Richard Thompson Ford1Richard Thompson Ford is Professor of Law at Stanford Law School. He is the author of the New York Times notable books The Race Card and Rights Gone Wrong: How Law Corrupts the Struggle for Equality. He is a member of the American Law Institute and serves on the board of the Authors Guild Foundation. He thanks Taiyee Chien for his editorial assistance and exceptional patience.
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A part of the series, Affirmative Action at a Crossroads.
There is really nothing new to say about the distinctive legal and policy issues surrounding affirmative action—one of the most obsessively analyzed and discussed issues in American jurisprudence. Moreover, as racial attitudes and the nature of university admissions have changed, affirmative action matters much less than it once did. What’s still interesting is that the affirmative-action wars reflect larger issues, such as the betrayed promise of the civil-rights legislation and the Fourteenth Amendment guarantee of equal protection as well as the dishonesty, denial, and dysfunction surrounding questions of racial justice more generally. I suspect Americans care about the issue to a much greater degree than it deserves because the debate over affirmative action offers a simplified and lower-stakes reflection of the social turmoil and acrimony surrounding these broader questions. Still, like Tolstoy’s unhappy family, the conversation surrounding affirmative action is miserable in its own, unique way.
I. Anticlassification as a “Principle”
Affirmative action began life as a modest policy designed to ameliorate the effects of generations of overt discrimination. It is impossible to assess or understand the policy without reference to our society’s long and ugly history of racism. But such reference is made difficult by the idea that the Equal Protection Clause of the Fourteenth Amendment—a constitutional provision enacted to remedy the effects of race-based slavery—should prohibit “racial classifications” as an abstract matter, regardless of whether those classifications advance or counteract racial hierarchy. This has ensured that the jurisprudence of equal protection cannot consider the very social circumstances that inspired it and make it necessary. (I incorporate by reference the voluminous literature pointing out the many flaws of the strict “anticlassification” idea of equal protection here.)
The so-called anticlassification “principle” and its associated jurisprudence is arguably—though not obviously—warranted when the use of race in question is the all-too-familiar Jim Crow–style discriminatory policies and practices. This is of course what civil-rights lawyers in the 1950s were attacking when they advanced the idea that the Equal Protection Clause prohibits the state from making race-based distinctions. But given the salience of race in our society, a right to be free from any consideration of race is both impractical and unwise outside such a context. Frankly, no sensible person thinks otherwise: a project designed to truly eliminate racial considerations from public decisions (to say nothing of the decisions of private entities partially funded by the government or engaged in important activities in the market economy) would require a vast regulatory effort well beyond the capacity of the federal courts or the expansive apparatus of the administrative state, and would require a degree of intrusive surveillance and censorship that would certainly violate other constitutional rights.
At any rate, the proscription is applied quite inconsistently even in the contexts in which it might be workable. Consider the use of race in police descriptions of crime suspects. One might deny that this counts as a racial classification because police typically only adopt a description offered by an eyewitness. But police regularly ask about the race of suspects. Moreover, by the same logic one could deny that affirmative action involves a racial classification because universities simply adopt the self-description of applicants. In both cases, the relevant action involves making decisions based on the racial information one gathers—about who to interrogate in the former case, about admissions in the latter.
Another defense of employing race-based suspect descriptions is that using race is the most straightforward—and narrowly tailored—way of furthering the compelling governmental interest in crime prevention. Perhaps, in some contexts it is. But race, to the extent it is a coherent category of human morphology at all, is actually a pretty sloppy proxy for physical description: Rachel Dolezal, the Caucasian woman who famously posed as African American, looked Black enough to fool the Spokane, Washington chapter of the NAACP. Similarly, Kim Kardashian could pass as a Black on a good day, as the many critics of “blackfishing” have pointed out. Meanwhile, countless African Americans have passed as White. Police use race as a very casual shorthand for physical appearance despite the obvious potential for both malicious bias and unintended consequences in that context, where the history of racial prejudice is well established and the stakes can be life or death. They do so because it would be cumbersome and costly to ignore race and consider only more detailed physical descriptions. Almost everyone accepts that this is reason enough. In university admissions, race is also an imperfect proxy—in this case, for an individual who has suffered from racial prejudice or has had racially distinctive experiences. The link between any individual’s physical appearance and his or her race is a good deal more “amorphous”, to borrow Justice Lewis Powell’s terminology from University of California Regents v. Bakke, than the societal discrimination suffered by Black and Latino applicants to selective universities. The difference lies in who suffers and who benefits from these two types of racial classification.
Justice Powell put a pragmatic spin on the anticlassification idea when he opined in Bakke: “disparate constitutional tolerance of . . . [racial] classifications may well serve to exacerbate racial and ethnic antagonisms rather than alleviate them.” Professor Reva Siegel of Yale Law School has helpfully placed Justice Powell’s statement in a broader context of racially conservative jurisprudence taken up most recently by Justice Anthony Kennedy in cases such as Parents Involved in Community Schools v. Seattle School District No. 1 and Ricci v. DeStefano. Siegel identifies in these cases an “anti-balkanization principle.” This is very plausible as an explanation of Supreme Court equal-protection jurisprudence (and this is all Siegel intends it to be—she does not defend it as a normative matter). But although it now represents what passes for moderate on the current Supreme Court, the anti-balkanization idea is strikingly reactionary: it reflects a concern only about the resentment provoked by changes to the racial status quo, not about resentment resulting from its perpetuation.
Hence, the Supreme Court’s affirmative-action jurisprudence condemns unambiguously antiracist policy unless it is narrowly tailored to serve a compelling governmental interest and then, beginning in Bakke, defines the acceptable interests to exclude the one most consistent with the purposes of the Reconstruction amendments: remedying widespread racial discrimination. Although this goal was expressly rejected by Justice Powell as unacceptably “amorphous,” even President Richard Nixon—not a man known for his racially progressive views—understood there was an urgent need to avoid perpetuating and replicating the worst discriminatory practices of what was for generations an avowedly racist society. The most one can say for the Supreme Court is that it was almost—through not quite—President Nixon’s equal: Justice Powell rescued antiracist policy from the peril he had just created for it with the kludgy workaround that affirmative action would be permissible if it furthered the pedagogical objective of “diversity.”
Diversity is not a terrible rationale for affirmative action. In some contexts, it is a pretty good one (e.g., sociology, education, law); in others, somewhat less so (e.g., conceptual physics). But in all contexts, it implicitly relies on the stronger, denied rationale of remedying societal discrimination. “Diversity” seems designed to let universities make timid steps to address racial injustice without ever having to talk about racism. For example, in Grutter v. Bollinger, while defending the idea that diversity and only diversity could justify affirmative action, Justice Sandra Day O’Connor couldn’t avoid obliquely referring to societal racism, writing, “By virtue of our Nation’s struggle with racial inequality, [underrepresented minority] students are both likely to have experiences of particular importance to the Law School’s mission, and less likely to be admitted in meaningful numbers on criteria that ignore those experiences.” Let us unpack that and foreground the part Justice O’Connor glosses over: Black and Latino students are less likely to be admitted to selective universities because of our nation’s struggle with racial inequality. This sounds an awful lot like an acknowledgment that societal discrimination is relevant to university admissions because it explains why formally race-neutral admissions criteria do not accurately measure the potential of underrepresented racial minority applicants. Correcting for this widespread and well-understood societal discrimination is enough to justify affirmative action, and a stronger and more widely applicable rationale than diversity.
Embrace of “diversity” has kept affirmative action alive, but at a great cost. The diversity rationale has required advocates of affirmative action to emphasize relatively weak arguments while only alluding to the stronger ones. Far worse, it has warped and distorted the national discourse about racial justice in other areas, such that “diversity” is now a lazy slogan for almost any effort at social justice or inclusion. The urgent task of challenging patriarchy and misogyny becomes instead a matter of gender diversity; the gross maldistribution of social resources, polarization of wealth and income, and exploitation of working people is transformed into an issue of inadequate “class diversity”; completing the long-stymied task of post-slavery Reconstruction is reduced to a program of racial diversity. Diversity talk has undermined analytical precision and sapped energy from social movements, turning issues of justice into questions of technocratic personnel management. And it has so muddied the waters that almost any self-defined group—subordinate or superordinate, subjugated or empowered, subaltern or hegemonic—can seek a tactical rhetorical advantage in the vague ideal of diversity. It is only because of the influence of “diversity” rhetoric that it seems sensible to compare the underrepresentation of the descendants of slaves and the victims of Jim Crow to the underrepresentation of evangelical Christians or people with conservative political leanings.
III. Fairness and Individual Merit
A standard reason for an individual right against racial classifications is that any consideration of race is unfair to individuals. But, unlike in the Jim Crow context, any individual injury involved is offset by the social benefit of correcting for and reversing generations of racial injustice. Arguably affirmative action prioritizes social equity over individual fairness, but it bears noting that many policies put collective interests over fairness to individuals and that some do so in a racially targeted manner. For example, aggressive policing, informed by race-based suspect descriptions and racial profiling, targets countless innocent individuals—disproportionately Black and Latino—for intrusive and degrading police surveillance and intimidation in order to reduce overall crime rates for the benefit of society at large.
Moreover, again unlike the Jim Crow context, much of the individual injustice in affirmative action is speculative or simply manufactured. For instance, it is rarely clear than any given applicant is disadvantaged by affirmative action. The injury suffered by the university affirmative-action plaintiffs after Alan Bakke was questionable: At most, these plaintiffs can claim their chances of admission were somewhat reduced because a small number of other people enjoyed a race-based preference in a zero-sum competition. Many most likely would not have been admitted regardless of affirmative action, either because of their objective credentials and or because of other factors that are not race-based. In the holistic admissions that selective schools using affirmative action are legally required to employ post-Bakke, objective considerations are only one part of a larger assessment. After Bakke, the effect of affirmative action on the prospects of any given applicant who does not benefit from it is, one might say, amorphous.
Underlying the notion that affirmative action is unfair to individuals is the misconception that scalable credentials—grades and standardized test scores—are transparent measures of merit, even of virtue, such that individuals have a moral entitlement to be judged according to them and only them. This idea isn’t directly relevant to the legal controversy, which concerns only whether or not the university has considered race and its reasons for doing so, but it is at the very center of the political controversy that has kept this issue alive. There is no doubt that these scalable measures are useful as a means of making broad distinctions between applicants. But there is little justification for employing them to make fine distinctions among highly qualified applicants, which is precisely what most selective schools do. Grades and test scores get this undue weight because of their importance in the rankings of academic institutions, U.S. News and World Report’s yearly rankings in particular. There is fierce competition among elite schools for the highest rankings because high rank offers bragging rights, reinforces elite status, and is self-perpetuating: because most applicants don’t have the information or ability to distinguish between universities and colleges based on educational quality, many select based on rank. Of the many factors that contribute to a school’s rank, one that is largely in the immediate control of the school itself is the average standardized test score of its student body, so selective schools select for students with the highest grades and test scores in order to boost their rank. This provides an additional incentive for the universities to overuse standardized test scores in their admissions decisions, and to give small differences in scores more weight than their predictive value warrants. As a consequence, increasingly, academic merit is considered to be synonymous with standardized test scores and grades.
This unjustified reliance on grades and standardized test scores is a textbook example of a practice with a racially discriminatory disparate impact. A similar practice might be unlawful in the employment context and arguably, affirmative action is simply a voluntary effort to counterbalance this practice. Unsurprisingly then, the vulnerability of affirmative action has fueled an antiracist attack on standardized testing generally. For decades, efforts to eliminate or even reduce reliance on standardized testing seemed quixotic, but recently a growing number of universities have relaxed or even eliminated requirements for standardized testing. The breakdown of testing during the COVID-19 crisis has forced many more universities to follow suit. Indeed, in response to a disability-discrimination challenge, a federal court has ordered that the entire University of California system ignore standardized test scores in the upcoming application year and in response, the UC system has decided to suspend use of standardized testing until, at the earliest, 2024. With standardized testing already on the ropes, were affirmative action to be invalidated, many universities forced to choose between their current use of standardized testing and racial diversity are likely to choose the latter.
In addition, a growing critique of technocratic meritocracy on both the right and left of the political spectrum adds another reason to reduce emphasis on standardized testing. For conservatives, competitive meritocracy sends the insulting message that those who are not on top, in elite universities and later in prestigious jobs in a small number of large metropolitan areas, deserve both their subordinate social status and the contempt of those who have outperformed them. Meanwhile, increasingly campus progressives see careerist meritocracy as an ideology of exploitation. Competitive meritocracy demands that parents prime their children for alienation and exploitation, sacrificing the innocence of childhood for the rigors of work in preparation for a competitive academic market and ultimately, service in the market economy. Scalable numerical indicia of merit rank students as commodities, making them easily comparable—one might say fungible—for potential employers and creating a permanent sense of insecurity among them so as to encourage self-exploitation. Students engaged in such hypercompetitive pre-career training effectively work for free—indeed they pay for the privilege—and find themselves in debt at the end of the process, desperate and more readily exploitable. Higher education, the great engine of meritocracy, facilitates a twenty-first century form of indentured servitude. No surprise then, that a mental illness epidemic currently plagues both high school and higher education—a consequence of the relentless pressure of today’s academic competition and the emptiness of a life it defines. Selective universities bear a great deal of responsibility for this mental health crisis and are now suffering its effects as they confront growing numbers of students with serious emotional disorders demanding costly and cumbersome accommodations. For both self-serving and humanitarian reasons, the modern university is rethinking its role in competitive meritocracy (and, one hopes, rediscovering the ancient virtues of humanistic education and the pursuit of knowledge for its own sake).
The Students for Fair Admissions v. Harvard case, raising the claim that Harvard discriminates against Asian-American applicants, is best understood in light of the limitations of standardized test scores as admissions criteria. If grades and tests scores were the only consideration in admissions, the number of Asian Americans admitted to Harvard would be much higher than it is. But the data revealed during the Harvard litigation suggests that race-conscious affirmative action did not greatly disadvantage Asian-American applicants; instead, other considerations such as legacy status, “development” goals (family donations to the university), subjective considerations such as well-roundedness, likability, intellectual curiosity, and leadership skills, and preferences for applicants from underrepresented geographic regions and for athletes all heavily disfavored Asian-American applicants. But many of these considerations are legitimate elements of qualitative evaluation; and, in any event, none are unlawful.
A challenge to race-based affirmative action was the only avenue open to the Asian-American students aggrieved by these other university admissions priorities. But because affirmative action is not the biggest problem for Asian-American applicants, eliminating it won’t help them much. In fact, it may well increase the likelihood that selective universities will reduce their reliance on scalable indicia of merit generally and rely more on the type of holistic assessment that gives greater weight to culturally specific traits and vaguely defined “diverse” life experiences. The greatest irony of the unhappy saga of affirmative-action litigation is that while it has undermined honest and transparent efforts to correct well-known social injustices, the compromise of “diversity”—perhaps stripped of any overt racial content—will certainly survive, regardless of what the courts do.
The lawyers and conservative political activists backing the relentless challenges to affirmative action must know this, even if some of the named plaintiffs in their lawsuits do not. For these lawyers and activists, the salient injury seems to be less that affirmative action prevents some unidentified and unidentifiable deserving applicants from gaining admission, but that it ensures admission for a group of conspicuously identifiable and—in the view of the critics—unsuitable applicants. It is hard to not to see many complaints of about affirmative action as thinly veiled objections to the presence of significant numbers of Black and Latino students in selective universities, reflecting a characteristic American antipathy toward uppity dark-skinned people who attempt to rise above their station.
The practical stakes of any future affirmative-action litigation are relatively low. Affirmative action plays a modest role in university admissions today, and there is a growing likelihood that universities will radically change admissions practices in the coming years, reducing reliance on standardized testing, the disparate racial impact it entails, and hence the need for affirmative action. The anti-affirmative-action lawsuits reflect some sincere and valid misgivings about an admissions process defined by secrecy, misdirection, elitism, and hypercompetitive quasi-meritocracy. But none of these legitimate concerns jibes with the legal theory underlying the lawsuits, which is limited to benign race conscious decision-making. And none of the specific objections to race-conscious affirmative action is worthy of respect as a moral or ethical matter. Those objections are colorable legal claims only because of a deeply misguided, confused and often dishonest equal-protection jurisprudence. Worse, much of the opposition to affirmative action is motivated by a genteel version of the White racial resentment that the Trump era has revealed to be a significant and malignant force in American public life. Almost everyone involved would be better off without yet another round of divisive, insulting, and likely pointless litigation on the issue. But the affirmative-action controversy, while unhappy in its own way, is also a symptom of a more general dysfunction in constitutional jurisprudence and national public culture, and that is what keeps it evergreen. And sadly, the greater good has never stopped a resentful family member from picking a new fight over an old grudge.
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Richard Thompson Ford is Professor of Law at Stanford Law School. He is the author of the New York Times notable books The Race Card and Rights Gone Wrong: How Law Corrupts the Struggle for Equality. He is a member of the American Law Institute and serves on the board of the Authors Guild Foundation. He thanks Taiyee Chien for his editorial assistance and exceptional patience.
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