I’ve been thinking for a while that the leadership at almost every selective university and college in the United States needs to convene some kind of sustained conversation on campus about getting ready for the almost certain future Supreme Court decision that actively forbids the use of any preference based on race (and possibly any underrepresented identity) in admissions—possibly a decision that will be sweeping enough in scope as to even undercut or challenge many conventional diversity, equity and inclusion measures in use in recruitment, hiring, retention and promotion within academic institutions and beyond.
Nicholas Lemann’s recent recounting of the history of American jurisprudence around affirmative action in the New Yorker makes me more anxious than ever for that conversation. Even though it’s a subject I have followed closely for much of my career, I learned a few new things—I didn’t know about the odd role that a 1957 South African book arguing for diversity in South African universities had played in American legal thinking, for example. Lemann sensitively observes as he has in previous writing that the origins of meritocratic ideas about admissions selectivity lay in an attempt to open up the elite from tightly enclosed hereditary caste to a more democratic ethos where the people at the top of socioeconomic hierarchy would be determined through free and fair competition with one another—but that at the outset, the early proponents of meritocratic selectivity had no vision at all of how to reconcile “free and fair competition” with the existence of profound structural inequality that used race, gender and sexuality as its building blocks. In Lemann’s recounting, admission policies (and other affirmative action policies in other institutional settings) since the Supreme Court’s ruling in the Bakke case were an attempt to preserve the legitimacy of meritocratic systems of selection in admissions, hiring and so on by acknowledging the continuing impact of unfree and unfair conditions on some groups within American society, with an implicit assumption that at some point those conditions would be sufficiently ameliorated as to no longer require affirmative action.
Lemann quotes the president of Pomona College, Gabrielle Starr, at some length as she articulates why higher education has to continue to find a way, regardless of the Court’s future jurisprudence, to preserve what affirmative action has achieved in higher education. That’s the conversation I want to see happening everywhere right now. Starr has a lot of specific ideas about what to do next that I like. There are other points that are perhaps even more urgent to consider. For example, if structural inequality is the problem, then trying to find ways to make entry into a meritocratic elite (which is in fact not especially meritocratic in a great many ways) as free and fair as possible is at best a secondary objective. What we need more than ever is to pump resources back into the most powerful engines of equity: public higher education, a labor market that favors the interests of workers rather than owners, and policies that reverse extreme income inequality and provide security and safety for a broad middle class that is open to all. But to some extent it all hangs together: the legal repudiation of policies and processes that have produced at least some movement towards equity in a moment of increasing inequity and injustice is something that has to be contested in every way imaginable at every level by everyone. It’s all hands on deck. As law professor Michelle Adams suggests in Lemann’s article, “you do all those things simultaneously”—and I think the following implication is that if you give up in one domain, you’re surrendering across the board.
Unfortunately, I think at many universities and colleges the approach is the opposite of Starr’s forthright engagement with the prospect of a near-future Supreme Court decision. What I think is happening instead is that people who are in charge in a day-to-day implementation of diversity, equity and inclusion policies in hiring and in employee conduct and people who work in the relatively secretive process of selective admissions are crafting and using language that rigorously redefines diversity as having no specific reference to race or even to inequality, a point that Lemann gets into at the end of the New Yorker article. They’re doing this not to put a pre-emptive end to affirmative action or to abandon systems intended to correct for wider social inequality but instead in a belief that this shift in language will preserve those systems. As is somewhat common when neoliberal systems of management and systems of legal advice aimed at risk reduction work together, this change is not being discussed, reviewed, or explained to wider institutional communities because of a belief that any such explanation will create exposure to future legal risk. In other words, if you say “We’re doing this to preserve practices that we expect will no longer be legally supported after previous Supreme Court jurisprudence is overturned”, you’ve handed your enemies the basis for the next lawsuit.
I have two issues with that approach. The first is that the next lawsuit is coming anyway, and it will use the very same tools that activists have used to try and prove structural discrimination when they cannot prove direct malicious intent to discriminate. E.g., if selective institutions continue to admit a student body that does not match the academic qualifications of 18-year olds that are created by existing structural inequality, that will be held up as proof that they are doing something to show a preference for a differently composed society. Should the DEI administrators and legal counsels succeed in hiding existing practices behind seemingly race-neutral language, it will be a short success in terms of standing up to judicial review in the courts that American conservatism has built over the last two decades. If private universities and colleges collectively abandon any use of standardized information about academic qualifications (and perhaps succeed in the process in simply ending the creation of some of those standards), that might slow the process somewhat. That is driving many selective institutions right now towards abandoning the use of the SAT, ACT, etc.—yet another thing that many of them prefer not to say too forthrightly out of the same logic. If the only thing you knew about the pool of 18-year old applicants was individualized, capricious and inconsistent, then whatever the results at the end of admissions, they systematically adhere with what you know. You could defend having a disproportionately large constituency of Black or Latino/a students in an incoming class simply because you sent your admissions representatives to give talks to large urban high schools in your region, etc.
Even if this strategy of creating a kind of legal screen with forms of deniability and occlusion were to succeed in preventing or frustrating legal challenges to consciously admitting students (and perhaps hiring, retaining and promoting employees) in ways that continue to seek greater equity in an unequal society, it can’t be more than a short-term success. The reason is that language is constitutive of practice, even dull administrative language. You cannot continue to do a thing that you cannot speak of forthrightly, not for long. This is why faculty, students and staff who hear the shift in language in some DEI administrative language bristle so much. They don’t understand the strategy underneath the shift (when the legal advisors forbid explaining the strategy, small wonder) but it’s also because so much institutional life involves the citation of procedural language combined with the recitation of processual intent as enunciated by leaders and long-standing employees to shape and govern everyday decision-making and everyday work processes. If the language explaining diversity as a value and a goal completely and rigorously strips any reference to widespread social inequality or to social transformation, then in short order that’s precisely what actual practice will look like. Once you lose that reference, then any outcome short of admitting a class of a thousand identical lab-bred clones is arguably “diverse”. We don’t admit (or hire or retain or promote) diversity seeking to maximize its absolute range simply because the most diversity is the best. If that was the goal, the best class at a selective university should include the maximum range of prior academic achievement, the maximum range of temperamental inclinations towards higher education, the maximum range of total global human variety, the maximum range of political disposition (which goes well beyond left-right, Democratic-Republican), and so on, simply to achieve maximality.
The goal is transformation of existing inequality, no more and no less. Selective institutions are a much smaller part of achieving that goal than they think, but that’s the goal nevertheless. Which is the second reason I think it’s a mistake to not have this conversation now in as open and assertive a manner as possible. Because as President Starr puts it Lemann’s article, “the law is a lagging indicator of society”. Playing to an expected legal decision in legalistic terms diverts and corrupts the language—and values—that we need to continue to seek social transformation. We did not get to the commitments embedded in affirmative action because legal decisions let us trick the wider society into doing something it didn’t want or wasn’t prepared to do. The legal decisions were a side branch of a wider sociopolitical campaign for change. When we think our practices today still matter in pursuing a change that has yet to happen, we have to defend them forthrightly, clearly, overtly in those terms. If we stop doing that and craft technical language designed to hide what we’re doing, we’ll lose our own way and lose all the alliances that helped us get this far. You only go underground when there’s no other choice. An army that leaves the field just because there’s more battles to be fought in order to hide in bunkers is an army that has already decided it would rather lose the war altogether.
Image credit: Photo by Anna Sullivan on Unsplash