The Affirmative Action decision, Part II: the dissents

 The opening paragraphs of Justice Sonia Sotomayor's dissent define a completely different view of the case and of the Fourteenth Amendment, which both sides view as central to their positions, from that of the majority.  I quote them in full.

"The Equal Protection Clause of the Fourteenth Amendment enshrines a guarantee of racial equality. The Court long ago concluded that this guarantee can be enforced through race-conscious means in a society that is not, and has never been, colorblind. In Brown v. Board of Education, 347 U. S. 483 (1954), the Court recognized the constitutional necessity of racially integrated schools in light of the harm inflicted by segregation and the “importance of education to our democratic society.” Id., at 492–495. For 45 years, the Court extended Brown’s transformative legacy to the context of higher education, allowing colleges and universities to consider race in a limited way and for the limited purpose of promoting the important benefits of racial diversity. This limited use of race has helped equalize educational opportunities for all students of every race and background and has improved racial diversity on college campuses. Although progress has been slow and imperfect, race-conscious college admissions policies have advanced the Constitution’s guarantee of equality and have promoted Brown’s vision of a Nation with more inclusive schools.

"Today, this Court stands in the way and rolls back decades of precedent and momentous progress. It holds that race can no longer be used in a limited way in college admissions to achieve such critical benefits. In so holding, the Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter. 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. Because the Court’s opinion is not grounded in law or fact and contravenes the vision of equality embodied in the Fourteenth Amendment, I dissent."

Perhaps it would be well to quote Section 1 of the Fourteenth Amendment here also.

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Brown v. Board of Education unanimously banned states from operating separate school systems for black and white students on the grounds that such facility were "inherently unequal" and thus deprived citizens of the equal protection of the laws.  Sotomayor refers  to section 1 as a "guarantee of equality" that embodies a "vision of equality" and  interprets Brown as a "race-conscious means  in a society that is not, and has never been, colorblind."  We shall find that Justice Jackson goes even further down this road, and that is the conceptual difference that divides the minority from the majority.

Sotomayor then embarks upon her own historical summary of race relations in the United States, with particular reference to education.  The Fourteenth Amendment, she notes, passed the Congress in response to attempts by the former Confederate states to deprive freed slaves of legal equality in many ways.  Her key paragraph on the amendment reads as follows:

"To promote this goal, Congress enshrined a broad guarantee of equality in the Equal Protection Clause of the Amendment. That Clause commands that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” Amdt. 14, §1. Congress chose its words carefully, opting for expansive language that focused on equal protection and rejecting “proposals that would have made the Constitution explicitly color-blind.” A. Kull, The Color-Blind Constitution 69 (1992); see also, e.g., Cong. Globe 1287 (rejecting proposed language providing that “no State . . . shall . . . recognize any distinction between citizens . . . on account of race or color”). This choice makes it clear that the Fourteenth Amendment does not impose a blanket ban on race-conscious policies."

While the majority, as we have seen argues that this clause bans race-conscious policies except in exceptional cases that are designed to remedy particular acts of discrimination or protect lives, and which survive strict scrutiny, Sotomayor believes that it authorizes any policies designed to benefit black people and undo the legacy of slavery.  Continuing, she cites the work of the Freedmen's Bureau, established by the same Reconstruction Congress to assist freed slaves in many respects, including education.  She also quotes from the Civil Rights Act of 1866, passed almost simultaneously with the Fourteenth Amendment to secure equal rights for black citizens and to eradicate the "Black Codes" that the former Confederate states had passed. " Here her legal theory becomes more explicit.

"Because the Black Codes focused on race, not just slavery-related status, the Civil Rights Act explicitly recognized that white citizens enjoyed certain rights that non-white citizens did not. Section 1 of the Act provided that all persons “of every race and color . . . shall have the same right[s]” as those “enjoyed by white citizens.” Act of Apr. 9, 1866, 14 Stat. 27. Similarly, Section 2 established criminal penalties for subjecting racial minorities to “different punishment . . . by reason of . . . color or race, than is prescribed for the punishment of white persons.” Ibid. In other words, the Act was not colorblind. By using white citizens as a benchmark, the law classified by race and took account of the privileges enjoyed only by white people."

The Constitution and the Bill of Rights used universal language to define the rights of the citizenry.  The words "black," "white," "man," "woman" and "slave" do not appear in the Constitution, which recognizes only "persons."  In practice, of course, neither black people (for the most part) nor women enjoyed all the same rights as white males, but the Constitution in no way guaranteed the privileges of white males at others' expense.  Sotomayor adopts the view--very popular for decades among academics--that the reality is more important than the text, that certain "privileges" (not rights) were "enjoyed only by white people," and that only race-conscious remedies, rather than an affirmation that the universal language meant what it said, could secure equality.

Sotomayor then cites Reconstruction laws  that Congress passed specifically to help black people, including "destitute colored women and children" and black Union Army and Navy veterans. "In doing so," she writes, "it rebuffed objections to these measures as “class legislation” “applicable to colored people and not . . . to the white people.” Cong. Globe, 40th Cong., 1st Sess., 79 (1867) (statement of Sen. Grimes). This history makes it “inconceivable” that race-conscious college admissions are unconstitutional. Bakke, 438 U. S., at 398 (opinion of Marshall, J.).2"  Yet as the majority pointed out, Marshall's opinion in Bakke, the only legal authority for this position that she can cite, was a solitary opinion of his own in no way binding on the Court, that took a position which the Court has never adopted. Marshall, of course, was the attorney who argued Brown v. Board of Education before the Court, but that did not give him the right to decide what it meant in other contexts.

Having established her own conceptual framework, Sotomayor shows how it applies to the current case.  She surveys at length the education of "Latino and Black" students." Segregated schools (de facto, not de jure), schools with fewer resources, and weaker curricula, she says, obviously make them less qualified by traditional standards. “Students of color, particularly Black students, are disproportionately disciplined or suspended, interrupting their academic progress and increasing their risk of involvement with the criminal justice system,”  she continues.  (One striking feature of these opinions is their differing use of capitalization.  Both Roberts and Thomas refuse to capitalize "black," although the younger Gorsuch does so.  Sotomayor capitalizes it, and Jackson capitalizes both black and white.  Regular readers know that I refuse to capitalize either myself, since I think they should be simple descriptors, not indicating a separate political identity.)  She adds that "Stark racial disparities exist, for example, in unemployment rates,15 income levels,16 wealth and home-ownership,17 and healthcare access.18 See also Schuette v. BAMN, 572 U. S. 291, 380–381 (2014) (SOTOMAYOR, J., dissenting) (noting the “persistent racial inequality in society”); Gratz, 539 U. S., at 299–301 (Ginsburg, J., dissenting) "Put simply," she concludes, "society remains 'inherently unequal," citing Brown. ). As I have explained before, only with eyes open to this reality can the Court carry out the guarantee of equal protection.” Schuette, 572 U. S., at 381 (dissenting opinion).” The unanimous Brown opinion wrote, "Separate educational facilities are inherently unequal."  Brown based that conclusion not on the poorer education black students were receiving or their poorer outcomes in life, but on the stigma attached to legally separate schools. And once again, the only legal authorities Sotomayor can cite for her view are dissents of her own and the late Justice Ginsburg's.   

"Both UNC and Harvard have sordid legacies of racial exclusion" she continues. Because “[c]ontext matters” when reviewing race-conscious college admissions programs, Grutter, 539 U. S., "at 327, this reality informs the exigency of respondents’ current admissions policies and their racial diversity goals."  This seems to argue that both colleges owe black and Latino students better treatment because of discrimination in the past--a position that Gruber did not take. She quotes at length from a recent Harvard report on Harvard's involvement in slavery--a report which I criticized as one-sided in an op-ed which the Harvard Crimson published. She then argues at length that the Harvard and UNC admissions policies fall fully within the guidelines established by Bakke and Gruber.  Here I cannot resist pointing out a methodological problem that I have blogged about before in other contexts. 

Sotomayor explains why she thinks the lower courts correctly rejected the diversity alternative based on income rather than race which SFFA proposed, as follows:

"The courts below correctly rejected SFFA’s view that Harvard’s use of race is unconstitutional because it impacts overall Hispanic and Black student representation by 45%.See Brief for Petitioner 79." That 45% figure comes from a calculation that eliminating the use of race in admissions “would reduce African American representation . . . from 14% to 6% and Hispanic representation from 14% to 9%.” Harvard II, 980 F. 3d, at 180, 191. Such impact of Harvard’s limited use of race on the makeup of the class is less than this Court has previously upheld as narrowly tailored. In Grutter, for example, eliminating the use of race would have reduced the underrepresented minority population by 72%, a much greater effect. 539 U. S., at 320. And in Fisher II, the use of race helped increase Hispanic representation from 11% to 16.9% (a 54% increase) and African-American representation from 3.5% to 6.8% (a 94% increase). 579 U. S., at 384."

The problem here is the math--and she is very far from the first person to have it.  A decrease of "African American representation from 14% to 6%" does not reduce black student representation "by 45 %." It reduces it by 8 % (14% minus 6%).  And in the same way, the use of race documented in Fisher II didn't increase Hispanic representation by 54 % (11% to 16.9%), but by 5.9 % (16.9%-11%) and didn't increase black representation by 94%, but by 3.3 % (6.8%-3.5%).  Pardon me for this digression but I have already shown in another post that this is a sore point with me.  One should not violate basic mathematical principles to make a stronger point.

Sotomayor also denies that the figures on racial percentages of Harvard admits that I copied from Roberts' opinion (and which originated in the SFFA brief) show that Harvard is using a quota system--because they represent significant changes in some categories from years or decades earlier.

In another interesting part of her argument, Sotomayor defends Harvard's insistence on valuing different aspects of every candidate to create a diverse environment benefits white students as well.  To do so, she cites another interesting discovery for which we can thank SFFA: that about 30 percent of admits every year come from four special categories: legacy admissions with parents who attended Harvard, the children of big donors, athletes, and children of Harvard faculty and staff. 67.8 percent of the applicants in those groups are white.  (A good many applicants, by the way, are both legacies and the children of donors; I am not convinced that simply having a parent who attended Harvard helps very much.)  I would agree, for the record, if Sotomayor argued that Harvard should eliminate those preferences, but she doesn't--she feels they are justification for considering race for others. And in another significant passage, she writes: "Similarly, because of achievement gaps that result from entrenched racial inequality in K–12 education, see infra, at 18–21, a heavy emphasis on grades and standardized test scores disproportionately disadvantages 18–21, a heavy emphasis on grades and standardized test scores disproportionately disadvantages underrepresented racial minorities. Stated simply, race is one small piece of much larger admissions puzzle where most of the pieces disfavor underrepresented racial minorities. That is precisely why underrepresented racial minorities remain underrepresented. The Court’s suggestion that an already advantaged racial group is “disadvantaged” because of a limited use of race is a myth.  Stated simply, race is one small piece of a much larger admissions puzzle where most of the pieces disfavor underrepresented racial minorities. That is precisely why underrepresented racial minorities remain underrepresented. The Court’s suggestion that an already advantaged racial group is “disadvantaged” because of a limited use of race is a myth."  Apparently Sotomayor isn't concerned with highly qualified Asian applicants who are turned down to favor all other groups, including whites, because the percentage of Asian students is already much higher than the Asian percentage of our population.  

Sotomayor also criticizes the majority for overruling the Bakke and Gruber precedents--as Thomas, but not Roberts, admits--because the arguments that they now accept had been rejected by the full court in those cases.  She however was not willing, as I think I have shown, to stand on those previous decisions alone, but has introduced arguments of her own relating to the meaning of the Fourteenth Amendment and the use of preferences to remedy past discrimination and undo current economic equality that the full court never agreed to either.  All this makes perfect sense.  Bakke and Gruber were written by members of earlier generations who valued compromise, even though compromise sometimes produced quite contradictory majority opinions.  That spirit no longer dominates the court. 

In her concluding pages, Sotomayor restates her basic arguments and adds another dimension.  “By singling out race [as a feature college admissions must not take into account), the Court imposes a special burden on racial minorities for whom race is a crucial component of their identity. Holistic admissions require “truly individualized consideration” of the whole person. Id., at 334. Yet, “by foreclosing racial considerations, colorblindness denies those who racially self-identify the full expression of their identity” and treats “racial identity as inferior” among all “other forms of social identity.” E. Boddie, The Indignities of Colorblindness, 64 UCLA L. Rev. Discourse, 64, 67 (2016). The Court’s approach thus turns the Fourteenth Amendment’s equal protection guarantee on its head and creates an equal protection problem of its own.”

“There is no question that minority students will bear the burden of today’s decision," she writes. "Students of color testified at trial that racial self-identification was an important component of their application because without it they would not be able to present a full version of themselves. For example, Rimel Mwamba, a Black UNC alumna, testified that it was “really important” that UNC see who she is “holistically and how the color of [her] skin and the texture of [her] hair impacted [her] upbringing.” 2 App. in No. 21–707."  She quotes a number of other students who said very similar things about themselves. Sotomayor accepts the centrality of racial and ethnic identity to the personhood of Americans--which have been developed at great length within academia over the last few decades--and immediately wants to incorporate them into the equal protection clause.  To do so would take a very momentous step in American jurisprudence and American life, and for the foreseeable future. “The Court’s holding," she writes, "is based on the fiction that ra­cial inequality has a predictable cutoff date. Equality is an ongoing project in a society where racial inequality persists. See supra, at 17–25. A temporal requirement that rests on the fantasy that racial inequality will end at a predictable hour is illogical and unworkable. There is a sound reason why this Court’s precedents have never imposed the major­ity’s strict deadline: Institutions cannot predict the future. Speculating about a day when consideration of race will be­come unnecessary is arbitrary at best and frivolous at worst. There is no constitutional duty to engage in that type of shallow guesswork.”

Both Sonia Sotomayor and Ketanji Brown Jackson are Ivy League graduates, but Jackson is a generation younger.  Not surprisingly, Jackson's dissent draws even more heavily on theories and writings that have steadily become mainstream during the last half century within elite academia.

Denying that the consideration of race in admissions can be unfair, Jackson rejects the majority opinion for this reason: "Our country has never been colorblind. Given the lengthy history of state-sponsored race-based preferences in America, to say that anyone is now victimized if a college considers whether that legacy of discrimination has unequally advantaged its applicants fails to acknowledge the well-documented “intergenerational transmission of inequality” that still plagues our citizenry.1M. Oliver & T. Shapiro, Black Wealth/White Wealth: A New Perspective on Racial Inequality 128 (1997) (Oliver & Shapiro)

"It is that inequality that admissions programs such as UNC’s help to address, to the benefit of us all. Because the majority’s judgment stunts that progress without any basis in law, history, logic, or justice, I dissent.

"Imagine two college applicants from North Carolina, John and James. Both trace their family’s North Carolina roots to the year of UNC’s founding in 1789. Both love their State and want great things for its people. Both want to honor their family’s legacy by attending the State’s flagship educational institution. John, however, would be the seventh generation to graduate from UNC. He is White. James would be the first; he is Black. Does the race of these applicants properly play a role in UNC’s holistic merits-based admissions process?

"To answer that question, “a page of history is worth a volume of logic.” New York Trust Co. v. Eisner, 256 U. S. 345, 349 (1921). Many chapters of America’s history appear necessary, given the opinions that my colleagues in the majority have issued in this case."

Jackson then writes her own survey of US history, from slavery through Reconstruction and into the twentieth century.  Reaching the 1930s, she argues based upon books by Richard Rothstein, Isabel Wilkerson, Ira Katznelson, and M. Baradaran that federal programs to encourage homeownership almost totally excluded black Americans from the 1930s through the 1950s.  Quoting Rothstein and an article by one R. Scragger, she writes, "Thus, based on their race, Black people were “[l]ocked out of the greatest mass-based opportunity for wealth accumulation in American history.”  She continues:

"This discussion of how the existing gaps were formed is merely illustrative, not exhaustive. I will pass over Congress’s repeated crafting of family-, worker-, and retiree-protective legislation to channel benefits to White people, thereby excluding Black Americans from what was otherwise “a revolution in the status of most working Americans.”40 I will also skip how the G. I. Bill’s “creation of . . .middle-class America” (by giving $95 billion to veterans and their families between 1944 and 1971) was “deliberately designed to accommodate Jim Crow.”41 So, too, will I bypass how Black people were prevented from partaking in the consumer credit market—a market that helped White people who could access it build and protect wealth.42 Nor will time and space permit my elaborating how local officials’ racial hostility meant that even those benefits that Black people could formally obtain were unequally distributed along racial lines.43 And I could not possibly discuss every way in which, in light of this history, facially race-blind policies still work race-based harms today (e.g., racially disparate tax-system treatment; the disproportionate location of toxic-waste facilities in Black communities; or the deliberate action of governments at all levels in designing interstate highways to bisect and segregate Black urban communities)."

This history, of course, suggests that college admissions officers should take account of race in order to make up for the impact of these policies.  One may agree or disagree with this; I simply point out once again the the Supreme Court has never endorsed that position.  That, however, is not all.  I have not read or fact-checked all the books Jackson cites, but I have investigated some of these questions and found that their history and their conclusions are sometimes wrong.  Most strikingly--as I recently pointed out in a letter to the New York Review of Books--the idea that the Social Security Act of 1935 failed to cover agricultural workers and domestics--who represented a substantial portion of the black working population, even though large majorities of those categories were white--because white southern legislators didn't want to benefit black citizens is without foundation.  In addition , a 2010 article by William Collins and Robert Margo showed that despite redlining of some neighborhoods (which, again, actually affected more white residents than black ones) and other discrimination in housing programs, the share of black people who owned their homes rose from 21 percent to 56 percent from 1940 until 1980, at a pretty steady rate, while the white rate rose from about 43 percent to 75 percent.  It is a sad day when a Supreme Court opinion includes such a striking misstatement of fact as that black people were "locked out" of the postwar accumulation of wealth, but these myths have been so eagerly spread that it is not surprising.  (The Supreme Court majority, on the other hand, might ponder that it was in the 1980s--the beginning of the Reagan revolution--that both black and white Americans stopped improving their homeownership rates.)  In addition, a detailed study of the impact of the GI Bill on education showed that it clearly benefited both black and white veterans substantially, although black veterans in the South had difficulty taking advantage of it because so few colleges were open to them.

Now there is no question that a suit against redlining--which as far as I know  was never brought--or against discrimination in housing programs against black people might well have overturned those practices on equal protection grounds in the same way that Brown overturned dual school systems.  The argument here is between Sotomayor and Jackson, who evidently believe that the nation owes it to new generations of black Americans to make up for these violations retroactively now, and Thomas, who wrote bluntly, "Whatever their skin color, today’s youth simply are not responsible for instituting the segregation of the 20th century, and they do not shoulder the moral debts of their ancestors. Our Nation should not punish today’s youth for the sins of the past." The nation needs to resolve that dispute.

Jackson clearly states that she expects admissions officers to take all this into consideration--and that that is what UNC admissions officers are doing. “UNC has concluded that ferreting this out requires understanding the full person, which means taking seriously not just SAT scores or whether the applicant plays the trumpet, but also any way in which the applicant’s race-linked experience bears on his capacity and merit. In this way, UNC is able to value what it means for James, whose ancestors received no race-based advantages, to make himself competitive for admission to a flagship school nevertheless.

“Understood properly, then, what SFFA caricatures as an unfair race-based preference cashes out, in a holistic system, to a personalized assessment of the advantages and disadvantages that every applicant might have received by accident of birth plus all that has happened to them since. It ensures a full accounting of everything that bears on the individual’s resilience and likelihood of enhancing the UNC campus. It also forecasts his potential for entering the wider world upon graduation and making a meaningful contribution to the larger, collective, societal goal that the Equal Protection Clause embodies (its guarantee that the United States of America offers genuinely equal treatment to every person, regardless of race).”

Readers may judge for themselves whether Jackson is suggesting that her mythical white "John" should be disadvantaged to make up for the advantages racial unfairness conferred upon his ancestors and himself.  That seems to me to be implied.  In any case, it is clear that she wants admissions to make up for the historic disadvantages of black applicants, and like Sotomayor, she expands the 14th Amendment guarantee of the "equal protection of the laws" to "genuinely equal treatment to every person, regardless of race."  This is also what is known in the social justice movement as "equity." 

Jackson also seems to overstate a mathematical claim to support her argument. She writes:

"Furthermore, and importantly, the fact that UNC’s holistic process ensures a full accounting makes it far from clear that any particular applicant of color will finish ahead of any particular nonminority applicant. For example, as the District Court found, a higher percentage of the most academically excellent in-state Black candidates (as SFFA’s expert defined academic excellence) were denied admission than similarly qualified White and Asian American applicants. “  “94See 567 F. Supp. 3d, at 617, 619; 3 App. 1078–1080. The majority cannot deny this factual finding."

Checking her footnote to the District Court opinion, I find that this statement was based on this fragment of a discussion of an "academic index" devised by SFFA's expert Professor Arcidiacono, based on an aggregate of test scores and grades:\

"Though this was not the focus of Professor Arcidiacono's analysis, the Court also observes that 3% of in-state, top decile African American candidates were denied admissions by UNC, more than double the percentage of their white counterparts with AIs in this decile. (See ECF No. 247-1 at 13 (Arcidiacono demonstratives) (showing 1.2% of white students and 1.8% of Asian American students being denied in the top decile); see also Nov. 10 Trial Tr. 371:23–372:3 (Arcidiacono).) If URM candidates were largely defined in the admissions process by their race, one would expect to find that every URM demonstrating academic excellence at the highest level would be admitted or, at the very least, be admitted at a higher rate than their non-URM peers. This deciles analysis suggests instead that race does not even act as a tipping point for some students with otherwise exceptional qualifications."

The percentages of black, white and Asian students from the top decile who were denied admission were all very small--3 percent, 1.2 percent, and 1.8 percent. One again, the phrase, "more than double the percentage of their white counterparts" makes a 1.8 percent difference sound more significant than it is.  And just one page earlier, the opinion noted Arcidiacono's findings that in the fifth decile, "whites and Asian Americans have admit rates that are below 30%, but the African American admit rate is over 40 points higher, at 71%, and the Hispanic admit rate is almost 54%." Surely those much bigger numbers help answer the question of whether race is a crucial factor in admissions, but Jackson doesn't mention them.

In conclusion, while the majority opinion explicitly rejected earlier precedents and demanded colorblind admissions, the dissenters not only affirm those precedents but go well beyond them in justifying the consideration of race to benefit certain minorities.  They clearly believe that the equal protection clause demands that colleges and universities admit more members of certain minority groups to make up for past discrimination, and possibly simply to try to equalize economic outcomes for all.  That argument now divides our two major political parties, as well as the Supreme Court.  In the last post in this series I will talk about the attitude of the American people.

[Note:  my momentum drove me forward, and I have finished and now published this post sooner than I expected. The third and last post on the topic will probably not appear until next weekend.]