There Is No “Race Neutral”

Affirmative action isn’t preferential treatment — it’s equality.

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Photo by Matteo Paganelli on Unsplash

Well Shucks, I’m Just a Simple Neutral Lawyer

Neutrality is a common buzzword in the law, particularly favored by judges who see their role (publicly, at least) as “call[ing] balls and strikes” or merely “interpret[ing] our Constitution and laws as they are written.” It joins “state action,”² “identity politics,”³ and, particularly relevant here, “merit,” as concepts designed to paint deeply unequal realities with the veneer of objectivity.

Each of these ideas rests on the assumption, recognized or not, that deviating from society’s baseline — the existing distributions of access, opportunity, wealth, and power — constitutes impermissible discrimination. But society’s baseline, far from evenhanded, is one of profoundly unfair racial hierarchy.⁴ Instead of stemming from a Platonically equal state of nature, laws that are “neutral” subsume the deeply unequal state of our society, thereby replicating dominant hierarchies and “insulating the current distribution of racial power.” These policies reflect and further entrench society’s default racial preference for whiteness, while their supporters claim the moral high ground of doing no such thing.

The Myth of Meritocracy

Take merit, for example. The misguided basis on which Friedersdorf’s argument rests is that, as long as affirmative action is prohibited, admissions to selective colleges will be based on purely meritocratic considerations that take no account of race. He contends, in other words, that Prop 16 would have “empowered [government officials] to racially discriminate,” “ending [the current state of] race neutrality.”

But college admissions officers in the UC system and elsewhere define and measure merit not impartially but “in ways that reflect the norms and values of people with power.” Black and Latino students are far less likely to attend high schools with rigorous curriculum offerings like AP courses or advanced math and science classes. Even when those classes are offered, Black, Latino, and Indigenous students are seriously underrepresented — a trend that begins in elementary school and persists across socioeconomic classes. Upper-middle-class students, who are disproportionately white, have lopsided opportunities to engage in extracurricular activities and elite athletic ventures. (Although no longer the case in the UC system, many selective schools in the United States also require standardized test scores, which significantly correlate with the test taker’s race — even when controlling for family income and parents’ education — and engage in explicitly unmeritocratic practices like legacy or donor preferences). Simply framing the college-admissions process as neutral may actually exacerbate inequality: in what researchers have called “the paradox of meritocracy,” organizations that prioritize “meritocratic” values actually exhibit the most bias in decision making, favoring whites and men over identically performing racial minorities and women. No ballot initiative is needed to “empower [government officials] to racially discriminate”; racial preferences for white students come prepackaged with their application materials.

Friedersdorf acknowledges some of this reality, writing that “California’s K-12 education system fails too many students of all races, with Latino and Black students suffering disproportionately.” But he neglects to connect the dots, asserting in the next breath that “white supremacy has been vanquished in California’s higher education system.” How an inequitable setup leads to an equitable result is unclear.

Evidence from the UC campuses themselves belie Friedersdorf’s allegation. In an amicus brief to the U.S. Supreme Court in 2015, the President and Chancellors of the UC system explained that the original ballot initiative prohibiting race-based affirmative-action policies, Proposition 209, “resulted in an immediate and precipitous decline in the rates at which underrepresented-minority students applied to, were admitted to, and enrolled at UC.” Although these rates have improved since 1998, they “still have not rebounded at UC’s most selective campuses, and,” despite the impressive diversity figures Friedersdorf cites, “the overall enrollment figures at UC have not kept pace with the demographic changes of California.” In 2018, the UC Undergraduate Experience Survey at UC schools found that, among African American students, 43% disagreed that students of their race/ethnicity were respected on their campus; at UC Berkeley, that number was 58%. These numbers do not herald the defeat of white supremacy.

Getting It Twisted

Friedersdorf’s specific concerns about Prop 16 reflect his mistaken belief that without affirmative action, no racial group receives preferential treatment. His primary worry — that Prop 16 would have created “conflicts between racial groups,” as “intergroup stigmas and resentments tend to increase when any group is given preferential treatment” — betrays a conspicuous ignorance of racial injustice in America after a summer of agitation over the stark and sometimes fatal inequalities faced by nonwhites. He has the causality twisted: Affirmative action doesn’t create conflict between racial groups; it “reveals, responds to, and addresses” racial conflicts that already exist.

The worry that loss of an unfair advantage might breed tension, violence, or at the very least hurt feelings, cannot be allowed to operate as a heckler’s veto on justice, just as preventing white violence was not a permissible reason to halt school desegregation. In a just society, resentment does not trump equality. As for stigma, to reject affirmative action on the grounds that its presumed recipients will be stigmatized wrongly doubles down on disadvantage. To paraphrase philosopher Elizabeth Anderson, to reject affirmative action rather than the social norm that affirmative action is preferential treatment for unqualified minorities “insultingly suggests that the defect lies in the [policy] rather than in society.” Affirmative action is not the problem; a white supremacist society is the problem.

Friedersdorf contends that affirmative action constitutes racial discrimination; whether that’s true depends on your definition of discrimination and your understanding of its harm. Discrimination can mean treating differently or treating unjustly. Here Friedersdorf discusses the former (“permitting [California] officials to treat racial groups differently”) while implying the latter. It’s a common sleight of hand employed by conservative jurists and commentators, that treating differently must mean treating unjustly. But the two definitions are not interchangeable. As explained by Supreme Court Justice Harry Blackmun in Regents of the University of California v. Bakke, the landmark 1978 affirmative-action case, “[i]n order to treat some persons equally, we must treat them differently,” that is, different treatment can be an appropriate, equality-promoting remedy for unjust treatment. Equality rests on the rejection of injustice, not the rejection of different treatment. Arguments otherwise are grounded in the decidedly nonneutral standpoint of the societally advantaged, who see burdens on the disadvantaged as impartial and burdens on themselves as discrimination.

Genuine Equality⁵

Affirmative action need not be justified, as Friedersdorf argues, to either “remedy past discrimination” or “increase diversity,” a goal that is problematic in its own right. Instead, affirmative-action policies can serve as a counterbalance to the traditional standards of merit that dominate the college admissions process but say far more about applicants’ privilege than their aptitude — discrimination that has deep roots in the past but remains a significant problem in the here and now. Such policies are by no means a panacea for the racism enmeshed in American institutions; they are nevertheless worthwhile.

The debate over Prop 16 highlights the need to have a conversation about what equality really meansnot as an empty, “neutral” principle that requires identical treatment devoid of context, but as a substantive matter that compels the correction of unjust social disadvantages grounded in deep societal currents like white supremacy, patriarchy, and ableism. Unfortunately, by voting down Prop 16, California voters did not reject racial preference; they rejected equality.

¹ Affirmative-action opponents’ use of “racial preference” harkens back to the Supreme Court’s ruling in the Civil Rights Cases, wherein the Court refused to extend the reach of the Civil War Amendments to discrimination by private individuals, writing that “there must be some stage…when [a former slave] takes the rank of a mere citizen, and ceases to be the special favorite of the laws . . . .” The year? 1883.

² For an excellent critique of the state-action doctrine as framing that preserves the unequal status quo, see Cass Sunstein, Neutrality in Constitutional Law, 92 Colum. L. Rev. 1, 6–7 (1992).

³ Louder for the people in the back — all politics are identity politics.

⁴ If you need evidence of this, you are probably no longer reading. In case you do and are, try here (wealth gap), here (police killings), here or here (incarceration), here or here (unemployment), or here (COVID-19), and of course the reams of academic research, books, and personal stories of racism in America.

⁵ The term “genuine equality” comes from Justice Thurgood Marshall’s opinion in Bakke, where he wrote that interpreting the Fourteenth Amendment to “prohibit all race-conscious relief measures” would “pervert the intent of the Framers by substituting abstract equality for the genuine equality the Amendment was intended to achieve.” Catharine MacKinnon refers to the same concept as “substantive equality.”

Read More

While I was writing this essay, Medium suggested another piece on the myth of race neutrality in education. It’s insightful and worth your time:

The African American Policy Forum has a fantastic resource debunking popular myths about affirmative action, “Focus on Affirmative Action,” that I found very useful. Check it out below.

Educator & recovering attorney. Driven by the unrealized promise of American ideals. Friends, waffles, work.

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