Yesterday, the Supreme Court functionally banned race-based affirmative action.
The day before that, I finished the series finale of the Netflix series Never Have I Ever. The first season of that show I continue to think is one of the greatest in television history. The remaining three couldn't keep to that unsustainable height, but were also very good.
Two of the main through arcs of Never Have I Ever were Devi (the main character, a California teenager whose parents immigrated from India to America) working through the grief at the sudden death of her father, and Devi's relentless, all-consuming obsession with attending Princeton For most of the show, these were mostly treated as unrelated. In the first season, a character rather callously suggests that the circumstances of Devi's father's death would make for a standout college essay; Devi recoils on the ground that it would be exploitative. In the final season, however, the two threads are drawn closer together. We get a flashback where a first grade Devi announces to her dad that she wants to attend "Princess University", and when informed that there isn't such a place but there is a "Princeton University", she confidently declares that will be her dream instead. The ferocity with which Devi clings on to this passion is, in many ways, part of the ferocity through which she clings to her father's memory. And in the final season, Devi changes her mind about the collegiate essay -- writing about her father and his death because "you can't understand me without understanding him."
There is nothing crass or exploitative about Devi's decision. She wrote honestly and sincerely about an important piece of who she was. And yet, Devi's initial instinct is entirely reasonable as well. She shouldn't have to bare this element of her life to the judgment of strangers if she does not want to. She shouldn't have to be defined by it if she doesn't want to be. There is something terrible about the way that college admissions encourages, even demands, of teenagers to produce trauma porn. Nobody is immune to this -- even as we speak, Cornelius Buckingham IV is composing (possibly with the help of ChatGPT) an essay about the time his yacht got caught in a storm but he and his Phillips Academy buddies pulled through, showing the importance of overcoming adversity and proving that nobody goes it alone -- but it's fair to say that this demand falls heavier on minority students. Every admissions officer loves a comeback story, and the deeper one can present oneself as having fallen into the dirt, the more glorious it is to rise out of it.
At the conclusion of the majority opinion, Chief Justice Roberts lays a booby trap for admissions directors:
[N]othing 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. But, despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today.... A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race.
It is hard to know how the first sentence is supposed to relate to the second. When does giving favorable treatment to students who document "how race affected his or her life" become simply a closet way of reestablishing unlawful affirmative action? Indeed, there's a basic incoherency in the entire formulation: the majority has always viewed racial discrimination as solely consisting of the formal use of a racial classification, and not a matter of results that replicate a particular racial pattern. This is why the Court believes that de jure school segregation is unconstitutional, but "de facto" school segregation that yields schools with nearly identical racial compositions (all-White or all-Black) are constitutionally permissible. Once a university abandons the racial classification, the constitutional violation is over. So it's barely possible, even in concept, for a university to stop using racial classifications yet "establish" a unconstitutional racial classification (save, perhaps, if we adopt the more radical call for explicit judicial resegregration I articulated in my recent article).
Be that as it may, most observers think that the manner most schools will respond to the Supreme Court decision is to accord more weight to "diversity statement" essays where a student can explain "how race affected his or her life" (that the Court tacitly endorses these statements at the precise moment they're under fire by the same political coalition that sought to terminate affirmative action should not be lost on anyone, nor should it remotely reassure that such statements will not be the next target). Instead of generalizing the notion that race affects applicants' lives, opportunities, outlooks, and so on, these essays individualize the endeavor -- each applicant must explain how they are affected by race, racism, and identity.
An inevitable upshot of this shift will be inordinate pressure on students to frontload this aspect of their identity, giving it pride of place so that admissions officers -- thirsty for anything that can substitute for the tools taken away by the Supreme Court -- can find a "race-neutral" way of ensuring a racially diverse class. The irony, of course, is that this practice will make race more important and essential, not less. Until now, a Black applicant could frame their application around their love of robotics or their interest in comedic storytelling or their passion for ancient Chinese art, or -- if they so chose -- on the importance of their racialized experience as they moved through the American educational system. They could make one of the former choices secure in the knowledge that their application reviewer would not assume that such a frame meant that their racial identity didn't matter to them or hadn't mediated their life or development -- it just wasn't what they would choose to accentuate. After this week's decision, the last choice becomes nigh irresistible for any applicant who thinks their racial identity matters at all to who they are. It's all or nothing -- a terrible choice to put students in even if the boiling temperatures of the college admissions hothouse didn't exert tremendous pressure on students to go the former route knowing that these are the stories admissions readers are forced to look for when seeking a "diverse" class.
In his initial thoughts on the affirmative action decisions, Ilya Somin articulates what I think is one of the more common misapprehensions about the "diversity" rationale for affirmative action.
As Chief Justice Roberts explains, this kind of lumping also inevitably leads to crude stereotyping, based on the assumption that all members of these broad categories have relatively similar views and backgrounds, different from those of all the other broad aggregates. That is pretty obviously false in many cases.... [T]he exchange between Clarence Thomas' concurring opinion in today's cases and Ketanji Brown Jackson's dissent powerfully demonstrates how two native-born African-Americans from southern states can have vastly different perspectives on the black American experience, its history, and what that history implies for today.
The idea behind this critique is that the diversity rationale seeks to elevate the presence of particular opinions, opinions that are assumed to be shared in common by members of specific racial groups. That assumption would indeed be a foolish one, but it is not the basis for the diversity rationale. If Harvard wants students who hold particular views on specific policy questions, it hardly needs affirmative action to do it -- have students write essays on why Students for Fair Admissions v. Harvard is a terrible ruling, and then pick your favorites.
But of course, a dream of ideological uniformity is not Harvard's desire. Indeed, the impetus behind the diversity rationale is the opposite. Michigan's defense of the "critical mass" concept in Grutter was precisely to avoid the presumption that all Black students think alike, such that if one is admitted it can be assumed he or she speaks for all. A critical mass of Black students, far from amplifying an echo chamber, demonstrates the breadth and range of ideas, passions, interests, opinions, and desires that all can emerge from the fertile soil of the Black lived experience. This is why Iris Marion Young makes the crucial distinction between "opinion" and "perspective". Opinions -- "steel tariffs are good", "affirmative action is racist", "taxes should be higher" -- do not have any claim to particular representation in democratic or social spaces. But perspective -- the way in which "differently positioned people have different experience, history, and social knowledge derived from that positioning" -- does have such a claim, again, precisely because it doesn't reduce to uniformity in opinion or interest. Far from falsifying the point, the disagreement between Justices Thomas and Jackson underscores it (and, on a similar note, it also explains why I dedicate a unit of my anti-discrimination to Justice Thomas' jurisprudence -- as much as I disagree with it, it is an important permutation of ideas that clearly germinate from Justice Thomas' perspective as a Black man).
People young and old relate to their racial (or ethnic, or religious, or national) identity in different ways. For some, it's not something they think about at all. For others, "you cannot know me without it." For many, it's somewhere in between -- a feature of their life that permeates but does not dominate their choices and decisions; part of the soil that grew them and nourishes them but not something they have much interest in giving top-line billing on the marquee of their life. Under the old regime, they didn't have to. They could tell any story they wished about themselves without stopping to think "am I spelling out in excruciating detail how this relates to my being a member of this or that racial group?" Under the new regime, it's all or nothing. Of all the stories an applicant could tell about themselves, they'll be inexorably pushed towards the one where race, racism, and racial identity are the most salient.
The problem isn't that the stories would be a lie. We can assume in many cases they're perfectly sincere, just as Devi would not be lying in writing an essay about her father's death. But it was not, at that time, the story she wanted to tell, the one that was most true to her in the moment. To insist that she write it anyway is a demand for more trauma porn. And, for all the pomp and rhetoric about hoping to transcend race once and for all, I am convinced that the Court's decision will have the opposite effect -- forcing students to speak of their experiences vis-a-vis race in the loudest and most extravagant voice possible, no matter how they themselves would prefer to present themselves.
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