It’s rare that I find myself nodding along in agreement with the conservative members of the Supreme Court. But reading Chief Justice John Roberts’s majority opinion striking down affirmative action programs at Harvard and the University of North Carolina, I all but turned into a bobblehead.
It’s not that I oppose 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 instance, in South Africa, where I was born and spent part of my childhood, the post-apartheid government enshrined 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 opposite way.
But nothing so defensible has been playing out in the admissions offices of the most selective American universities. The voluminous record in the cases brought against Harvard and U.N.C. suggest that in order to maintain a vaguely defined notion of “diversity,” the schools’ admissions officials bumped up the chances primarily of Black and Hispanic applicants by undermining opportunities of another historically disadvantaged racial group — Asian Americans.
But it’s not just that the policies were 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. As The New Yorker’s Jay Caspian Kang writes, elite colleges’ affirmative action programs seemed “designed for a racially binary America” and “never got meaningfully updated for today’s multiracial democracy.” He argues that much of the public debate about the court’s decision seems stuck in that binary, too.
He’s right. As I followed the case, it was this outdatedness that stuck in my craw. I couldn’t help thinking of my own kids, who are of mixed South Asian and white descent — and whose views of their own racial identities seem to shift depending on who’s asking. I don’t think my children will one day deserve any kind admissions bump because of their race, nor, obviously, do I think they deserve to be dinged for it. But looking at Harvard’s and U.N.C.’s policies, and considering the even more opaque ways that colleges might continue to consider race in response to these rulings, I can’t tell how they’d fare, because people like them seem all but forgotten in the discussion.
Perhaps the fundamental problem with these schools’ policies is their limited conception of the capacious and fluid nature of racial identity. As Justice Neil Gorsuch writes in his concurring opinion, at Harvard, U.N.C. and other colleges that use the common admissions application, applicants are asked to choose one or more options from a list “to explain ‘how you identify yourself.’ The available choices are American Indian or Alaska Native; Asian; Black or African American; Native Hawaiian or Other Pacific Islander; Hispanic or Latino; or White,” adding, “Applicants can write in further details if they choose.”
As Roberts and Gorsuch observe, these categories are in some ways too broad and in other ways too narrow. The Asian category could include applicants whose ancestors hailed from places as different as China, India, South Korea, Pakistan, Bangladesh, Vietnam and Japan. An applicant 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 pithily: “Bureaucrats.” They’re broadly similar to those used by federal agencies and the census. But the record suggests that even college admissions officials weren’t well versed in the specifics of the racial buckets. In an online chat between U.N.C. admissions officers offered as evidence in the case, one official gushed about a student with “Perfect 2400 SAT. All 5 on AP. One B in 11th.”
The other officer cut to the important question — the student’s skin color: “Brown?”
“Heck no. Asian,” the first officer replied.
“Of course,” the other U.N.C. official said. “Still impressive.”
Ignore if you can the ugly stereotyping — how the perfect SAT score would have been more impressive if the student had been “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 forebears hailed from, the Indian subcontinent. But apparently U.N.C.’s officers’ mental picture didn’t match their official racial boxes.
Another instance of confusion came during oral argument, when U.N.C.’s attorney was asked which box a person from Jordan, Iraq, Iran or Egypt should check. He said he didn’t know, which seemed a pretty revealing answer: If U.N.C. doesn’t know what race a person of Middle Eastern descent is, should it really be making decisions based on race? As the law professor David Bernstein wrote, according to the American government, there is a correct answer to this question: Although some Arab American groups have lobbied to change the designation, people of Middle Eastern descent are officially classified as white.
Though Harvard denies the allegation — and in 2019, a Federal District Court found “no evidence” of “conscious prejudice” — the records suggests that Harvard also treated racial categories quite like 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 “personal” ratings than members of other groups. Harvard’s use of such subjective criteria to curb the number of Asian students admitted smacked of its efforts a century ago to keep out Jewish applicants 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 this is a serious concern, and I do hope that top colleges can figure out some way to maintain enrollment of disadvantaged groups in a way that accords with the ruling.
But I will note a couple of points to undercut the liberal justices’ worry: First, it’s worth remembering that the decision’s impact is limited — as the sociologists Richard Arum and Mitchell Stevens argued recently in The Times, affirmative action mattered most for only a small group of the most selective colleges. “The ruling provides America with 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 tiers of postsecondary education,” they wrote.
The ruling presents us with another opportunity, too: To think about race more realistically, with far more specificity and precision. The 2020 census showed that America is growing more multiracial and more ethnically and racially diverse. We are far more than six categories on a demographic form — we contain multitudes, and we should recognize them.
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