It’s rare that I find myself nodding along with the conservative members of the Supreme Court. But reading the majority of Chief Justice John Roberts opinion tearing down favorable programs at Harvard and the University of North Carolina, I almost became a bubble guy.
It’s not that I’m against affirmative action per se; boosting opportunities for members of a historically disadvantaged group as a means of reparation and social justice seems to me easily morally justifiable. For example, in South Africa, where I was born and spent part of my childhood, the post-apartheid government sanctified affirmative action in the Constitution. It’s hard to see how the government had any other choice – undoing decades of discrimination against the Black majority by the white minority required tilting the playing field the other way.
But nothing so defensible played out in the admissions halls of the most selective American universities. The voluminous record in the cases brought against Harvard and UNC suggests that in order to preserve a vaguely defined notion of “diversity,” the schools’ admissions officials boosted the chances of primarily black and Hispanic applicants while undermining the chances of others. historically disadvantaged racial group — Asian Americans.
But not only were the policies unfair, they were also anachronistic and overly simplistic, out of step with an America in which racial categorization is an increasingly complicated endeavor, where more people than ever identify as belonging to multiple racial groups. Like Jay Caspian Kang of The New Yorker writes, the favorable programs of elite colleges seemed “designed for a racially binary America” and “have never been significantly updated for today’s multiracial democracy.” He argues that much of the public debate about the court’s decision seems stuck in that binary as well.
He is right. As I followed the case, it was this old-fashionedness that stuck in my neck. I couldn’t help but think of my own children, who are of mixed South Asian and white descent — and whose views on their own racial identities seem to change depending on who is asked. I don’t think my children will ever deserve any kind acknowledgment because of their race, nor, obviously, do I think they deserve to be treated for it. But looking at the policies of Harvard and UNC, and considering the even more opaque ways that colleges might continue to consider race in response to these decisions, I can’t say how they would, because people like them seem all but forgotten in the discussion. .
Perhaps the fundamental problem with the policies of these schools is their limited conception of the broad and fluid nature of racial identity. As Justice Neil Gorsuch writes in his concurring opinion, at Harvard, UNC and other colleges that use the common admissions application, applicants are asked to select one or more options from a list “to explain ‘how you identify yourself.’ The available options are Native American or Alaska Native; Asian; Black or African American; Native Hawaiian or other Pacific Islander; Hispanic or Latino; or White,” adding, “Applicants may write additional details if they wish.”
As Roberts and Gorsuch observe, these categories are in some ways too broad and in others too narrow. The Asian category could include candidates whose ancestors came from places as diverse as China, India, South Korea, Pakistan, Bangladesh, Vietnam and Japan. A candidate who identifies as Hispanic could be a white person whose family came from Madrid, a Cuban immigrant from Miami, or a person of Guatemalan Mayan descent.
Where do these categories come from? Gorsuch puts it succinctly: “Bureaucracies.” They are broadly similar to those used by federal agencies and the census. But the record suggests that even college officials were not well versed in the specifics of the racial buckets. In an online chat between UNC admissions officers offered as evidence in the case, one official sprung up about a student with a “Perfect 2400 SAT. All 5 on AP. One B in 11th.”
The other officer cut to the important question – the skin color of the student: “Brown?”
“Hell no. Asian,” replied the first officer.
“Of course,” said the other UNC official. “Still impressive.”
Ignore, if you can, the ugly stereotyping—how the perfect SAT score would be more impressive if the student was “brown,” how “of course” it was an Asian kid who did so well, even if “still” impressive—and note the racial confusion: According to the colleges’ own categories, Asian includes brown people from, or whose predecessors hailed from, the Indian subcontinent. But apparently the mental image of the UNC officers did not match their official racial boxes.
Another instance of confusion came during oral argument, when the UNC attorney was asked which box a person from Jordan, Iraq, Iran or Egypt should check. He said he didn’t know, which seemed like a pretty obvious answer: If UNC doesn’t know what race a person of Middle Eastern descent is, should it really be making decisions based on race? Like the law professor David Bernstein wroteaccording to the US government, there is a correct answer to this question: Although some Arab-American groups have lobbied to change the name, people of Middle Eastern descent are officially classified as white.
Although Harvard denies the accusation – and in 2019, Federal District Court found “no evidence” of “conscious bias”—the records indicate that Harvard also treated racial categories entirely as stereotypes: Applicants of Asian descent were more likely than members of other racial categories to be labeled “standard strong,” meaning that admissions personnel determined they were academically qualified but otherwise unremarkable. Asian Americans scored better than other groups on academic and extracurricular measures, but Harvard’s admissions officers consistently gave Asians lower “personality” ratings than members of other groups. Harvard’s use of such subjective criteria to curb the number of Asian students admitted floats its efforts. a century ago to keep out Jewish candidates it deemed unworthy of its “character and fitness” standards.
In dissent, the three liberal justices argued persuasively that the court’s ruling might significantly reduce enrollment of black and Hispanic students at elite colleges. I agree that this is a major concern, and I do hope that top colleges can figure out some way to maintain enrollment from disadvantaged groups in a manner consistent with the decision.
But I will note a few points to undermine the liberal judges’ concern: First, it is worth remembering that the impact of the decision is limited – as the sociologists Richard Arum and Mitchell Stevens argued recently in The Times, affirmative action mattered most only to a small. group of the most selective colleges. “The decision gives the United States an opportunity to redirect the conversation from a relatively small number of schools and instead direct urgently needed attention to the vast middle and lower levels of postsecondary education,” they wrote.
The ruling also presents us with another opportunity: To think about race more realistically, with much more specificity and precision. The 2020 census showed that America is growing more multiracial and more ethnically and racially diverse. We are much more than six categories in demographic form — we contain multitudes, and we should recognize them.
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