America after affirmative action

Some thoughts on where we're headed as a nation.

Photo by Joshua Hoehne on Unsplash

So, as expected, the Supreme Court ruled that the 14th Amendment forbids racial preferences in college admissions. The policies we know as “affirmative action” are now illegal. In narrow policy terms, the ruling probably won’t change much, but the symbolic impact seems like it could be deep and far-reaching.

If you want to know what I personally think about affirmative action policy, read this post:

Why affirmative action had to go

In a nutshell, affirmative action began as a useful policy to help build an educated Black professional class, and it was fairly successful. But as America became a much more diverse country with many different racial and ethnic groups comprising large percentages of the population, affirmative action threatened to devolve into a bizarre racial spoils system. Ultimately, that’s why it had to go.

The American people largely agreed, at least regarding the conclusion. Although the term “affirmative action” itself tends to poll well, substantial majorities of Americans tend to favor banning racial preferences from admissions:

Source: Washington Post

So while many people will be unhappy with the decision, it’s unlikely that it’ll cause the same kind of long-lasting mass outrage that the Dobbs decision allowing state-level abortion bans has given rise to.

It’s also likely that the ruling will change a lot less than people think, in terms of who actually gets admitted to top colleges.

First, the decision seems to have a bunch of weird loopholes. Here’s Bloomberg’s Noah Feldman:

Roberts’s opinion excluded the US military academies from the decision, implying possible recognition of the need for racial diversity in the officer corps and inviting a new lawsuit on the subject…

A new fight over university admissions is inevitable. Roberts ended his opinion by stating that universities may still consider how an applicant’s race “affected his or her life, be it through discrimination, inspiration, or otherwise.” He added that “a benefit to a student who overcame racial discrimination … must be tied to that student’s courage and determination.” So race can still be taken into account individually, though not systematically.

Roberts went out of his way to refute the possibility, hinted at in Justice Sonia Sotomayor’s dissent, that universities could now still consider race on an individualized basis. “Universities may not simply establish through application essays or other means the regime we hold unlawful today.”

So diversity in the officer corps is a legitimate reason for racial preferences, but diversity in the professional class is not? And colleges can still consider race if an applicant writes about how it affected their personal journey, but not if that replicates the old affirmative action regime? It sure seems like there are going to be a lot of lawsuits before we know exactly how this new system works.

And in the end, it may not even matter that much for who actually gets admitted. California banned affirmative action at state schools in 1996, but in 20 or 25 years, Latino and Black admissions had fully bounced back:

Source: L.A. Times

D. Malcolm Carson, who wrote Berkeley Law’s admission policies after the 1996 ban, explains that they were able to achieve similar racial targets without explicit racial preferences:

[W]e were fairly explicitly attempting to come up with proxy criteria that would replicate the pre-ban outcomes in terms of student racial and ethnic diversity…the replacement policies ended up being more or less successful in replicating the pre-ban diversity numbers[.]

So, not much will change on that front. I expect the transition to the new proxy-criteria regime will be much faster than after 1996, because now every school will be able to just call up folks like D. Malcom Carson and ask what works. If schools want a certain racial composition, they will probably get it, or something close.

And that may be enough to mollify everyone involved. Opponents of affirmative action may be upset at the failure of admissions demographics to change, but they will be able to tell themselves that at least the law of the land is fair and unbiased. They will correctly attribute remaining discrimination to subtle pervasive individual biases rather than the legal, officially sanctioned kind.

Americans, traditionally, prefer our racial discrimination to be kept on the down-low.

Which is why I think that ultimately, the importance of this decision is less about who gets into Harvard, and more about sending a message about the country’s racial future. Supreme Court decisions tend to act like moral coordination mechanisms for the American people. The fact that the 1978 Supreme Court case that allowed affirmative action did so on diversity grounds, but not as a remedy for past racial injustices, is probably a big part of why Diversity, Equity, and Inclusion programs are called that, instead of just Equity and Inclusion programs. A company that’s 25% White, 25% Black, 25% Latino, and 25% Asian is technically more diverse than one that’s 75% Black and 25% Latino if you go by some objective measure like a Herfindahl Index. But most Americans would probably call the latter one more “diverse”, because for decades we’ve been using “diversity” as a stand-in for the representation of traditionally underrepresented minorities. And the reason we did that is probably because the Supreme Court effectively told us to, back in 1978.

Now diversity (except among the military officer corps?) has been rejected by SCOTUS as a rationale for racial preferences. And I expect this to have some major effects on the way Americans address race and fairness.

For one thing, this decision is probably only the prelude to a very long fight. In an article back in October, Noah Feldman explained that the decision on student admissions would spur more lawsuits over hiring discrimination, DEI programs at companies, ESG investing, and so on.

Progressives, who still support racial preferences in all of these arenas, will probably shift back toward an equity-based justification. But they’ll do so more quietly, because to do so openly will now invite instant comparisons to the SCOTUS decision on school admissions. Progressives will grumble that the Supreme Court is illegitimate, that it’s corrupt, that Gorsuch was appointed due to dirty tricks, that the whole tradition of judicial review is itself illegitimate, and so on. True or not, I predict this will all be to no avail. Most Americans will continue to consider SCOTUS a legitimate actor (although Dobbs, and any other truly radical and unpopular decisions the current Court hands down, will weaken that legitimacy a bit).

Progressives will therefore take their campaign underground. Thanks to education polarization, progressives dominate elite institutions like universities, the civil service, and some corporations; they will use this to their advantage, conducting a quiet backroom campaign to entrench norms of equity-based discrimination in hiring, promotions, etc., even as they’re hunted by conservative lawsuits wielding the ham-handed fist of the law. This is quite a reversal from the mid-20th century, when liberals controlled the Court but conservatives ruled the culture. I thought the conservative commentator Wes Yang described the dynamic fairly well (if a bit dramatically):

Meanwhile, the Supreme Court decision probably opens up rhetorical space for the great many Americans who lean to the liberal side but who aren’t what some social psychologists term “progressive activists”. Most Americans want to give Black and Hispanic people a boost, but don’t think the country’s traditional (professed) values of individuality and fairness should be thrown out the window. Before this Supreme Court decision, those “traditional liberals” and “passive liberals” could easily be pressured into acquiescence by the “progressive activists”, who would tell them that opposition to racial preferences was a reactionary or rightist idea. But now it’s the law of the land, and liberals can just point that out.

So I see this decision’s real impact as less about college admissions, and more about the general long-term debate over what constitutes justice in American society.

But an even subtler and longer-term effect might be on American identity. It’s easy to assume that the big racial divisions (or “pan-ethnic identities”, as sociologists call them) will continue to be central to how we think of ourselves — that America will remain a country of White, Black, Asian, and Hispanic, and that these broad racial identities will take precedence over the national identity or more fragmented, overlapping identity markers (“Texan”, “weeb”, “economist”, etc.). The last 9 years of social unrest have nudged a lot of people toward that conclusion.

But there’s also an alternative viewpoint, expressed in books like Richard Alba’s The Great Demographic Illusion. Alba thinks that a combination of intermarriage, integration, the fluid racial self-identification of Hispanics, and perhaps a general decrease in the salience of race will combine to produce a new American “mainstream”. Within this “mainstream”, people will be free to think of themselves less as a piece of a racial bloc, and more as individuals.

The Supreme Court’s decision on affirmative action seems like it might have some impact — though perhaps only a modest one — on which way this goes. In The Diversity Paradox, Jennifer Lee and Frank Bean describe how checking a box to get into college has become routine for some young mixed-race and Hispanic Americans, including those for whom their race is only a relatively minor part of their day-to-day identity. Now, because of SCOTUS, simple box-checking won’t get the job done — to get the preference, you’ll have to write an entire essay about how your life has been oriented around struggling against racial exclusion. And that’s just a much bigger ask. For a lot of kids, it could simply be easier not to even think about opportunistically adopting a minoritized identity — to simply apply to college as individuals, and trust the process to reward individual merit, and thus to move a little closer to Alba’s “new American mainstream”.

More generally, a ruling that official colorblindness is the law of the land — whether or not it comports with the original intent of the framers of the 14th Amendment — could nudge America toward autocolorblindness. That’s a word I just made up, and it means “not considering race as one’s primary identity marker”. Autocolorblindness could mean an America that refuses to come to grips with the injustices stamped into the country’s DNA, and backs off of the push for equity, as many progressives fear. Or it could mean a more fluid America, where identity groups aren’t set in stone, politics isn’t as racially polarized, people feel more free to chart their own individual destinies, and the nation starts to feel a bit less divided.

Or it could mean some of both.

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