James W. Pfister: Affirmative action: social psychology and law

On June 29, the Supreme Court handed down a seminal decision on the role of race in our society: Students for Fair Admissions Inc. (SFFA) v. President and Fellows of Harvard College. The ruling was 6-3, with Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson dissenting. Chief Justice John Roberts wrote the majority opinion. The court held that race cannot be a separate factor in college admissions because such use violates the Equal Protection Clause of the 14th Amendment. Justice Neil Gorsuch emphasized that it also violates the Civil Rights Act of 1964.

Justice Antonin Scalia once said that big cases are not necessarily hard ones. I believe this to be an easy case using the precedent of Grutter v. Bollinger (2003) and the strict scrutiny test (described below). The majority’s decision was based on law and social psychology; the dissenters’ approach was largely social psychology. Roberts wrote that “the student must be treated based on his or her experiences as an individual — not on the basis of race.” Experiences would include “challenges bested, skills built, or lessons learned….”

The strict scrutiny test is used with race. The rule is that race cannot be used unless to further a “compelling governmental interest” and is “narrowly tailored,” that is, necessary for the achievement of that interest. To use race, there must not be another race-neutral alternative to achieve that interest. The compelling interest here is “obtaining the educational benefits that flow from a racially diverse student body.” (Roberts citing Justice Lewis Powell in Regents of University of California v. Bakke, 1978). In Bakke, “[t]he role of race had to be cabined. It could operate only as ‘a plus in a particular applicant’s file’.” (Roberts).

In Grutter, the Court continued with Bakke, “but expressed marked discomfort with the use of race in college admissions (requiring that it remain) subject to continuing oversight to assure that it will work the least harm possible to other innocent persons competing for the benefit.” (Ibid.). Roberts pointed out that Grutter “imposed one final limit on race-based admissions programs. At some point, the Court held, they must end, and Grutter emphasized it repeatedly.” Twenty-five years, or a generation, was the expected time. This is the key difference with the dissenters.

The dissenters believed that Grutter was not being followed by the majority because they thought Grutter would allow the use of race to continue as long as needed. Sotomayor wrote that “the Court’s holding is based on the fiction that racial inequality has a predictable cutoff date. Equality is an ongoing project … the fantasy that racial inequality will end at a predictable hour is illogical and unworkable.” Jackson stressed the “gap” between the races in “health, wealth, and well-being….” Sotomayor wrote against the concept of colorblindness: “race has always mattered and continues to matter.” Regarding colorblindness, Sotomayor was concerned with its consequences for the “self-identification” of the students of color. She said race per se is significant: “without it they would not be able to present a full version of themselves.”

Roberts was also sensitive to this social psychological variable: “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life….” Thus, we have an area of consensus between the majority and the dissent. It is just that race per se cannot be a separate weight on the scale, but socioeconomic background, race as an experience, and other factors can be considered to get diversity.

In a fixed-seat entrance class, admission is a zero-sum game. It simply is not fair that the mere color of one’s skin deserves a weight. That it does not is the law of both the Equal Protection Clause and the 1964 Civil Rights Act. In a multiracial society, race matters, as Sotomayor says, but in the sense that we are conscious of it; but this consciousness should be distinguished from the law which is colorblind – to be applied to all equally.

This is an easy case: There are alternatives to getting diversity; therefore, strict scrutiny is not satisfied to justify race per se as a weight. Whether racial diversity is a compelling interest is, perhaps, a future question.

James W. Pfister, J.D. University of Toledo, Ph.D. University of Michigan (political science), retired after 46 years in the Political Science Department at Eastern Michigan University. He lives at Devils Lake and can be reached at jpfister@emich.edu.

This article originally appeared on The Daily Telegram: James Pfister: Affirmative action: social psychology and law