A National Interest in Diversity
On 31 October 2022 (scary!) SCOTUS heard the case Students for Fair Admissions, Inc., vs. President and Fellows of Harvard College. The decision was handed down on 29 June 2023. By a vote of 6–3, the Court ruled that Harvard and the University of North Carolina cannot use race and ethnicity as criteria for admission. They ruled that the current admissions policies violate the equal protection clause of the 14th Amendment.
In the ruling, John Roberts writes the neither race nor ethnicity were completely out of bounds. According to the majority ruling, race/ethnicity cannot be a primary criterion. It cannot be a determining factor in admission. However, Roberts did write that an applicant can discussion his/her/their race and ethnicity as determining elements of their personality or character. They could, for example, write about how race affected their upbringing, their education. They could detail how they overcame a racial disparity in order to achieve some life goal.
In those cases, the application would be decided on experiences of an individual, not of a race. So, the majority did, at the very least, acknowledge that race and ethnicity do play a determining factor in the lives of individuals. They did also acknowledge that race and ethnicity can be obstacles to overcome.
The suits were brought by Students for Fair Admission (SFFA), a non-profit founded by legal activist Edward Blum in 2014. Blum appears to be bankrolled by several conservative foundations. In the suit, the SFFA claims that the admissions policies at Harvard and UNC violate Title VI of the Civil Rights Act of 1964, and the Equal Protections Clause (EPC) of the 14th Amendment. The latter claim is novel inasmuch as the EPC has often been the clause by which protections have been granted to historically marginalized groups.
Roberts offers a history lesson in race relations and the law. In particular, he instructs us of the importance of the 14th Amendment, and of our nation’s failure to uphold that legal standard for the century after its passage in 1866. Although the 14th demanded that every single person, regardless of race, should be treated equally before the law, Roberts notes that we did not do that between 1866 and 1964. He even cites SCOTUS’s role in that failure, with examples such as Plessy vs. Ferguson, aka “separate but equal.”
He also notes that the courts tried to remedy the racial inequalities, “But the inherent folly of that approach — of trying to derive equality from inequality — soon became apparent.”
Roberts again turns historical logic on its head by arguing, via Brown vs. Board, as the catalyst for race-blind admissions. He writes: “the right to a public education ‘must be made available to all on equal terms.’” Roberts notes a ruling from one year after Brown that states: “‘full compliance’ with Brown required schools to admit students ‘on a racially nondiscriminatory basis.’”
Having resolved that the 14th Amendment would not allow race-based admissions, Roberts then turns to the question of “strict scrutiny.” The court must decide if A) the government has a compelling interest in race-based admissions, and B) the government’s use of race is “narrowly tailored” to achieve the aim. Roberts identifies the two possible compelling interests as 1) remediating past racial inequities, and 2) preventing a race riot.
After reviewing two key cases that examined race in college admissions (Regents of California vs. Bakke [1978] and Grutter vs. Bollinger [2003]), Roberts determines that race-based remedies must have an expiration date. They must envision and establish a date by which they will no longer be necessary. Because the two colleges cannot name a date when such remedies would no longer be needed, they cannot stand.
Moreover, Roberts argues that the two colleges HAVE “commendable” goals in training future leaders, enhancing classroom experiences through diversity, and preparing productive citizens. However, he contends that the court cannot judge whether those goals are being met. How many fewer future leaders of color would Harvard produce if they did not base admissions on race? That question is unanswerable. Further, he says that the situation is not a simple binary. It’s not a question of diversity or no diversity at all, but rather a question of some degree of diversity.
So, that’s Roberts’s (abbreviated) argument.
I’m not convinced. I would argue that A) Roberts’s notion of originalism almost never works (see my essay here and here); B) Roberts is using the law to back his own preconceived notion of how race should work in admissions. He has already indicated what he thought about it. C) His reliance on the notion of a definite “end date” is disingenuous. True, Harvard cannot say that we will no longer need racial remediation after August 30, 2027 (or whatever the date is). The end of race-based admissions depends entirely on the state of race relations in this country — and whether or not people like MAGA Republicans continue to make it worse.
But none of that is why I’m interested in writing this essay. I’m interested in another point that Roberts makes.
In a footnote on page 30, John Roberts provides an exception, or a “carveout,” for military academies. He argues that military academies may well have a “compelling national interest” in using race as a factor in admissions. He concludes: “This opinion also does not address the issue, in light of the potentially distinct interests that military academies may present.”
So, why the carveout? Why might a military academy using race as an element of admissions constitute a compelling national interest while a university using race as an element of admissions NOT constitute the same compelling interest?
Roberts spent a great deal of time in his opinion setting out the context for race-based admissions: the history of slavery; the history of legal bias and prejudice. He spends a great deal of time discussing the need to address the conditions produced by that history. He calls the efforts to address those issues “commendable.” However, he is unconvinced that the aims set out by Harvard and UNC are necessary or achievable. So why does he think that the military might need those same remedies? What is the difference?
In the cases of universities and the military, one of the aims is to produce future leaders. Individuals who graduate from college will become captains of industry, technological innovators, and creative talents. Individuals who graduate from military academies can become leaders in the military, but they can also leave the military and become leaders in civilian life. In both cases, the universities and the academies seem to be fulfilling a similar role in our society. Producing racially and ethnically diverse leaders is also equally important.
Another of the aims of universities in using race-based admissions is to foster diversity, which enriches the classroom experience and broadens our knowledge based. As I tell my students as I encourage them to participate in class discussions: you all come from diverse backgrounds; you have different cultural and familial experiences; you come from different places in the country and in the world. All of that knowledge enriches our discussions. We all learn from everyone else’s experience. Students emerge from that as better thinkers and as better citizens of the world. It would also be true in the military academy.
Another aim in fostering diversity is to improve racial understanding and improve race relations. More understanding and less animus. Goodness knows we need it. The legacy of slavery and the Civil War are still with us. No one can look at the Confederate flags flying at the White House and doubt it. Racism persists. Ethnocentrism persists. Current Congressional leaders proudly claim to he white nationalists. What is the best system to overcome such history and such prejudices? Education. Knowledge. Familiarity. De-segregation. Living, learning, working with one another.
In a recent (Feb. 2022) article on Military.com, a survey conducted by Blue Star Families reveals that 42% of service members of color have turned down assignments about of fear of racism and/or discrimination. A study at the Carnegie Endowment reveals that African Americans constitute just 9% off US military officers, but on 6.5% of generals are African American. “They are especially underrepresented at the three- and four-star general level, where the most important decisions about the U.S. military are made.”
So, the military suffers from the legacy of slavery. The military has a diversity problem. The military would like to see better representation at the highest ranks. And John Roberts provides them a carveout to address these issues. He sees that the military academies might have legitimate reasons for race-based admissions.
However, the issues that both universities and the academies face are the same. The desired goals are the same. Neither of them can provide a firm end date. And, yet, the military academy gets a carveout.
The ZIP code a person is born into is a pretty solid indicator of whether or not that person goes to college. Does that ZIP code have good schools? Does it have the tax revue for college prep? Does it hire the best teachers? Did that person’s parents go to college? In our segregated world, ZIP codes are largely racialized. A ZIP code is also a good indicator that a person will go into the military as an enlisted service member — though not the academies.
The questions are these. What is our goal? Do we actually want a more just and equitable society (including education, industry, arts, and military)? Do we actually want to redress the persisting legacy of slavery and racial animus?
Then we have to account for race, and the effects of race, in our society, including admissions.
And John Roberts knows this.
Ritch Calvin is an Associate Professor of Women’s, Gender, and Sexuality Studies at SUNY Stony Brook. He is the author of Queering SF: Readings, Feminist Epistemology and Feminist Science Fiction (Palgrave McMillan) and edited a collection of essays on Gilmore Girls (McFarland). His most recent book is Queering SF: Readings (Aqueduct Press).
