Abstract
Robert L. Nelson on the racial ideology of a conservative-majority court.
As expected, the U.S. Supreme Court outlawed affirmative action in higher education in its fall 2023 term, in Students for Fair Admissions (SFFA) v. the University of North Carolina and SFFA v. Harvard University. But it is important for sociologists to understand two tricks the conservative supermajority used in reaching its decision. First, they manipulated the term “race” to mean something entirely different from what that word meant in the landmark decision in Brown v. Board of Education (1954). Second, they used equally manipulated claims of discrimination against Asian Americans to attack affirmative action wholesale.
Consider first the effort to alter the historical meaning of Brown. Chief Justice John Roberts cited the NAACP’s briefs and oral argument in Brown: “that no State has any authority under the equal protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.” Roberts thus read Brown as a pure case of “anti-classification,” rejecting any use of race by government decisionmakers, even if the purpose is benign—or an arguably positive policy goal.
This is a controversial interpretation of Brown. Legal historian Christopher Schmidt asserts that the historical record in Brown is far more complex, and that Roberts completely ignored the “anti-subordination” rationale that the NAACP and its allies relied on in arguing for an end to state-mandated racial segregation of schools. Thurgood Marshall and the NAACP were attacking a racial caste system. Brown’s still-living NAACP litigators, Jack Greenberg, Robert L. Carter, and William Coleman, Jr., vigorously denounced Roberts’ reading of Brown in an earlier case (Parents Involved), calling it “preposterous,” “dirty pool,” and asserting that it turned the NAACP “argument on its head.”
Indeed, Roberts ignored the historical meaning of race. In 1954, everyone knew that the term “race” was a stand-in for Black. The NAACP had mounted a decades-long campaign to end separate but equal, a system originally designed to keep the formerly enslaved and their descendants as second-class citizens as part of the brutal regime of Jim Crow. At the time of Brown, there were scarcely any members of other racial and ethnic groups besides Whites and Blacks in Topeka, Kansas, or the other three communities from which the Brown cases were brought. In fact, in 1950, it is estimated that only 0.3% of the American population was Asian or Asian-American, while 10% was Black. Hispanic/Latino/ Latina people were not a distinct census category but were spread across other racial groups.
Despite the dubious intellectual integrity involved, Chief Justice Roberts invoked Brown as a rhetorical ploy. He used the iconic decision to end state-mandated racial segregation in public schools in 1954 to strike down efforts by university officials to diversify their student bodies in 2023. As he himself wrote, he used the heavy weight of history to bar such use of race.
Secondly, consider the use of arguments about discrimination against Asians and Asian Americans as a means to attack affirmative action wholesale. The issue first surfaced in the Supreme Court in affirmative action cases brought against the University of Texas at Austin, Fisher I and Fisher II. In both cases, the majority upheld the University’s limited use of race in admissions decisions. But, as described by sociologists Anthony Chen and Lisa Stullberg, as conservative Justices Clarence Thomas and Samuel Alito were dissenting from the majority’s decision, they brought up the issue of whether affirmative action discriminated against Asian-American applicants.
Justice Anthony Kennedy’s majority opinion in Fisher II dismissed those contentions as “entirely unsupported by evidence in the record or empirical data.”
Yet those dissents signaled to affirmative action opponents that the Court’s conservatives wanted cases arguing along these lines. Those opponents listened. In 2018, Edward Blum—who had recruited and financed the plaintiffs in the Fisher cases brought against UT—created SFFA and filed a complaint with the Department of Education alleging discrimination by Harvard against Asian Americans.
Both the Harvard and UNC cases entailed voluminous testimonial and statistical evidence around the discrimination claims. The trial court judges in both cases issued lengthy opinions, both rejecting plaintiffs’ claims that Asian Americans had been discriminated against on the basis of their race.
We cannot lightly dismiss the possibility of bias against Asian Americans in university admissions or in many arenas of professional achievement. Asian Americans have suffered a long history of discrimination in the United States, including the notorious Chinese Exclusion Acts from 1882 to 1943 and the Supreme Court cases that upheld those acts. Japanese Americans had to endure removal to internment camps during World War II. A considerable body of research documents that, in the years since, Asian Americans have faced discrimination in the workplace and community contexts, labeled as either “forever foreigner” or the model minority. Other research has found that since the onset of the COVID-19 pandemic, Asian Americans have been subjected to increased levels of violence and ridicule that results in them feeling that they are not safe and do not belong in their communities.
Asian Americans are an extraordinarily diverse set of distinct nationalities, each with very different histories in the United States. As Natasha Warikoo points out in Is Affirmative Action Fair? many Asian Americans in the United States today come from families whose parents were immigrants with high-status professional and technical occupations. They did not suffer from discrimination in the housing market and so were able to locate in suburban communities with good schools.
This accounts for their rapid rise as a proportion of admittees at selective schools. At Harvard, this year’s entering class is 27.9% Asian American. African Americans make up 15.2%; Hispanic, Latino, or Latinas make up 12.6%; Native Americans make up 2.9%. At UNC, Asians or Asian Americans are 22% of this year’s entering class, while 10% are Black, 10% are Hispanic, Latino, or Latina, 1% are American Indian or Alaska Native. Nationally, Asian Americans make up 5.7% of high school graduates. African Americans make up 14.6% of high school graduates. Latinx make up 20.2% of high school graduates.
These numbers by themselves do not rebut claims of discrimination against Asian-American applicants. They do reveal, however, that Asian-American applicants are successfully entering elite institutions in high numbers.
And here’s why that matters: Treating the Asian-American children of this highly educated slice of the United States as equivalent to people who descended from the history of enslavement and Jim Crow is a ruse, a trick. Conservative justices and their allies are trying to use the term “race” to erase the historical reality of the deep, multigenerational disadvantage suffered by Black people in American society. As Justices Sonia Sotomayor and Ketanji Brown Jackson wrote in their dissents, Black Americans have suffered cumulative disadvantages in many spheres, whether it be in the failure to accumulate family wealth, in the accumulation of educational debt, in rates of incarceration, or in the risk of being stopped by police. The majority opinion did not contest these empirical claims but brushed them aside as falling outside the legitimate grounds for affirmative action.
These affirmative action cases are part of a broader effort by the conservative majority on the Supreme Court to rewrite the history and meaning of race in American society. In Shelby County v. Holder (2013) Chief Justice Roberts led a 5-4 majority to strike down as unconstitutional the preclearance provisions of the Voting Rights Act in the face of Congressional findings that those provisions are necessary to prevent voter suppression of Black communities.
These attempts to rewrite history should be understood as an effort to legitimate the current racial order, an order in which Whites remain dominant in political and economic power. The conservative majority is attempting to paint a portrait of a society that is moving beyond its history and present-day practice of racial inequality. Through the authoritative voice of the law, the Court is participating in a larger effort to whitewash the United States’ actual racial history to enable a new version of the post-Reconstruction status quo in which some states can actively work to push Black Americans out of political life.
These attempts to rewrite history should be understood as an effort to legitimate the current racial order, in which Whites remain dominant in political and economic power.
Sociologists, as researchers, teachers, mentors, and administrators, have a unique capacity to call out and resist the racial ideology of the current Supreme Court majority.