The Supreme Court Has Unanimously Upheld Individualized Affirmative Action

On June 29, the U.S. Supreme Court issued its decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, which was decided together with Students for Fair Admissions v. University of North Carolina et al.  This seemed to overrule the previous decisions--particularly Grutter v. Bollinger (2003)--that had upheld affirmative action admission programs in higher education that were designed to increase the admission of applicants from disadvantaged minority racial groups.  The majority opinion is supported by all six of the conservative Republican Justices--John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.  The dissenters are the three liberal Democrat Justices--Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson.

From my reading of this decision, there is something strange about it that no one else has noticed (as far as I know).  It seems to me that all nine Justices actually agree with one another in upholding as constitutional an individualized form of affirmative action, while rejecting a stereotypical form of affirmative action.  The fact that no one else has seen this--not even the Justices themselves--makes me worry that I am mistaken.  But if I am wrong about this, I will be happy to be corrected.

Individualized affirmative action is my term for what Sotomayor sees in the affirmative action admission programs at Harvard and UNC as an "individualized review as part of a holistic admissions process" with a "limited use of race" (2. 15).  This differs from what I am calling stereotypical affirmative action, which Roberts identifies as affirmative action that creates "preferences on the basis of race alone" or "race for race's sake" that depends on "racial stereotyping" (28-29, 39).  As I read their opinions, all of the Justices agree that the Equal Protection Clause of the Fourteenth Amendment permits individualized affirmative action but prohibits stereotypical affirmative action.

Individualized affirmative action is a "multidimensional system" for judging applicants as individuals, in which "race is only one factor out of many."  Sotomayor observes: "Stated simply, race is one small piece of a much larger admissions puzzle where most of the pieces disfavor underrepresented racial minorities.  That is precisely why underrepresented racial minorities remain underrepresented.  The Court's suggestion that an already advantaged racial group is 'disadvantaged' because of a limited use of race is a myth" (44-45).

At Harvard, for example, the admissions process gathers a wide range of information that includes grades, test scores, recommendation letters, personal essays, and interviews with alumni and admission officers.  Applicants are not required to identify their race.  Admission officers may, but need not, consider a student's self-reported racial identity.  

Harvard usually receives about 35,000 applications for a class with about 1,600 seats.  A long round of competitive reviews identifies about 2,000 highly qualified candidates.  To reduce this to 1,600, Harvard considers "plus factors" that can help "tip an applicant into Harvard's admitted class."  To achieve diversity, Harvard awards "tips" for a variety of reasons, including geographic origins, socioeconomic status, ethnicity, and race.  The use of race is so limited that most of the Hispanic and African-American applicants are rejected (Sotomayor 31-32).

This multidimensional individualized system benefits students with various racial backgrounds, including those who identify as white.  For example, Harvard provides points to applicants who qualify as "ALDC," meaning "athletes, legacy applicants, applicants on the Dean's Interest List [primarily relatives of donors], and children of faculty and staff."  ALDC applicants are predominantly white--about 68% of them (Sotomayor 44).

Of those admitted to Harvard's freshman class each year, about 15% are black.  For UNC, the proportion is about 9% black.  The U.S. population as a whole is about 15% black.  The state population of North Carolina is about 22% black.

While Sotomayor, Jackson, and Kagan correctly identify the admission programs at Harvard and UNC as showing individualized affirmative action, Roberts, Thomas, and the others in the majority mistakenly identify them as stereotypical affirmative action programs with "preferences on the basis of race alone" that "pick winners and losers based on the color of skin" and thus practice "racial stereotyping" (Roberts 28-29, 38-39).  Sotomayor and Jackson rightly say that in claims like this Roberts, Thomas, and the others are attacking a straw man--the straw man of stereotypical affirmative action (Sotomayor 46-50, Jackson 18, 26).

Here's an example of "racial stereotyping" in connection with the affirmative action debate.  The Barbara Grutter of the Grutter v. Bollinger case is my sister-in-law.  She had applied to the Law School of the University of Michigan and was denied admission, even though some of those admitted because of their racial identity had lower grade point averages and lower LSAT scores than she did, and she argued that this violated the Equal Protection Clause of the Constitution.  Some years ago, another sister-in-law happened to be a student in a class in the College of Education at Northern Illinois University where the professor led a discussion of the Grutter decision.  The professor casually remarked that "this woman Grutter probably comes from a rich white family," and so she felt entitled to be admitted.  My sister-in-law raised her hand and explained that no this was not true, because she was her sister, and they had been raised in a relatively poor family of nine children with a father whose salary as a Calvinist minister was quite low.  A more individualized affirmative action program would not assume that every white woman has benefited unfairly from "white privilege."

Roberts makes it clear the majority opinion allows for the individualized form of affirmative action that gives some preference to individuals who have shown moral courage and determination in overcoming the disadvantages coming from racial discrimination:

". . . as all parties agree, nothing 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. . . .  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."

"Many universities have for too long done just the opposite.  And in doing so, they have concluded, wrongly, that the touchstone of an individual's identity is not challenges bested, skills built, or lessons learned but the color of their skin.  Our constitutional history does not tolerate that choice" (39-40).

Similarly, Thomas says, "nothing prevents the States from according an admission preference to identified victims of discrimination," and most of those benefiting from this preference might be black (20).

Thomas himself was the beneficiary of such an affirmative action preference when he was admitted to Yale Law School after identifying himself as a young black man who had grown up in the 1950s in a racially segregated Georgia.  See Corey Robin, The Enigma of Clarence Thomas (New York: Metropolitan Books, 2019).  Sotomayor draws attention to this: "The three Justices of color on this Court graduated from elite universities and law schools with race-conscious admissions programs, and achieved successful legal careers, despite having different educational backgrounds than their peers" (56-57).

Some of Thomas's critics have accused him of hypocrisy and self-contradiction because he wants to overturn the very affirmative action programs from which he has benefited.  But he could defend himself by saying that there is no contradiction in his benefiting from the individualized affirmative action preference for him at Yale as an individual who overcame the disadvantages of racial discrimination, which differs from a stereotypical affirmative action preference for anyone with black skin.

That the decision in Students for Fair Admissions does allow for individualized affirmative action is quickly being recognized by some admissions officers in higher education.  For example, Dr. Mark Henderson is the head of admissions at the medical school at the University of California, Davis, has developed the "socioeconomic disadvantage scale" (SED) that rates every applicant from zero to 99 measuring their life experiences such as family income and parental education.  For admissions decisions, that score is combined with many other factors--grades, test scores, recommendations, personal essays, and interviews.  This has allowed the medical school at Davis to practice "socioeconomic affirmative action," which I would call individualized affirmative action.  And they have done this in a state that voted in 1996 to ban affirmative action.  The school says that its socioeconomic disadvantage scale is "race-neutral."  But, of course, admitting students with disadvantaged backgrounds will favor the admission of many individuals who are racially disadvantaged.  In its most recent entering class of 133 students, 14 percent were Black and 30 percent Hispanic.  In the U.S., only about 6 percent of practicing doctors are Black.  Dr. Henderson is confident that he can defend his admissions program as permissible under the Supreme Court's decision.

I will be arguing in some future posts that this kind of affirmative action can be part of a Lockean liberal meritocracy based on equality of opportunity that rewards the moral and intellectual talents of those who have come from unfairly disadvantaged backgrounds.