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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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On an Imperative to Educate People on the History of Race in America

photograph of Martin Luther King Jr. Statue profile at night

Many people don’t have much occasion to observe racism in the United States. This means that, for some, knowledge about the topic can only come in the form of testimony. Most of the things we know, we come to know not by investigating the matter personally, but instead on the basis of what we’ve been told by others. Human beings encounter all sorts of hurdles when it comes to attaining belief through testimony. Consider, for example, the challenges our country has faced when it comes to controlling the pandemic. The testimony and advice of experts in infectious disease are often tossed aside and even vilified in favor of instead accepting the viewpoints and advice from people on YouTube telling people what they want to hear.
This happens often when it comes to discussions of race. From the perspective of many, racism is the stuff of history books. Implementation of racist policies is the kind of thing that it would only be possible to observe in a black and white photograph; racism ended with the assassination of Martin Luther King Jr. There is already a strong tendency to engage in confirmation bias when it comes to this issue — people are inclined to believe that racism ended years ago, so they are resistant and often even offended when presented with testimonial evidence to the contrary. People are also inclined to seek out others who agree with their position, especially if those people are Black. As a result, even though the views of these individuals are not the consensus view, the fact that they are willing to articulate the idea that the country is not systemically racist makes these individuals tremendously popular with people who were inclined to believe them before they ever opened their mouths.
Listening to testimonial evidence can also be challenging for people because learning about our country’s racist past and about how that racism, present in all of our institutions, has not been completely eliminated in the course of fewer than 70 years, seems to conflict with their desire to be patriotic. For some, patriotism consists in loyalty, love, and pride for one’s country. If we are unwilling to accept American exceptionalism in all of its forms, how can we count ourselves as patriots?
In response to these concerns, many argue that blind patriotism is nothing more than the acceptance of propaganda. Defenders of such patriotism encourage people not to read books like Ibram X. Kendi’s How to be an Anti-racist or Ta-Nehisi Coates’ Between the World and Me, claiming that this work is “liberal brainwashing.” Book banning, either implemented by public policy or strongly encouraged by public sentiment has occurred so often and so nefariously that if one finds oneself on that side of the issue, there is good inductive evidence that one is on the wrong side of history. Responsible members of a community, members that want their country to be the best place it can be, should be willing to think critically about various positions, to engage and respond to them rather than to simply avoid them because they’ve been told that they are “unpatriotic.” Our country has such a problematic history when it comes to listening to Black voices, that when we’re being told we shouldn’t listen to Black accounts of Black history, our propaganda sensors should be on high alert.
Still others argue that projects that attempt to understand the full effects of racism, slavery, and segregation are counterproductive — they only lead to tribalism. We should relegate discussions of race to the past and move forward into a post-racial world with a commitment to unity and equality. In response to this, people argue that to tell a group of people that we should just abandon a thoroughgoing investigation into the history of their ancestors because engaging in such an inquiry causes too much division is itself a racist idea — one that defenders of the status quo have been articulating for centuries.
Dr. Martin Luther King Jr. beautifully articulates the value of understanding Black history in a passage from The Autobiography of Martin Luther King, Jr.:

Even the Negroes’ contribution to the music of America is sometimes overlooked in astonishing ways. In 1965 my oldest son and daughter entered an integrated school in Atlanta. A few months later my wife and I were invited to attend a program entitled “Music that has made America great.” As the evening unfolded, we listened to the folk songs and melodies of the various immigrant groups. We were certain that the program would end with the most original of all American music, the Negro spiritual. But we were mistaken. Instead, all the students, including our children, ended the program by singing “Dixie.” As we rose to leave the hall, my wife and I looked at each other with a combination of indignation and amazement. All the students, black and white, all the parents present that night, and all the faculty members had been victimized by just another expression of America’s penchant for ignoring the Negro, making him invisible and making his contributions insignificant. I wept within that night. I wept for my children and all black children who have been denied a knowledge of their heritage; I wept for all white children, who, through daily miseducation, are taught that the Negro is an irrelevant entity in American society; I wept for all the white parents and teachers who are forced to overlook the fact that the wealth of cultural and technological progress in America is a result of the commonwealth of inpouring contributions.

Understanding the history of our people, all of them, fully and truthfully, is valuable for its own sake. It is also valuable for our actions going forward. We can’t understand who we are without understanding who we’ve been, and without understanding who we’ve been, we can’t construct a blueprint for who we want to be as a nation.
Originally published on February 24th, 2021

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Acknowledging a Violent Past: Disney’s Racist Fairy Tales

photograph of Walt Disney Statue with Disney Castle in background

After months of protests by the Black Lives Matter movement in the wake of George Floyd’s death some white people in the U.S. began to notice that perhaps the world is not as equal as they once thought. They also began to notice that this inequality was perpetuated by their lack of education on race in the U.S. This became obvious as book sales about race began to skyrocket from May to June with Robin DiAngelo’s White Fragility topping the list. This gave way to the Anti-Racist movement, where white people take it upon themselves to unlearn their inherent racist behaviors that they have been educated in since childhood. People began to acknowledge that the history we learn in school is drenched in the long legacy of white supremacy that this country was built on.

Debate was sparked about how to teach a history that highlights, rather than hides, the violent and racist past of the U.S., and how to deliver this material in a form suitable for children. It’s necessary to have these conversations early on with kids as studies show that children as young as three begin to associate certain races with negative stereotypes, while most adults tend to think they should wait until their children are at least five to begin discussing race. Since children are visually recognizing not only physical race, but the behaviors attached to different groups of people made up of different races, it is important to start teaching children about the history of race, rather than shy away or leave it up to a school curriculum that will likely only perpetuate racist stereotypes and histories.

This debate has arisen again recently with the decision by streaming platform Disney+ to restrict the ability of children to watch certain films. Disney+ placed a warning of racist depictions on certain older films last year, but has now blocked those films from Kids Profiles, which include the ages of seven and below. Some of the films include classics like “Dumbo” (1941) because of depictions of racist minstrel shows and “Peter Pan” (1953), which includes racist stereotypes of Native Americans. On their website, Disney acknowledges the roles that stories have in shaping perspectives in the world and makes a pledge to review the films it provides in an attempt to spark conversation on history. Certainly, these moves by Disney are a step in the right direction, but perhaps the billion-dollar company can afford, and even has a responsibility, to do a lot more than take just a step towards conversation.

Disney is considered a blockbuster powerhouse by the film industry, and it certainly has an enormous cultural impact in America, as well as internationally. Children for generations have grown up watching their dark-folk-story-turned-romantic-fairy-tales, with young girls longing to be princesses in search of their long-lost knight. Now that screens have become even more accessible, children can sit with their own iPads at home for hours watching these films. A summer trip to Disneyland or Disneyworld is considered a rite of passage for tens of millions of families. Disney has literally become its own world with all of its theme parks combined taking up as much land as the entire city of San Francisco. Now that Disney has also developed a streaming service, its reach only widens as 55 percent of their subscriptions belong to families with children. Disney obviously plays a large part in a lot of American children’s lives by way of the education they provide through storytelling.

Given the formative power Disney wields, when these stories contain racist histories it is necessary to acknowledge and discuss that history. While Disney mentions “negative depictions” and “mistreatment” in their advisory statement that appears before certain films, they never once mention racism or white supremacy. Instead, it seems like they are trying to walk a fine line of appeasing new voices critical of not-so-hidden racism and a consumer base that is unwilling to believe that such a thing as white supremacy still exists in the U.S., or believe children are old enough to read its signs. Considering both the enormous fan base and amount of content made by Disney that children consume, they should be more aggressive in their policies towards rooting out their white supremacist past by using educational tools on their streaming platform.

Realistically, there are two different types of education regarding race that happen in America. For white children, race is evidently something that they notice at an early age, and then they begin to unknowingly recognize, learn, and perpetuate racism, perhaps without even noticing what they are doing. For children of color in America, especially black children, race is something that they become aware of through macro- and microaggressions they experience as a result of the white supremacy that encumbers and constructs life in America. When students of color start their schooling, they are immediately placed in an environment that is built against them.

If Disney is willing to acknowledge that stories matter, then they perhaps need more than just an alert regarding “negative depictions” in order to address the problematic actions and behaviors shown in their films. By recognizing stories matter, they must also recognize the influence they have in teaching children, often without any parental interference, as Disney is a most often considered a kid-friendly source. They owe the children of color watching these films more than an acknowledgement of the harm that they perpetuated for so long. They could use their platform as an educational opportunity to spread anti-racist awareness to the millions of children and even adults using this platform.

Starting these conversations is a helpful step, but Disney has both the money and influence to be able to help spread awareness and education through a far more extensive system. It is important to remember that it is not Disney’s sole burden to undo the racist history that is perpetuated in history books and through word of mouth, nor would it even be possible for them to do so as that is a task people have struggled with and will be struggling with for decades. Ideally, schools and parents would be able to have truthful and as unbiased as possible conversations about the racist history of America, but realistically this does not seem to be possible for most American children. As can be seen from the protests and politics of 2020, white adults struggle to talk about race or even accept that racism is systemically ingrained in life in America. If adults struggle to talk about racism with each other, how can they be expected to have productive conversations with their children?

If talking about racism in America is normalized for this generation of children, then perhaps a productive cycle can begin for future generations about reckoning with a white supremacist past. This is not yet the reality, therefore, Disney has such a reach and connection with families that they might have a better opportunity to recount accurate histories of peoples in America. And they may have a moral obligation to do so given their not insignificant contribution to the problem.

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On an Imperative to Educate People on the History of Race in America

photograph of Selma anniversary march at Edmund Pettus Bridge featuring Barack Obama and John Lewis

Many people don’t have much occasion to observe racism in the United States. This means that, for some, knowledge about the topic can only come in the form of testimony. Most of the things we know, we come to know not by investigating the matter personally, but instead on the basis of what we’ve been told by others. Human beings encounter all sorts of hurdles when it comes to attaining belief through testimony. Consider, for example, the challenges our country has faced when it comes to controlling the pandemic. The testimony and advice of experts in infectious disease are often tossed aside and even vilified in favor of instead accepting the viewpoints and advice from people on YouTube telling people what they want to hear.

This happens often when it comes to discussions of race. From the perspective of many, racism is the stuff of history books. Implementation of racist policies is the kind of thing that it would only be possible to observe in a black and white photograph; racism ended with the assassination of Martin Luther King Jr. There is already a strong tendency to engage in confirmation bias when it comes to this issue — people are inclined to believe that racism ended years ago, so they are resistant and often even offended when presented with testimonial evidence to the contrary. People are also inclined to seek out others who agree with their position, especially if those people are Black. As a result, even though the views of these individuals are not the consensus view, the fact that they are willing to articulate the idea that the country is not systemically racist makes these individuals tremendously popular with people who were inclined to believe them before they ever opened their mouths.

Listening to testimonial evidence can also be challenging for people because learning about our country’s racist past and about how that racism, present in all of our institutions, has not been completely eliminated in the course of fewer than 70 years, seems to conflict with their desire to be patriotic. For some, patriotism consists in loyalty, love, and pride for one’s country. If we are unwilling to accept American exceptionalism in all of its forms, how can we count ourselves as patriots?

In response to these concerns, many argue that blind patriotism is nothing more than the acceptance of propaganda. Defenders of such patriotism encourage people not to read books like Ibram X. Kendi’s How to be an Anti-racist or Ta-Nehisi Coates’ Between the World and Me, claiming that this work is “liberal brainwashing.” Book banning, either implemented by public policy or strongly encouraged by public sentiment has occurred so often and so nefariously that if one finds oneself on that side of the issue, there is good inductive evidence that one is on the wrong side of history. Responsible members of a community, members that want their country to be the best place it can be, should be willing to think critically about various positions, to engage and respond to them rather than to simply avoid them because they’ve been told that they are “unpatriotic.” Our country has such a problematic history when it comes to listening to Black voices, that when we’re being told we shouldn’t listen to Black accounts of Black history, our propaganda sensors should be on high alert.

Still others argue that projects that attempt to understand the full effects of racism, slavery, and segregation are counterproductive — they only lead to tribalism. We should relegate discussions of race to the past and move forward into a post-racial world with a commitment to unity and equality. In response to this, people argue that to tell a group of people that we should just abandon a thoroughgoing investigation into the history of their ancestors because engaging in such an inquiry causes too much division is itself a racist idea — one that defenders of the status quo have been articulating for centuries.

Dr. Martin Luther King Jr. beautifully articulates the value of understanding Black history in a passage from The Autobiography of Martin Luther King, Jr.:

Even the Negroes’ contribution to the music of America is sometimes overlooked in astonishing ways. In 1965 my oldest son and daughter entered an integrated school in Atlanta. A few months later my wife and I were invited to attend a program entitled “Music that has made America great.” As the evening unfolded, we listened to the folk songs and melodies of the various immigrant groups. We were certain that the program would end with the most original of all American music, the Negro spiritual. But we were mistaken. Instead, all the students, including our children, ended the program by singing “Dixie.” As we rose to leave the hall, my wife and I looked at each other with a combination of indignation and amazement. All the students, black and white, all the parents present that night, and all the faculty members had been victimized by just another expression of America’s penchant for ignoring the Negro, making him invisible and making his contributions insignificant. I wept within that night. I wept for my children and all black children who have been denied a knowledge of their heritage; I wept for all white children, who, through daily miseducation, are taught that the Negro is an irrelevant entity in American society; I wept for all the white parents and teachers who are forced to overlook the fact that the wealth of cultural and technological progress in America is a result of the commonwealth of inpouring contributions.

Understanding the history of our people, all of them, fully and truthfully, is valuable for its own sake. It is also valuable for our actions going forward. We can’t understand who we are without understanding who we’ve been, and without understanding who we’ve been, we can’t construct a blueprint for who we want to be as a nation.

Originally published on February 24th, 2021

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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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The Sellout: Satire and Race Relations

“I’ve been charged with a crime so heinous that busting me for possession of marijuana on federal property would be like charging Hitler with loitering and a multinational company like British Petroleum with littering after fifty years of exploding refineries, toxic spills and emissions, and a shamelessly disingenuous advertising campaign.”

The criminal in question is the narrator of Paul Beatty’s novel, “The Sellout,” who is  sitting in the United States Supreme Court, reflecting on the actions that have landed him there, all whilst preparing a bowl of marijuana, which he will proceed to smoke then and there. What is he charged with? The outlandish charges of owning a slave and segregating a public school—charges that he is actually guilty of committing. Told in reverse chronology, the story is grounded by its setting, the fictional ghetto of Dickens in the outskirts of Los Angeles, which happens to have been recently removed from the map of California: vanished, as if it was never there. The novel follows the narrator’s enactment and plotting of his “crimes” as a way to reassert Dickens, its inhabitants, and put it back on the map.

Continue reading “The Sellout: Satire and Race Relations”