that the checkbox categories on college applications are arbitrary and tell us nothing about an individual, he was implicitly invoking this skeptical line on race. If racial terms do not refer because races do not exist, then describing an individual using a racial term says nothing informative about them; it’s akin to describing someone as a witch or a warlock. If that’s so, then the choice to describe a person using one racial term rather than another must be arbitrary.

Before delving more deeply into the philosophy of race, it may be instructive to flesh out the legal context of Alito’s remarks. The seminal case in the Supreme Court’s affirmative action jurisprudence is Regents of the University of California v. Bakke, where the Court held that while the university’s racial quota system for medical school admissions violated the Fourteenth Amendment’s Equal Protection Clause, schools can still use race as one factor in admissions decisions. But in subsequent rulings, the Court narrowed this holding in two key ways. First, it declared that all so-called “benign” racial classifications are subject to strict scrutiny analysis, where the government must prove that the classification is narrowly tailored to further a compelling government interest. The “narrow tailoring” requirement means that a school has to prove to the court that no viable race-neutral alternative exists that would further its compelling interest. Second, the Court held that racial preferences may not be used to remedy general societal discrimination.

This leaves only obtaining the educational benefits of a diverse student body as a constitutionally acceptable goal for racial classifications in higher education.

Thus, in the most recent challenge to affirmative action at UNC and the companion case against Harvard, the schools have been forced to argue that relying upon self-reported racial characterizations to give certain applicants a slight leg up over others is the only way to achieve the particular educational benefits that flow from a diverse student body. In that context, Alito’s argument that racial terms fail to pick out anything real about applicants has bite. It suggests both that “diversity” is better defined in non-racial terms and that racial classifications are not a particularly effective means to achieve whatever educational benefits diversity entails.

But racial naturalism and racial skepticism are not the only views available in the philosophy of race. One influential alternative is racial constructivism.

According to this view, while biological races do not exist, various social, political, and economic practices have brought about the widespread grouping of individuals into certain categories. Our racial terms refer to these groupings. Furthermore, because this racial labeling has concrete effects on an individual’s well-being and access to opportunities and resources, a person’s racial category often says something meaningful about that person’s experiences. But racial identity is not simply a matter of society imposing a label on a passive subject. In the context of a society in which racial labeling remains strongly predictive of certain life outcomes, a person’s racial self-ascription can indicate that she possesses a perspective quite different from that of people of other races.

Accordingly, a racial constructivist might reply to Justice Alito’s question that while categorizing applicants into races does not provide the kind of information racial naturalists thought it did, it is also not a vacuous exercise. An applicant’s self-ascription as, say, Black tells us that she likely possesses a perspective informed by the experience of being labeled Black — a label that has a particular significance in American society. Having that kind of perspective represented on campus carries obvious benefits for a university or college’s intellectual culture.

Although racial ascriptions may be meaningful in ways relevant to the mission of higher education, there is a plausible argument that other sorts of categorizations, which perhaps have the added constitutional benefit of being formally “race-neutral,” are more meaningful still.

In oral argument for the case against Harvard, Justices Gorsuch and Kavanaugh asked the plaintiffs’ counsel, Cameron Norris, whether a plus-factor for descendants of slaves would be constitutional. Norris said that he doubted it because this classification would not be race-neutral. This is debatable: While it is possibly true that almost all people who count themselves descendants of slaves in the United States are Black, it is far from the case that all Blacks in the United States are descendants of slaves. Although the exchange between Norris and the Justices was inconclusive, it raises the possibility of more targeted forms of affirmative action based on classifications that are potentially better proxies for the differences in perspective that a university or college may want to facilitate through its admissions policy.

Justice Alito’s discovery of racial skepticism was a clever rhetorical gambit, pressing the denial of racial naturalism into the service of striking down policies that are themselves premised on the denial of racial naturalism and that seek to ameliorate the malign effects of that philosophy. Unfortunately, in their ignorance of an alternative conception of race — racial constructivism — counsel for Harvard and UNC may have hamstrung their defense of those policies. Nevertheless, there is some reason to hope that even in the absence of formally race-based preferences in admissions, universities can still give some degree of consideration to the unique experiences of racial minorities in this country.

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Color Blindness and Cartoon Network’s PSA

photograph of small child peeking through his hands covering his face

Cartoon Network’s latest anti-racist PSA is undeniably clever. “See Color” takes place on the set of a PSA, where Amethyst, a Crystal Gem from the show Steven Universe (don’t ask me what this means), leads a couple of tots in a song about color blindness.

“Color blindness is our game, because everyone’s the same! Everybody join our circle, doesn’t matter if you’re white or black or purple!”

Amethyst isn’t buying it. “Ugh, who wrote this?” she says. “I think it kinda matters that I’m purple.” The children register their agreement.

“Well, I’m not an alien,” says the Black child, “but it definitely matters to me that I’m Black.”

“Yeah, it makes a difference that I’m white,” the white child chimes in. “The two of us get treated very differently.”

The Black child explains further: “My experience with anti-Black racism is really specific…But you won’t see any of that if you ‘don’t see color.’”

The idea that color blindness is deficient as a means of extirpating racism — because it blinds people to existing discrimination and invalidates legitimate race-based affirmative action — is not new. Indeed, the rejection of the philosophy and practice of color blindness has by now become the new orthodoxy in academic and left-leaning circles. That this rejection has trickled down to kids’ shows is surely a powerful measure of its success.

Conservative critics complain that the new anti-color blindness position is antithetical to Dr. Martin Luther King, Jr.’s dream of a society in which people are judged by the content of their character rather than the color of their skin. This is a mistake. To see this, it is useful to understand the distinction in political philosophy between ideal theory and non-ideal theory. 

The distinction was first introduced by John Rawls in his classic A Theory of Justice. According to Rawls, ideal theory is an account of what society should aim for given certain facts about human nature and possible social institutions. Non-ideal theory, by contrast, addresses the question of how the ideal might be achieved in practical, permissible steps, from the actual, partially just society we occupy.

Those who reject color-blindness can see the color-blindness envisioned by King as a property of an ideal society, a society in which racism does not exist. In that society, the color of a person’s skin really does not matter to how they are in fact treated; hence, it is something we can and ought to ignore in our treatment of them. Unfortunately, we don’t live in this society, and in addition, we ought not pretend that we do. Instead, we ought to recognize other people’s races so that we may treat them equitably, taking into account the inequitable treatment to which they have and continue to be subjected.

But just as the norms which we must follow in a non-ideal society are perhaps different from those we ought to follow in an ideal society, so the norms we ought to teach our children should perhaps be different from the ones adults ought to follow. And there is a danger in teaching children to “see color” while also asking them, as we still do, to embrace King’s vision: it may very easily lead to confusion, or worse, a rejection of a color blindness as an ideal. After all, how many children are equipped to understand the distinction between ideal and non-ideal theory? Imagine white children criticizing King as a racial reactionary because of the latter’s insistence that in his ideal society, judgments of people’s merits would not take their race into account.

On the other hand, perhaps risking this outcome is better than the alternative: another generation of white children who believe that because race shouldn’t matter in some ideal society, it therefore ought not matter to us. Can we really afford to risk another generation of white people who believe that the claim that Black lives matter is somehow antithetical to the claim that all lives matter? Perhaps not.

There are good reasons to reject color blindness as a philosophy and practice for the real world: it leads us to ignore actual discrimination and vitiates the justification for race-based affirmative action. But there are limits to what children can be asked to understand, and ensuring that they are neither led astray nor confused requires careful thought.

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Colorblindness, the World Cup, and the Difficulty of Hyphenated Identities

photograph of Trevor Noah speaking into a microphone

This article has a set of discussion questions tailored for classroom use. Click here to download them. To see a full list of articles with discussion questions and other resources, visit our “Educational Resources” page.

In celebration of France’s World Cup win, Trevor Noah congratulated Africa and the Africans on their victory. This was a commentary on the majority of France’s players having African heritage, but was quickly met with a response from the French ambassador.

The question of French identity has often been controversial, and in a letter to Noah, the French ambassador points out that when xenophobic neo-Nazis spread their hateful messages, they use rhetoric similar to Noah’s – emphasizing the “Africanness” of some citizens of France, which for the neo-Nazis speaks against their French identities.

The French Ambassador to the United States, Gerard Araud, was speaking for the “colorblindness” ethos that is alive and well in France today, largely a response to its troubles with rampant xenophobia. France recently removed “race” from its constitution in a move to further the value of viewing the world through a “colorblind”, or race-free, lens and instead see the human race, and especially the French people, as unified.

Noah pushed back against the idea that someone’s origins did not matter. In his original segment, he joked, “You don’t get that tan in the south of France”, and in his response to the ambassador’s letter, he alluded to the colonial history that underpins the immigration story for so many of France’s African heritage citizens. These presses fit with the Comedy Central host’s overall call for more nuance and context, both in discourse and dialectic (when he uses his culture’s slang it means something different than when a hateful white person does) and in our understanding of identities (having one heritage does not necessarily make you have less of another – being African should not preclude Frenchness).

In drawing attention to this latter point, Noah noted in particular the passage where Araud claimed, “Unlike in the United States of America, France does not refer to its citizens based on their race, religion or origin. To us there is no hyphenated identity. By calling them African, it seems you are denying their Frenchness.” In avoiding emphasizing hyphenated identity, France attempts to emphasize a national unity and undermine the divisive xenophobic influences. After all, in 1998 when a diverse French team won the World Cup, a political leader condemned the team’s ability to represent France on the basis of their heritage, claiming they were unworthy and didn’t know the words to the national anthem.

However, in battling the ambassador’s supposed message of unity, Noah paints the US’s hyphenated identity as a positive alternative, as though France’s criticisms were wholly unfounded. There are worries with the “colorblind”, race-denying, and ahistorical approach to governing and understanding a nation such as France is attempting, perhaps, but in a call for more nuance and context, Noah celebrated the United States’s inclusion of hyphenated identities as though it has been a road towards inclusion and celebration of heritage here historically.

In his remarks about the issues with France’s value of colorblindness, Noah points out that in practice it often amounts to a selective colorblindness, where someone’s non-French origins are noted when their non-desirability is at stake. When someone wins the World Cup, they’re French, but when you’d rather not identify them as a part of your nation, they’re “from elsewhere”. This is typically how hyphenated identities work in general, including in the US.

In her recent comedy special Nanette, Hannah Gadsby discusses identity at length. She addresses straight white men in their current time of discomfort in a telling way: this is the first time their identity gets a name. Previously they’ve been “human neutral”. Typically, you get a hyphen for being different, marginalized, some identity that gets dealt with. This point is consistent with Noah’s point about how the French identity is granted as an honorific often in discourse. And with a hyphenated identity comes a label to celebrate and feel pride, overcoming marginalization in community and strength; as Noah notes, there are parades for some, like Saint Patrick’s Day.

It is important that one identity isn’t denied by noting another. One person can be a member of multiple communities. However, having a country of hyphenated identities does not solve the problems of racism and bigotry any more than taking race out of a constitution and aiming for “colorblindness.” It’s more nuanced than that.