August 10, 2023
Affirmative Consideration, Not Affirmative Action
Professor of Law at the University of South Carolina School of Law
In Students for Fair Admission v. Harvard the Supreme Court effectively ended affirmative action in college admissions. Although Justice Thomas would have gone further in his separate concurring opinion, the Court recognized a limit to how far it could push to end racial preferences. As the Court explained, “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” The Court has repeatedly emphasized that the Constitution protects individuals, not groups. But if the Court were to dictate complete race blindness in admissions practices, it would require universities to deny aspects of personal identity that are intrinsic to individuals. The Court carefully avoided this paradox, opening the path for a new practice in which universities can give affirmative consideration to whole persons, including aspects of their identities such as race, gender, sexual orientation, or class, among others.
This new form of identity-conscious decision making—call it affirmative consideration, as I have explained in a related scholarly piece—has a more enduring ground in the Constitution and can achieve many of the goals of affirmative action while avoiding some of its costs. Justice Kennedy’s opinions protecting the overlapping values of equality and liberty in same-sex relationships provide the roadmap. The Constitution protects the liberty of individuals to define and express their identities, including their racial identities.
By giving affirmative consideration to individual persons, a university would attend to the complex details of their identities in ways that are similar to programs of affirmative action. But as the Court was keen to point out, this is not an invitation to continue the old regime of racial categorization. Chief Justice Roberts explained that consideration of race has to be tethered to the identity and experience of the whole person (“a benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination”). But even when race is relevant to considering an applicant as a whole person, “the student must be treated based on his or her experiences as an individual—not on the basis of race.” Nonetheless, universities may consider the experiences and identities of individuals without imposing artificial blindness to the meaning of socio-economic background, race, gender, and sexual orientation, and other personal aspects that collectively comprise a person’s identity.
This new practice will be more organic and student-driven than affirmative action. Under the new regime, universities will be unable to impose racial categorizations for purposes of generalized institutional goals such as diversity. But such diversity-driven programs were always about the needs of the university as an institution, not about the identity of individual applicants. These preconceptions about racial identity were a problem for the Court because they provided categories into which individuals were expected to fit, which could have the effect of effacing individual identity to serve institution ends. As the Chief Justice admonished, universities had too easily “concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin.” By contrast, a program of affirmative consideration would allow individuals to create the meaningful categories they experience in society through the stories they tell of their lives.
Even though the Court did not explain the basis for this new race-conscious program of affirmative consideration, it has a natural home in the interaction between the Constitution’s protections for both equality and liberty. In opinions written by retired Justice Anthony Kennedy, the Court identified this interaction as protecting the equal dignity of individuals to define their own lives and relationships on an equal basis with others, free from the state imposing its own conception of their proper identity. By protecting the equal dignity of individuals to have same-sex relationships and marriages in Lawrence v. Texas and Obergefell v. Hodges, the Court also affirmed the right of all individuals to define their person identities by telling their unique stories. Freedom from the state imposing its own conception of individual identities—including race-blind identity—is a liberty shared equally by all.
Consistent with this principle, the Court cannot mandate complete colorblindness because it would have the effect of stripping individuals of their identities. A constitutional principle of equal dignity protects the integrity of their identity as whole persons, including their race. Following these precedents, race consciousness has an even firmer constitutional ground than the post-Bakke affirmative action, which was always plagued by temporal limitations, as the Court emphasized in Grutter v. Bollinger, and the Court embraced in Students for Fair Admissions. Liberty and equality form a stronger bond, as Justice Kennedy explained, opening up protection for what he termed “freedom in all of its dimensions” without temporal or remedial restraints.
The advantage of affirmative consideration grounded in equal dignity is that all applicants can receive a benefit. Nor does it run afoul of the problem Justice Thomas emphasizes: that some will feel, and others might perceive, the beneficiary as an unworthy token of racial preference. Giving every applicant an equal opportunity to tell their story, including how constitutive features of their identity such as race and gender and class have impacted their lives, does not deny any person of positive consideration. One of the weaknesses of affirmative action, which the Chief Justice identifies, is that it unavoidably involves zero-sum racial tradeoffs among racial groups that produce backlash claims of inequality. Because it gives preferences for some but not others, affirmative action has not enjoyed broad majoritarian support. Affirmative consideration would not have this weakness. It focuses on recognizing the dignity of individualized identities of persons on an equal basis.
Affirmative consideration is both more modest in its aspirations and more ambitious in its reach. But unlike affirmative action’s pursuit of diversity, it is a race-conscious practice capable of generating broad and lasting support, grounded in constitutional values shared by all, and focused on the complex mosaic of individual identity.
Thomas P. Crocker is Professor of Law at the University of South Carolina School of Law and author of Equal Dignity, Colorblindness, and the Future of Affirmative Action Beyond Grutter v. Bollinger and Overcoming Necessity: Emergency, Constraint, and the Meanings of American Constitutionalism published by Yale University Press.