Adam Smith: Historian

This article appeared in The Sunday Times July 3, 2023

The US Supreme Court’s ruling on Thursday that race-based affirmative action in university admissions is unconstitutional marks the end of an era. For half a century, the court has upheld the right of educational institutions — and by implication also employers — to factor race into selection decisions.

Affirmative action policies were in place when Clarence Thomas, one of the court’s two black justices, was admitted to Yale Law School in 1971. Yet Thomas, who was appointed by a Republican president, supported the majority decision. He argued that affirmative action programmes “strip us of our individuality”, locking black people into “a seemingly perpetual inferior caste” by defining them as victims, not judging them on the basis of their character or ability.

Justice Ketanji Brown Jackson, also a beneficiary of affirmative action when she applied to Harvard Law School in the 1990s, drew a sharply different conclusion from her experience and the nation’s long history of racism. Racial disparities, she wrote in her dissent, have “indisputably been passed down to the present day through the generations”. So, to ignore race, as Thomas and the majority proposed, was to ignore the elephant in the room. “Deeming race irrelevant in law,” Jackson wrote, “does not make it so in life.”

The sharp and unusually personal disagreement between the court’s two black justices reflects a fissure that dates to the ending of slavery after the Civil War. In the fraught aftermath of that hugely violent conflict, Americans had to confront the implications of what freedom might mean for four and half million formerly enslaved black people, who constituted almost half the population of several southern states. Should the federal government repair the injustice of more than two centuries of enslavement by treating black people as a special class, or was it enough to guarantee them equal rights? Was the solution to America’s racial problem to compensate for past injustice, or to create a colour-blind racial regime?

The formal constitutional response to these questions was the 14th Amendment, ratified in 1868. In the majority ruling, the key legal argument is that giving college applicants an additional benefit because of their race (even if it is only one factor among many in the admissions process, and even if it is well-intentioned) violates the amendment’s guarantee of the “equal protection” of the law. As Chief Justice John Roberts pithily put it, “eliminating racial discrimination means eliminating all of it”. For Roberts, as for Thomas, “this nation’s constitutional history does not tolerate” colleges’ willingness to see “the touchstone of an individual’s identity” as “the colour of their skin”.

Constitutionally, this sounds conclusive, yet conservative justices are usually keen on an “originalist” reading of the constitution, in which they seek to divine the “real” meaning of often obscure phrases by ascertaining what the original writers meant. And in this case, the evidence shows that the Congress that passed the 14th Amendment, nevertheless treated black people differently as a class by attempting to give them a leg up in the harsh post-emancipation South. It was a passing phase; a decade after emancipation, white supremacists had regained control and the Jim Crow regime of racial segregation and discrimination set in. Nevertheless while Roberts and Thomas stress the amendment’s role in establishing a colour-blind legal regime, at least some of the original framers in the 1860s intended its practical effect to be to equalise opportunity by aiding those who needed it most. As is always the case, the constitution can be read in more than one way.

The straightforward case for affirmative action is reparative: generations of injustice require redress. In 1965, at the height of the civil rights movement, President Lyndon Johnson made this case for what was, by then, becoming known as affirmative action: “You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, ‘You are free to compete with all the others’, and still justly believe that you have been completely fair.”

One challenge for defenders of affirmative action is that in court they have not been able to make this case directly. In 1978 the Supreme Court ruled in its Bakke decision that overtly preferring black applicants because of past injustice was unconstitutional. Yet they allowed a work-around that endured until last Thursday: affirmative action was justifiable on the grounds that universities had a legitimate interest in admitting racially diverse classes of students. In a 2003 decision, the court’s majority expressed hope that in 25 years’ time such an awkward exception to the underlying principle of colour-blind justice would no longer be necessary. Now that the court has a 6-3 conservative majority, it has seized on the opportunity to declare that time has now come.

Campaigners at the University of California in 1978, when a court ruled that race could be used to create a diverse student body

The likely result of the ruling is that the numbers of black students at elite, selective universities will decline. We can be fairly confident of that because of the evidence from the nine states where affirmative action was already banned. In California, a hyper-liberal state where racial preference was emphatically overturned in popular ballot initiatives, the public university system has encouraged applicants from majority black neighbourhoods and schools, yet the numbers of black and Hispanic students attending the most prestigious campuses is still lower than when race could be factored into admissions.

On the other hand, the number of Asian-American students attending top universities will likely increase. One of the defendants in the case, Harvard, has been accused of admitting far fewer applicants from Asian backgrounds than they would if academic merit was the only consideration.

What remains very much open to question is whether the end of race-based affirmative action will benefit poor people. The average black or Latino family is much poorer than the average white family in America, largely because of the cross-generational transmission of inequality. Yet there are more poor people who are white. In her dissenting argument, Jackson hypothesises two applicants to the University of North Carolina with similar grades, one black, the other white, and makes the case for why the black applicant might legitimately be preferred. But her imagined white student, tellingly, would be the seventh generation of his family to attend the university, while the black student would be the first in his family to go. The harder hypothetical case would be to compare a first-generation poor white student to an upper middle class black student, whose parents may themselves have benefitted from a half-century of affirmative action. Some estimates suggest that more than 70 per cent of Harvard’s black and Latino students come from families with incomes above the national average.

While America’s top colleges and universities are racially diverse, their record on class diversity is far shakier. This is not by accident but by design. Since the 1920s, almost all elite colleges have operated a different kind of affirmative action — not based on race but on whether the applicant is a child of a former student or a donor. According to one estimate 14 per cent of Harvard students benefitted from “legacy” admissions. Most are white. The advantage given to non-white applicants by affirmative action programmes was therefore, arguably, merely counterbalancing the “legacy” advantage of wealthy white applicants. It is no longer permissible for colleges to give an advantage to an applicant because they’re black or Hispanic, but their financial models will ensure that they will merrily continue to formally advantage mostly white students with good connections.

In banning race-based affirmative action, unlike with their abortion ruling last year, the court has public opinion on its side. Most Americans like the idea of meritocracy. But these are complex issues, generating deep passions, anchored in America’s traumatic racial history, and with no easy solution. And although the court has outlawed race-based affirmative action, the justices do not deny that racial diversity can still be a constitutionally legitimate goal. In fact, in a revealing footnote, Roberts acknowledges that race-based preferences can continue to be used in military academies on the grounds that national security requires a military that reflects the racial makeup of the country. Is it sustainable to make that case for the military but not for the civilian institutions that generate the country’s financial and political elite? Clearly this ruling is not the end of the story.