The Stain of Colorblindness

By Raquel E. Aldana, Martin Luther King Professor of Law, Co-Director of the Aoki Center for Critical Race and Nation Studies, UC Davis School of Law

“While I am painfully aware of the social and economic ravages which have befallen my race and all who suffer discrimination, I hold out enduring hope that this country will live up to its principles so clearly enunciated in the Declaration of Independence and the Constitution of the United States: That all men are created equal, are equal citizens, and must be treated equally before the law.”

J. Thomas, Concurrence Students for Fair Admission v. President and Fellows of Harvard College, 2023

“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.”

J. Sotomayor, Dissent Students for Fair Admission v. President and Fellows of Harvard College, 2023

This Supreme Court’s unfettered commitment to a colorblind constitution has undone the affirmative action project in higher education of almost five decades. This is likely only the beginning. Undoubtedly, emboldened plaintiffs and a willing Court will embark on a project – one they have already begun– of attempting to erase many other civil rights gains. The mere threat of litigation is also likely to stop or stall equity innovations and retard even more the slow progress this nation is making toward repairing inequality.

The Justice Roberts majority and Justice Thomas’ concurrence in particular strike a righteous tone as they steer the country toward a path Justice Sotomayor calls a “superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.” Beyond superficial, colorblindness as a constitutional principle is morally corrupt and pernicious. Its disdain for repairing racism in this country is at the core of its flaws. In essence, the Court bullies an albeit imperfect project of undoing racism in this country by poking holes at the racial categories created in law, labeling its injuries amorphous and its goals elusive and unmeasurable, and even pointing fingers at its proponents to make [us] feel like whining victims who cannot play in the big league without special favors. To be fair, some of the opinion’s critiques of how affirmative action has been implemented in higher education have some merit. I agree with the flaws of racial categories. I agree with the project being at times under and over inclusive. I have some discomfort with the Court-imposed diversity rationale as the sole legitimate principle to sustain race-conscious admission and the inevitable generalizations it makes about the human experience based on race. But what did we expect? Did we think that undoing the schism created by rampant racism in this country would be perfect? But that is at the heart of what is wrong with the opinion. By equating anti-racism efforts that repair with discrimination that oppresses, the Court has stained the equality principle of our Constitution. At the same time, the so-called colorblind principle of our constitution is mired with false pretenses of objective meritocracy that is unjust and unsustainable. The entire set of opinions to end affirmative action smack of narcissistic hubris.

For the past fifty years, higher education has tried in earnest—and frankly not enough—to do its part to serve as an engine of social mobility and to educate leaders and professionals who reflect the diverse composition of our pluralistic society. This opinion, under a heavy-handed strict scrutiny, tells universities you can no longer do this by relying on a race-conscious plus factor approach in admissions. The good news in all of this is that the opinion does not tell higher education that it cannot seek to achieve the aspirational goals that it has set out. For Harvard, these goals are (1) “training future leaders in the public and private sectors”; (2) preparing graduates to “adapt to an increasingly pluralistic society”; (3) “better educating its students through diversity”; and (4) “producing new knowledge stemming from diverse outlooks.” For the University of North Carolina, these goals are (1) promoting the robust exchange of ideas; (2) broadening and refining understanding; (3) fostering innovation and problem-solving; (4) preparing engaged and productive citizens and leaders; [and] (5) enhancing appreciation, respect, and empathy, cross-racial understanding, and breaking down stereotypes.”   This is the silver lining. The Students for Fair Admission case is an opportunity for higher education to be bolder in how it achieves these aims.  

Higher education cannot fix the persistent inequality in the United States that perpetuate uneven educational experiences and outcomes of students who seek admission into their institutions. Unequal educational funding for the K-12 pipeline and the ills of inter-generational poverty must be addressed outside of higher education. It is fair to note here that sadly, the Supreme Court has gotten in the way of these aims. Our constitution, apparently, is simultaneously colorblind yet permissive of profound inequities in the funding of our public schools. There are good ideas out there on how to end unequal funding of schools. And we the people committed to a more perfect union must engage with our minds and hearts to ensure that our elected leaders move us in this direction. But there is also a lot that higher education can do within and beyond admissions to continue to achieve their stated mission post-affirmative action. 

One project many institutions of higher learning have already begun is dismantling standardized tests. More than half of four-year colleges and universities throughout the U.S. are no longer requiring either an SAT or ACT score for 2021 admissions. Graduate programs are also increasingly abandoning the GRE. Professional schools have been much slower in shifting away from the relevance of the MCAT, LSAT and other equivalent tests but the research and impetus is there to get started. For professional schools, moving away from standardized tests in admission should also consider a similar trend of moving away from standardized testing for licensing into the professions. Standardized tests are poor metrics for evaluating the skills colleges and universities should consider for evaluating academic success. Similarly, professional licensing tests narrow the skills required to enter the professions (e.g., analysis, writing, memorization) while ignoring crucial skills and qualities such as creativity, problem-soling, empathy, ethics, and resiliency. More importantly, these tests say nothing about the qualities that should matter in the choices we make about whom to educate and who enters the professions. Beyond the individualistic values of meritocracy that exclusively guide the majority of the justices in the Court, colleges and universities should consider values of who, among its applicants, will contribute to society and serve the public whether in science, the arts, health or law. Moreover, standardized tests dictate too much how we teach in K-12 schools or in higher education. These pedagogical choices are not simply problematic in terms of how we measure the success of academic programs; their most pernicious effects have to do with how pressured educational institutions feel to abandon deeper learning focused on personal growth, critical thinking, innovation and entrepreneurship, and yes, values. And yes, standardized tests produce disparate impacts in terms of race. This may be legal under our new colorblind institution—standardized tests’ racialized outcomes after all are unintentional. But legal is not the same as sound, and it is not the same as just.     

Institutions of higher learning are also starting to push back against commercial rankings such as U.S. News. In recent months, at least fourteen of the nation’s top law schools, including King Hall where I teach, have chosen not to participate in the U.S. News ranking game. In explaining why King Hall made this decision, my dean Kevin Johnson wrote: “The failures in the rankings methodology are too many to mention here but include: (1) the failure to treat public service fellowships that spawn public service careers as full employment; (2) the failure to fully account for the resources available at public law schools; and (3) the overemphasis on standardized test scores in evaluating student selectivity. Moreover, the U.S. News scoring system discourages schools from devoting resources to help students pursue public interest careers or assisting students of limited means obtain a legal education.” This brave step from a handful of law schools has had some costs, namely drops in ranking since their refusal to participate did not stop U.S. news from ranking them. Has it been worth it? So far, U.S. News has made some changes to its methodology, and some reforms could be positive. But to be truly effective, this change requires a more radical collective abandonment of our elusive chase to attend the best school. As a student, and even as a parent, I understand the chase up to a point. School rank does not dictate the quality of the academic program or the talent of its students but it could determine the types and number of opportunities post-graduation. It is hard and perhaps unfair to dissuade young people from wanting to attend their dream school. But this chase for this dream is not inconsequential. Individually, the stress on students, often pushed on them by their parents, is too wrapped up in their own individual, narrowly defined success over the overall well-being of our nation. Collectively, it leads justices of the highest courts to spouse injurious ideas like the mismatch theory (see J. Thomas concurrence) that permits us to deny the talents of students of color at elite institutions and ignore our own institutional failures to nurture all of our students’ success. I was struck recently by Frank Shyong’s recent column in the New York Times in which he questions the gains and reflects on the losses for Asian Americans celebrating the end of affirmative action. In the end, Shyong is asking Asian Americans to think beyond themselves and commit to building a less racist America. This is a project for all of us, not just for Asian Americans. 

There is a lot more to be said about the opportunities for transformative change in higher education post-affirmative action. In 2018, I had the profound honor of serving as the Co-Chair of the Hispanic Serving Institution Taskforce for U.C. Davis. Over months, a deeply talented group of people labored to produce a vision for what it should mean for UC Davis to become a premier Hispanic Serving Institution. I welcome you to engage with this report. In it, we focus on the role of a prominent research 1 university from pre to post-UC Davis in transforming itself into the type of institution that more meaningfully fulfills its public service mission as a public, land grant institution in one of the most diverse states in this great nation. There may be ideas there for your own institution or for your own life as a student, parent, citizen. In our letter to the campus, we said: “We ask that you read these recommendations with an open heart and mind and that you not dismiss the important lessons, values and vision this document attempts to capture. Instead, we ask you reach out in good faith to help edify our understanding, promote deeper thinking, challenge assumptions and propose other approaches we may not have included. We thank you for reading about, embracing and participating in this exciting enterprise. We are convinced that when enough of us join in, we will be on a good path to elevating the future generation of young leaders prepared and inspired to solve society’s most intractable challenges.” I still believe this. Sí se puede!