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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.

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.