Affirmative Action and the Myth of Neutrality

On October 31st, the Supreme Court heard two cases that called affirmative action into question (again). Students for Fair Admissions (SFFA), a conservative non-profit group that believes race-conscious admissions programs are “unfair, unnecessary, and unconstitutional,” is up against Harvard College and, separately, the University of North Carolina. The conservative supermajority of the Supreme Court appears to be in favor of race-neutral (or “race-blind”) admissions, which promote a resource-blind “meritocracy,” and are projected to lower Black and Latino representation in elite institutions while increasing representation of Whites and certain Asian sub-ethnic groups at the same schools.

According to their website, SFFA’s mission is to “restore the original principles of our nation’s civil rights movement.” They claim that “a student’s race and ethnicity should not be factors that either harm or help that student to gain admission to a competitive university.” It is worth noting that such colorblind theory has been consistently determined in academic circles to be a misuse and perversion of Martin Luther King Jr.’s dream that his “four little children [would] live in a nation where they will not be judged by the color of their skin but by the content of their character.”

Over the decades since the conception of race-conscious admission (or “affirmative action”) in the 1960s, the Supreme Court has ruled on several relevant cases establishing a relatively strong precedent in its favor:

  1. In Regents of the University of California v. Bakke (1978), a quota system where a certain number of spots are reserved for given racial groups was determined to be unconstitutional. However, the court also ruled that educational benefits derived from having a diverse student body were a “compelling interest” for educational institutions. As such, considering race as one of several factors was permitted. 

  2. In Gratz v. Bollinger (2003)and Grutter v. Bollinger (2003), the modern precedent that race could only be considered on an “individualized” basis was established, and conservative Justice Sandra Day O’Connor expressed—on behalf of the majority—the expectation “that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” 

  3. Only 10 years later, in Fisher v. University of Texas (2013 and 2016), an attempt to broadly overturn the court’s previous stances on race-conscious admissions failed. Justice Anthony Kennedy wrote in the 2013 decision that universities must demonstrate, “before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.”

As with Fisher, Students for Fair Admissions v. President and Fellows of Harvard College (likely 2023) and Students for Fair Admissions v. University of North Carolina (likely 2023) together seek to overturn Grutter, challenging any consideration of race in the college admissions process as a violation of the Equal Protection Clause. A ruling in favor of SFFA would be historical, given that past race-neutral attempts to diversify the student bodies of Harvard and UNC have failed and both schools currently consider race alongside several factors including extracurricular activities, socioeconomic status, and military veteran status.

At the core of these cases is the issue of how institutions, whether legal or educational, should reconcile and assess subjective and objective information about an applicant. Because we, as individuals, cannot help but have perspectives and, as a byproduct, biases, some suggest that by removing subjective qualia from the equation, one can consider another person “objectively” and thus compare them to others fairly. In particular, Thomas Nagel, in his 1968 publication The View From Nowhere, developed the idea that by acting blind to qualities that are difficult to assess quantitatively, those qualities are rendered incapable of affecting the assessment. In other words, not considering a factor removes its presence and thus its influence. This is the same idea behind the advocacy for race-neutral admissions; supposedly, being race-blind removes race from the college-admissions process, making it so an individual’s race cannot help nor harm their chances of acceptance.

But that is simply not true. Scientific studies continue to show that race is still a determinant when it comes to the quality of high school education, household income, access to healthcare, extracurricular involvement and access to enrichment opportunities, and more. Tertiary education institutions, including Harvard College and the University of North Carolina, use many of these factors when determining whether or not a prospective student will be admitted or not. 

Eliminating race as a factor is therefore a way to render college admissions officers unable to objectively determine the abilities of a student and predict their level of engagement and success given the resources at their respective institutions. As Donaldo Macedo argues in Paulo Freire’s Pedagogy of the Oppressed, “the assumption of a view from nowhere is the projection of local values as neutrally universal ones, the globalizing of ethnocentric values.” Neutrality presupposes occupation of a neutral position and presents conflicts as “fixed and immobile,” when in reality, a multitude of forces work to stratify people as above and below one another. In other words, it examines problems that are tied together as though they are isolated. Failing to recognize these interconnected forces can only favor the people that are already disentangled from said forces. 

“There is no such thing as a neutral educational process,” writes Richard Shaull in Pedagogy of the Oppressed, “Education either functions as an instrument that is used to facilitate the integration of the younger generation into the logic of the present system and bring about conformity to it, or it becomes ‘the practice of freedom,’ the means by which men and women deal critically and creatively with reality and discover how to participate in the transformation of their world.” 

If educational institutions aim to be neutral or provide a neutral education, they ultimately fail to instill the critical skills that students need in order to engage with and improve their communities; the impact of the anticipated ruling is far-reaching. Not only will peer learning be compromised in an undiversified environment, it will also become increasingly difficult for low-income students of color to climb the socioeconomic ladder through educational attainment. Under the guise of ruling on college admissions, it’s likely that the Supreme Court will directly expand the school-to-prison pipeline. As over a dozen states still permit slavery and/or involuntary servitude in prisons, such an impact would be dire.

Lex Perspectives