The Supreme Court’s Rejection of Affirmative Action Reflects White America’s Ambivalence on Race

John Roberts and company reject the notion that pervasive systemic racism drives American inequality…so does much of White America

There is much to be said about the opinions of the Supreme Court issued last week outlawing the use of racial preferences in higher education admissions. I am not an admirer of our college admissions systems as I have expressed previously. Hopefully, this fraught moment will stimulate a rethink of the entire system and result in much needed change. 

What disturbs me more about this moment than the end of race conscious admissions is what the Court’s opinion says about America’s racial divide more generally. Racism, of course, is America’s original sin. Our society may be more starkly divided on how to address modern racism now than any time since the Civil Rights Era. The conception of racism that drives the majority opinion in the Harvard and UNC affirmative action cases written by Chief Justice John Roberts, I believe, is deeply flawed, but it may well reflect the views on race of a majority of Americans. This suggests America’s longstanding tragedy of pervasive racial inequality is likely to continue--much to our shame--for the foreseeable future.

The first noteworthy aspect of Roberts’ opinion is his myopic recounting of the history of race in America. Slavery is not mentioned even once. He begins instead with enactment of the 14th Amendment and asserts, with less than a page of analysis, that its guarantee of “equal protection of the law” was intended to ensure complete color-blindness by the state. Roberts then conveniently ignores that the same Congress that passed the 14^th Amendment also took dozens of race-conscious actions to aid formerly enslaved persons during Reconstruction and how that effort fell far short of providing Black people anywhere near the full rights of citizenship the 14^th Amendment had promised. He only laments that state-mandated segregation became a “regrettable norm” in “many parts of the Nation” and notes the Court’s role in legally sanctioning this “ignoble history” in Plessy v. Ferguson a mere 28 years after the 14^th Amendment’s ratification. Roberts does not expend a single sentence considering the impact that almost a century of Jim Crow and continued pervasive racial oppression had on Black people when America was industrializing into a modern nation. Instead, he blithely skips from Plessy straight to 1954 and the Court’s decision in Brown v. Board of Education outlawing segregated public schools. For Roberts, the Court’s virtuous decision in Brown erased in one fell swoop all that preceded it. In his view, because the Court finally sees the light in 1954 – poof! – the three centuries of race-conscious oppression must be followed by strict adherence to the norm of “color-blindness” that has no precedent in American history. According to Roberts, our public and private institutions must now be constitutionally hand-shackled from taking race into account when attempting to create a more equal society. This is truly an historical “whitewash.”

A second theme of the Roberts opinion is that discrimination is an individualistic phenomenon, not a systemic one.

He famously wrote in 2007 that “the way to stop discrimination on the basis of race is to stop discriminating based on race.” I think what he meant by this tautology was that, in his view, our racially unequal society could be remedied simply by ending any and all race-conscious decision making. Once the unfairness of being disadvantaged by race were lifted, Roberts seems to claim, Black people would be able to prosper, and society would equalize all by itself.

But as the dissents both show, Roberts has a shallow conception of the damage that centuries of history have wrought. It is beyond debate that educational inequality from kindergarten on to college admissions has been baked into the cake in ways that “color-blind” remedies cannot undo. The combination of overt discrimination in housing loan practices and our system of financing public education almost entirely on local property taxes has resulted in poor Black children attending vastly underfunded schools from prior to Brown to the present day. The concrete, bricks and mortar built to solidify housing and educational segregation such as school buildings placed in exclusively Black neighborhoods and highways that divided these neighborhoods from urban economic centers still stand today. The prohibition on overt racial decision making in education required by Brown and the Civil Rights Act of 1964 has done little to dismantle these infrastructural manifestations of racism. And this is but one example of the policies and practices that became deeply engrained in American institutions over centuries of racial oppression. Roberts appears satisfied, however, ignoring how the systemic effects of racism continue to injure, decade after decade, generation after generation.

It is also telling how Roberts embraces Brown as the remedy for all of America’s racial wrongdoing, yet conveniently disregards how catastrophically the Court’s school equalization project failed. The Warren Court’s initial ambition was not to merely prevent the assignment of students to schools based on race. As Justice Sotomayor’s dissent recounts, when southern school districts responded to Brown by developing “color-blind” school assignment systems that would have still resulted in segregated schools, the Court found them to be unconstitutional in Green v. New Kent County and ordered in 1968 that Americas’s dual educational system  must be eliminated “root and branch.” But then the white backlash that arose in response to judicial efforts to provide genuine educational equality to Black children began to take its toll. Richard Nixon rode his southern strategy of appealing to white racial grievance all the way to the presidency, resulting in four Supreme Court appointments that transformed the Court. Six years after Green, the Court (with the four Nixon appointees in the majority) struck down a court-ordered school desegregation plan in Detroit that enabled Black children from the inner city to attend, via busing, schools in the white suburbs. Although there was ample evidence that the Detroit city schools had engaged in intentional discriminatory practices, the Court blanched at the concept of including the White suburbs in the desegregation plan. Just one year earlier, the exact same Supreme Court majority concluded that Texas’ system of funding public education based on local property taxes – which resulted in a gaping per pupil funding discrepancy between White and Black students across the state  – did not unconstitutionally deny “equal protection of the law.” These cases signaled the death knell of the effort to provide genuine educational equality for Black children in America, a mere twenty years after Brown. And so, it should come as no surprise that now, in the third decade of the 21^st century and almost seven decades after Brown, the United States continues to have substantial racial segregation in our public schools.  Studies show that in 2016, 40% of Black students were attending schools that have a population of 90% or more students of color and the number of schools with a 90%-100% non-white population tripled from 1988 to 2016. 

While many of the Roberts Court’s recent landmark decisions appear to be out of touch with public sentiment, my sense is that much of America is quite comfortable with the racial narrative Roberts expresses in the affirmative action cases.  Most of White America rejects overt bigotry but is not interested in making substantial social or economic sacrifices to bring about a more racially equal society. Indeed, when surveyed in 2021, 58% of Whites opined that “little or nothing” needs to be done to “ensure equal rights for all Americans regardless of race or ethnicity.” This chunk of society embraces the historical narrative of how America virtuously moved from slavery to emancipation and then, finally, in the Civil Rights Era, to formal equality. It is not willing to accept that our history created systemic bulwarks to the advancement of Black people that continue to negatively impact them today. The tools that have been attempted to be used to dismantle these systems -- whether it be public school busing, or preferential hiring, or extra points in college admissions – have engendered fierce backlash when they require any economic sacrifice or interference with White America’s way of life.

We see this pattern on racial matters over and over again, including the recent decades.

America celebrates the election of the first Black president, but a new political movement arises to oppose a health care reform he advances based on the (inaccurate) perception that it is designed to exclusively aid poor Black people and immigrants. There is revulsion at a White police officer choking a Black man to death on a Minneapolis street but the suggestion that the mindset that led to this crime should be addressed by educating school children about the history and impacts of racism is met with bans in 28 states on teaching this very topic. Employers attempt to reduce racial tension in the workplace through programs encouraging interracial dialogue and this is met by new laws, like one just enacted in North Carolina, prohibiting employee training suggesting that anyone should “feel discomfort, guilt, anguish or any other form of psychological distress,” by virtue of his or her race.

America is okay looking back at the past and admitting that slavery and Jim Crow were wrong.  That is why Twelve Years a Slave and Green Book won Oscars. But when it comes to doing anything about the present impact of America’s past sins, much of White America is not only content looking the other way, but even happier to have the Supreme Court tell us that our “color-blind” Constitution actually prevents us from taking meaningful action.

Guilt-free perpetual racial inequality – a gift to White America from the Roberts Court.