Last week, UNC-Chapel Hill’s Program for Public Discourse began its 2023 series of public discussions with a panel on affirmative action in university admissions.
This week, that discussion is available in its entirety on the program’s YouTube channel.
In late October the U.S. Supreme Court heard oral arguments in cases over affirmative action in admissions at UNC-Chapel Hill and Harvard University, the nation’s first publicly funded university and its oldest private university respectively. In arguments lasting nearly six hours the court’s new conservative majority gave the impression they are leaning toward plaintiffs fighting to end the practice, with potential broad consequences for university diversity programs of all kinds. A ruling is still pending.
UNC Law Professor Ted Shaw, director of the Center for Civil Rights, moderated the panel and weighed in throughout the discussion himself. He was joined by panelists Glenn Loury, professor of Economics at Brown University; John McWhorter, contributing writer at The New York Times and associate professor of linguistics at Columbia University and Rachel F. Moran, Law Professor at the University of California at Irvine.
“You couldn’t have a more important question,” Loury said of what hangs in the balance in the current Supreme Court case. “I’ve been studying these questions since I was in graduate school. That was a half century ago. The country’s gone through many changes and evolutions and so on. It was Sandra Day O’Connor in [2003] who said ‘I hope we won’t be in this business 25 years from now.’ We’re pretty close to 25 years now. We’re still in this business.”
Glenn Loury speaks at the UNC-Chapel Hill panel on affirmative action in admissions.
With the current conservative majority on the Supreme Court, Loury said, “Stuff is going to hit the fan – it’s worth talking about.”
In 1978 the Supreme Court found in Regents of the University of California v. Bakke that a university’s admissions criteria which used race as a definite and exclusive basis for an admission decision violated the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964.
The court ruled against a racial quota system that excluded certain applicants based solely on race, it left the door open to race as one consideration among many in admissions.
Shaw said he was at the Supreme Court that day and left “absolutely devastated.”
He thought the decision all but killed affirmative action for Black people in admissions, he said. But an affirmative action rationale was replaced with a diversity rationale, he said. That rooted the justification for race consciousness in admissions in academic freedom and the right for universities to pursue the creation of diverse student bodies. Now that racial considerations in admissions is back before the nation’s highest court, Shaw said, diversity seems to no longer be at the root of the discussion and affirmative action as it was understood in 1978 seems to be again dominating the conversation.
Shaw shared his personal story of growing up in a public housing project in the Bronx. Going to a mostly white high school, then one of the best in the city, he worked hard to achieve but said he feels no shame in the part affirmative action played in allowing him access to elite institutions.
“[Those institutions] didn’t shine the light of opportunity into public housing projects in the Bronx,” he said.
Supreme Court Justice Sonia Sotomayor lived not far from him and they attended the same school, graduating at the top of her class and going on to Princeton, where she thrived. Still, Shaw said, when Sotomayor was nominated to the Supreme Court her intellect and accomplishments were called into question.
Shaw said he still sees that at operation today.
“There are a lot of people who will be left out of opportunities if we leave opportunity to serendipity,” he said.
UNC Law Professor Ted Shaw, director of the Center for Civil Rights, moderated the panel discussion.
Forty-five years ago, in the shadow of Jim Crow, there was every reason to take steps to ensure equal access and fair treatment for Black people in America were a reality and not just a theory, Loury said.
“But that was forty-five years ago,” Loury said. “This country is so dynamic. Tens of millions of non-European immigrants have come and settled and made their lives in the country in the interim.”
“We’re talking here about the foundational institutions that govern the way in which we live together in this country in the 21st century,” Loury said. “The permanent reliance upon a special dispensation for people who descend from slaves – that the criteria of assessing excellence would be differentiated in their case, made lower, less exacting, more forgiving. This is not a path to equality. This is not what we want to do in our country, not the way we want to be living 25 years from now.”
U.S. Supreme Court Justice Clarence Thomas might be inclined to take the position that affirmative action is just itself racial discrimination. Loury said that’s not his own position.
“But I do want to ask myself, ‘Is this good? Is it good for America? And even is it good for Black people in the end?’ That we not be asked what others are being asked to do. That our position and our penetration into the most elite venues of American society is undertaken with an asterisk, with a special treatment.”
McWhorter called the way Americans are taught to think about affirmative action “an utter abomination” and said it’s a public mission to start having a more honest and constructive discussion about what racial preferences really are and where we go with them in the future.
“One of the things that worries me the most is, one learns a certain etiquette,” McWhorter said. “That we’re supposed to think that the way racial preferences go is people with equal qualifications are assembled and then someone decides how you’re going to slice up the pie in terms of diversity. That version of racial preferences is a lie and everybody who is involved with it knows it. Racial preferences is about lowering standards.”
John McWhorter argued it is past time to change the way we think about affirmative action and how it is applied.
That was necessary at a time when most Black people in America were poor, McWhorter said, but it is past time that affirmative action was applied through a lens of disadvantage instead of a strict racial one.
“The idea that you lower standards permanently for brown students until our racial situation is somewhere close to perfect is only that: it’s an idea. I don’t agree with it,” he said. “I think that racial preferences should be applied like chemotherapy: they do something well, but you don’t do it forever because it creates too much other damage.”
The current Supreme Court may do away with that version of affirmative action in admissions, McWhorter said – one of the few things on which he’ll agree with the current court.
“I utterly loathe the current Supreme Court – utterly loathe everything that they do,” McWhorter said. “Except if they, even for the wrong reasons, abolish the racial preferences regime that we all lie to each other about now, then that is one thing that those people will have unintentionally done right. And I pray that they do it so we can stop lying.”
Moran said the issue of affirmative action in admissions is important at a time of “pluralism anxiety” in America – a period in which demographics in the country are dramatically changing.
“We’re setting a polarized discourse and we’re seeing a contest over, for example, what merit means,” Moran said. “What does that mean? This case tests that. What does academic freedom mean? This case tests that. And what does race mean? This case tests that too.” So all of these principles that we might have thought we understood are currently under stress.”
“The court is one way to have the conversation,” Moran said. “But I think there are many other ways. But I think it’s especially important because colleges and universities shape youth. Youth are more diverse than the general population and they will determine the shape of future public discourse.”
In that way, Moran said, the diversity rationale used in the 1978 Bakke case was in its own way forward-thinking and dynamic.
“The diversity rationale is rooted in academic freedom,” Moran said. “It’s a liberty interest. The reason that colleges and universities can use race in admissions whereas other institutions cannot, is that they have the academic freedom to create their student bodies, where the ferment of ideas will take place.”
“I think that it anticipated some of the demographic shifts,” Moran said. “Justice Powell talks about a ‘nation of minorities’ in that opinion.”
Her biggest concern is that the court will say diversity is not a compelling interest, Moran said, because “academic freedom” doesn’t appear in the text of the U.S. Constitution.
That would likely make any consideration of race impermissible in admissions unless colleges and universities are remedying their own past history of racial discrimination, she said.
“And very few places are doing that,” she said.
Watch the entire discussion, which runs about an hour and thirty-five minutes, here.
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