That All Men Are Created Equal

In spite of the divided opinions concerning the Supreme Court’s ruling against affirmative action in college admissions,^[1] there is still solace in realizing that there is an underlying consensus that racial discrimination has no place in U.S. society. The primary dispute is about the means of achieving a society without racism.

The majority opinion of the Court is that discriminating by race not only is unjust but reinforces the discrimination that it is meant to eliminate. Rather than overturning precedent, as the dissenters claim, the Court reaffirms the idea of the injustice of discrimination established in a series of Supreme Court judgments. Judge Roberts cites one such case that affirms: “‘Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.’ Rice v. Cayetano, 528 U. S. 495, 517 (2000) (quoting Hirabayashi v. United States, 320 U. S. 81, 100 (1943)). That principle cannot be overridden except in the most extraordinary case.”^[2] Evaluating people by their race is clearly contrary to the idea of equal treatment established in such previous cases, and the majority opinion uses this long-held principle as the guide for its judgment.

While the majority depends on such cases that affirm the Supreme Court’s opposition to discrimination based on race or ancestry, they also clearly overturn the cases, including Regents of the University of California v. Bakke, Grutter v. Bollinger, and Fisher v. University of Texas at Austin, in which the Supreme Court has allowed for a limited use of racial preferences. Justice Sonia Sotomayor indicates that the majority opinion overturns the precedents set in these previous affirmative action cases without referring to any new legal or factual developments as justification.^[3] Yet it was precisely the case brought by Students for Fair Admissions that uncovered clear evidence of anti-Asian discrimination, and the majority opinion justifies the decision overturning the previous cases based on these new facts brought to light by the present case as well as on errors they find in those previous judgments. Students for Fair Admissions vs. Harvard forced Harvard to reveal details about its admissions process indicating clearly that it discriminated in a way that had particularly negative effects on Asian applicants. David French, writing in the New York Times, notes that “the evidence is overwhelming that Harvard actively discriminated against Asian applicants. As Chief Justice John Roberts notes in his majority opinion, a Black student in the fourth-lowest academic decile had a higher chance of admission to Harvard than an Asian student in the top decile. This discrimination wasn’t unique to Harvard. As Chief Justice Roberts makes clear, the University of North Carolina—which was a defendant in a separate case about its admissions process—also imposed far tougher admission standards on Asian students. Compounding the injustice, Asian Americans were already historically marginalized. As Justice Clarence Thomas details in his concurrence, ‘Asian Americans can hardly be described as the beneficiaries of historical racial advantages.'”^[4] Academic study of the data brought to light by the case shows that if they had been treated the same way as whites, 19 percent more Asians would have been admitted to Harvard.^[5] The authors of this study note at the outset that their research would not have been possible without the data made available by the case against Harvard: “Universities tightly guard access to admissions data, and even the criteria by which universities score their applicants is often unknown. The SFFA v. Harvard case provided unprecedented access to Harvard’s admissions process. Using information made public through this lawsuit, we show that Asian American applicants are penalized relative to their observationally-equivalent white counterparts.”^[6] As they further show, much of the basis of this penalization had been the use of the “personal rating,” in which Asians are habitually rated lower, in spite of observable characteristics that would contradict such a lower rating. Contrary to Sotomayor’s claim that “[t]he personal rating is a facially race-neutral component of Harvard’s admissions policy,”^[7] they conclude that the personal rating has been used by Harvard as a hidden way to discriminate based on race: “Accepting Harvard’s argument that the personal rating is an appropriate control provides a blueprint for how to discriminate both in admissions and in the workplace: simply create a rating to penalize the targeted group.”^[8]

Such overt use of racial discrimination in order to create diversity in college admissions is based on a form of racial stereotyping. As Roberts states, “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 (1995) (internal quotation marks omitted)—at the very least alike in the sense of being different from nonminority students.”^[9] As Thomas lays out in his concurring opinion, affirmative action policies, by implementing practices that are predicated on this type of stereotyping, end up exacerbating the kind of racism that they are meant to eliminate: “Rather than forming a more pluralistic society, these policies thus strip us of our individuality and undermine the very diversity of thought that universities purport to seek.”^[10] In her response to this charge, Sotomayor argues: “It is not a stereotype to acknowledge the basic truth that young people’s experiences are shaded by a societal structure where race matters. Acknowledging that there is something special about a student of color who graduates valedictorian from a predominantly white school is not a stereotype. Nor is it a stereotype to acknowledge that race imposes certain burdens on students of color that it does not impose on white students.”^[11] This response asserts the importance of race to individual experience but does not address the main point that racial preferences reduce all these nuances to the single factor of skin color rather than basing evaluation of students on their individual experiences and achievements. The majority opinion makes allowances for such individual evaluation by noting that “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise,” emphasizing that “the student must be treated based on his or her experiences as an individual—not on the basis of race.”^[12] This distinction between treating people as individuals rather than as members of a race is the key one that structures the majority opinion as well as the principle of equality upon which it is based.

This principle derives directly from the 14th Amendment, according to which no state may “deny to any person within its jurisdiction the equal protection of the laws,” but also from the Civil Rights Act of 1964, whose Title VI stipulates: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” As Justice Neil Gorsuch in his concurring opinion emphasizes (and as Hugh Murray argued in the pages of Telos in 1995^[13]), there is little ambiguity in the Civil Rights Act about the intent to prohibit any and all discrimination, and one of the key mistakes of the Court in previous decisions on affirmative action has been its failure to grant authority to the plain text of the law. As Gorsuch puts it: “In the aftermath of the Civil War, Congress took vital steps toward realizing the promise of equality under the law. As important as those initial efforts were, much work remained to be done—and much remains today. But by any measure, the Civil Rights Act of 1964 stands as a landmark on this journey and one of the Nation’s great triumphs. We have no right to make a blank sheet of any of its provisions. And when we look to the clear and powerful command Congress set forth in that law, these cases all but resolve themselves. Under Title VI, it is never permissible “‘to say “yes” to one person . . . but to say “no” to another person'” even in part “‘because of the color of his skin.'” Bakke, 438 U. S., at 418 (opinion of Stevens, J.).”^[14]

The response by the dissenters is that a colorblind approach to race is not appropriate because “race has always mattered and continues to matter in fact and in law.”^[15] In a move that reflects the strategy of many supporters of affirmative action to invoke the history of racism as an argument for present-day racism, Sotomayor sees no difference between the 1860s, 1954, and the situation today in terms of racial inequality. “Entrenched racial inequality remains a reality today. That is true for society writ large and, more specifically, for Harvard and the University of North Carolina (UNC), two institutions with a long history of racial exclusion. Ignoring race will not equalize a society that is racially unequal. What was true in the 1860s, and again in 1954, is true today: Equality requires acknowledgment of inequality.”^[16] Though Sotomayor attempts to merge the past with the present, there can be no equivalence between the 1860s, when there was actual slavery, 1954, when there was forced segregation, and today, when there are no such laws that discriminate against Blacks and the primary indicators of inequality are their social circumstances.

Sotomayor cites problems such as de facto segregation in schools based on race, as well as higher rates of poverty, disciplining, suspension from school, and incarceration amongst Blacks than amongst other races.^[17] Yet there is no evidence that these problems are a result of racial discrimination. The charge of “systemic inequities disadvantaging underrepresented racial minorities” is made purely on the basis of correlations between race and poor outcomes.^[18] But the Asian example indicates that such a correlation between race and outcomes cannot be attributed immediately to any kind of racial discrimination. As a percentage of the population, Asians are overrepresented at top schools such as Harvard. But this outcome is clearly not the result of discrimination in their favor but, as the evidence cited above shows, has been achieved in spite of discrimination against them. Though supporters of affirmative action focus on discriminatory laws and practices from over fifty years ago, the only evidence of racial discrimination in the present as a causal factor in outcomes points the other way, in favor of Blacks and against Asians.

The uncomfortable and virtually unspeakable truth that we must entertain is that the higher incidence of poor outcomes for Blacks, as with the lower incidence of poor outcomes for Asians, may be the result of cultural factors that are embedded in families and communities rather than racial discrimination. Consequently, as I have suggested before,^[19] the approach to improving outcomes for Blacks cannot be discrimination against whites and Asians but measures that address issues such as high rates of single parent families and the breakdown of community structures. Such measures are much more difficult and costly than affirmative action in college admissions, which only tries to manipulate the results of the underlying problems without addressing those problems directly. In Thomas’s words, through their affirmative action programs, “universities are focused on ‘aesthetic’ solutions unlikely to help deserving members of minority groups.”^[20] As another TelosScope contributor has emphasized,^[21] the end of affirmative action will provide new impetus to come up with genuine solutions to the social and economic disparities that affirmative action seeks to rectify but fails to address on the community level where they reside.

David Pan is the Editor of Telos.

Notes

1. The Wall Street Journal affirms that “The Supreme Court had one of its finest hours on Thursday as it reaffirmed, in logical but forceful fashion, the bedrock American principle of equality under the law. In barring the use of race in college admissions, a six-Justice majority took a giant step back from the racial Balkanization that risks becoming set in institutional stone.” “A Landmark for Racial Equality,” Wall Street Journal, June 30, 2023, p. A14. By contrast, the New York Times editorial board writes that “the justices overturned decades of precedents that upheld race-conscious admissions policies as consistent with the 14th Amendment’s equal protection clause and ignored the reality of modern America, where prejudice and racism endure.” “The Supreme Court Upends ‘Equal Protection,'” New York Times, July 2, 2023, p. SR 11.

2. Chief Justice John Roberts, Students for Fair Admissions v. Harvard, 600 US _____ (2023), Roberts, opinion of the court, p. 16.

3. Justice Sonia Sotomayor, Students for Fair Admissions v. Harvard, 600 US _____ (2023), Sotomayor, dissenting, p. 37.

4. David French, “Harvard Undermined Itself,” New York Times, June 30, 2023, p. 23.

5. Peter Arcidiacono, Josh Kinsler, Tyler Ransom, “Asian American Discrimination in Harvard Admissions,” European Economic Review 144 (2022): 15.

6. Ibid., p. 1. In Students for Fair Admissions v. Harvard, Peter Arcidiacono served as an expert witness and Josh Kinsler served as a consultant for Students for Fair Admissions, indicating that they were able to analyze the evidence brought to light and make their analysis available to the Supreme Court.

7. Sotomayor, Students for Fair Admissions v. Harvard, p. 59.

8. Arcidiacono, Kinsler, and Ransom, “>”Asian American Discrimination in Harvard Admissions,” p. 3.

9. Roberts, Students for Fair Admissions v. Harvard, p. 29.

10. Justice Clarence Thomas, Students for Fair Admissions v. Harvard, 600 US _____ (2023), Thomas, concurring, p. 48.

11. Sotomayor, Students for Fair Admissions v. Harvard, pp. 48–49.

12. Roberts, Students for Fair Admissions v. Harvard, pp. 39–40.

13. Hugh Murray, “Race and Social Science,” Telos 105 (Fall 1995): 175–76.

14. Justice Neil Gorsuch, Students for Fair Admissions v. Harvard, 600 US _____ (2023), Gorsuch, concurring, p. 25.

15. Sotomayor, Students for Fair Admissions v. Harvard, p. 38.

16. Ibid., p. 17.

17. Ibid., pp. 18–19.

18. Ibid., p. 19.

19. David Pan, “After Affirmative Action,” TelosScope, November 2, 2022.

20. Thomas, Students for Fair Admissions v. Harvard, p. 42.

21. John Croce-Renard, “Seven Reasons to Welcome the Court’s Coming Ruling in Students for Fair Admissions v. Harvard,” TelosScope, March 13, 2023.