What Shall We Do with Chief Justice Robert’s Cake?

Understanding College Admissions in a Post Affirmative Action World

By Mallory Williams, MD, MPH, FACS, FICS, FCCP, FCCM

Justice Kentanji Brown Jackson in her dissent to the Supreme Court ruling on the Students for Fair Admissions Incorporated v. Harvard University and the University of North Carolina referred to Chief Justice Roberts’ majority opinion as being formulated with a “let them eat cake obliviousness” concerning race.

Her dissent is a masterful composition of the intersection of Supreme Court rulings and federal policy with resulting de facto second-class citizenship for black Americans. The power of her writing soars and her dissent is a tour de force in the legal history of the negative role the Supreme Court has played in creating a more equal society.  But what are we to do now?  What shall we do with Chief Justice Roberts’ cake?

The topic of Affirmative Action in America rightfully insights passions on all sides of the political spectrum.  The most likely reason is one of distribution of opportunities.  This fuels Americans.  It is what makes our nation exceptional.  However, the perception that one group will be considered special or preferred over another and therefore will receive opportunities even if both candidates are equally qualified has never been well accepted in this nation.

But the irony is that the idea of having to choose an individual from a group of extremely well qualified finalists has always been a reality whether in the admissions committee or executive suite.  The very concept of a well-designed selection process ensures that the final group of individuals to be considered are all exceptional and credible for the position.

This means that every day in America a person is selected for a job where several other individuals are equally qualified.  Or, otherwise said, many well qualified candidates for positions are turned away.  For example, when Jack Welch conducted a six-year search for his successor at General Electric the finalist were three white men:  Jeffrey Immelt, Robert Nardelli, CEO of Home Depot from 2000 to 2007 and James McNerney, CEO of Boeing from 2005 to 2015.  These were all very successful well-qualified executives.

The question of who really was the most qualified can be debated well into the future.  Jeff Immelt emerged as the new CEO of General Electric.

The question that remains for us as a nation is when and why do we really believe in the selection process?  Do we believe in the selection process more when it involves athletes and legacies than when it addresses racial groups?  Do we believe that all the applicants are well qualified to fill positions?  These questions lay at the heart of how America feels and responds to affirmative action as a policy, particularly in college and university admissions.

Even when America witnesses natural, financial, and health tragedies, like Katrina, the Wall Street meltdown from subprime lending, and the COVID 19 pandemic, where the nation is confronted with the consequences of long-term racial inequities, they still harbor anti-affirmative action sentiments.

The term Affirmative Action comes from the 1935 Wagner Act.  The Wagner Act allowed workers to unionize without fear of being discriminated against, and empowered a National Labor Relations Board to review potential cases of worker discrimination.  In 1961, John F. Kennedy became the first President to utilize the term.  He issued Executive Order 10925 which included a provision that government contractors “take affirmative action to ensure that applicants are employed, and employees are treated during employment, without regard to their race, creed, color, or national origin.”

The term simply meant to make intentional forward progress.  What are the facts regarding Affirmative Action policy in college and university admissions?  In the past sixty years, women have surpassed men in earning four-year degrees while Black and Latino students are still underrepresented in college admissions and graduation rates, especially in four-year colleges.

Just under seven percent of physicians in the United States identify as Hispanic, while 5.7 percent identify as Black or African American, and only 0.3 percent of physicians identify as American Indian or Alaska Native.  However, if you look at the population, almost 20 percent of the U.S. population identifies as Hispanic or Latino, over 13 percent identify as Black or African American. And over 1.3 percent identify as American Indian or Alaskan Native.

Since 2017, the number of matriculants to medical school from underrepresented groups declined by 16 percemt. This means that even in the setting of Affirmative Action policies in undergraduate and medical school admissions minority admission and graduation rates are still lagging.  And when we examine successful black students, the data demonstrates that while only 8.5 percent of Black students attend Historically Black College and Universities (HBCUs), 18 percent of science, technology, engineering, and mathematics (STEM) bachelor’s degrees are awarded by HBCUs.

Of the top eight institutions that graduate black undergraduate students that go on to earn doctorates, seven are HBCUs.  One third of all black students who have earned doctorates have graduated from HBCUs.  So one third of black students who achieve doctorates owe their higher educational origins to HBCUs – institutions where the average enrolment of non-blacks is 25 percent

Combined Hispanic and Black enrolment at the University of North Carolina Chapel Hill is 18 percent and 26 percent at Harvard University, the subject institutions of the Supreme Court decision.  HBCUs whose birth and mission is born out of American segregation are more or just as diverse as institutions that are 100 and 200 years older.

It is important to understand Chief Justice Roberts has written in the court’s opinion.  It is just as important to understand the current environment in which the opinion is written.  Most Americans do not favor Affirmative Action.  In the Regents of the University of California Berkeley v. Bakke case, Justice Powell rejects most of the rationale given for the considerations of race by the university in their admission process.  In fact, he states, “racial and ethnic distinctions of any sort or inherently suspect.”

However, Justice Powell accepts what he sees as a compelling goal – “obtaining the interests that flow from a racially diverse student body.”  Justice Powell calls this a “constitutionally permissible goal for an institution of higher education.”  This legal rationalization was considered the “Touchstone” in race conscious admissions.

However, Justice Powell’s un-joined opinion surrounds his “Touchstone” with several guard rails.  Race could only be considered “a plus” for an applicant, but could not be used solely to deny admission.  Furthermore, the use of race had to be balanced with all other relevant elements of diversity within applicants.

Chief Justice Roberts interprets Justice Lewis F. Powell’s “Touchstone” standard very closely and seemingly rejects how others have applied it.  Chief Justice Roberts relies heavily on Justice Powell’s language critiquing the University of California Berkeley’s admissions goal of “remedying . . . the effects of ‘societal discrimination’” as insufficient because it was “an amorphous concept of injury that may be ageless in its reach into the past.”  Furthermore, it cannot “justify a [racial] classification that imposes disadvantages upon persons . . . who bear no responsibility for whatever harm the beneficiaries of the [race-based] admissions program are thought to have suffered.”

Instinctively, he, like Justice Powell, is suspicious of the broad rationale utilized to justify Affirmative Action and seeks to limit the scope of the policy.  Justice Powell does not limit the scope by time, however, Chief Justice Roberts recites both Justice O’Connor’s 25-year legal limitations on the policy and Fisher II language which stated that they did not necessarily mean that going forward the  “the University may rely on the same policy.”

He reinforces in his interpretation a time limitation requirement.  The architecture of the current court and law interpretation under contemporary conservatives will reject the rationale of a fair and just society as justification for Affirmative Action policy without end.  Chief Justice Roberts’ opinion stated that the goals of the admissions programs were not measurable and “fail to articulate a meaningful connection between the means they employ and the goals they pursue.”

He rules that the admission programs are in violation of the Equal Protection Clause.  Specifically, that they impose racial stereotyping and do not define an end point.  Finally, he allows for the discussion of race only as a methodology for the applicant to detail how it has “affected his or her life.”

Chief Justice Roberts sees race as requiring a further explanation.  And similar to Justice Powell he strikes an equivalency of race to other diverse elements of an individual.  This is an illogical conclusion.   However, it may be seen as rational to most Americans.  However it is illogical because there is no other immutable artificial barrier that is adjoined to legally sanctioned discrimination and torture in the history of American life that is more determinative of health and socioeconomic wellbeing in our society than race.

To be Black in America unfortunately speaks for itself with regards to so many social, economic, political and health outcomes.  In Chief Justice Roberts’ America, history is not sufficient, the burden to inform the majority of the impact of race lies with the applicant or those yet to be college educated.  The unconscious impacts of race on our college applicants therefore are not be considered.  The impact of race that cannot be appropriately discussed by applicants by virtue of the individuals’ limitations or understandings are therefore to be disregarded.

The inability for the majority of non-diverse admissions committee members to understand the written realities of our minority students is not considered by the Chief Justice’s opinion.  To state that their race cannot be considered is to ignore that their race has always been considered and will never not be considered.  It is to refer to an America as equally invisible as the Equal Protection Clause for most of Black people’s existence.  It is to in this critical moment call upon our nation’s highest aspirations as though they already existed.

The opinion will likely have at least two tremendous impacts:  It will lower minority admissions at the nation’s most competitive colleges and universities.  This impact will be particularly harmful at state university professional schools.  Because of this America’s social, economic, and health disparities will widen.

The strategy for minority college applicants going forward must be a significantly expanded process and the development of a portfolio that will allow for a successful recommendation after holistic review.  The traditional athletic-artistic pathways that were heavily adjoined to race conscious admission strategies should be considered in doubt.  The lack of emphasis or quality education on race at the high school level mixed with an all too common absence of emphasis on culture and blackness in our homes impedes our students’ ability to engage in substantive discourse about how this complex construct impacts their lives.

We have desperately and unrealistically wanted to be color blind.  Not even Black presidents consistently discuss these matters to the full satisfaction of white Americans.  Therefore, the readings of Herman Melville, Ralph Ellison, Richard Wright, Toni Morrison, Alice Walker, Nikki Giovanni and Cornel West must re-emerge in not only Jack and Jill and Key Club, but also in new organizations built to resist a post Affirmative Action America.   And so the irony is that we may be forced by the Supreme Court using their flawed philosophical machinery, in which we all must be skeptical, to contemplate a color blind society.

We are faced with a very simple proposition we are to not only to unmistakably be impacted by our race, but also our children must understand and successfully discuss why Race Matters.  Amidst this judicial tragedy if our children intelligently understanding their blackness is a result, then despite the horror of a Chief Justice who would lead the dismantlement of the democratic infrastructure for inclusion in our nation (without much of a remedy)  premised upon foundational law contaminated with the necessarily flawed opinions of the chosen few who serve inside this morally vacillating institution which has enshrined and insured inequality for most of its existence, I personally find no fault in him for this inadvertent but laudable outcome.

But it is unforgivable though allowable to flaunt the self-serving opinions that creation of a more inclusive society fails the strict scrutiny test for the justification of Affirmative Action policy in America.  The resulting conundrum that flows from this legal rationalization is not contemplated nor deeply considered in the arguments of those that author such opinions.  How do we both equally prioritize and protect the historically victimized with the “non,” less, and potentially future victimized and arrive at laws that support a viable democratic society, particularly from the position of having significant responsibility for the inequality at hand.

The rather uncomfortable answer is, we must carefully measure and choose.  And with time our considerations and choices change as our measurements do the same.  We cannot all conveniently be equal under the law (and nowhere else in the consequential status of American society) through a 25 year a priori judicial fortune telling.