La acción afirmativa
Carlos Peña: “…en una sociedad donde existan estereotipos que dañan la autoestima personal o que operan como marcadores socioculturales que guían la selección de estudiantes —impidiendo que el talento o la inteligencia refuljan—, la ceguera frente a esos factores en vez de favorecer la igualdad la dañan…”.
La Corte Suprema de EE.UU. acaba de decidir —por mayoría— que los programas de admisión a las universidades basados en la raza o etnia violan el principio de igual protección contenido en la decimocuarta enmienda.
A primera vista no cabe duda de que considerar la pertenencia a un colectivo, con prescindencia de la historia individual, a la hora de asignar un recurso escaso como un cupo en una universidad prestigiosa, viola la igualdad en un sentido formal. Pero si la pertenencia a una etnia minoritaria es un motivo de desdén social o de prejuicios ampliamente extendidos, entonces en vez de infringir la igualdad la hace posible en la medida que remueve un obstáculo que no depende del desempeño personal.
En una sociedad donde existan estereotipos que dañan la autoestima personal o que operan como marcadores socioculturales que guían la selección de estudiantes —impidiendo que el talento o la inteligencia refuljan—, la ceguera frente a esos factores en vez de favorecer la igualdad la dañan.
Pero hay todavía otra razón en favor de mecanismos de acción afirmativa. Se trata del valor de la diversidad.
Por factores que la literatura ha escrito largamente, la educación tiende casi con naturalidad a reproducir la herencia, sea social o cultural o económica. La historia de la educación —y para qué decir la historia de la educación chilena— muestra cuán difícil es que el sistema escolar corrija la herencia que viene de la cuna. Por supuesto siempre hay ejemplos que se apartan de ese rumbo; pero ello no cambia la distribución general o la tendencia. Y la pregunta que cabe formular no es solo si ese fenómeno lesiona la igualdad entre las personas, sino si acaso lesiona o daña a la universidad como institución.
En otras palabras, la diversidad ¿es un bien para las universidades o ella les es indiferente? Si la diversidad es un bien para la universidad, entonces esta última debiera contar con algún mecanismo que la garantice. Si en cambio no lo es, entonces es indiferente que lo posea o no.
Cuando las personas poseen trayectorias vitales similares, porque comparten el lugar de la ciudad que habitan, las formas de recreo o incluso las prácticas de comensalidad, o una misma tradición de clase, pueden entenderse prácticamente en silencio. No necesitan, para decirlo de otra forma, tomar distancia de su posición social o alejarse reflexivamente de su trayectoria vital. En una palabra, no se ven puestas en la necesidad de agudizar el diálogo o la racionalidad para entenderse. Esto no significa, por supuesto, que no ejerciten la razón, solo que no tienen necesidad de volver con ella sobre sí mismos, sobre el lugar que les ha tocado en suerte, el que, por el hecho de ser compartido en un espacio social homogéneo, aparece como natural.
En cambio cuando las personas poseen trayectorias vitales distintas, habitan lugares diversos, poseen creencias diversificadas o diferentes tradiciones de clase, y se encuentran en un espacio común, se ven desafiadas a reflexionar inevitablemente sobre el lugar que poseen y la peripecia que los ha constituido. Entre ellos el silencio no habla ni dice nada. Se ven puestos en la necesidad de ejercitar su racionalidad, que es la única forma de trascender la propia posición para lograr encontrarse con otros con los que no se comparte ni memoria ni costumbres —ninguno de esos automatismos que comparecen en la cultura humana— salvo la racionalidad.
Lo anterior es lo que explica que esmerarse por hacer más diversas las poblaciones estudiantiles —es decir, porque la universidad sea capaz de reunir a quienes tienen distintas trayectorias vitales y de clase, de manera de eludir la uniformidad sea para arriba o para abajo— es relevante no solo por razones de igualdad, sino por la índole de la propia universidad que, desde sus mismos orígenes, se ha propuesto cultivar la racionalidad hasta el mismo límite de sus posibilidades.
Esa es la razón, en otras palabras, de por qué las universidades no deben simplemente reproducir la herencia, y menos alegrarse o enorgullecerse cuando hacen eso, y de por qué si ello ocurre espontáneamente necesita ser corregido mediante programas especiales como los de acción afirmativa.
US Supreme Court overturns race-conscious admissions
Voting as a block, the five conservative Republican judges of the Supreme Court of the United States (SCOTUS) have overturned the decades-long practice of race-conscious admissions in American colleges and universities in a case involving Harvard College (Harvard) and the University of North Carolina (UNC) at Chapel Hill.
This decision prevents all public colleges and universities, and any private higher education institution that accepts federal or state funds (including federally insured student loans) from using an admissions process designed to ensure that their student bodies are racially and ethnically diverse and in broad terms represent either the population of the state in which the institution is or, in the case of some elite schools, the United States as a whole.
Race-conscious admissions policies are not quota systems, rather, they give ‘points’ to racial and ethnic minority students whose grades qualify them for admissions.
In his majority opinion, Chief Justice John Roberts wrote: “Because Harvard’s and UNC’s admissions programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involving racial stereotyping, and lack meaningful endpoints [ie, at what point race-conscious admissions would no longer be required], those admissions programs cannot be reconciled with the Equal Protection Clause [of the Fourteenth Amendment to the United States Constitution].”
In his concurring opinion, Justice Clarence Thomas, who since a 2003 case in which the court upheld race-conscious admissions, has consistently opposed race-conscious admission policies, said: “Today, and despite a lengthy interregnum, the Constitution prevails.”
His concurring opinion offers “an originalist defence of the colour-blind Constitution; to explain further the flaws of the Court’s Grutter jurisprudence; to clarify that all forms of discrimination based on race – including so-called affirmative action – are prohibited under the Constitution; and to emphasise the pernicious effects of all such discrimination.” (‘Grutter’ refers to the case of Grutter v Bollinger.)
Court watchers had been expecting this decision since the oral arguments were heard at the end of October.
“I wouldn’t say this was a surprise,” says Jessie Brown, senior vice president and chief of staff at the Washington DC-based American Council on Education. “We listened to the five hours of oral arguments back on Halloween. For a lot of us who have been following this line of cases for a long time, you could count up the votes and listen to the questions and see where the justices were going.”
Reaction to the court’s decision to gut race-conscious admissions was swift and broke along party lines.
Republican right hails the ruling
On his media platform Truth Social, former president and present candidate for the Republican nomination in 2024 Donald J Trump said: “People with extraordinary ability and everything else necessary for success, including future greatness for our country, are finally being rewarded.
“This is the ruling everyone was waiting and hoping for and the result was amazing.
“It will also keep us competitive with the rest of the world. Our greatest minds must be cherished and that’s what this wonderful day has brought. We’re going back to all merit-based – and that’s the way it should be!”
Former vice president Mike Pence, who is also running for the Republican nomination in 2024, also welcomed the decision. “There is no place for discrimination based on race in the United States, and I am pleased that the Supreme Court has put an end to this egregious violation of civil and constitutional rights in admissions processes … and as president I will continue to appoint judges who will strictly apply the law rather than twisting it to serve woke and progressive ends.”
Mitch McConnell (Kentucky), Republican minority leader of the Senate, also embraced the decision: “For decades, the court turned a blind eye as higher education prioritised illegal social engineering over merit. Today’s rulings make clear that colleges may not continue discriminating against bright and ambitious students based on the colour of their skin.”
“Most Americans agree that racial discrimination should play no part in the college admissions process. Now that the court has reaffirmed that commonsense position, students can get a fair shot at college and the American dream on their merits.”
Biden, Obama denounce decision
Soon after the decision was announced, United States President Joe Biden went on television to denounce the court’s decision.
“For 45 years, the United States Supreme Court has recognised colleges’ freedom to decide how to build diverse student bodies and to meet their responsibility of opening doors of opportunity for every single American,” the president said.
“In case after case … the court has affirmed and reaffirmed this view – that colleges could use race, not as a determining factor for admission, but as one of the factors among many in deciding who to admit from an already qualified pool of applicants. Today, the court once again walked away from decades of precedent, as the dissent has made clear.
“We cannot let this decision be the last word,” Biden said in a White House address. “The court can render a decision, but it cannot change what America stands for.”
Though he later pledged to do all that he could do to mitigate harm from the decision, it was not immediately apparent what the president could do given that the Supreme Court has spoken.
Unlike in some countries where there is a supra constitutional court, in the United States the Supreme Court has the final say on whether something is constitutional. The only way to overturn a Supreme Court decision is by a constitutional amendment, which requires two-thirds support of both the House of Representatives and the Senate as well as 33 states.
Biden’s predecessor, former president Barack Obama also denounced the decision: “Like any policy, affirmative action wasn’t perfect. But it allowed generations of students like Michelle [his wife] and me to prove we belonged [in Princeton and Harvard, and Columbia and Harvard, respectively]. Now it’s up to all of us to give young people the opportunities they deserve – and help students everywhere benefit from new perspectives.”
Michelle Obama issued a statement saying: “My heart breaks for any young person out there who’s wondering what their future holds – and what kinds of chances will be open to them.”
New Jersey Democratic Senator Cory Booker, one of three black senators, tweeted: “The Supreme Court’s decision to strike down affirmative action is a devastating blow to our education system across the country. Affirmative action has been a tool to break down systemic barriers and we must continue to advance our ideals of inclusivity and opportunity for all.”
For his part, Dr Michael L Lomax, president and CEO of the United Negro College Fund, said: “This Supreme Court ruling will close the door to educational opportunity for many black students and students of colour who want to attend non-historically black colleges and universities.”
Opinion advances equal protection argument
Students for Fair Admissions, Inc v President and Fellows of Harvard College pit Students for Fair Admissions, Inc (SFFA), a non-profit founded by conservative legal strategist Edward Blum, against both Harvard and UNC, neither of which had a quota for black or other minority students.
In 1978 the SCOTUS ruled in Regents of the University of California v Bakke that the setting aside of 16 of 100 seats for racial minorities in the medical school of the University of California, Davis was unconstitutional but that carefully designed affirmative action programmes passed constitutional muster, a position that was upheld in other decisions including one that said that race-conscious admissions designed to ensure diversity of the college’s oruniversity’s student body were permissible.
At both Harvard and UNC, Roberts summarised: “In making those [admissions] decisions, the review committee may also consider the applicant’s race” in addition to class rank, GPA, test scores, ratings initial admissions officers gave them as well as residents, legacy admissions or special recruits.
Roberts’ majority decision as well as the three concurring decisions, written by Thomas and justices Brett Kavanaugh and Neil Gorsuch, respectively, found that any admissions regimen that explicitly takes cognisance of race violates the Equal Protection Clause that reads in part: “Nor shall any State deprive … deny to any person within its jurisdiction the equal protection of the laws.”
As these justices noted, the Equal Protection Clause, contained in the Fourteenth Amendment, which was passed in 1868, was originally intended to provide constitutional validation for the Civil Rights Act of 1866.
Largely ignored during the long decades of Jim Crow, the legal regimen all but replicated slavery economically and stripped the Freedmen (ex-slaves) and their descendants of legal and political rights, the Equal Protection Clause was central to the 1954 decision in Brown v Board of Education of Topeka, Kansas, which held that the doctrine of “separate but equal” was “inherently unequal”.
The clause was also the foundation upon which numerous civil rights laws, such as the Civil Rights Act of 1964, and court decisions were based.
Rather tendentiously, given the decisions in Bakke and Grutter, Roberts writes: “We have time and again forcefully rejected the notion that government actors may intentionally allocate preference to those ‘who may have little in common with one another but the colour of their skin’.”
The entire point of the Equal Protection Clause is that treating someone differently because of their skin colour is not like treating them differently because they are from a city or from a suburb, or because they play the violin poorly or well.
“One of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities,” Roberts wrote, citing a Supreme Court case that overturned a law in Hawaii that had restricted voting for the Office of Hawaiian Affairs to descendants of the original Hawaiian islanders.
When a university admits students “on the basis of race”, he continued, “it engages in the offensive and demeaning assumption that [students] of a particular race, because of their race, think alike” – at the very least alike in the sense of being different from non-minority students.
In doing so, the university furthers “stereotypes that treat individuals as the product of their race, evaluating their thoughts and efforts – their very worth as citizens – according to a criterion barred to the government by history and the Constitution”. Such stereotyping can only “cause continued hurt and injury”, contrary as it is to the core purpose of the Equal Protection Clause.
In American legal parlance, this interpretation of the Equal Protection Clause is called “strict constructionism” or “originalism”, which means that judges draw the meaning of the clause from the words alone without reference to either the context in which the law or constitutional provision was written (ie debates in Congress or state legislatures) or subsequently developed constitutional doctrines.
In their fiery dissents, justices Sonia Sotomayor and Ketanji Brown Jackson showed how the Equal Protection Clause took shape in Congress, then concerned with protecting the Freedmen, and how, after becoming part of the Constitution, it was used to authorise a number of programmes designed to benefit the former slaves.
“Simultaneously with the passage of the Fourteenth Amendment, Congress enacted a number of race-conscious laws to fulfil the amendment’s promise of equality, leaving no doubt that the Equal Protection Clause permits consideration of race to achieve its goal,” writes Sotomayor.
“One such law was the Freedmen’s Bureau Act, enacted in 1865 and then expanded in 1866, which established a federal agency to provide certain benefits to refugees and newly emancipated freedmen. For the Bureau, education ‘was the foundation upon which all efforts to assist the freedmen rested’. Consistent with that view, the Bureau provided essential funding for black education during Reconstruction.”
For her part, Brown Jackson compared the majority view that the Equal Protection Clause was conceived as demanding racially blind activities by the government to Marie Antoinette.
“With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colour-blindness for all’ by legal fiat. But deeming race irrelevant in law does not make it so in life.
“And having so detached itself from this country’s actual past and present experiences, the court has now been lured into interfering with the crucial work that UNC and other institutions of higher learning are doing to solve America’s real-world problems.”
According to constitutional law professor Ronald Krotoszynski, John S Stone Chairholder of Law and director of faculty research at the University of Alabama in Tuscaloosa, most law professors do not subscribe to the view of the Equal Protection Clause advanced by Roberts and the other justices who signed the majority opinion.
“If you were to audit a first-year constitutional law course, you’re far more likely to hear the views expressed by justices Brown Jackson and Sotomayor. As Justice Harry Blackmun said in Bakke, ‘in order to get beyond race, we have to take race into account’. The idea we are a post-racial society is aspirational. It’s not a reality.
Diversity argument challenged
Peter McDonough, vice president and general counsel at the American Council on Education, was especially critical of Roberts’ argument that there is no evidence of educational value to a diverse student body.
According to Roberts: “Harvard identifies the following educational benefits that it is pursuing: (1) Training future leaders in the public and private sectors; (2) Preparing graduates to adapt to an increasingly pluralistic society; (3) Better educating its students through diversity; and (4) Producing new knowledge stemming from diverse outlooks.
“UNC points to similar benefits, namely, (1) Promoting the robust exchange of ideas; (2) Broadening and refining understanding; (3) Fostering innovation and problem-solving; (4) Preparing engaged and productive citizens and leaders; [and] (5) Enhancing appreciation, respect and empathy, cross-racial understanding, and breaking down stereotypes.”
Roberts argues that although these are commendable goals, they are not sufficiently coherent for purposes of strict scrutiny.
“At the outset, it is unclear how courts are supposed to measure any of these goals. How is a court to know whether leaders have been adequately ‘train[ed]’; whether the exchange of ideas is ‘robust’; or whether ‘new knowledge’ is being developed? Even if these goals could somehow be measured, moreover, how is a court to know when they have been reached, and when the perilous remedy of racial preferences may cease?
“There is no particular point at which there exists sufficient ‘innovation and problem-solving’, or students who are appropriately ‘engaged and productive’.”
“Finally,” wrote Roberts, “the question in this context is not one of no diversity or of some: it is a question of degree. How many fewer leaders Harvard would create without racial preferences, or how much poorer the education at Harvard would be, are inquiries no court could resolve.”
While granting that measuring exactly what a student takes away from class is never going to be precise, McDonough rejected Roberts’ view. “The fact is that there [is] data-driven research that supports the belief that colleges and universities have about the educational value of a diverse student body,” he told University World News.
The court did not reference academic freedom in its decision. Its logic puts in question one of the key parts of a 1957 decision that is normally cited as the foundation stone of academic freedom (which the SCOTUS has never clearly defined).
In Sweezy v New Hampshire, Justice Felix Frankfurter identified the four essential freedoms of a university: The university decides who can teach there, the university decides what is taught, the university decides how the subject matter will be taught, and the university decides who can come there.
Accordingly, when I asked Krotoszynski if this decision edges toward overruling Sweezy, he said: “Yes, I think we are in this case.”
Inconsistencies in majority opinion
At times, the majority opinion is internally inconsistent, as pointed out by both justices Sotomayor and Brown Jackson.
Responding to the argument in the oral hearings last February in which, when the US government argued that race-conscious admissions were vital for the nation’s military academies, which are accredited colleges, in a footnote, Roberts granted that the government showed “compelling interests” for race-based admissions at the military academies.
He went on to say, since the academies were not party to the challenge brought by SFFA, the court did not “address the propriety of race-based admissions in that context”. Further, Roberts wrote: “This opinion also does not address the issue, in light of the potentially distinctive interests that the military academies may present.”
For her part, Sotomayor seized on this footnote to show that, “indeed, it [the court] agrees that a limited use of race is permissible in some college admissions programs”.
She continued, noting that the US government argued that “the nation’s military strength and readiness depend on a pipeline of officers who are both highly qualified and racially diverse – and who have been educated in diverse environments that prepare them to lead increasingly diverse forces”.
Accordingly, Sotomayor wrote that this “is true not just at the military service academies but at civilian universities, including Harvard, that host Reserve Officers’ Training Corps programs and educate students who go on to become officers”.
She cited an amicus brief submitted by Admiral Charles S Abbot et al, in which the admiral said that in his “professional judgement, the status quo – which permits service academies and civilian universities to consider racial diversity as one factor among many in their admissions practices – is essential to the continued vitality of the US military”.
Considering this argument, Krotoszynski said: “If the court’s logic regarding race and diversity is sound, I don’t know why one agency of the federal government would be able to operate under a different set of rules than state-sponsored colleges and universities.
“That note in Roberts’ opinion for the majority, to me, is kind of a significant indication, almost as if they actually didn’t believe their constitutional logic.”
Warning about application essays
Each of the experts I interviewed drew attention to what Roberts writes about application essays in the last paragraph of his opinion, thoughts not echoed in Thomas, Kavanaugh or Gorsuch’s decisions.
The opinion ends with Roberts saying: “The student must be treated based on his or her experiences as an individual – not on the basis of race. Many universities have for too long done just the opposite. And in doing so, they have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built or lessons learned but the colour of their skin. Our constitutional history does not tolerate that choice.”
Just before this, however, he wrote: “At the same time, as all parties agree, nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration or otherwise.
“But, despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today.”
According to McDonough and Jessie Brown, the American Council on Education’s amicus brief stressed how it would be problematic if the only thing an applicant could not talk about in describing themselves to an admissions officer was the impact that their race or ethnicity had on their lived experience.
“During the oral arguments,” says McDonough, “the plaintiff’s lawyers conceded that it would be perfectly appropriate for an applicant to invoke her ethnicity in describing who she is, and what she may bring to the campus community.”
For her part, Jessie Brown told University World News: “In the oral arguments, we heard a lot about what someone’s life experience was, and what if their experience is related to their racial identity. It seems to me that in the last page of the majority opinion, Roberts does say that universities can consider applicants’ discussions of their own personal lives, and for some people race may have affected their life.
“But what they [the court] are saying in the very next sentence is that you cannot do in an essay question what you couldn’t do with a check in the box. So, they’re saying be careful. This is about individual challenges, leadership capabilities, all of that is about an individual’s identity but not about their membership in a group.
“We are going to have to see how institutions are going to deal with that.”
The absence of guidance from the court was also a concern for Sarah K Wake, a constitutional lawyer and partner with McGuireWoods, a Chicago-based law firm.
“It’s clear what admissions offices cannot do – they cannot consider race as a standalone factor in evaluating applicants, as part of a holistic review or otherwise.
“It also seems clear that admissions offices cannot use other factors [such as postal codes] as a proxy for race.
“It’s less clear how admissions offices can consider race as part of someone’s overall experiences without running afoul of the constitution, and I anticipate schools will struggle with this and there will be additional legal challenges down the road.”
Diversity vs remediation confusion
Towards the end of our discussion, Krotoszynski pointed out that both Harvard and UNC defended themselves under what he calls “the diversity rationale” and not as remediation efforts for past discrimination. The court, he says, has tended to confuse diversity with remediation. Logically, when it comes to remediation, at some point, it can be said that we have done all that can be done and the programmes should cease.
“This doesn’t make any sense if what we’re talking about is diversity? Do we really think that Cinco de Mayo, St Patrick’s Day and St Joseph’s Altars are going to go poof and disappear? So, if diversity is what we are doing, why would it blink out of existence in 25 years [as Justice O’Connor wrote].”
Since the courts have ruled that you cannot take social discrimination into consideration as a remedial predicate, Krotoszynski says, it would appear that the state’s hands are tied.
But, he then explained: “No federal court has invalidated a top 10% plan of assorted place in Texas or Florida because it has a racial purpose and racial effects.” Top 10% plans ensure that if you graduate in the top 10% of your high school class, you have a guaranteed seat in the state’s flagship university.
“Normally, if something is facially race neutral, but you adopt it because of racial motives or purpose, and it has racially disparate effects, it’s subject to strict scrutiny” to ensure that it is constitutionally neutral – which is what the court ruled Harvard’s and UNC’s race-conscious admissions plans were not.
“But Governor Greg Abbott in Texas, and first governor Rick Scott, and now Governor Ron DeSantis in Florida, love the top 10% plans. They have the effect of allowing universities in Florida and Texas to maintain very diverse student bodies.
“A large number of these top 10% students, who as best I can tell, perform quite well, disproportionately come from underperforming schools. It creates an on-ramp to opportunity for kids who are at marginal public schools with black students.
“We know this and these housing patterns and the distribution of wealth are a legacy effect first of slavery and then Jim Crow.”
In a perfect world, the United States would fix its public schools so that children who are from poor areas have similar educational experiences to children from rich areas – and the country wouldn’t need a top 10% plan, he explained.
“Here’s the irony, right. So long as the race conscious action to remediate social discrimination is in a cellophane wrapper of race neutrality, conservative judges are fine with it, as are the conservative politicians. And I just don’t know why the transparency of the consideration of race should turn into a constitutional question,” Krotoszynski says.
Dissenter lambasts ‘perverse outcome’
At the end of her decision, the court’s newest and first black female justice, Brown Jackson, took direct aim at Justice Thomas’s encomium to the American dream. Despite the fact that as a poor black student from Georgia he had benefited from affirmative action to attend Yale University, Thomas opposes race-conscious admissions.
“While I am painfully aware of the social and economic ravages which have befallen my race and all who suffer discrimination,” wrote Thomas, “I hold out enduring hope that this country will live up to its principles so clearly enunciated in the Declaration of Independence and the Constitution of the United States: that all men are created equal, are equal citizens, and must be treated equally before the law.”
Justice Brown Jackson ends her decision, which, because it was written by the newest justice, ends the last opinion in the mould of some of America’s great dissenting opinions: “The court has come to rest on the bottom-line conclusion that racial diversity in higher education is only worth potentially preserving insofar as it might be needed to prepare black Americans and other under-represented minorities for success in the bunker, not the boardroom (a particularly awkward place to land, in light of the history the majority opts to ignore).
“It would be deeply unfortunate if the Equal Protection Clause actually demanded this perverse, ahistorical and counterproductive outcome.
“To impose this result in that clause’s name when it requires no such thing, and to thereby obstruct our collective progress toward the full realisation of the clause’s promise, is truly a tragedy for us all.”