A Question About Race
A remarkable exchange at the Supreme Court
Sometimes, in this harried world of ours, it is worth pausing to consider an issue with depth and context. With that in mind, we want to highlight a moment at the United States Supreme Court this week that didn’t receive nearly the attention it deserves.
Perhaps that’s because there is so much else going on. And perhaps it is because the American public and press have come to realize that the current group of justices seem hellbent and undeterrable in remaking American jurisprudence in line with reactionary orthodoxy. That they will blow up decades of precedent is viewed as almost a fait accompli.
On the docket this week were oral arguments for a pair of cases involving affirmative action in college and university admissions. Affirmative action has been a contentious issue for a long time, wrapped up in this nation’s tortured and bloody history over race, equity, justice, and privilege.
As we have seen, racial tensions have risen in recent years around a general reckoning of what kind of nation we are, we were, and we should be. Schools are a natural battleground for this discussion because they are where we are supposed to teach the past in order to educate our leaders of the future. What our children learn, and with whom, will go a long way to determining what kind of country the United States will become.
Affirmative action strikes at questions of meritocracy. How do we judge merit? Can it be measured in grades and test scores alone? Should we factor in the circumstances and prejudices certain groups have faced? Should we consider our unequal educational systems? Should we make allowances for the effects of poverty and economic disadvantage?
How much discretion should academic institutions have in shaping their student body? Should the overall makeup of a class reflect the population at large? Does exposure to diverse viewpoints enhance the educational environment for all?
The critics of affirmative action often portray college admissions as a zero sum game. Letting in one person means another was denied. And they argue that considering race in the selection process is a form of racial discrimination. They are much less vocal about other factors admissions offices consider, such as athletic ability, musical skill, relationships to alumni, and other such criteria.
The argument against affirmative action also has an underlying premise that certain students have a right to attend a certain institution over another one based on some form of “objective” criteria. But it’s not as if there is only one college or university in the United States. There are thousands. Not getting into Harvard or the University of North Carolina (the two institutions featured in the Supreme Court cases) doesn’t mean you can’t go to college, or even a very good college.
Advocates for affirmative action argue that it has many merits. They contest the notion that one can measure students purely by criteria like grades and test scores. How do you weigh someone who had all the advantages of private schools and test prep against someone who didn’t? They also say that the makeup of a student body matters in fostering diverse learning environments. These arguments and others were made before the court.
But we want to focus on another argument, the very notion that it is unrealistic and impractical to bar the consideration of race in any practical sense. Race has been a major influence on defining the American experience since the beginning. The life stories of underrepresented minorities in this country cannot be separated from race. As members of these groups apply to college, as they write in their essays about their life experiences, their hopes and dreams, their family histories, is it realistic that they omit any mention of race? How can an admissions office ignore such factors?
This was the line of questioning from the newest member of the Supreme Court, Justice Ketanji Brown Jackson, in the case of the University of North Carolina (she had recused herself from the Harvard case). She used a simple hypothetical framing that created a powerful moment in the oral arguments and gave court watchers more evidence that she will be a force on the bench.
Here is a transcript of the exchange between Justice Jackson and Patrick Strawbridge, a lawyer arguing that UNC’s consideration of race in admissions should be prohibited.
JUSTICE JACKSON: What I'm worried about is that the rule that you're advocating, that in the context of a holistic review process, a university can take into account and value all of the other background and personal characteristics of other applicants, but they can't value race, what I'm worried about is that that seems to me to have the potential of causing more of an equal protection problem than it's actually solving.
And the reason why I get to that possible conclusion is thinking about two applicants who would like to have their family backgrounds credited in this applications process, and I'm hoping to get your reaction to this hypothetical.
The first applicant says: I'm from North Carolina. My family has been in this area for generations, since before the Civil War, and I would like you to know that I will be the fifth generation to graduate from the University of North Carolina. I now have that opportunity to do that, and given my family background, it's important to me that I get to attend this university. I want to honor my family's legacy by going to this school.
The second applicant says, I'm from North Carolina, my family has been in this area for generations, since before the Civil War, but they were slaves and never had a chance to attend this venerable institution. As an African American, I now have that opportunity, and given my family — family background, it's important to me to attend this university. I want to honor my family legacy by going to this school.
Now, as I understand your no-race-conscious admissions rule, these two applicants would have a dramatically different opportunity to tell their family stories and to have them count.
The first applicant would be able to have his family background considered and valued by the institution as part of its consideration of whether or not to admit him, while the second one wouldn't be able to because his story is in many ways bound up with his race and with the race of his ancestors.
So I want to know, based on how your rule would likely play out in scenarios like that, why excluding consideration of race in a situation in which the person is not saying that his race is something that has impacted him in a negative way, he just wants to have it honored, just like the other person had their personal background family story honored, why is telling him no not an equal protection violation?
MR. STRAWBRIDGE: Well, I think — I think — I think because, if — if it is the racial aspect of the application, then that's — equal protection requires that — that people of all races be treated equally.
JUSTICE JACKSON: And —
MR. STRAWBRIDGE: Now, certainly, UNC shouldn't give a — a legacy benefit if they don't want to give a legacy benefit. There's no obligation they do that.
JUSTICE JACKSON: No, but you —
MR. STRAWBRIDGE: And, of course, a first generation college —
JUSTICE JACKSON: I'm sorry, but you said — you said it was okay if they give him a legacy benefit. And what I'm saying is that in almost exactly the same set of circumstances, a student or an applicant who is African American and who would like to have the fact that he's been in North Carolina for generations through his family and that they've never had a chance to go to this school honored and considered, and it's bound up with his race, you say, I think, that he's not allowed to say that and that the university is not allowed to take that into account. And because it relates to race, precisely because it relates to race, I think you might have an equal protection problem in saying that he can't get credit for that when someone else can.
MR. STRAWBRIDGE: Well, for purposes of the hypothetical, I am assuming that the only significant factor in that story happens to be the fact of the race of the applicant and that the race was previously barred from attending UNC. Obviously, nothing stops UNC from honoring those who have overcome slavery or recognizing its — its — its past contribution to racial segregation.
Justice Jackson’s hypothetical strikes at a central truth: It is impossible to weigh many applicants to college in a vacuum where race cannot be considered as a factor. That is not realistic in America today. In the arguments, it also became clear that few if any colleges automatically admit someone just because of their race. It is only one of many considerations. And now that consideration will likely become unconstitutional.
Given the present makeup of the court, the outcome of these cases is probably a given. Still, it will be interesting to read both the majority opinion and the dissent or dissents. This is about the very definition of who we are as a nation. It is about grappling with our history. It is about what we value as a society. To argue that we can just remove race as a consideration is to disavow reality.
The truth is that in the United States, race matters. It's an ugly reality, but one that cannot be denied — no matter what the Supreme Court ultimately rules.
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If you would like to hear Justice Jackson ask the question detailed above, you can do so here: