Racial Equality After Affirmative Action: Towards a New Structure of Feeling
By Christopher NewfieldJanuary 26, 2024
It’s easy to locate this dislike. There are the predictions of a coming Trump dictatorship. There’s Joe Biden ignoring four-fifths of his party in refusing to support a ceasefire in Gaza. There is the poll where half of respondents agree that, “in the next few years, there will be civil war in the United States.” There is the poll in which the two words Americans most associate with politics are “divisive” and “corrupt.” There is the index where, in spite of good GDP growth, consumer sentiment remains at a 10-year low. There is the poll in which 60 percent of respondents—and 80 percent of Democrats—think there is too much inequality in the United States. There is the poll in which those who see too much economic inequality reference education in four of their top seven remedies, including better skills, free college (two- and four-year), and eliminating college debt. There is the poll in which four in five Black Americans think that, in order to treat Black people fairly, the economy either “needs major changes” (46 percent) or “needs to be completely rebuilt” (37 percent). There is the poll in which nearly four in five Democrats and more than four in five Black Americans think efforts to ensure racial equality haven’t gone far enough.
Plutocracy, where gains go mostly go to the wealthy few, is enabled by mainstream storytelling that discredited the ways US society could control capitalist inequalities—from union organizing and progressive wealth and income taxes to financial regulation and race-conscious affirmation action programs. With all of these avenues to equality rendered suspect, the last mechanism standing has been individual mobility. In the Right’s dominant narrative, there have been only a couple of legitimate modes of upward mobility: business entrepreneurship for the overmen, and education for the rest of us. The college degree has been the main way to stay middle class in an increasingly Darwinist society of concentrated wealth. College presidents naively, and despite an unstable economy, put their schools on the hook for preserving prosperity for the generations that followed the Boomers.
Needless to say, the plutocratic system never worked as advertised: applying “human capital theory” didn’t spread income from the few to the many. The alleged equality engine, the educational system, also became more and more unequal. K–12 was “resegregated,” in Gary Orfield’s phrase, and private universities prospered under neoliberal investment policies focused on low interest rates and asset price inflation, while public universities suffered funding cuts. Critics looked at higher education and saw that it was going to perpetuate, even increase inequality rather than cut against it. Mainstream Democrats joined Republicans in accepting inequality as natural or inevitable, and renewed pressure was put on higher ed not to become more equal itself but just to do more for low-income students’ upward mobility in a permanently unequal society.
Most scholars of higher education see all this as a reflection of an unjust society. They also see institutions as too dependent financially and ideologically on their potentates to act as autonomous counterforces. At the same time, politicians, donors, and think tanks continue to cast higher education as the main—if not the only—authorized source of (downsized) social justice. Right-wing and some centrist political forces used schools and universities to shift the blame for the majority’s economic struggles away from business and government policy failure and on to the backs of individuals who allegedly didn’t get enough higher education or failed to study the right vocational subjects.
Economic inequality is plainly racialized and has likely not yet bottomed out. In recent years, right-wing and centrist politicians have had to deal with a new set of doubters: mainstream economists who had for years accepted the core axiom that inequality was fine because it increased prosperity now no longer do. To keep inequality alive—and, not coincidentally, to keep white Americans in preeminent positions of wealth and influence—the Right’s coalition needed constantly to make majorities feel obligated to accept inequalities of educational and economic outcomes as fair and natural. They have had tremendous success across the political spectrum.
The political hegemony of an idea depends not on full belief or active consent but on making people feel like they have no choice but to go along with it. The term “hegemony” was developed, most famously by Antonio Gramsci, to describe a situation of rule that does not require direct coercion. Contemporary theorists like Jeremy Gilbert and Alex Williams helpfully emphasize how a faction can govern—hegemonize—a practice like college admissions by inducing a fatalistic non-opposition to unequal outcomes among people who don’t especially want them. I use Raymond Williams’s fluid concept of “structure of feeling,” in which a system of thoughts, emotions, actions, resentments, and resignations shapes people’s engagement with politics. A structure of feeling, about inequality or anything else, is public, collective, social, and interactive as well as personal. It is also embodied in narratives; political struggles are about funding and organization, but above all they are about storylines and how they make people feel.
In the wake of the civil rights codifications of the 1960s, the US right-wing coalition managed to make a “residual” racial narrative back into a “dominant” one. It has assimilated the Jim Crow–style white supremacy that prevailed before the 1954 Brown v. Board of Education decision began to force the undoing of its de jure forms, and it has steered the post–Jim Crow system away from racial egalitarianism into so-called “color-blind” practices where whites retain supremacy of wealth, income, and political power.
Brown v. Board’s rejection of formal racial segregation and inequality might have begun a movement toward full social equality among all American racial groups as a matter of statistical group outcomes. Over several decades, the results would have included similar Black and white median SAT scores, family wealth, and so on. It would sooner rather than later have meant residential integration, full parity on corporate boards of directors, a large number of Black and Latino college presidents—in short, the kind of organic “racial balancing” that the Supreme Court has declared unconstitutional. Beyond statistics, this would have meant social integration and levels of automatic interaction that we currently see only in fantasy series like Shonda Rhimes’s Bridgerton (2020– ). It would have meant a successful cultural revolution. The success of the Right’s narrative of color-blind equality is a major reason why that cultural revolution never happened. The structure of feeling they have promoted tells you that there’s nothing to be done, this is the way things are, so you’d best scramble up the ladder and not get stuck on the bottom rungs.
Powerful forces and organizations have been working to ensure that this view operates on the level of national culture and general political affect. The Supreme Court has played a leading role, nowhere more clearly than in its key decisions involved affirmative action programs in higher education. The SFFA v. Harvard decision was another victory for the two-part story in which considering the race of applicants equates to racial discrimination, and in which remaining group inequalities are trivial, natural, and just—that is, an expression of observable individual merit.
In my view, this story is far more fragile than it seems. Yet it will continue to govern US life unless there is a full-blown alternative narrative to replace it. This alternative narrative will need to bring forward what has become the great taboo: racial equality of outcomes.
In SFFA, the Supreme Court invalidated the one lingering justification for any consideration of race in college admissions. It held that a college’s pursuit of racial diversity in its student body is not a compelling interest that justifies affirmative action, and that the admissions practices were not “narrowly tailored” in a way that passed the strict scrutiny test. Chief Justice John Roberts, who wrote the majority decision, described the practices at Harvard and the University of North Carolina as “race-based admissions,” and found that any use of race in the admissions process is unconstitutional.
Before SFFA, admissions committees could use race as a “plus factor” in the pursuit of the forms of student diversity that they felt to be of educational benefit and otherwise in the university’s interest. Existing doctrine, as codified by Grutter v. Bollinger in 2003, held that
[t]he use of an applicant’s race as one factor in an admissions policy of a public educational institution does not violate the Equal Protection Clause of the Fourteenth Amendment if the policy is narrowly tailored to the compelling interest of promoting a diverse student body, and if it uses a holistic process to evaluate each applicant, as opposed to a quota system.
The Roberts decision holds that even positive uses of race in the service of diversity violate the Equal Protection Clause on the grounds that, in Harvard’s case, allegedly favoring African American applicants only for their racial identity caused, in a direct and linear way, the rejection of Asian American applicants—rendering race a minus factor for them.
While Roberts maintained that any race-consciousness in selection is always unfair, the decision also asserted that “[n]othing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life.” This means that applicants can and will still talk about growing up on the Black South Side or speaking only Spanish or Korean at home, and admissions officers will continue to judge their academic records in such contexts. The difference is that, after SFFA, race can’t be used as any part of a decision formula or as an explicit factor in “holistic” discussions. The Roberts majority’s goal is the erasure of race as a factor in evaluation or judgment. In the wake of the decision, for example, Yale University stipulated that those involved in admissions decision-making would have no access to an applicant’s racial data. (The decision drives race further into the wilderness of proxies like “hardship,” ironically demanding the use of stereotypes the majority claims to oppose.)
The long line of affirmative action cases culminating in SFFA have certainly been about fairness in college admissions during an era when a college degree became more important in deciding individual fortunes, as well as the status of the white middle class under multiracial neoliberalism. But the Supreme Court, in addition to its main job of structuring the underlying law, has also been busy writing the dominant narrative about racial equality.
The SCOTUS story is this. After Brown v. Board, a fair-minded American society not only eliminated unlawful racial discrimination but also gave special help to the racially disadvantaged. Since racial discrimination of the unconstitutional kind was found to be illegal and eliminated, any racial inequalities that persist are trivial, fading, private, or natural. Disparities in earnings or family wealth among racial groups now reflect the different desires, motivations, values, cultures, attitudes, and goals of those groups. Therefore, the story continues, the nonracial assessment mechanisms used to admit students, while necessarily imperfect, are sound—so long as they are not distorted by race-based considerations.
This narrative holds that the large and growing educational inequalities deepened by admissions processes are the natural result of valid merit-based selection. For example, a superb student who is rejected by Stanford but accepted by (also highly selective) UC Berkeley will thereby receive somewhere between one-fourth and one-tenth the educational resources they would have had at Stanford. (They will also have about one-fourth the chance of networking with society’s top one percent.) Still, Roberts’s decision considers this a fair outcome, as long as the professional judgment of admissions officers was not distorted by race.
In their blistering dissents, Justice Ketanji Brown Jackson and Justice Sonia Sotomayor tried to break through the narrative by hammering on the theme of gross racial disparity. Jackson opened by writing that “[e]very moment [large race-based] gaps persist is a moment in which this great country falls short of actualizing one of its foundational principles—the ‘self-evident’ truth that all of us are created equal.” Later in her dissent, Jackson sampled statistics of racial disparity:
Start with wealth and income. Just four years ago, in 2019, Black families’ median wealth was approximately $24,000. For White families, that number was approximately eight times as much (about $188,000). These wealth disparities “exis[t] at every income and education level,” so, “[o]n average, white families with college degrees have over $300,000 more wealth than black families with college degrees.”
Education doesn’t eliminate inequality, it but does pass it through. In fact, as Jackson wrote, racial disparity has “accelerated over time.” Sotomayor’s opinion similarly noted that “Latinos composed about 15% of freshmen students at Berkeley in 2019, despite making up 52% of all California public high school graduates.” The gap between population and student body shares, or between the pool of applicants and the students admitted, is treated as a key—though not the only—measure of inequality requiring redress.
These are exactly the racial disparities that the Supreme Court majority seeks to naturalize. So long as they’re perceived as natural, they’re not in need of correcting; in fact, any correction creates a new injustice. Natural differences are in this story not social (the court treats these categories, without justification, as mutually exclusive), so considering the effects of an individual’s ascribed race violates our constitutional right to be treated equally under the law as individuals. The narrative makes it seem plausible—actually, both desirable and legally mandatory—to refrain from correcting racial inequality with racial contextualization. It suggests that “color-blindness” equates to authentic respect for individual talent, and that race-consciousness represents its automatic violation.
This narrative stays dominant not by making everyone a true believer but by making the alternatives unclear—or, at the very least, not clearly better. Jackson’s reminder that “all of us are created equal” invokes patriotic language. But the line doesn’t go on to say that we should be equal after birth. What are the grounds for equality as we all move on in life? What are the grounds for invalidating an eightfold gap between Black and white wealth? I share Jackson’s revulsion for this gap, but by what principles and what mechanisms do we seek to correct them, and to what extent? Personally, I think we should seek one-to-one parity. Would Jackson and other progressives agree?
Sotomayor argues that “equal educational opportunity is a prerequisite to achieving racial equality in our Nation.” True, but this sidesteps the question of equality of outcomes. Powerful as their dissents are, justices Jackson and Sotomayor operate conceptually within the Right’s natural inequality frame. “Equal opportunity,” as the court and think tanks have delineated it, allows and even ensures unequal outcomes.
Propelled by the dominant narrative that racial equality is the problem and not the solution, the Roberts majority had little trouble finding fault with university practice. It held that Harvard’s and UNC’s admissions apply functionally different procedures depending on the applicant’s race. It argued that 1) no one can really assess the existence or validity of claims to be training diverse leadership groups or improving knowledge with diverse perspectives; that 2) the definitions of the racial or ethnic groups are unclear; that 3) race-consciousness directly caused fewer Asian Americans to be admitted and so is a negative factor; that 4) racial stereotyping is happening in that admissions officers think all Black students, “because of their race, think alike”; and that 5) Sandra Day O’Connor’s endorsement of diversity in Grutter was conditional, on a fixed 25-year limit, and universities show no sign of weaning themselves. None of the majority’s arguments were convincing, and all were countered effectively by the dissenting opinions.
I read these arguments as a legally required warm-up for the emotionally potent central argument: that complicated admissions procedures were a front for a secret quota system that pursued the great taboo, racial equality of outcomes. Roberts’s analysis notes how, “[a]t Harvard, each full committee meeting begins with a discussion of ‘how the breakdown of the class compares to the prior year in terms of racial identities.’” It goes on to attest that, “if at some point in the admissions process it appears that a group is notably underrepresented or has suffered a dramatic drop off relative to the prior year, the Admissions Committee may decide to give additional attention to applications from students within that group.” For the majority, this translates to the pursuit of “racial balancing”—the forbidden seeking of proportion between the class’s share of a given racial group and that group’s share of the overall population.
Meanwhile, at UNC, Roberts reports,
The University frames the challenge it faces as “the admission and enrollment of underrepresented minorities,” […] a metric that turns solely on whether a group’s “percentage enrollment within the undergraduate student body is lower than their percentage within the general population in North Carolina” […] The University “has not yet fully achieved its diversity-related educational goals,” it explains, in part due to its failure to obtain closer to proportional representation.
The majority forbids both the goal and its mechanisms. Like Harvard, UNC allows a “tip” for some students towards admission in which “they acknowledge that race is determinative for at least some—if not many—of the students they admit.” “[R]ace—and race alone—explains the admissions decisions for hundreds if not thousands of applicants to UNC each year,” Roberts states, citing a “UNC expert testifying that race explains 1.2% of in state and 5.1% of out of state admissions decisions.” Again, they accuse university officials of using race to override equal treatment of individual applicants in the service of racial balancing.
These are small numbers, but the effect the majority sees is not. Their story says that if the court allowed universities to pursue diversity freely, they would eventually wind up with classes that are racially proportionate to the state population or to the applicant group. “Respondents suggest that the end of race-based admissions programs will occur once meaningful representation and diversity are achieved on college campuses.” This is “outright racial balancing,” and it is “patently unconstitutional.” Diversity, for the majority, leads directly to the thing that must not be sought: equality of outcomes across racial groups.
Racial equality is the SCOTUS story’s heart of darkness. To understand its horror for the Right overall, we can look to the justice most pointedly opposed to racial balancing in college admissions, Lewis F. Powell Jr. Powell wrote the plurality decision in the mother of all university affirmative action cases, Regents of the University of California v. Bakke (1978).
The UC Davis Medical School had set aside places for students to help correct the underrepresentation of Black and Latino practitioners in US medicine. Allan Bakke, a white engineer with an above-average admissions score who was rejected from Davis Medical School, sued because he believed that his place had been taken by a minority applicant with an inferior record who had been admitted through a special program. A four-justice minority, composed of William Brennan, Byron White, Thurgood Marshall, and Harry Blackmun, lined up in favor of the special program that sought to correct, in part, the effects of societal discrimination. Powell used several long footnotes to critique them, writing in one,
They would require as a justification for a program such as petitioner’s, only two findings: (i) that there has been some form of discrimination against the preferred minority groups by “society at large” […] (it being conceded that petitioner [the Davis Medical School] had no history of discrimination), and (ii) that “there is reason to believe” that the disparate impact sought to be rectified by the program is the “product” of such discrimination.
The Civil Rights era persuaded much of the country to accept the Brennan minority’s view that racial inequality was a problem, that it flowed from the social fact of racial discrimination, and that public policy should redress the effects of discrimination. We could expect to find this view assumed by the large percentages of respondents to the current polls I mentioned at the start of this essay who feel that more needs to be done to improve racial equality (including 44 percent of white respondents). But Powell sought to render any attempt to address racial inequality incompatible with the US Constitution.
The key to his hostility and that of his right-wing heirs is in this passage in the opinion by the Bakke minority:
If it was reasonable to conclude—as we [Brennan et al.] hold that it was—that the failure of minorities to qualify for admission at Davis under regular procedures was due principally to the effects of past discrimination, then there is a reasonable likelihood that, but for pervasive racial discrimination, respondent [Bakke] would have failed to qualify for admission even in the absence of Davis’ special admissions program.
The dissenters spoke the intolerable truth: racial discrimination had boosted good-but-not-great white applicants like Bakke by first clearing out most Black and Brown competition. The triggering claim was that Bakke was not, in fact, academically superior to the special admissions applicants with lower scores—his claimed superiority was an artifact of structural racism. If admissions processes were actually identifying merit, Bakke would have been rejected. In the absence of structural racism, Black and Brown students wouldn’t need any special consideration to get in ahead of him.
Powell was outraged by this view. “The breadth of this hypothesis is unprecedented in our constitutional system,” he wrote. “Not one word in the record supports” the “speculative leap” to conclude that, “but for this discrimination by society at large, Bakke ‘would have failed to qualify for admission’ because Negro applicants—nothing is said about Asians […]—would have made better scores.” The idea that Bakke benefited from “the effects of past discrimination” is a mere “presumption of causation.”
Powell executed a foundational erasure of racism’s effects that ignored the ample research record supporting the dissenters’ “hypothesis.” Their claim rested on well-established statistical patterns of multifactorial causation, coupled with the era’s outpouring of direct experience of the effects of racial discrimination. With respect to the question of exam-certified merit, mainstream works like Allen Chase’s The Legacy of Malthus: The Social Costs of the New Scientific Racism (1976), wherein the author tied intelligence tests to the eugenics movement and scientific racism, were widely discussed during the years Bakke was going through the courts. Notably, Powell offered no evidence refuting the idea that pervasive racial discrimination had put the thumb on the scale for Bakke and other white applicants. Instead, he alleged that allowing programs to redress societal discrimination would lead to similar claims by all minority groups. The argument was driven by the dread of an imagined outcome: a racial anarchy of egalitarian demands.
This Powell-to-Roberts story of natural inequality still emits two shrill dog whistles.
First, all remedies for social injustice threaten white superiority. They claim that white supremacy in family wealth, high-income employment, and educational access—to name but a few manifestations—is undeserved because it depends on a legacy of racism and discrimination. What social justice programs, including affirmative action, really say is that white preeminence is theft.
Second, if the United States becomes more equitable and fair, whites will lose things to Black and Brown people. This will especially affect middling or mediocre whites like Bakke, the good-but-not-great applicant who performs well under structurally advantageous conditions but markedly less well when faced with ratcheted-up economic competition. The fault is not austerity, neoliberalism, or undertaxed and deregulated tech and finance, but in fact the liberal white elite, the “wealth-hoarders” who got into Harvard and subsequently forged alliances with elite people of color against heartland America. Their middle-class life rested on the tacit white supremacy that had replaced Jim Crow, and this would be dismantled by affirmative action.
The SFFA decision was a highly disruptive rollback, aimed at an already-struggling higher education sector. But it was also the latest in a series of messages from the Supreme Court and the vast right-wing activist network that racial equality would mean a cultural revolution and should be ruled out. One sign of their success is that SFFA v. Harvard has not produced the national opposition we’ve so gratifyingly seen in response to the elimination of reproductive rights in Dobbs.
How do we build a better equality counternarrative? The dissenting justices in SFFA did an excellent job within the conservative majority’s natural inequality frame. Sotomayor, for instance, insisted on “the constitutional guarantee of racial equality in a Nation where the effects of segregation persist.” These justices eloquently refuted the majority’s familiar claims that racism is fading away, that race-consciousness makes racism worse, and that the Harvard and UNC policies were race-conscious in the forbidden sense. In other words, many elements of a counternarrative are already there. Still, they remain what Raymond Williams would call “emergent” factors, while the prohibition on racial equality of outcomes is still dominant in our structure of feeling.
I don’t see any solution other than a direct and confrontational advocacy for the taboo thing, racial equality of outcomes. This will mean accelerating the long march through neighborhoods, schools, universities, banks, and boardrooms towards explicitly proportionate integration. It will mean further expanding the stories of lives enhanced by affirmative action or blighted by its absence, and the imagination of stronger programs in the future. It will take myriad forms of argument (as just one example, a version focused on revenue equality I’ve called “budget justice”). The goal must be to establish a new overarching story about equality in its racial dimensions that is as comprehensive as the Right’s fable of natural inequality. Telling such a story will involve restructuring and reframing “special programs” as exciting rather than boringly reformist and faintly embarrassing, and showing those programs’ connection to justice rather than to a bending of the rules. It will involve intersectionality in all its glory, including narratives of gendered and sexual experience as equality issues.
Across a wide front of discourse and activism, the core concept of the new story will have to be, I believe, equality of outcomes. We’ll have to narrativize and legalize the Supreme Court’s forbidden “racial balancing.” The goal should be to use equality of outcomes to organize the structure of feeling of those very large numbers of people who already think that efforts to ensure racial equality haven’t gone far enough. And the systematic goal would be to make this narrative—after many decades of struggle—hegemonic, the dominant structure of feeling. This narrative will support a more radical version of diversity in selective college admissions. But more fundamentally, it will support a new society in which racial inequality makes no sense.
Post–Jim Crow America has lasted for 70 years, but it is under more pressure today than ever before. Its tale of natural hierarchy has lost its mass appeal and is in the process of becoming a cultural relic. It’s time for a major push against it.
Featured image: Piet Mondrian. Fox Trot A, 1930. Gift of the artist to the Collection Société Anonyme. Yale University Art Gallery (1942.355). CC0. Accessed January 24, 2024.
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