It has been a long goodbye. The Supreme Court declared race consciousness in college admissions, also known as affirmative action, unconstitutional today. The vote was predictable, 6-3, with all the justices appointed by Republican presidents standing together to revoke the policy. The majority opinion was written by Chief Justice John Roberts himself, who ruled that affirmative action violates the Equal Protection Clause of the 14th Amendment. The 14th Amendment was, of course, written explicitly to revoke the racism practiced by whites against Blacks through their slaver’s Constitution, but Roberts doesn’t care about all that. His opinion attempts to capture the 14th Amendment and redeploy it to justify a white version of “color blindness” that just so happens to lock in a status quo that benefits whites.
Like last year’s revocation of reproductive rights in Dobbs v. Jackson, the decision today, in Students for Fair Admissions v. Harvard University and Students for Fair Admissions v. University of North Carolina, achieves a long-standing conservative policy goal through the fiat of six unelected Supreme Court justices. Conservatives have been gunning for affirmative action since the policy was reintroduced in the 1960s (it had previously been used during Reconstruction, and conservatives killed it then too). Today is a victory for the Heritage Foundation, the Federalist Society, and the entire conservative legal establishment that has correctly identified the courts as the way to reverse policies they don’t like.
But the death of affirmative action was not achieved merely through the machinations of Republican lawyers. While conservatives on the Supreme Court delivered the fatal blow, the policy has long been made vulnerable by the soft bigotry of parents, whose commitment to integration and equality turns cold the moment their little cherubs fail to get into their first choice of college or university. If you want to see a white liberal drop the pretense that they care about systemic racism and injustice, just tell them that their privately tutored kid didn’t get into whatever “elite” school they were hoping for. If you want to make an immigrant family adopt a Klansman’s view of the intelligence, culture, and work ethic of Black folks, tell them that their kid’s standardized test scores are not enough to guarantee entry into ivy-draped halls of power. Some of the most horribly racist claptrap folks have felt comfortable saying to my face has been said in the context of people telling me why they don’t like affirmative action, or why my credentials are somehow “unearned” because they were “given” to me by affirmative action.
That last bit is in some ways the most devastating: Black people are attacked and shamed simply because the policy exists, regardless of whether it benefited them or not. I’ve had white folks whom I could standardize-test into a goddamn coma tell me that I got into school only because of affirmative action. I once talked to a white guy—whose parents’ name was on one of the buildings on campus—who asked me how it felt to know I got “extra help” to get in. The sheer nerve of white folks is sometimes jaw-dropping.
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Affirmative action is used by a certain kind of unwashed white mediocrity as an excuse to denigrate the credentials of anybody Black. Then, those same people use their own racial hang-ups as an argument to get rid of affirmative action, blaming the policy for their own racist inability to regard Black colleagues as equals. There are white people who will argue with a straight face that affirmative action makes them harbor the racist idea that Black people are undeserving of their accomplishments.
And some Black people fall for it. It will escape no one’s notice that Clarence Thomas, who happens to be Black, joined the majority opinion banning affirmative action. Thomas wrote a concurring opinion to make an “originalist” defense of a “color blind” Constitution, an argument that is oxymoronic on its face given that the original Constitution was most definitely not color blind toward people who looked like Thomas.
People have often expressed surprise that Thomas is so stridently against the policy, but I am here to tell you that of all of Thomas’s treacherous attempts to set Black folks back to second-class status, this one is the easiest to trace. Thomas considers himself a victim of affirmative action. In his autobiography, My Grandfather’s Son, Thomas says his degree from Yale Law School (Thomas graduated in 1974) was never taken seriously because of affirmative action. He recounts, painfully, how white employers didn’t believe that he could be as smart as his grades indicated, because they believed that he was only there as an affirmative action admit.
Frankly, I know the feeling. I think that any successful Black person in this country, especially one who went to a traditionally elite university, knows the feeling. I’m a well-respected legal columnist and best-selling author, and I can’t go a week without some simpleton who paid eight bucks for Twitter suggesting that I didn’t “earn” my place at Harvard Law School, an institution I graduated from 20 freaking years ago. It’s maddening—both in the sense that it makes me violently angry and that it interrupts the normal functioning of my brain. If you haven’t walked a mile in my shoes, or Thomas’s shoes, or the shoes of any other Black person who had the temerity to be excellent while Black, you really don’t know what it’s like to have white people who have the intellectual firepower of a wet cigarette question your credentials.
The difference between me, along with most Black folks, and Clarence Thomas is that Thomas has decided to take his hurt feelings out on one of the most effective social justice policies in American history, while most Black people just learn to step over the low-account white folks clawing at our ankles. Most Black people strive to overcome racial injustice; Thomas was broken by it. Instead of blaming the white folks doing the oppressing, Thomas has decided to ally with them and blame the policy meant to break their exclusive access to power. He’s almost a tragic figure: a man who has adopted the white narrative about Black people so completely that he’s curdled into a mere spokesperson for that white narrative.
Again, I almost get it. I almost see where he’s coming from. I remember coming home from elementary school one day and declaring to my Black and proud parents that I “couldn’t be” Black. I had heard kids at my predominately white Catholic elementary school saying that Black people were not “clean,” and I explained to my parents that this made me not Black because I took a bath every day, and I didn’t want to be associated with people who didn’t wash. Obviously, my parents were horrified. Obviously, they pulled me out of that school the next year and put me into a predominately Black public school. Obviously, I learned that not everything white people say is true. But Thomas is the guy who never learned: He never figured out how to disregard what white people say about us. Learning how to ignore white folks and their stupid racial theories while living your full life is pretty much the final test towards emancipation, and it’s one that Thomas seems to have flunked for his entire professional life.
Of course, I say that Thomas is “almost” a tragic figure. I almost feel sorry for him. But what drains my empathy for him is the fact that I’ve had to read his absolutely trash legal opinions.
The astute reader will note that I haven’t thus far mentioned the majority’s arguments against affirmative action, and that is because their legal arguments are embarrassing.
The actual cases decided today involve lawsuits brought by Students for Fair Admissions (SFFA), a group of AAPI students organized by white conservative legal gadfly Ed Blum. Blum has made it his life’s work to destroy affirmative action, and in this case, he found plaintiffs eager to argue that affirmative action policies discriminate against AAPI students who don’t get into elite schools despite competitive grades and standardized test scores.
On the facts, Blum and SFFA are simply wrong. The district court (the finder of fact in our federal system) found that the universities do not intentionally discriminate against AAPI students—and, more specifically, that there is no evidence that affirmative action is hurting them. (I have written that I think Harvard does discriminate against AAPI applicants, but that discrimination has nothing to do with affirmative action.) What this means is the entire argument against affirmative action is based on the feelings of some students (and their parents) that they would have gotten into these schools if the schools admitted fewer Black people, but that too is a thin argument. Getting rid of affirmative action will neither require schools to admit more AAPI students nor force them to weigh so-called “merit-based” factors more heavily. But California saw Black and Latino enrollment plummet right after it banned affirmative action in 1998. AAPI enrollment went up a little bit, and whites seized the remaining opportunities.
Of course, boosting white opportunities at the expense of Black and Latino students is what conservatives like Ed Blum want. They’ve just managed to convince a minority of AAPI parents that making the world easier for Varsity Blues wealthy white parents will also trickle down to their kids. The problem with this pro-white policy goal is that it’s nowhere near a constitutional argument.
To turn all of this helicopter-parent hysteria into a constitutional issue, the conservative majority on the Supreme Court argued that the 14th Amendment’s equal protection clause prevents the use of race-conscious admissions because it discriminates against AAPI students, who are a protected class under the clause. That is why bringing the case with AAPI student stand-ins is crucial to their argument. There’s no equal protection argument for being mediocre and white. There is one for being discriminated against because you’re of Asian descent. Even though the court is making up the cause of that discrimination, invoking the specter of illegal racial discrimination on behalf of the AAPI community is how the white organizers of this attack are able to turn their policy preference into a constitutional argument.
Roberts writes that one of the reasons affirmative action fails is because universities do not adequately distinguish between different kinds of AAPI students—for instance, between South Asians and East Asians. Having this white guy tell us that affirmative action is unconstitutional because the AAPI category is too broad is like Homer Simpson saying he doesn’t go to gyms because they overwhelm him with exercise options.
But this argument—that restorative race-conscious admissions are “the real racist”—is also a bastardization of the 14th Amendment. As Sonia Sotomayor wrote in her dissent, all Roberts is doing is using the 14th Amendment to cement inequality, the very thing it was designed to combat. She writes: “The Court subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society.”
Policies like affirmative action, as I mentioned above, were first enacted in this country during Reconstruction. Any good-faith “originalist” argument would have to acknowledge that the authors of the 14th Amendment contemplated the use of affirmative action, and we know that because affirmative action was used in their own lifetimes, after the ratification of the amendment.
But the conservatives did not adopt originalism for its good-faith arguments. They’re not ending affirmative action to help Asian American students get into Harvard or UNC. The conservative majority is ending affirmative action because college admissions are maybe the only place in American life where being white isn’t an automatic benefit to the possessor of precious white skin.
That has always been affirmative action’s true sin. Whiteness in this country is celebrated, protected, and centered. It’s given the default position—to such an extent that even my own Black-ass self, in my Black-ass columns, will often use the term “non-white,” as if melanin deficiency is somehow the global standard everyone else deviates from. To have anything, anything at all, where white people aren’t perceived as the primary beneficiaries of a policy or program is anathema to this country. It’s so bad that scores of white people will vote against policies that benefit primarily them (health care, food stamps, drug rehabilitation programs) if they even think that too many people of color are getting in on the action.
To wit, historically, the primary beneficiaries of affirmative action have been white women. Women held only 35 percent of bachelor degrees before affirmative action policies were reintroduced; now, women’s enrollment in college outpaces men, and has for some time. Now, elite colleges and universities are giving men a boost in admissions considerations, because their grades and scores are not keeping pace with women’s.
Yet you’ll note that the Supreme Court did not ban gender consciousness in college admissions. Nor did it ban legacy consciousness, wealth consciousness, geographic consciousness, or athletic consciousness. Race, and only race, is the thing the conservatives don’t want colleges and universities to look at. Because race is the card white people use that never gets declined. It is their most powerful characteristic, the one through which all else is possible.
Affirmative action was one of the only policies that pierced that privileged veil and made white people question whether their lives, or their kids’ lives, would be better if they had been born Black. The answer was always “no.” (Chris Rock’s old joke that nobody white would want to switch places with him has always been devastatingly true, even if some white folks pretend that it’s not.) But the mere possibility that their whiteness wasn’t helping them out every single second of every goddamn day drove a certain kind of white person insane. Affirmative action made them feel like perhaps the world did not revolve around their hopes and dreams and comforts, so it had to be killed. Even previous Supreme Court decisions upholding affirmative action expressed an open yearning for the day when affirmative action would no longer be “necessary.” The previous justices even made up fanciful future dates when the policy could be safely done away with.
In his opinion, Roberts echoed these fanciful dates as a reason to end the policy. He writes, “[Affirmative action] admissions programs also lack a ‘logical end point.’” The idea that a policy meant to combat racism must end before the racism ends has always been Roberts’s special logical flaw. It’s the one he used to gut the Voting Rights Act in Shelby County v. Holder. Roberts wants to hang a “Mission Accomplished” banner and declare victory over racism, and then immediately stop all efforts to combat racism.
None of that really matters now, though. The “why” of it is less important than the reality. Affirmative action is gone. Prestige-obsessed white parents have gotten what they wanted. Damaged Blacks who are willing to climb up a ladder and then pull it up behind them have gotten what they wanted. Students who think their intellectual “merit” can be captured on a multiple choice test, like well-trained dolphins who know exactly which hoops to jump through, have gotten what they wanted. Congratulations on all their success: They’ve put a lot of effort into giving Black students another reason to apply to Howard instead of Harvard.
But I do wonder who all these people who successfully killed affirmative action will blame the next time a rejection letter comes in the mail. When they can’t argue that some poor Black kid is “taking their spot,” where will their misdirected frustrations land?
I suppose they’ll still blame Black people. As long as there is one Black person at a college or university, there will be at least one white kid knocked off the wait list who will believe the Black kid had some unfair “advantage” that boosted their application. I guess I can take some small solace in knowing that even without affirmative action, there will still be a lot of white rejects out there who will die mad.
Note: This piece has been updated to clarify that California’s Black and Latino enrollment plummeted in the immediate aftermath of its 1998 ban on affirmative action.