No One Knows What ‘Race Neutral’ Admissions Looks Like
How should colleges and universities replace affirmative action if the Supreme Court does indeed strike it down?
How should colleges and universities replace affirmative action if the Supreme Court does indeed strike it down?
By Issa Kohler-Hausmann
Later this month, the Court is set to decide a pair of cases in which the plaintiffs, members of a group called Students for Fair Admissions (SFFA), allege that Harvard’s and the University of North Carolina’s “race conscious” admissions amount to racial discrimination in violation of Title VI of the Civil Rights Act and the Fourteenth Amendment’s equal-protection clause. If, as expected, the Court sides with SFFA to overrule its 2003 opinion Grutter v. Bollinger and hold that universities are obliged to conduct “race neutral” admissions, what, exactly, will this new interpretation of the law demand?
Both the briefs and the October oral arguments featured extensive discussion of race-conscious versus race-neutral admissions. SFFA claims that the law requires universities to attempt, if not exhaust, race-neutral admissions practices in pursuit of racial diversity before engaging race-conscious policies, and that it may be categorically impermissible to engage in race-conscious admissions at all. But even some Supreme Court justices seemed to recognize that it is not clear what race-neutral or race-conscious means. When, in SFFA’s or the justices’ view, do practices cross the line from being race neutral into being unconstitutionally race conscious?
This soon won’t be an abstract question. University administrators will need to establish new admissions practices in light of the Court’s decision. Unless the Court explains what it takes for a practice to count as race neutral, those administrators are going to have to figure it out for themselves. The answer to this question could have repercussions beyond higher education as well, in fields such as municipal contracting and policing. The problem is, conservative advocates for this race-neutral concept have been loath to explain what they mean by this term, much less why, in their view, it treats people as equals in the way the Civil Rights Act and the equal-protection clause intended.
Perhaps the answer seems simple: Race neutral in the context of the equal-protection clause ought to simply mean that people are treated as equals irrespective of race in university admissions. But this is a hollow formalism with no clear application. This is because race in our society is not a category of difference in mere physical traits, such as skin color or phenotypic features. Rather, it is a category of difference at least with respect to some set of opportunities, social meanings, family histories, life experiences, personal identities, and so on.
SFFA and the conservative justices accept this. That is why they maintain that the Constitution demands a heightened level of justification when a practice is based on race than when, for example, it is based on shoe size—a distinction based on equal-protection doctrine, which requires “strict scrutiny” for certain “suspect classifications” but not all differences, major or minor, among people. Once one accepts that race makes people differently situated at least with respect to some things in our society, many forms of similar treatment can simultaneously be described as dissimilar treatment. The question becomes: Which form of similar treatment is demanded given the inequalities and differences that define the category of race in our society? Answering this question requires committing to a view about what kind of equality you think laws like the Civil Rights Act and the Fourteenth Amendment’s equal-protection clause are meant to achieve.
An analogy might illustrate the point. Imagine you are asked to defend whether a certain tax system treats people equally on the basis of income, given that we live in a society where some people are high earners and others low. Any proposed tax system (head tax, flat tax, progressive income tax, consumption tax, wealth tax) will treat people at once similarly in some respects and dissimilarly in others precisely because people have different income levels. If you defend a head tax, you must explain why treating people the same one way (for example, identical absolute dollar tax is paid by each person) counts as treating them equally in the right way in this domain, given that you will necessarily be treating them differently in another way (for example, different proportions of their income are paid). Explaining why your proposal is right will require you to defend a substantive theory of what a tax system in a democracy ought to achieve. But appeals to income neutrality or treating people the same on the basis of income just restate the question.
The same goes for race neutrality. Let me be clear that, in my opinion, answering which practices treat people as equals on the basis of race in admissions is a hard question. First, answering it requires specifying what this social category we call race is in our country, and how it differently affects the life chances and social relations people navigate. Second, it requires defending a substantive vision of what opportunities people are owed in light of race, not abstracted from it. This is the analysis that anyone—conservatives, liberals, SFFA, Harvard, or UNC—–must answer if they are to explain why specific actions do or do not treat people as equals on the basis of race in accordance with the U.S. Constitution.
SFFA has used the term race neutral in ways that suggest various possible meanings, and we do not know which the Court will take up in its ruling. Each version is more difficult than it might seem at first blush to operationalize. Answering that race neutrality demands “all of the below” is not an option because, as most readers will see, many of these versions are incompatible. Whichever the Court adopts, the justices ought to explain why that version of race neutral treats people as equals in the right way.
One possible conception of race neutrality in college admissions is that admissions officers are forbidden from having knowledge of candidates’ stated racial classification, or be blocked from forming beliefs about the racial status of candidates. This definition would require the Court to define what counts as a racial classification and what kinds of mental impressions count as forming beliefs about candidates’ racial affinities. For example, if an applicant writes about how their grandparents’ survival of Kristallnacht shaped their worldview, does that count as expressing a racial affiliation? If an admissions officer hears an applicant talk about how their grandparents’ survival of the Tulsa Black Wall Street Massacre shaped their understanding of the world, has that officer formed a belief about the candidate’s race? Perhaps unsurprisingly, SFFA appears to reject this definition because it would render large swaths of admissions practices, such as interviews or essays about family background, impermissible.
A second conception of race neutrality is that admissions officers would be permitted knowledge or beliefs about racial classifications of particular applicants, but such racial knowledge may not figure among the reasons for an individual admissions decision. SFFA at times endorsed this view, and many of the conservative justices seemed to endorse it too. But this prohibition is not as easy to implement as it sounds. This is because SFFA advanced the view that what is forbidden under the Fourteenth Amendment is just acting on the reason of “race itself” or on “consideration of race and race by itself,” or awarding “racial preferences” because of “checking the right racial box.” However, lawyers for SFFA frequently implied that they believed it was constitutionally permissible to act on race reasons where “race provides a context for [the applicant’s] experience.” And Chief Justice John Roberts and SFFA both suggested that they deemed it constitutionally permissible for universities to consider “experiences [applicants] have had because of their race.”
But how does considering “race and race by itself”—to borrow SFFA’s phrase—differ from considering race as a contextual factor? SFFA suggests that “race and race by itself” means consideration of “skin color,” or other traits that function as indices of membership in racial groups. In contrast, considering race as a contextual factor means considering “race in an experiential way”; exposures, such as an applicant being subject to racial discrimination or possessing a specific “culture, tradition, heritage”; or simply how race has been relevant to the applicant’s background. If that is the distinction the group means to draw, it is hard to find many pure instances of acting on “race and race by itself” that do not, on closer inspection, look like acting on race as context. And that is because admissions officers do not take candidates’ genetic profiles, skin hues, or phenotypic features as such to be the reason they are acting on when they take racial status to add to diversity. Rather, they are taking the fact that the candidates have navigated certain social meanings and positions in a race-stratified society to be the reason they believe that candidates will add diverse perspectives to a college class. Putting aside whether such beliefs are justified, true, or smart, the point is that when admissions officers act on such beliefs, they are acting on the basis of race as context, not “race and race by itself,” according to the distinctions SFFA itself has drawn.
[cont]
