The court’s ruling on affirmative action came on the legal yardstick of strict scrutiny.
Last week, the US Supreme Court issued two momentous judgments that may resonate around the world, including in India. It put a stop to affirmative action based on race in educational institutions, then struck down US President Joe Biden’s scheme to waive education loans up to $20,000. The court’s ruling on affirmative action came on the legal yardstick of strict scrutiny. Socioeconomics and family education background will continue to be considerations, and applicants may state their racial group and their experiences in essays that colleges use in admission decisions. Overall, the court took a stand in the fight between equity and equality.
Broadly, these concepts are vocalised by groups that represent fair speech and free speech, respectively. Cacophonic extremes of the debate are represented by free speech absolutists on one hand, and on the other, by supporters of the so-called “cancel culture”. The resolution, of course, promises to be unglamorous in the less visible middle ground.
The US affirmative action programme grants special consideration to historically excluded or underrepresented groups in education and employment. As the civil rights movement grew in the early 1960s, President John F. Kennedy issued an executive order of affirmative action in public workplaces. Affirmative action has been an allowance and not a stipulation — unlike the reservation system in India. But race-based decisions conflict with Title VI of the Civil Rights Act, which prohibits decisions based on race or other markers like colour and national origin. Since the 1970s, affirmative action for admission in public universities (like the University of North Carolina) and private institutions that receive federal funding (like Harvard) has been under litigants’ scrutiny.
Elimination of racial categorisation in admission decisions would also mean unequal representation of racial groups, leading to problematic questions of the much-touted principle of “equal opportunity” in a presumed “free marketplace” that is agnostic to even moral considerations. In particular, African-American and Hispanic groups could stand to lose as applications from other groups, significantly, Asian-Americans (including Indians), would overwhelm this illusive marketplace.
Meritocratic considerations have led to within-group competition. Statistics show that Asian-Americans (including Indians) have better academic credentials. When a college puts quota limits, an Asian-American student with similar merit may lose to a white student whose performance on a standardised test may prove him/her to be less meritorious. An Asian-American group sued Harvard in 2018, on the grounds that the admission policy was discriminatory. Admission policies relied on decades-old federal civil rights stereotypes of Asian-American applicants as “quiet, shy, science/maths oriented and hard workers”.
So, beyond doubt, affirmative action policies have been problematic. Paradoxically, universities may use affirmative action to further privilege the historically privileged over the underrepresented but meritorious groups. The problem has lain in viewing affirmative action as a diversity rather than equity initiative.
Expectedly, several student groups and universities have decried the judgment. One university argues that it may “reverse generations of progress at colleges, universities and the nation”.
But affirmative action has also benefited educational spaces and workplaces. When students from diverse communities and various identities share the same space of learning, those communications help communities become more conscious of their privileges — a preliminary step before being available for structural changes.
Pulitzer Prize-winning author Isabel Wilkerson wrote in 2020 that racism in American social practices renders invisible the underlying “infrastructure that we cannot see”. She refers to the practice as a caste system. No amount of statistical evidence can truly reflect implicit biases and prejudices, and that is why much of the discrimination — whether in the US, India, or elsewhere — remains under the surface, erupting on extreme occasions or when instigated by bigger powers. We have seen such eruptions even recently, whether it is the Black Lives Matter movement or the January 2021 incursion of Donald Trump’s extreme-right supporters at the US Capitol. I call them eruptions because they represent a widespread sentiment whose only vent is such extreme action that ensures visibility.
In India, affirmative action in education relies on government resources, leading to the emergence of a Dalit middle class. The problem is more complex as historically excluded groups gain from education and join the privileged classes — leading to the perception of “a certain kind of benefit to being marginalised”, as Suraj Yengde writes in his 2019 book Dalit Matters (a geographic sequel of sorts to Cornel West’s Race Matters). The newly “privileged” stay vulnerable in old structures and economic arrangements that are built differently, around capital.
Still, as one of the best-known thinkers of social equity in our times and now the Green Party’s 2024 presidential candidate Cornel West wrote, equity can be attained by community strategy, which lies in the demystification of privilege structures. This strategy can work only by osmotic exchange, in which the dominant classes may understand the identity and struggles of the historically oppressed, and the latter insinuate themselves into the system and repair the skew in them.
In our deeply entrenched social systems in the US, India and elsewhere, there is plenty of evidence of implicit prejudice. The very processes of our dominant narratives like the mainstream media quickly — and falsely — label those as individual and anecdotal. Even when a popular news story may recognise the underlying prejudice, its fleeting nature renders the perception transient. Moreover, the anxiety to project the visible beauty of social harmony may sweep under the carpet ugly realities. Whether the US Supreme Court overlooked invisible perpetuity and preferred visible disruption is moot.
Clearly, the US judgment is a moment for other countries in comparable situations to pause and ponder. The debate may gain more legitimacy particularly under illiberal right-wing governments. The quota system invokes familiar debates in India between government policies and historically privileged groups. If America claims to be at a stage of social equity where it can afford to do away with affirmative action, adopting the same formulaic positions without proper assessment would lead to false equivalence.