Affirmative action ruling prevents steps toward racial equity
By Juan F. Perea
Affirmative action was an important way of manifesting essential Jesuit values such as concern for the individual and the community, inclusiveness, fairness and justice. Unfortunately, the U.S. Supreme Court has made it more difficult to implement these values by declaring that affirmative action is unconstitutional and illegal. The current court now imposes its view of colorblindness to prevent race-conscious decision making in university and graduate school admissions.
It is important to understand that, at its inception, affirmative action was intended as a race-conscious remedy for centuries of racial discrimination in higher education against Blacks, Latinos, Native Americans and Asian Americans. The overt segregation used to benefit white students at the expense of students of color was not just a feature of grade schools during Jim Crow. Black and brown students were largely excluded from most universities for most of American history. The Court, however, declared and enforced the idea that past societal discrimination was too amorphous and remote in time to be deemed a compelling government interest. The court’s affirmative action jurisprudence wrongly steered discussion away from remedying blatant injustice and toward more ambiguous and superficial concepts like “the educational benefits of diversity.”
The strongest moral argument for affirmative action has always been the history of race discrimination employed by almost all educational institutions in the United States. Excepting historically Black colleges and universities, most universities that engage in honest self-reflection about their histories will find that, prior to the relatively recent 1970s, they denied admission to disproportionate numbers of prospective students of color, while offering admission to disproportionate numbers of white students. The obvious remedy for this race discrimination is to provide access and opportunities for members of those communities formerly denied access. Affirmative action was never sufficient to truly repair the harms caused by majority-white institutions, but it was a small step in the right direction.
The Court’s imposition of race-neutrality and formal equality threatens to halt the meager progress that has been achieved since the 1960s. As aptly described by Uma Mazyck Jayakumar and Ibram X. Kendi, “race neutral” is the new “separate but equal.” And “race neutrality” is likely to be just about as effective as its Jim Crow predecessor at keeping students of color out of majority white institutions.
According to the court, “race neutral” seems to mean “without regard to race.” Since educational institutions must now conduct admissions in “race neutral” ways, what are some of the options remaining for college and graduate school admissions?
Since the court approved of the 10 percent plan of the University of Texas in Fisher v. Texas, providing admission to the top ten percent, or whatever percent, of graduating high school classes likely remains constitutional and legal. Other apparently neutral factors might include ZIP codes, other geographic factors, grades, academic and other accomplishments, exam scores, commitment to service in the community, experience working and other such factors. In truth, these criteria are not neutral with regard to race, but they can be described as neutral.
Other criteria are necessarily more subjective. In SFFA v. Harvard, Chief Justice John Roberts wrote the following: “nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university.”
It is not clear how one can consider how race affected an applicant’s life without considering race. Nonetheless, the Chief Justice left open this possibility. Accordingly, an applicant’s personal statement can be evaluated by considering the effect of race on an applicant’s life in an individualized manner. One can consider the adversity overcome by an applicant; University of California, Davis, for example, ranks applicants to its medical school according to the hardships they have faced and overcome. One can also increase the importance of the personal statement relative to exam scores. Of course, ending the consideration of standardized test scores would eliminate the disparate impact of these scores. Universities also remain able to do intensive outreach to relatively less privileged or isolated areas and schools to actively encourage applicants who might not otherwise apply.
All of these criteria are vulnerable to accusations of race-conscious goals in the choices of what factors to emphasize or what areas are chosen for more intensive recruitment. It remains to be seen what courts will interpret as “race neutral,” or at least neutral enough. The court has merely shifted the locus of potential objections from the minimal consideration of race to the degree of race-conscious motivation in the use of ostensibly neutral criteria.
As it has in the past, the court has prevented the development of more equity and racial justice. It should not be so hard to recognize and act upon the need to remedy centuries of white American discrimination against persons of color. Regardless of anything the Supreme Court says, providing a remedy for past and present discrimination remains the right thing to do in the interests of justice and morality.
Implementing helpful remedies in the language of “race neutrality” constitutes the remaining path of greater fairness. The Jesuit values of equity and justice demand no less.
Juan F. Perea is the Curt and Linda Rodin Professor of Law and Social Justice at Loyola University Chicago School of Law.
