In the days since the Supreme Court handed down its landmark ruling in Students for Fair Admissions v. Harvard, the media have been saturated with sympathetic personal stories of accomplished people who claim they (or others claim) would never have had a chance at success without race-based affirmative action policies in college admissions. They are almost all from poor communities and graduated under trying circumstances from failing school districts, and sometimes from fractured and complex family circumstances. They are almost always the children of the victims of the reprehensible and unequivocally condemnable Jim Crow laws that cast a long and pernicious shadow across our nation’s communities for most of the 20th century.
These are compelling stories of lawyers, doctors, writers, journalists, and others who have found a level of success that their enslaved forebearers and actively segregated parents and grandparents could never have imagined. And they have undoubtedly contributed to American society in ways that everyone can appreciate. The end of affirmative action, they lament, is the end of opportunity for students like them and a regressive step as this nation seeks to grapple with its record on race.
As moving as these individual stories may be, the Supreme Court was right to find that these policies are unconstitutional. And yet, these programs have been halted as legitimate concerns about white supremacy (and not the insulting and absurd“woke” variety) is on the rise in circles much too close to the cultural and political mainstream. It is worth considering the promise and the problems with affirmative action, as well as its history at the Supreme Court if we are to chart a just pathway toward opportunity for all.
Affirmative Action at the Supreme Court
Allan Bakke was an older applicant to the University of California, Davis School of Medicine. Between his college graduation and application to medical school, Bakke served in the U.S. Marine Corps and worked at NASA as an engineer. He applied to UC Davis with exceptional test scores but was denied admission in two consecutive years and filed suit against the school claiming racial discrimination when minority applicants with lower test scores and GPAs were admitted under race-based admissions programs.
The resulting 1978 landmark Supreme Court decision, Regents of the University of California v. Bakke, was a Frankenstein’s monster of a plurality decision that resulted in a victory for Bakke but no clear rule emerging. Essentially, it seemed as if the Court by default had adopted a rule articulated by conservative Justice Lewis Powell in an opinion written for himself alone with concurrences from other justices limited to specific parts. Justice Powell found compelling the university’s interest in the educational value of campus diversity. Graduates of UC Davis School of Medicine, so goes the argument, would enter a world much more diverse than the one in which they were trained to be physicians but for admissions policies that guaranteed a diverse student body. The Court clearly rejected quotas, but Justice Powell’s opinion allowed race to be explicitly considered among a complex of factors considered for admissions. In 2003, in Grutter v. Bollinger, the Supreme Court clarified that Powell’s plurality opinion was, in fact, the position of the Court.
So affirmative action was allowed by the Court on narrow and shaky constitutional grounds. Bakke expressed extreme skepticism of race-based admissions policies generally. Justice Sandra Day O’Connor, writing for the majority in Grutter, even stated that the scheme would be unnecessary and illegal 25 years from the date of the decision (or by 2028) because of the progress that America would surely make in guaranteeing equitable outcomes for all races. Interestingly, Justice Thomas expressed his agreement with the majority only on the point that such schemes would be illegal in 2028, just as they were, he argued, in 2003.
The Court in Students for Fair Admissions ruled that race-based admissions programs violated the 14th Amendment’s Equal Protection Clause, with Chief Justice Roberts writing that it applies “without regard to any difference of race, of color, or of nationality.” Roberts goes on to write that admissions schemes like the one employed by Harvard University “lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points.” Affirmative action in college admissions is effectively dead.
The Promise and Problems of Affirmative Action
Slavery has rightly been called “America’s original sin,” and the further violence done to black Americans through Jim Crow segregation is a stain on this nation and in direct contradiction to its stated ideals. Race-based admissions policies were designed to provide an avenue for members of this community to gain access to education, and through education to professions formerly well out of the reach of their forebears.
Statistics purported to demonstrate the effectiveness of these programs, or the lack thereof, have as many interpretations as interpreters, and there is, quite frankly, no clear consensus as to whether these programs work to increase minority access to education. There are, as mentioned above, anecdotes that point to the success of individuals, but it is impossible to demonstrate a causal connection between affirmative action and individual success, especially as opposed to the elimination of legal barriers to opportunity that have occurred in the later part of the 20th century. But the question of effectiveness is moot if the practice itself runs afoul of the law. Our jurisprudence cannot be one of pragmatics if we hope to maintain a free and stable society. And until this case, the Court’s jurisprudence as represented in Grutter was certainly more pragmatic than legal, since the scheme was only contingently constitutional.
Notwithstanding, Lewis Powell was right in observing that campus diversity is important. He went too far, however, in concluding that it demanded discriminatory means to guarantee it. But no person of any race, sex, or viewpoint can truly excel in homogenous bubbles in a plural society. At some point, each of us will have colleagues, friends, and neighbors different from us in both superficial and meaningful ways, and we should know how to engage with them as equals.
This is the genius and the truth of the imago Dei: human diversity is as broad as humanity itself, but there is still an essential unity in that each unique and unrepeatable person bears the image of God. We truly are made for and made better in communities of goodwill that seek the best for all members. The imago Dei is the basis of solidarity and the root of understanding that “all men are created equal, [and] endowed by their Creator with certain unalienable rights.” It is an atomized “rugged individualism” that understands our rights as something to assert over and against others and asks God, “Am I my brother’s keeper?” or asks a neighbor, “Am I obligated to have concern for your suffering?” It’s the personalist anthropology of the Christian tradition that affirms both that we are individual humans with dignity and worth and part of the human collective.
Because we are all unique and unrepeatable, people are much more complex than race-based admissions programs acknowledge or are even capable of capturing. The reality is that there are multiple axes of diversity, and not all axes are relevant to every context. No group defined along any axis is monolithic—not all women hold all things in common. Not all black or white or Asian people hold all things in common. Not all wealthy or poor people hold all things in common. The point is that none of these aspects of identity holistically defines any member or all members of a particular group. Affirmative action, by checking boxes based on one or even a few axes of diversity, cannot equitably take into consideration enough of the factors of inequality to compensate for the things that can make life unfair. In attempting to use such programs to cure one social ill, new resentments are created and old ones are intensified as those who hold underprivileged positions on different axes of diversity are afforded no equivalent special opportunities.
No Easy Solutions
No matter the urgency of a social ill, we should not twist our Constitution into accommodating well-meaning attempts to cure those ills. For those of us who agree with the Supreme Court in Students for Fair Admissions, we would do well to remember that while this is a victory for a return to responsible constitutional jurisprudence, the architects of affirmative action were not motivated by malice. It could be that this was the most tenable among inelegant solutions to a pressing social issue.
But what happens this fall as applications to Harvard start to roll in? The university has leapt upon this statement from Chief Justice Roberts’ opinion: “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.” Harvard obviously understands this to be a loophole. And the reality is that it probably will be employed as such. But the chief justice is right—holistic consideration of applicants includes all the various forces that have shaped them, which includes racial factors. But this is not just true for a black applicant from a failing school district and broken home; it’s also true for a white applicant from a community in Appalachia beset with drug problems and poverty. Hopefully Harvard really will agree with the Roberts “that the touchstone of an individual’s identity is not…the color of their skin.”
Unfortunately, there are no easy solutions to the racial and social tensions that plague us. But a good starting point is to recognize and respond to the image of God as it presents itself in our neighbors, and to remember that while we are certainly different in big and small ways, we share at least that in common. Our attempts to resolve these tensions will be and have been halting, difficult, and suffer many setbacks. But in solidarity with our neighbors, with whom we share God’s image, we can imperfectly work toward just resolutions that the Constitution of our democratic republic allows the space to pursue.
