Roberts’s Revisions: A Narratological Reading of the Affirmative Action Cases

Introduction

In law, one of the stories told by some scholars is that legal opinions are not stories.¹ The story goes: legal opinions are mere recitations of facts and legal principles applied to those facts; they are the end result of a contest between opposing sides that have brought the parties to an objective truth through a lawsuit.² In these scholars’ eyes, legal opinions are objective, neutral, disinterested, and free from the emotion of narratives.³ Yet, as feminist legal scholars, Critical Race scholars, and law-and-humanities scholars have long asserted, legal opinions themselves can also be read as narratives, narratives constructed in a way to offer one version of the facts and the legal principles applied to them as the objective truth.⁴

In a seminal article published nearly twenty years ago in the Yale Journal of Law and the Humanities, Professor Peter Brooks posed a critical yet underexplored question: “Does the [l]aw [n]eed a [n]arratology?”⁵ In essence, he asked whether law as a field should have a framework for deconstructing and understanding how and why a legal opinion, including the events that the opinion is centered on, has been crafted and presented in a particular way.⁶ After highlighting that “how a story is told can make a difference in legal outcomes,” Brooks encouraged legal actors to “talk narrative talk” and study “perspectives of telling.”⁷ He invited lawyers and legal scholars to consider in their analyses of opinions “who sees and who tells,” what is the “explicit or implicit relation of the teller to what is told,” and “how cases come to the law and are settled by the law.”⁸ According to Brooks, the more that lawyers begin to apply a narratology to the law, the more lawyers will be able to see the “constructedness” of narratives in opinions — to understand “how they are put together and what [lawyers] can learn from taking them apart.”⁹ Similarly, he argued, the more lawyers accepted that the study of narrative in the law “demands analytic consideration in its own right,”¹⁰ the more lawyers would see “how narrative discourse is never innocent but always presentational and perspectival.”¹¹

Few things reveal the power and truth in Brooks’s call for a nar­ratology in the law more than the line of U.S. Supreme Court cases concerning affirmative action in higher education. This year, in two cases that colleges and universities closely watched, Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina,¹² the U.S. Supreme Court issued a joint opinion that reshaped nearly fifty years of precedent on race and admissions, holding that Harvard College and the University of North Carolina (UNC) violated the Equal Protection Clause of the Fourteenth Amendment in their use of race in their admissions processes.¹³ In so ruling, the Court offered “a moment of narrative peripeteia, a reversal that forces a re-reading, an anagnorisis or recognition that makes the past bathe in a different light.”¹⁴ That re-reading, specifically the re-reading of the line of opinions that culminated in the decision in the Students for Fair Admissions, Inc. (SFFA) opinion, highlights two critical revelations about the Court’s jurisprudence on race-based affirmative action in higher education.

First, the re-reading reveals how Chief Justice Roberts has forced a new understanding of what the Equal Protection Clause requires in the affirmative action landscape by revising history, precedent, and reality through omissions, misstatements, and untruths. Second, the re-reading exposes how the perspectives of telling and the “narrative glue”¹⁵ in SFFA are rooted in what Professor Barbara Flagg defines as the “transparency phenomenon,” meaning an invisibility of whiteness, racism, and racism’s everyday impacts for everyone, whether advantaging or disadvantaging, to white people.¹⁶ Specifically, it shows that the “doxa” that Chief Justice Roberts relied on in crafting the majority opinion — the “set of unexamined cultural beliefs that structure[d] [his] understanding of everyday happenings” ¹⁷ — involve a simplistic understanding of race and racism that is not grounded in the substantive realities of life for people of color. Such doxa include beliefs (1) that race is not socially constructed and is defined only by skin color; (2) that racism is aberrational; (3) that “Jim Crow racism”¹⁸ is the only racism that law should redress; (4) that racism is so obvious that people of color, including teenagers applying to college, will know all the ways that they are being discriminated against to discuss them in their essays; (5) that treating people “equally” and with “equality” requires treating them all exactly the same without accounting for history and context; (6) that the “traditional” means for measuring “merit” in admissions are race neutral and do not systemically advantage white people; (7) that white people do not still benefit from discrimination that occurred prior to Brown v. Board of Education;¹⁹ (8) that affirmative action creates preferences for Black²⁰ and Latinx²¹ people; and (9) that he and his majority colleagues are simply “call[ing] balls and strikes”²² (as opposed to choosing how to rewrite past precedent and which facts to emphasize and ignore).

This Comment seeks to guide readers through this narratological re-reading by offering a critical examination of SFFA. Part I of this Comment provides a brief account of narratology, storytelling, and their imports. Part II delves into the doctrine of affirmative action in higher education, detailing the assumptions — the “doxa” — underlying the decision in SFFA and highlighting how the Chief Justice revised history, precedent, and reality to craft new doctrine about what the Fourteenth Amendment requires of colleges and universities in their admissions processes.

Part III then reveals a major danger in the majority’s presumption that the suppression of an applicant’s checked racial-identification box or boxes will somehow remove racial considerations in all aspects of an applicant’s file review except the essay portions. It does so by highlighting how race, a social construct,²³ and the effects of racism are frequently present in considerations of every applicant’s file, whether or not an applicant’s self-identified race is explicitly known by admissions-file reviewers. More importantly, Part III shows why the Court’s move away from explicit race consciousness in admissions will work to deepen rather than lessen the impacts of racial bias. Specifically, Part III utilizes social science research to demonstrate why refusing to explicitly acknowledge race and, in fact, trying to suppress considerations of race will actually make it impossible to remove implicit, as well as explicit, racial bias from the admissions evaluation process. Implicit bias research reveals that making race salient in the assessment of people — as is done with the review of admissions files during a holistic review process — may be a necessary precursor to reducing the effects of nonconscious racial bias.²⁴ Furthermore, much like scholars such as Professors Devon Carbado, Cheryl Harris, Jonathan Feingold, and Stacy Hawkins have done and as Justices Sotomayor and Jackson did in their SFFA dissents, Part III argues that the discontinuation of the use of race in admissions will actually result in further racial discrimination against applicants of color, particularly Blacks, in the admissions process.²⁵ Finally, this Comment concludes with lessons on how future stories about race, racism, education, and admissions can and should be reframed to ensure a truly equal society for all.

I. Defining Narratology

Narratology . . . pays attention to the parts of narrative and how they combine in a plot; to how we understand the initiation and completion of an action; to standard narrative sequences (stock stories, one might say); and to the movement of a narrative through a state of disequilibrium to a final outcome that re-establishes order.

— Professor Peter Brooks²⁶

Stories and storytelling play a critical role in the law.²⁷ Litigators work to develop stories that they can offer, both as an overall frame and as individual components, throughout their cases to help jurors and judges understand their arguments better and to ultimately convince them to side with their clients.²⁸ Clinical professors model and teach their students about the importance of constructing narratives for judges and juries.²⁹ Critical Race Theorists highlight the importance of outgroups telling their own individual and collective stories to provide counter-realities to the dominant narratives that have pervaded society and reinforced status quo hierarchies and oppressions.³⁰ In summary, stories are vital to lawyering and the legal profession because “the ways stories are told, and are judged to be told, make[] a difference in the law.”³¹

Narratology, the study of how events are presented through narratives, can help us understand not only how a telling has been constructed in parts, but also from whose lens the story and its parts have been told and, relatedly, whose perspectives and tellings were not included or were trivialized within the narrative.³² Additionally, studying perspectives of telling can expose the “doxa” or the “set of unexamined cultural beliefs” that have structured the narrator’s “understanding of everyday happenings.”³³ Scrutinizing this set of unexamined beliefs is particularly important in a common law structure governed by a system of precedent that is designed to protect and reinforce the status quo.³⁴ After all, legal precedents inform what facts and even whose facts and perspectives, given that human beings write and develop case law, are relevant and valid for consideration. Examining the doxa in legal opinions is also critical in a society like ours where whiteness is the presumed norm; where people of color of all kinds are routinely “othered”; and where the experiences of white people, who have the privilege of remaining largely unaware of how race shapes their daily lives, undergird and control the narratives in opinions that govern all people in the nation.³⁵ As Professor Richard Delgado has explained, such “bundle[s] of presuppositions” tend to function “like eyeglasses we have worn a long time. They are nearly invisible; we use them to scan and interpret the world and only rarely examine them for themselves.”³⁶ In this way, these presuppositions, particularly when they are told and retold from the perspective of those in the dominant group, come to “seem fair and natural” (at least in the eyes of those on the inside), even as they exclude the realities of some individuals’ lives, realities very much linked to factors like race and racism.³⁷

A narratological analysis also can reveal why a narrative has been developed and communicated in a particular way. It may uncover what Brooks calls the “narrative glue,” meaning why incidents, events, beliefs, and thoughts were brought together in a certain frame to offer a meaningful story.³⁸ In particular, it may reveal why precise parts of the story were selected to be included in the narrative and why other parts were omitted, ignored, and/or trivialized by the narrator.³⁹ Most importantly, it can highlight why certain narratives have grown into stock stories, meaning stories that those in power collectively cultivate and tell to “construct reality in ways favorable to”⁴⁰ them and to justify “the world as it is.”⁴¹ All of these factors are critical to the interpretation of law and to an assessment of what legal doctrine can and should be on a wide variety of issues.

Critically, narratological reads of legal opinions can help lift the false veil of neutrality and pure objectivity that has been donned over the law.⁴² They can, for example, make clear that “[t]he ‘facts of the case’ . . . never are neutral or innocent [ — that] their telling has a certain narrative design and intention.”⁴³ Narratological reads can expose how the prevailing mindset or assumed norms in a case may work to routinely advantage members of some groups while systematically working to disadvantage members of other groups.⁴⁴ In this sense, they can make way for the acknowledgment and acceptance of counterstories that challenge generally adopted beliefs about society or racial groups.⁴⁵ Furthermore, they may explain why modes of legal interpretation over a period of time have developed into “a generally accepted discourse” and understanding.⁴⁶

Indeed, applying a narratology to SFFA helps to lay bare why Chief Justice Roberts constructed the majority opinion as he did. It reveals why he omitted key parts of history — specifically, the adapted and ever-evolving forms of structural and explicit racism encountered by Blacks and Latinxs in the United States from Reconstruction to the passage of the Civil Rights Act of 1964 — from his recounting of the history he argued mandated the holding in SFFA. Similarly, it exposes why and how Chief Justice Roberts misled his audience through the misuse of quotes and the recasting of words from prior opinions by the Court. It also demonstrates why the narrative that Chief Justice Roberts spun — a narrative emerging from his lived reality in the transparency phenomenon — may even “seem fair and natural,”⁴⁷ given the transparent frame with which even positive precedents like Grutter v. Bollinger⁴⁸ have been told.⁴⁹

II. Unveiling a Majority Narrative Rooted in the Transparency Phenomenon and Detached from the Nation’s Actual Racial Past and Present

The selection of facts is the nonfiction narrator’s prerogative. The invention of facts, and only a little less culpably the omission of facts without which the narrative will mislead, is the nonfiction narrator’s temptation.

— Judge Posner⁵⁰

Examining SFFA with a narratological lens shows how the parts of the opinion’s narrative concerning race and admissions have been combined in a way that presumes, assumes, and reinforces the transparent racial lens through which many white people, including nearly all the Justices in the majority, view society. In SFFA, the doxa — the “set of unexamined cultural beliefs” that have structured the Court’s holding and reasoning — are the racialized-white view that race plays no meaningful role in “everyday happenings”⁵¹ and, more specifically, that race will be salient in the review of an applicant’s file only once the applicant’s checked racial-identification box is explicitly noted through affirmative action. Indeed, the majority opinion in SFFA, along with some of the concurring opinions, spoke as if race is an identity that only people of color have. It narrowly defined race as being simply skin color.⁵² It assumed that the only kind of racism is Jim Crow racism, and it presumed that racism is not an everyday occurrence. It also assumed history and individual context do not matter in defining merit in selective admissions, and it presumed that white people do not continue to benefit from past explicit racism against people of color. Generally, the opinion reflects an unconsciousness of whiteness and the general privileges attached to whiteness; more pointedly, it reveals an unawareness about the unearned advantages that may come to white individuals simply as a result of their race in the admissions process.⁵³ According to Flagg, the “transparency phenomenon”⁵⁴ is the tendency of Whites to not think about their whiteness; to not consider how norms, behaviors, perspectives, and expectations in our society have all been built around and defined around the experiences of Whites; and to fail to appreciate how those norms, perspectives, and expectations are then imposed upon people of color in ways that systemically disadvantage people of color and routinely advantage white people.⁵⁵ As Flagg further explains, “[t]ransparency operates to require black assimilation even when pluralism is the articulated goal; it affords substantial advantages to whites over blacks even when decisionmakers intend to effect substantive racial justice.”⁵⁶

This Part of the Comment applies a narratological reading to the SFFA decision, unveiling the doxa undergirding Chief Justice Roberts’s narrative, and exposing the facts, historical and otherwise, that he chose to emphasize and omit in order to buttress the majority’s holding. This Part also reveals how Chief Justice Roberts combined these doxa and omissions, pulled decontextualized quotes from past precedent, and rewrote prior case law to force a new understanding of what the Equal Protection Clause requires in the affirmative action landscape.

Indeed, Chief Justice Roberts began his opinion in SFFA with a statement that made plain that he was viewing only Black and Latinx people as those with a race. In his introduction, he wrote in relevant part: “Gaining admission to Harvard is thus no easy feat. It can depend on having excellent grades, glowing rec­ommendation letters, or overcoming significant adversity. It can also depend on your race.”⁵⁷

As the rest of the Chief Justice’s opinion made clear, the first three factors would survive constitutional scrutiny; only the fourth would not.⁵⁸ By “your race,” Chief Justice Roberts was not referring to white people, including the primarily white group of legacies who possess a disproportionately high chance of gaining admission into Harvard or UNC,⁵⁹ nor did he seem to be referring (in the negative) to Asian Americans, the very applicants upon whom Students for Fair Admissions, Inc. premised its claims of discrimination and unconstitutionality.⁶⁰ Rather, the Chief Justice’s words made clear that he was speaking of only Black and Latinx people. As he later wrote, “[i]n the Harvard admissions process, ‘race is a determinative tip for’ a significant percentage ‘of all admitted African American and Hispanic applicants.’”⁶¹ When “your race” means the same race as the majority of applicants previously admitted since the institution’s founding, that is not a factor in gaining admission. It is simply doxa.

The doxa underlying the Chief Justice’s arguments — among them, the understanding of whiteness as racelessness and the belief that the norms being applied in determining admissions are race neutral — in turn helped him craft a common stock story in SFFA about how considering race during the admissions process is nonmeritocratic and disturbs an otherwise race-neutral, meritocratic process.⁶² Yet, to develop and narrate this stock story, the Chief Justice had to craft a revised account of this nation’s history, one that ignored, as Justice Jackson noted in her dissent, “the well-documented ‘intergenerational transmission of inequality’ that still plagues our citizenry.”⁶³ Specifically, Chief Justice Roberts chose to relay only part of the story of this nation’s history of racial oppression and subordination of Black and Latinx peoples and essentially none of this nation’s story about the continuing social significance of race and persistence of racism. Based on the Chief Justice’s telling, one could conclude only that race and racism are largely irrelevant to the story of the United States today. In fact, according to the Chief Justice’s articulation of this nation’s history — which did not even acknowledge its more than 200 years of enslavement of Black people⁶⁴ — following the Civil War, the proposal and ratification of the Fourteenth Amendment by Congress and the States gave “to the humblest, the poorest, the most despised of the race the same rights and the same protection before the law as it [gave] to the most powerful, the most wealthy, or the most haughty.”⁶⁵ Then, according to Chief Justice Roberts, the nation overcame what he referred to as “a regrettable norm” of state-mandated racial segregation by overturning the separate-but-equal doctrine in Plessy v. Ferguson⁶⁶ through Brown v. Board of Education⁶⁷ (Brown I) in 1954.⁶⁸ In so doing, he highlighted language in the second Brown v. Board of Education⁶⁹ (Brown II), suggesting, and misleading readers to think, that Brown II’s requirement of “full compliance” with the mandate to desegregate⁷⁰ immediately resulted in integration and equality in this nation’s public schools, even though Brown II is widely criticized by historians as being so conciliatory that it instigated greater resistance and dissent from white southerners.⁷¹ In making this declaration, the Chief Justice even drew a parallel between the affirmative action that he was lambasting in SFFA and past state-mandated racial segregation that was explicitly premised on Black inferiority, asserting that “the inherent folly of that approach — of trying to derive equality from inequality — soon became apparent.”⁷² In all, the Chief Justice offered a stunning rearticulation of our nation’s history, a retelling that Justice Sotomayor described in her dissent as “nothing but revisionist history.”⁷³

Ironically, in the midst of his own blistering critique of SFFA’s two dissenting opinions, Chief Justice Roberts did more than omit key parts of the United States’s full history: he also excluded important words from a previous Justice’s dissent, using this omission to bolster his narrative in SFFA. While declaring through another quote that “Justice Harlan knew better” than the other Justices,⁷⁴ Chief Justice Roberts highlighted the following language from Justice Harlan’s riveting dissent in Plessy v. Ferguson: “[I]n view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitu­tion is color-blind, and neither knows nor tolerates clas­ses among citizens.”⁷⁵

But in sharing Justice Harlan’s words about colorblindness and the Constitution, the Chief Justice failed to acknowledge three important sentences that immediately preceded the famous quote from Justice Harlan, three sentences in which Justice Harlan himself seemed to pronounce the superiority of the white race. Indeed, right before Justice Harlan asserted that the Constitution was colorblind and that there was “no caste” in the United States in his dissent in Plessy, he wrote the following three sentences about the dominance of the “white race”:

The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty.⁷⁶

As the field of narratology can teach us, the fact that the Chief Justice excluded this reference by Justice Harlan to the racial superiority of white people is not without meaning.⁷⁷ After all, as Brooks asserts, “[n]arratives do not simply recount happenings; they give them shape, give them a point, argue their import, proclaim their results. And to do so they necessarily espouse some sort of ‘point of view’ or perspective, however hidden it may be, even from narrators themselves.”⁷⁸ Including these disconcerting words by Justice Harlan, words that make a nod to white superiority, would have disrupted the sanitized and simplistic narrative about the racial history of the United States that Chief Justice Roberts was telling to bolster the majority’s holding. In fact, the Chief Justice could have just as easily cited other words from Justice Harlan that expressed a clear view in favor of direct actions to enforce the Fourteenth Amendment and other Reconstruction Amendments by remedying past and lingering effects of racism caused during and by the enslavement of Black people. After all, just thirteen years prior to Plessy, in the Civil Rights Cases,⁷⁹ Justice Harlan had once before parted from the majority on the Court, a majority that, as Justice Jackson detailed, declared less than twenty years after the end of the Civil War that “there must be some stage . . . when [Black Americans] tak[e] the rank of a mere citizen, and ceas[e] to be the special favorite of the laws.”⁸⁰ In his dissent in the Civil Rights Cases, Justice Harlan wrote:

It is, I submit, scarcely just to say that the colored race has been the special favorite of the laws. The statute of 1875, now adjudged to be unconstitutional, is for the benefit of every race and color. What the nation, through Congress, has sought to accomplish in reference to that race, is — what had already been done in every State of the Union for the white race — to secure and protect rights belonging to them as freemen and citizens . . . .⁸¹

But the Chief Justice ignored these critical words from Justice Harlan, words that reveal Justice Harlan really did know better on one point — that he knew “the Fourteenth Amendment was intended to undo the effects of a world where laws systematically subordinated Black people and created a racial caste system.”⁸²

Indeed, at no point during his SFFA narrative did the Chief Justice acknowledge the fuller histories that Justices Sotomayor and Jackson offered in their dissents. At no point did he describe how racism — including law’s role in defining and facilitating such racism — had morphed and adapted over significant periods of time to prevent Black people from attaining the same protections and rights that he claimed were granted and realized after the Civil War. Instead, the Chief Justice focused merely on formal rules — what the rules and laws said on paper after the Civil War, post-Plessy, and after the Civil Rights era — rather than the actual realities of race and rights in the United States — the substantive conditions under which Black, Latinx, Asian American, and Indigenous peoples operated from each of those moments on through to today. For instance, in describing the aftermath of Brown, he never referred to the massive resistance to desegregation efforts after Brown — the tyranny over and violence against Blacks in response to Brown,⁸³ the shutting down of schools in reaction to Brown I and Brown II,⁸⁴ the provision of state funds in southern states to send white children to private schools,⁸⁵ plus more. Instead, he described Brown simply as setting the Court “firmly on the path of invalidating all de jure racial discrimination by the States and Federal Government.”⁸⁶ And, he did so without acknowledging, as Justice Sotomayor did in her dissent, that “Brown was a race-conscious decision that emphasized the importance of education in our society” and that Brown’s goal “was to achieve a system of integrated schools that ensured racial equality of opportunity, not to impose a formalistic rule of race-blindness.”⁸⁷ In the eyes of the Chief Justice, the Court had done all that it could (and should) do through the formal expression of equality under the law to live up to the commitments of a colorblind (though actually never colorblind) Constitution.

The Chief Justice then continued his narrative of how the law ensured equality following the adoption of the Fourteenth Amendment, noting how post-Brown cases “vindicate[d] the Constitution’s pledge of racial equality” in “parks and golf courses; neighborhoods and businesses; buses and trains; schools and juries” — all with no acknowledgement of what the substantive realities of life under those cases and laws were like for Black people in the United States.⁸⁸ Again, he ignored many of the forms of discrimination and subordination that Justices Jackson and Sotomayor included in their fuller versions of the nation’s history (like redlining), denying the existence of anything other than Jim Crow separate-but-equal racism.

Chief Justice Roberts’s narrative in SFFA was nearly identical to the stock story of racial reform that Delgado explains has been used to rearticulate the historical narrative of the United States in ways that erase the experiences of Black people in the country. In his seminal article Storytelling for Oppositionists and Others: A Plea for Narrative, Delgado details a stock story of racial progress that begins with an acknowledgment of slavery as a “terrible” part of the nation’s “[e]arly . . . history” (though the Chief Justice never even mentioned slavery), moves on to the end of slavery after the Civil War, shifts to the purported end of racism after Brown and the passage of civil rights legislation during the 1960s, and finally ends with a story of current racial disparities with the blame placed on Black people for their purported “dependency and welfare mentality.”⁸⁹

Not surprisingly, consistent with the ahistorical stock narrative that Chief Justice Roberts offered about racial reform in the United States, he persisted in the rest of his SFFA opinion to define “equally” or “equality” only in the formal sense, meaning to treat people exactly the same without any acknowledgment of context, and to ignore whether the formal rules were ever being honored in substance.⁹⁰ Throughout SFFA, he disregarded the real substantive differences between what Whites and people of color, particularly Black people, have experienced and experience around access to education, wealth, jobs, rights, livable wages, good healthcare, and a whole host of factors that shape the day-to-day lives of individuals based on structural racism in this country. In essence, the Chief Justice offered a narrative in SFFA that could “justify the world as it is, that is, with whites on top and browns and blacks at the bottom,”⁹¹ whether or not it reflected realities of race other than his own and other Whites’.⁹²

Most notably, Chief Justice Roberts rewrote precedent, specifically Grutter v. Bollinger, to bolster the majority’s holding and reasoning, cherrypicking language from the opinion and misrepresenting the opinion altogether. For example, at one point, the Chief Justice contended that the limits espoused by Grutter (for instance, bans on quotas or bans on insulating groups from competition for admissions) “were intended to guard against” the devolution of race into “illegitimate . . . stereotyp[ing].”⁹³ However, in so doing, the Chief Justice did not rely on Grutter at all; instead, he pulled a quote from City of Richmond v. J.A. Croson Co.,⁹⁴ which was endorsed by only a plurality of justices — like Justice Powell’s opinion in Regents of the University of California v. Bakke,⁹⁵ which the Chief Justice slighted in SFFA for being only a plurality opinion.⁹⁶ Just a sentence later, Chief Justice Roberts cited Grutter to support his conclusion that Harvard and UNC operated “their admissions programs on the ‘belief that minority students always (or even consistently) express some characteristic minority viewpoint on any issue.’”⁹⁷ Yet, a close reading of Grutter reveals two important ways in which the Chief Justice’s reliance on Grutter here was misleading. First, Harvard and UNC used race in their admissions programs in the same manner as the University of Michigan Law School did in Grutter, and the Court in Grutter praised the University of Michigan Law School precisely because it had not premised “its need for critical mass on ‘any belief that minority students always (or even consistently) express some characteristic minority viewpoint on any issue.’”⁹⁸ Second, the Court in Grutter explicitly asserted that the force of stereotypes cannot be diminished at schools “with only token numbers of minority students,” which SFFA is likely to yield at some schools.⁹⁹ In fact, the Grutter Court referred approvingly to the Chief Justice’s definition of racial stereotyping in SFFA, proclaiming: “Just as growing up in a particular region or having particular professional experiences is likely to affect an individual’s views, so too is one’s own, unique experience of being a racial minority in a society, like our own, in which race unfortunately still matters.”¹⁰⁰

Another illustration of the transparency phenomenon in Chief Justice Roberts’s SFFA opinion is his inability to see and understand the use of racial identifications in college and university admissions processes as anything other than a preference for Blacks and Latinxs. Yet, as Carbado, Feingold, and Professor Luke Harris argue, the view of race-based affirmative action practices as preferences is itself a flawed narrative; rather than creating preferences for certain racial groups, they contend, race-conscious admissions enable “fair[er] [and more accurate] appraisal[s] of each individual’s academic promise” precisely because of the many race-related disadvantages that Black students face in our society.¹⁰¹ As Carbado explains, affirmative action enables a more accurate appraisal of a Black applicant’s individual academic promise by accounting for the ways in which Blacks are disadvantaged and Whites are advantaged by traditional definitions of merit in admissions processes. These advantages and disadvantages include the negative implicit racial biases against Black people and the corresponding assumptions of competence, deservedness, and excellence about white people; the negative impacts of stereotype threat on Black students and the absence of any such stereotype threat (based on race) for white people; plus so much more.¹⁰² Indeed, as Carbado, Feingold, Cheryl Harris, and Luke Harris contend, relying solely or primarily on traditional merit criteria like standardized test scores and GPAs, which tend to underpredict the academic promise of Black students, without employing some form of affirmative action actually results in discrimination against Blacks.¹⁰³

Despite Chief Justice Roberts’s statement near the end of SFFA that a “benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter,” he repeatedly demonstrated throughout the opinion that he had no ability to see this point in any way other than one that justified what he seemed to view as natural in the world.¹⁰⁴ Related to this point is the Chief Justice’s failure to recognize the built-in advantages that are invisibly and, in some cases, visibly, playing a role for white applicants during the admissions process.¹⁰⁵ Among these advantages is what Carbado, Professor Kate Turetsky, and Professor Valerie Purdie Greenaway call the “intergenerational value of whiteness,” meaning that when one is white in the United States, the individual “inherit[s] the historical badge of honor, privilege, respectability and positive social meanings associated with whiteness and white people.”¹⁰⁶ Among these advantages are all the ways in which white students are not burdened by the negative social meanings and stereotypes that get attached to being Black or Latinx; negative social meanings and stereotypes that can translate into greater scrutiny of one’s work, which can then result in overall lower evaluations and lower grades or second-rate reference letters; the racial isolation and negative institutional cultures that affect one’s performance in educational spaces;¹⁰⁷ and phenomena like stereotype threat, which have been scientifically proven to negatively affect the performance of Black students on standardized tests.¹⁰⁸

Critically, even though the Chief Justice recognized that an applicant should not be prohibited from discussing “how race [has] affected his or her life, be it through discrimination, inspiration, or otherwise,” and made clear that universities should not be prohibited from considering such discussions, he completely failed to appreciate how one’s race is not just skin color and, more so, that one’s race does more than just affect one’s experiences.¹⁰⁹ In fact, given how structural and attitudinal racism operate in society, race frequently shapes who a person is; it often plays a role in how a person may think about issues or how and why a person may respond to events in a particular situation.¹¹⁰ The vast differences between the perspectives and overall framing in the opinions written by the Chief Justice, by Justices Gorsuch and Kavanaugh, and by Justice Thomas reveal as much.¹¹¹ In essence, as many of the students of color whom Justice Sotomayor quoted in her dissent explained, “to try to not see [their] race is to try to not see [them] simply because there is no part of [their] experience, no part of [their] journey, no part of [their] life that has been untouched by [their] race.”¹¹² The Chief Justice, however, failed to comprehend this point, precisely because he has had the lifelong privilege of thinking of himself as raceless and of not seeing (though it is always occurring) how race can shape “every experience” one has.¹¹³

Indeed, the manner in which the Chief Justice spoke about how schools could consider the impact of race on an applicant’s life exposes precisely how his perspectives on race, his belief in traditional definitions of merit as race neutral, and his view of racism as aberrational and presenting neither structural nor individual advantages to white people are mired in the transparency phenomenon. In a warning to all colleges and universities at the end of his opinion, Chief Justice Roberts stated:

But, despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today. . . . “[W]hat can­not be done directly cannot be done indirectly. The Consti­tution deals with substance, not shadows,” and the prohibi­tion against racial discrimination is “levelled at the thing, not the name.” A benefit to a student who overcame racial discrim­ination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose herit­age or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student must be treated based on his or her ex­periences as an individual — not on the basis of race.

Many universities have for too long done just the oppo­site. And in doing so, they have 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.¹¹⁴

This point not only reveals that the Chief Justice does not fully understand holistic admissions review,¹¹⁵ but also bares his troubling assumptions underlying race and the belonging of Black and Latinx students at Harvard. Additionally, it reveals his even more troubling belief that students had been admitted simply because of their race. The Chief Justice — all while denigrating the dissenters, Harvard, and UNC for engaging in racial stereotyping — consistently engaged in his own harmful stereotyping. Throughout his opinion, he assumed that Black and Latinx students largely did not belong at either Harvard or UNC,¹¹⁶ yet assumed — without any question (not even once) — that Whites and Asian Americans fully earned their spots without any benefits from racial advantage.¹¹⁷ Consider, for instance, how the Chief Justice referred to the stories about race and its impacts that students of color can tell about their lives and how he said schools should evaluate those narratives.¹¹⁸ The Chief Justice’s words betrayed what he really believes about the merit of most Black and Latinx students, suggesting that he does not view the very “challenges bested, skills built, or lessons learned” as part of the actual merit of a Black or Latinx student’s application — as some of the qualities that would be part of their overall evaluation under holistic review.¹¹⁹ Instead, Chief Justice Roberts’s statements suggest that these qualities, which are assumed to be part of the overall evaluation for any white student, are merely a reason to give what he refers to, twice, as “a benefit to” a Black or Latinx student.¹²⁰ The Chief Justice’s statements reveal his inability to see Black and Latinx students as the whole beings they are.

Furthermore, the Chief Justice’s words about when these “benefits” can be given expose his own privilege to ignore how race can shape a person of color’s everyday experiences. To begin, his words suggest that he views racism as aberrational or extraordinary as opposed to a regular occurrence, or even that he views racism as being only Jim Crow racism. For example, underlying his statement about the “benefit” that can be given to “a student who overcame racial discrimination” is a presumption that racism is a rare occurrence that can be overcome, rather than a constant, structural force in a student’s everyday life.¹²¹ Such a statement clearly exhibits the Chief Justice’s lack of awareness about the consistent impacts of racism on the lives of people of color. Although the individual acts of Jim Crow racism that the Chief Justice was imagining are still very much alive today, the racism that Black and Latinx students most frequently endure and battle is not as explicit as these acts tend to be; instead, it is usually structural.¹²² Such racism can only truly be overcome by larger society, not any one individual. And, the individual acts of racism that tend to be most frequently encountered are microaggressive and subtle (meaning the colorblind racism, commonsense racism, and nice racism that Professors Eduardo Bonilla-Silva, Ian Haney López, and Robin DiAngelo have defined, respectively);¹²³ worse, they tend to be further buttressed by regular gaslighting.¹²⁴

Similarly, the Chief Justice’s statement that the “benefit” that could be granted “to a student whose heritage or culture motivated him or her to assume a leadership role . . . must be tied to that student’s unique ability to contribute to the university”¹²⁵ reflects a lack of understanding about the potential merit of a leadership role connected to an individual’s identity. The attainment of a leadership position, particularly if it involved being the first member of an underrepresented community to occupy the role or if it involved an election by a primarily white electorate, could, in and of itself, be evidence of a student’s unique ability to contribute to a community due to race, even if racial background did not motivate the action. For instance, in our society, where racism, including people’s conscious and nonconscious perceptions of others, shapes life every day, just being elected as the first Black president of the Harvard Law Review or any Black president of the Harvard Law Review would signal unique talents that one could add to a community. Indeed, for any student, election as president of the Law Review would likely reveal unique talents and abilities to earn the respect and trust of their peers, communicate and engage with others, pay attention to detail, organize and lead a group, plus much more. But, for the first Black president, for example, it also would exhibit a unique ability to envision oneself in a role that no one else who looked like them had taken on and to make that trailblazing vision a reality without the privilege of seeing “people of [their] race widely represented” in prominent places or being regularly told and “shown that people of [their] color made [civilization] what it is.”¹²⁶ It also might show an uncanny ability to reach across the aisle in a society in which many white voters simply do not vote for Black candidates in political elections,¹²⁷ among many other things.

Relatedly, Chief Justice Roberts failed to recognize the interrelationship between race, racism, and the development of “courage and determination.”¹²⁸ For example, he failed to see how the various types of courage and determination that students of color may have developed throughout their lives are very much shaped and influenced by their experiences related to race and racism, including microaggressions, particularly in predominantly white schools.¹²⁹ It is not merely a one-way street, as he imagined it, by which courage and determination allow a person to “overcome racism.” Instead, the dynamic is mutually constitutive: regularly having to grapple with racism allows people to develop courage and determination. Yet, the Chief Justice again failed to understand this interrelationship between race, racism, and identity because the transparency phenomenon¹³⁰ has limited his view.

III. Making the Invisibility of Race Transparent

Instead, what the Court actually lands on is an understanding of the Constitution that is ‘colorblind’ sometimes, when the Court so chooses. Behind those choices lie the Court’s own value judgments about what type of interests are sufficiently compelling to justify race-conscious measures.

— Justice Sotomayor¹³¹

A common assumption underlying the majority’s rationale in SFFA is that racial considerations would be erased from all aspects of the admissions process except the review of an applicant’s essay if the racial-category box or boxes that the applicant checked were simply not made available to any admissions-file reviewers.¹³² Preventing schools from explicitly knowing a checked racial-identification box, however, does not at all remove race or the effects of racism — historically, currently, or in the very moments in which the candidate’s application is being read and evaluated — from the admissions process. The reality is that race (including, for example, how a student is perceived racially by others as well as how others attach social meanings to their perception of that individual applicant’s race) shapes so many aspects of each applicant’s record, including how the applicant’s work, both within and outside of the classroom, is evaluated and assessed before and during the application process. As Flagg and scholar and activist Peggy McIntosh both make very clear, this reality applies to Whites just as much as it applies to people of color.¹³³

Just as importantly, because many Whites exist under the transparency phenomenon, proclaiming to admissions professionals, most of whom are white,¹³⁴ that their schools’ admissions processes are now race neutral is more likely to lead to increased harms from racial bias, both explicit and implicit, rather than decreased racial bias and discrimination. As social psychological research has repeatedly shown, making race salient¹³⁵ for individuals, particularly Whites, is critical to reducing the imposition of implicit racial biases in decisionmaking processes because it activates individuals’ desire to live up to their expressed antiracist commitments.¹³⁶ But, if admissions professionals are told that race is no longer playing a role in the admissions process, they are less likely to consciously work to overcome their implicit racial biases when reviewing admissions applications. Because of how implicit and explicit racial biases can work to negatively impact Black and Latinx applicants through factors like the greater scrutinization of their work, including their applications, such action would only work to disadvantage Black and Latinx applicants in the admissions process, thereby increasing discrimination against them. Indeed, correcting for these disadvantages, which are very much tied to race, requires racial consciousness, not racial blindness. It requires making race (and thus racial bias) salient in a way that ensures that admissions reviewers, most of whom have good intentions and do not proclaim any explicit biases, will consistently work to correct for their own implicit biases during admissions processes as well as account for other bias and discrimination, both explicit and structural, that Black and Latinx applicants may have encountered — discrimination that these young people are unlikely to even be aware of to discuss in their essays.

This Part illustrates two critical points. First, section III.A shows why the purported race neutrality that Chief Justice Roberts imagined in admissions processes after SFFA is illusory by highlighting three distinct ways that race can continue to negatively influence admissions processes for Black and Latinx applicants even when their checked racial-identification box is suppressed. In so doing, this section also explicates why Black and Latinx applicants are unlikely to even know about the discrimination they may have faced from others, including teachers or counselors. Second, section III.B demonstrates why continuing to make race salient to admissions reviewers is needed to reduce the effects of implicit racial bias that will persist even when checked racial-identification boxes are unknown to them. In other words, for most admissions reviewers, unless race is made salient to them, they may not actively work to reduce their own nonconscious and other biases or account for the nonconscious biases that have already disadvantaged Black and Latinx students in their evaluations of all applications.

A. Making Clear the Continuing Significance of Race in the Chief Justice’s Imagined World

[D]eeming race irrelevant in law does not make it so in life.

— Justice Jackson¹³⁷

This section highlights three distinct ways in which race, even when an applicant’s checked racial-identification box is not explicitly known by admissions reviewers, may frequently and unknowingly influence the admissions process. In so doing, it defines and addresses race in all of its complexity, not simply as skin color, as the majority in SFFA seemed to have narrowly defined race.

First, section III.A.1 reveals how race, and specifically racial bias, can invisibly rear its head in the review of students’ admissions applications through purportedly objective factors like grade point average, honors placements, and the rigorousness of high school coursework. The fact is that race, including the social meanings that have attached to different racial groups¹³⁸ (such as the nonconscious associations regularly made between Blackness and inferior intellectual ability), shapes how people view each other as well as the work product that individuals create, such as the coursework of Black students. For Black students, such negative implicit biases frequently mean that the work they perform in their schools and in their jobs is undervalued and assessed much lower than it would be if the students were white and were operating under the presumption of competence that comes with whiteness. Indeed, studies have uncovered negative racial bias against Black students when it comes to counselors’ decisions about placement in honors courses, teachers’ and other supervisors’ evaluations of Black people’s work product, as well as words of praise used in letters of recommendation.¹³⁹

Second, section III.A.2 details how race, even when an applicant’s identification of race is unknown to admissions-file reviewers, can find its way into the evaluation of an applicant through factors that are frequently perceived as being linked to race such as name — both first names and surnames. In so doing, it shows how Black and Latinx applicants, especially Black applicants, can be negatively impacted by associations made between race and name and, implicitly, how white applicants are advantaged by such associations.

Finally, section III.A.3 highlights, just as Justice Jackson did in her dissent, how race sidles into the admissions process through actual admissions preferences such as legacy admissions, which are intrinsically linked to race precisely because Blacks were excluded from even attending many institutions of higher education until the late 1960s or early 1970s.¹⁴⁰ Section III.A.3 also discusses how preferences given to athletes, applicants on the Dean’s Interest List, and children of the faculty and staff are very much tied to race.

1. Erace-ing the Impact of Racial Implicit Bias from Teachers and Counselors. — One major assumption in Chief Justice Roberts’s opinion in SFFA is that Harvard College’s and UNC’s affirmative action programs are what made race present in and relevant to their admissions processes and that race would disappear from those processes, except through the consideration of college essays, once those programs were eliminated. For instance, while critiquing what he views as the indeterminacy of both Harvard’s and UNC’s race-conscious admissions programs, the Chief Justice proclaimed, “[t]heir admissions programs ‘effectively assure[] that race will always be relevant . . . and that the ultimate goal of eliminating’ race as a criterion” — not the ultimate goal of equality of access to education or equality itself — “will never be achieved.”¹⁴¹ Core to the Chief Justice’s assertion is his belief that racism against people of color is only Jim Crow racism; that racism against people of color is aberrational; that traditional means for measuring merit are race neutral; and that white people, unless they personally enslaved someone or directly created the laws that deprived people of color, particularly Black people, of accumulating wealth and thereby engaging in intergenerational transfers of wealth, do not regularly benefit from all the invisible privileges that attach to whiteness.¹⁴² Yet, as Justice Sotomayor so eloquently made clear in her dissent, “race is one small piece of a much larger admissions puzzle where most of the pieces disfavor underrepresented racial minorities.”¹⁴³ But not once in his opinion did the Chief Justice consider any of these invisible ways that race can enter into the admissions process even if a candidate’s racial identification is never explicitly known to an admissions reviewer.

For example, Chief Justice Roberts never once considered how racial bias from admissions readers, teachers, and counselors — all very relevant to the relative strengths of a candidate’s application — plays a role in the selective college-admissions processes at Harvard and UNC. Instead, he merely presumed the objectivity and neutrality of factors like “academic performance and rigor,” “extracurricular involvement,” and “standardized testing results”¹⁴⁴ while insinuating that the admissions process was being rigged for Black and Latinx students through personal ratings.¹⁴⁵ Indeed, in describing the admissions process for UNC, Chief Justice Roberts asserted: “During the years at issue in this litigation, un­derrepresented minority students were ‘more likely to score [highly] on their personal ratings than their white and Asian American peers,’ but were more likely to be ‘rated lower by UNC readers on their academic program, aca­demic performance, . . . extracurricular activities,’ and es­says.”¹⁴⁶

Yet, research has shown that Black and Latinx students experience discrimination that can negatively impact their ability to compete on purportedly objective criteria, such as the rigorousness of one’s coursework based on honors placements. For example, one study of counselors’ decisions to place students in Advanced Placement (AP) courses in high school revealed a combination of racial and gender bias, specifically bias against Black women.¹⁴⁷ Advanced coursework placement is critical during the college-admissions process because taking the most rigorous courses available affects the perceived strength of a student’s application.¹⁴⁸ In one study, Professors Dania V. Francis, Angela C.M. de Oliveira, and Carey Dimmitt asked school counselors to evaluate student transcripts to assess whether the student should be recommended for placement in an AP Calculus course.¹⁴⁹ The student transcripts were identical to each other except for the name on the transcript, which was varied randomly to be suggestive of race and gender for each student, using indicators such as names validly tested to suggest African American or white and male or female identity.¹⁵⁰ A group of the counselors also received transcripts with “no names” to enable a comparison to decisions where there were “blind” reviews of transcripts, and all participants received two baseline transcripts that were not meant to be indicative of any particular racial group.¹⁵¹

The school counselor participants were attendees of a national conference who were presented with six student academic profiles to review for recommendation for AP Calculus.¹⁵² The transcripts also included four different levels of quality/strength: (1) Strong Academic, Strong Behavioral (SASB); (2) Borderline Academic, Strong Behavioral (BASB); (3) Strong Academic, Borderline Behavioral (SABB); and (4) Borderline Academic, Borderline Behavioral (BABB).¹⁵³ All were potentially viable for recommendation to the AP course. Not surprisingly, overall, the strongest profile, SASB, was recommended for the AP course 95% of the time, compared to 90% for SABB, 83% for BASB, and 65% for BABB.¹⁵⁴ However, the study revealed meaningful bias and discrimination against Black women, with Black women being the least likely to be recommended for advanced coursework.¹⁵⁵ For instance, although SASB candidates were recommended for the AP course 95% of the time overall and 100% of the time in the “blinded” transcript reviews, they were recommended only 79% of the time when the transcript was a Black female transcript.¹⁵⁶ This percentage, which is lower than the overall percentage of recommendations for AP Calculus for three of the types of transcripts, SASB, SABB, and BASB, suggests “that even the strongest black female candidates may face significant barriers to entry into AP Calculus courses that their white or male counterparts do not face.”¹⁵⁷ Furthermore, that 79% figure, representing how likely Black females were to be recommended for advanced coursework, was the same as the percentage of recommendations given for the weakest transcript profile in the “blinded” reviews.¹⁵⁸

On top of that, even though the transcripts were identical, the Black female students received the lowest preparedness scores by counselors for both the strongest and weakest profiles.¹⁵⁹ This study’s findings are critical not only because Black and Latinx students are underrepresented in AP and honors courses in high schools overall, which contributes to racial inequality in terms of access to high-quality education,¹⁶⁰ but also because Black students and female students are more likely than other students to seek out advice on preparing for college from counselors.¹⁶¹ Furthermore, the study is critical because it and other studies reveal how race, and the social meanings and biases attached to a person’s race or perceived race, can disadvantage Black students based on a purportedly objective factor of merit in admissions.¹⁶²

Other studies reveal that grade point average, another factor that the Chief Justice suggested is race neutral, is also very much tainted by racial bias against Black and Latinx students. For example, one study in a different context exposed the ways in which the work of Black people is overscrutinized and then judged and assessed more harshly as a result.¹⁶³ In this study, researchers distributed a memorandum from a hypothetical third-year litigation associate with twenty-two deliberately inserted errors (seven spelling/grammar errors, six substantive technical writing errors, five errors in fact, and four errors in the analysis of the facts) to sixty different law firm partners, all of whom had agreed to participate in a “writing analysis study” concerning the “writing competencies of young attorneys.”¹⁶⁴ The memorandum given to each partner was identical except half of the partners received a memorandum with a cover page that indicated that the associate was African American and the others were given the same memorandum with an indication that the associate was white.¹⁶⁵

Name: Thomas Meyer Name: Thomas Meyer

Seniority: 3rd Year Associate Seniority: 3rd Year Associate

Alma Mater: NYU Law School Alma Mater: NYU Law School

Race/Ethnicity: African American Race/Ethnicity: Caucasian¹⁶⁶

The cover email asked the partners, who were also given all the research materials used to prepare the memorandum, to “edit the memo for all factual, technical, and substantive errors” and then asked them to rate the overall quality of the memorandum from one to five, with one indicating a poorly written memorandum and five indicating a memorandum that was extremely well written.¹⁶⁷ After having seven weeks to review the memorandum, fifty-three of the sixty partners (88.33%) completed the requested tasks; of the fifty-three partners, twenty-four received the memorandum from the African American Thomas Meyer, and twenty-nine received the memorandum from the white Thomas Meyer.¹⁶⁸ The researchers found unconscious confirmation bias by the partners in highlighting the errors, with the partners finding more of the errors in the same brief when the writer was the African American Thomas Meyer than when he was the white Thomas Meyer.¹⁶⁹ For example, the partners found an average of 2.9 of the 7 spelling/grammar errors in the white Thomas Meyer’s memorandum compared to 5.8 of the 7 spelling/grammar errors in the African American Thomas Meyer’s memorandum.¹⁷⁰ Additionally, the overall score on the memorandum was lower for the African American associate than the white associate — 3.2 out of 5 compared to 4.1 out of 5.¹⁷¹ Furthermore, qualitative comments on the memorandum for the white associate were more positive.¹⁷² For example, comments for the white Thomas Meyer included statements like “generally good writer but needs to work on . . . ,” “has potential,” and “good analytical skills” while comments for the African American Thomas Meyer on the exact same memorandum read “needs lots of work,” “can’t believe he went to NYU,” and “average at best.”¹⁷³ The researchers even found differences in ratings on an aspect of the brief they did not request any commentary on: formatting. Specifically, they found that forty-one of the fifty-three partners gratuitously offered feedback on formatting; of those forty-one, eleven partners left comments for the white Thomas Meyer while twenty-nine left comments for the African American Thomas Meyer.¹⁷⁴

Much like this fictional Black associate, Black high school, college, and other students are likely to face implicit racial bias (as well as explicit racial bias) in how their work is scrutinized and graded by their teachers, which in turn can affect their grade point average — a factor that Chief Justice Roberts assumed to be race neutral.¹⁷⁵ Race and racial disadvantage will, in turn, be a part of any college or graduate school application process because selective universities tend to examine grade point average in making their decisions;¹⁷⁶ such influence negates the Chief Justice’s assumption that eliminating affirmative action programs will eliminate the influence of race from the admissions process.¹⁷⁷ To the contrary, eliminating affirmative action programs deepens the harms caused by implicit racial biases against Black and Latinx students.¹⁷⁸ Critically, just as Black and Latinx students may be disadvantaged by such racial biases in the assessment of their work, white students are advantaged by assumptions of their competence as well as by assumptions that Black and Latinx students are less competent.

Although Chief Justice Roberts tried in SFFA to account for some racism by asserting that schools can consider “an applicant’s discussion of how race affected his or her life,”¹⁷⁹ the Chief Justice failed to see three important realities that make this concession less meaningful than it initially seemed. First, he failed to account for the fact that much of the racism and discrimination that people of color experience is unknown to them, particularly when it is the result of implicit bias and even when it is the result of explicit bias. One of the reasons why Chief Justice Roberts made this mistake was the doxa underlying his conclusions, which stem from his view mired in the transparency phenomenon. Indeed, he assumed that students can discuss the effects of racism precisely because he imagined Jim Crow racism, which is explicit and out in the open, when in fact most racism is structural, implicit, or, ironically, what Bonilla-Silva terms “colorblind racism.”¹⁸⁰ A Black high school student, for example, is unlikely to even be aware of the fact that they have been discriminated against in counselors’ decisions about AP placement or in teachers’ assessments of their work through grades. Even though studies show that students are good at perceiving teachers’ expectations,¹⁸¹ a student of color, including one who sensed such negative expectations, would have difficulty individually proving such discrimination or, more pointedly, would find it difficult to discuss such effects of racism in an essay in a way that would help them, rather than harm them, during the admissions process.

Moreover, Chief Justice Roberts failed to appreciate that Black and Latinx students may not know what discrimination they have encountered in life in part because their parents or guardians were likely the ones fighting those very battles with the students’ schools or with local officials in their neighborhoods but did not tell their children about those instances of racism.¹⁸² As Justice Sotomayor explained in her dissent, parents of Black children, for example, are often forced to involuntarily diminish their children’s childhood by engaging in discussions like “The Talk”¹⁸³ with them in order to increase their chances of survival in the event of police encounters, which are more likely to occur for them solely because they are Black.¹⁸⁴ Caretakers of Black and Latinx children must have many discussions about race and racism with their children just to ensure their very survival or sense of being. As the parents and guardians of students of color know, however, those discussions, which must be done out of necessity, take their toll. They transmit burdens that white children do not have to bear. Understandably, caretakers for Black and Latinx children are slow to disrupt childhood for the children in their care by further burdening their children with additional knowledge about the ways they have encountered daily obstacles because of race.

Finally, what the Chief Justice failed to appreciate is that high school students are not learned scholars about race, racism, discrimination, and all the complexities thereof simply by virtue of their being people of color. One can see how difficult it can be to understand the complexities of race given how Justice Gorsuch struggled to understand race as a social construct.¹⁸⁵ Yet, the Chief Justice’s effort to restrict reviewers’ ability to see and understand applicants as full human beings in any place but their essays places a special burden on students of color to be specialists in a field about which professors spend years developing scholarly expertise. It also essentially restricts the topics about which candidates of color must write if they want to ensure that reviewers will understand all of who they are, just as white applicants are understood.

2. Race-ing by Name. — Furthermore, even if admissions-file reviewers cannot directly see the box that an applicant checked to identify their race, race will likely nevertheless inform the evaluation process in both conscious and nonconscious ways. People, in trying to understand who other individuals are, even before they ever “see”¹⁸⁶ those individuals, work to determine the various different social cues that they may use as mental shortcuts to make judgments about those people.¹⁸⁷ One of the cues that individuals routinely use to assess others and their being is the race or the perceived race of other individuals.¹⁸⁸

As this author and Professor Mario Barnes detail in the article By Any Other Name?: On Being “Regarded as” Black, And Why Title VII Should Apply Even if Lakisha and Jamal Are White, among the many cues that people use to try to determine someone’s race, and thus assess something about them based on that cue, is the very first thing that an admissions officer might see on an application: name — first, last, and middle.¹⁸⁹ Although race is most commonly viewed as being defined by morphological features, such as skin color or eye shape, racial formation, as Professors Michael Omi and Howard Winant make clear, is a “s­ocio­historical process by which [race is] created, lived out, transformed, and destroyed” by social, historical, and political forces, which in turn create social meaning or meanings that are attached to different racialized groups.¹⁹⁰ As many scholars have demonstrated, those social meanings have material consequences for how people are treated and how goods are distributed, including in terms of how people are viewed regarding intelligence, belonging, and fit within an institution of higher education.¹⁹¹

Indeed, research has repeatedly shown that the negative meanings that have attached to Blackness in our society are likely to be imposed on people who have an “African American-sounding” name like Lakisha or Jamal.¹⁹² For example, in a well-known study entitled Are Emily and Greg More Employable than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination, economists Marianne Bertrand and Sendhil Mullainathan uncovered differential treatment of fictitious job applicants based on race, and specifically, based on whether the individuals had an “African American–sounding name” or “White-sounding name.”¹⁹³ To reach these findings, the two researchers conducted a field experiment that involved sending nearly 5,000 resumes to employers in response to more than 1,300 help-wanted advertisements in Boston, Massachusetts, and Chicago, Illinois.¹⁹⁴ Half of these resumes were randomly assigned “very White-sounding names (such as Emily Walsh or Greg Baker),” while the other half were randomly assigned “very African-American-sounding names (such as Lakisha Washington or Jamal Jones).”¹⁹⁵

Overall, Bertrand and Mullainathan found significant racial dif­ferences in the callback rates for jobs. Specifically, they found a fifty-percent difference between callback rates for applicants with white-sounding names and African American–sounding names, suggesting that applicants with white-sounding names may need to send approximately ten resumes to get one callback while candidates with Black-sounding names may need to send approximately fifteen resumes to get just one callback.¹⁹⁶ Measured another way, based on their finding that one additional year of labor market experience increases the likelihood of a callback by 0.4%, the return rate for a white-sounding name was equivalent to about eight additional years of work experience.¹⁹⁷ Importantly, they found that the “racial gaps in callback [we]re statistically indistinguishable across all the occupation and industry categories covered in the experiment.”¹⁹⁸

Bertrand and Mullainathan further found that the gap between those with white-sounding and Black-sounding names widened with resume quality, with higher-quality resumes having a smaller effect for Africans Americans in terms of receiving callbacks than they did for white applicants.¹⁹⁹

Other scholars have reached similar findings in their studies of the associations made between racial identity and name.²⁰⁰ For example, scholars Charles Crabtree, S. Michael Gaddis, John B. Holbein, and Edvard Nergård Larsen conducted five different studies of 11,530 respondents’ perceptions based on 1,000 different combinations of racialized first and last names among white, Black, Asian American or Pacific Islander, and Hispanic people with findings that offer support for Bertrand and Mullainathan’s work on race.²⁰¹ Specifically, in four of their studies, the researchers found that “respondents perceive educational attainment, income, and social class from names in a racially tiered pattern: White and Asian people are perceived at the top of the social class hierarchy, followed by Black people and then Hispanic people.”²⁰² They further found, in their fifth study, that even when they presented respondents “with an explicit signal of educational attainment, respondents perceived individuals with names commonly used by Black people as of a lower social class than individuals with names commonly used by White people.”²⁰³

Another study by Gaddis and Professor Raj Ghoshal revealed discrimination on the housing market by millennials,²⁰⁴ the second-most racially diverse generation in the United States — second only to Generation Z²⁰⁵ — and a generation that has been labeled as more racially open-minded and inclusive than previous generations.²⁰⁶ In this study, the two researchers sent over 4,000 inquiries to over 1,500 Craigslist advertisements from millennials who were seeking roommates in the Boston, Chicago, and Philadelphia metropolitan areas to test whether response rates would vary based on names that signaled either an Asian, Black, Hispanic, or white racial background as well as immigrant generational status or perceived assimilation.²⁰⁷ Each of their inquiries included the same information for the prospective roomseekers on job and college-degree status — that the prospective seekers were college-educated and employed full-time.²⁰⁸ Ultimately, their results uncovered a tiered pattern of discrimination, with white roomseekers faring the best in terms of response ratios when compared to Blacks and to Asian and Hispanic individuals with both first names and last names that are Asian-sounding or Hispanic-sounding, respectively.²⁰⁹ Indeed, individuals with a perceived South Asian Indian background received approximately eighty-three responses for every 100 responses that a white roomseeker received (0.83), while the response ratio was 0.76 for individuals with a Chinese background, 0.74 for Hispanic individuals, and 0.63 for Black individuals.²¹⁰ As Gaddis and Ghoshal explain, these responses indicated that “a Black room-seeker would need to send about [fifty] percent more inquiries to receive the same number of responses as a White room-seeker.”²¹¹ Although inquiries from Asian or Hispanic roomseekers with Americanized first names but Asian-sounding and Hispanic-sounding last names, respectively, did not have a statistically significant lower response rate than those inquiries from Whites, the study still showed discrimination against those who were perceived as being less assimilated within those racial groups.²¹² Critically, Black roomseekers, who were generally perceived by respondents to be American, fared the worst of all the groups.²¹³

Given the plethora of studies that reveal associational links that people frequently make between name and racial identity and the negative judgments they make from those associations, Chief Justice Roberts is absolutely wrong in his presumption that race, and racial stereotyping, would disappear from the admissions evaluation process simply because an applicant’s checked racial-identification box was unknown to the readers. Contrary to what the Chief Justice thinks as a result of viewing race through the transparency phenomenon, race is everywhere. Admissions-file reviewers, just like the respondents in these studies — indeed, all of us — are likely to read race into different people’s applications simply based on name alone. No doubt, based on name alone, Karen Walsh is likely to be presumed white, while Kwame Jackson is likely to be viewed as Black. Similarly, Jorge Gonzalez is likely to be seen as Latinx just as Jiyeon Kim is likely to be identified as Asian American.

Without direct action that explicitly acknowledges race and takes it into account, admissions officers are just as susceptible to acting on harmful racial biases based on names against those from more commonly negatively stereotyped racial groups. As many researchers have noted, implicit biases often result in conduct that does not align with an individual’s explicitly expressed or avowed beliefs; for example, it is not uncommon for individuals who sincerely profess a belief in the equality of all people and claim to have no racial prejudice to then act in nonconscious, racially discriminatory ways against outgroup members.²¹⁴ As scholar Nicole Negowetti has explained, implicit biases “are automatic, unconscious mental processes” that “are rooted in the basic way in which humans understand the complex flood of information from the world” — through “schemas” that allow an individual to make judgments about or understand new people, circumstances, things, and more “by using an existing framework of stored knowledge based on prior experiences” or lessons.²¹⁵ Stereotypes, in particular, are difficult to change in people’s subconsciouses because people “give more consideration to information that is consonant with a stereotype and give less credence to information that is stereotype-inconsistent.”²¹⁶ Indeed, years of results from the Implicit Association Test by Professors Mahzarin Banaji, Anthony Greenwald, and Brian Nosek demonstrate systemic existence of implicit racial biases, with racial bias against Black people showing up in approximately seventy to seventy-five percent of all individuals who take the test in the United States.²¹⁷

In this case, given what is known about how individuals may read race into names and, more so, about the negative associations that individuals may make when evaluating people with names that invoke thoughts of Black identity and to a lesser extent Latinx identity, there is great reason to fear what racial stereotypes and negative associations may be activated when admissions officers simply see a name on the file unless direct action is taken to combat such biases. As social science research on priming — meaning the act of exposing participants to one stimulus to see how that exposure influences their response to subsequent stimuli — has taught us, “stereotypes are activated easily, automatically, and often unconsciously.”²¹⁸ Furthermore, research shows that “once people have been primed, it [can] affect[] the way they make decisions in racially stereotyped ways.”²¹⁹ We know that it “is extremely difficult for [an] individual to deviate from what [a particular event scheme or] script has taught her about the world because the outcome suggested by the script will seem to be a natural result of precedent events.”²²⁰ Critically, as section III.B reveals, one of the best ways to combat such biases is to make race salient, meaning to make known the possibility of racial prejudice in a scenario so the actors can work to correct for their implicit and explicit biases.²²¹

3. Ignoring the Race to the Top by Legacy and Other Applicants. — Finally, although Justice Gorsuch mentioned it in his concurrence,²²² Chief Justice Roberts failed to even acknowledge in the majority opinion how race will very much continue to needle its way into a purportedly non-race-conscious admissions process through processes such as favorable “tips”²²³ for athletes; legacy applicants; applicants on the Dean’s Interest List, who are primarily connected to major donors; and the children of faculty or staff (ALDCs). As Justice Sotomayor highlighted in her dissent, these applicants are admitted to Harvard at a disproportionately high rate.²²⁴ Although ALDCs comprise only 5% of the applicants to Harvard, they constitute approximately 30% — six times their representation in the entire pool — of the students who are admitted to Harvard.²²⁵ The pool of ALDC applicants at Harvard is around 67.8% white compared to only 11.4% Asian American, 6% Black, and 5.6% Latinx, while the pool of non-ALDC applicants is 40.3% white, 28.3% Asian American, 11% Black, and 12.6% Latinx.²²⁶

Even the one group from the ALDCs that many people might assume would include a significant percentage of people of color — athletes — is an overwhelmingly white group.²²⁷ The overwhelming whiteness of the group is in part due to the types of varsity sports offered at Harvard and UNC. For example, varsity sports at Harvard include baseball, basketball, crew, cross-country, fencing, field hockey, football, golf, ice hockey, lacrosse, rugby, sailing, soccer, skiing, softball, squash, swimming and diving, tennis, track and field, volleyball, water polo, and wrestling.²²⁸ Overall, National Collegiate Athletic Association (NCAA) statistics reveal that, as of 2022, the majority of college athletes are white,²²⁹ with Whites constituting 55% of all NCAA Division I athletes while Blacks constitute 20%, Latinxs comprise 6%, and Asian Americans comprise 2% of all NCAA Division 1 athletes.²³⁰ Indeed, many collegiate varsity sports skew significantly white, in spite of a few high-profile exceptions. For example, although sports like basketball (approximately 38% white versus 44% Black for men and approximately 50% white versus 30% Black for women), football (approximately 44% white versus 40% Black), and track and field (approximately 60% white versus 20% Black for men and women) tend to have meaningful percentages of Black players in the United States,²³¹ other sports offered by Harvard, such as skiing and ice hockey, tend to be played by an overwhelmingly white population. For instance, the NCAA Demographics Database reveals that, in 2022, men’s ice hockey was 75% white, 1% Black, and 24% other, with no specification of race or ethnicity for other racial groups, and women’s ice hockey was 76% white, 1% Black, and 23% other.²³² Similarly, in lacrosse, which has grown by more than 50% at the college level in the last decade,²³³ 83% of players in men’s lacrosse were white while only 4% were Black and 13% fell in the Other category in 2022, and 83% of players in women’s lacrosse were white while only 3% were Black players and 14% fell in the Other category.²³⁴

Even for sports like soccer and baseball that are popular worldwide and played by what many would consider racially diverse groups of people in the United States,²³⁵ Whites overwhelmingly comprise the pool of these NCAA athletes, with both white men and women comprising 62% of the soccer athlete population in the United States while Black men and women make up only 6% of the same group and with white men and women comprising 78% and 73% of the baseball and softball populations, respectively, compared to Black men and women who respectively comprise just 5% and 6% of them.²³⁶

Furthermore, while Justice Thomas chastised Justice Jackson for speaking about racial wealth disparities,²³⁷ which continue to play a significant role in competition for admission to selective colleges and universities,²³⁸ neither he nor any of the other Justices in the majority can deny that such wealth disparities, disparities very much rooted in our nation’s past history of discrimination (from enslavement to the post–Civil Rights era),²³⁹ also play a critical role in who can give donations that are significant enough to an institution to obtain placement on the interest lists of deans. Indeed, at Harvard, Whites make up nearly 70% of donor-related applicants.²⁴⁰ During the period from 2014 to 2019, these specific applicants at Harvard were seven times more likely to be admitted to the prestigious institution than applicants without any relationship to a donor.²⁴¹

As Justices Sotomayor and Jackson highlighted in their dissents, legacies themselves are an overwhelmingly white group.²⁴² Again, at Harvard, Whites comprise 70% of the legacy applicant pool,²⁴³ a pool in which membership affords numerous admissions advantages. For instance, legacy applicants are not only twenty times more likely to be interviewed by an admissions officer from the University than nonlegacy applicants, most of whom are interviewed by alumni;²⁴⁴ but they also are significantly more likely to gain admission to Harvard.²⁴⁵ Indeed, during the period from 2014 to 2019, Harvard’s admissions rate for nonlegacies was approximately 6%, but the rate of admission for legacies was about 34%.²⁴⁶

B. Making Race Salient: Why Race Consciousness Is the Best Means for Reducing the Effects of Bias

Ignoring race will not equalize a society that is racially unequal. What was true in the 1860s, and again in 1954, is true today: Equality requires acknowledgment of inequality.

— Justice Sotomayor²⁴⁷

Following section III.A, which shows how race can find its way into admissions processes even when a candidate’s racial-identification box is not made known to admissions reviewers, this section, III.B, shows exactly why racial saliency is so critical to ensuring fairness in admissions processes. To do so, it highlights research regarding two of the most effective methods for combatting implicit racial bias: racial salience and the facilitation of a counterstereotypic community. Specifically, section III.B describes research showing that making race salient, rather than ignoring race, is the best way for individuals — in this case, admissions reviewers — to overcome any nonconscious biases they may have against members of different racial groups and, critically, to counteract any implicit racial biases that already may have negatively affected important parts of the applications of Black and Latinx students. In so doing, section III.B also notes how racial salience — such as making reviewers aware of potential racial bias in the alumni-interview process and in the recommendation component of applications — would also decrease the likelihood of any implicit racial biases occurring in this manner against Asian Americans.

One of the harms of Chief Justice Roberts’s incorrect assumption that SFFA will remove racial considerations from the admissions process (except from applicants’ essays) is that it is in direct tension with the means through which negative implicit racial bias might be most effectively counteracted and reduced: making race salient in an evaluative process.²⁴⁸ Racial salience is not simply the fact of knowing someone’s race, but knowing that race is a central issue, one that could result in bias being applied in judgments.²⁴⁹ Although performed in a courtroom context instead of an admissions context, research in social psychology suggests that racial salience tends to attenuate the potentially stereotypic influence of an individual’s race in white decisionmakers’ judgments.²⁵⁰

For example, in a study of Black and white mock jurors for trials involving a packet of trial summaries where half involved an interracial crime with either a Black or white defendant, psychologists Samuel Sommers and Phoebe Ellsworth found that white jurors were more likely to rate the Black defendant as more guilty, aggressive, and violent than the white defendant in interracial cases where race was not made salient, meaning when white people were not “reminded of the possibility of racial prejudice in an interaction.”²⁵¹ However, when racial norms were made salient for white jurors, the jurors exhibited no differences in their judgments between the white and Black defendants.²⁵² Sommers and Ellsworth explained that, because of the shift of most white Americans from “‘old-fashioned’ or ‘red-necked’ racism to a less overt form of prejudice, one that exemplifies the conflict between an egalitarian value system and unacknowledged negative beliefs about Blacks,” Whites will “work to inhibit their own racial biases” if they are made salient to them, but “if [Whites] are not reminded [about the salience of race], they might not notice, and their biases will often be expressed.”²⁵³

Similarly, research shows that making race salient — here, exposing potential implicit racial biases — can play a role in decreasing harmful impacts caused by implicit racial biases rooted in stereotypes.²⁵⁴ For example, in one study, researchers simulated an online chat during which participants were asked to provide their impressions about several pictures and statements that were designed to invoke some racial stereotypes.²⁵⁵ Once participants reacted to the images, an experimenter pretending to be another participant directly questioned the participants’ stereotypic and potentially racist responses.²⁵⁶ After race had been made salient, the participants took another test measuring their stereotypic responses to similar images and sentences, but this time without a collaborator purposefully placed in their presence to raise questions about their responses; thereafter, they were given a confidential stereotype test.²⁵⁷ The researchers found that those participants who had encountered statements that highlighted their stereotype-consistent responses were less likely to make stereotypic responses than those who had not been so confronted.²⁵⁸

Yet, SFFA makes it unlikely that racial salience will be used as a means of continually reducing implicit racial biases of admissions reviewers. Indeed, throughout SFFA, the Chief Justice assumed that the centrality of race in a person’s life should be limited to only one part of the application process: the review of essays,²⁵⁹ even though race itself is salient for so many people of color throughout aspects of their daily lives that cannot be captured in the limited space of an admissions essay but that do impact other aspects of a person’s application. Again, as Justice Jackson proclaimed in her dissent, “deeming race irrelevant in law does not make it so in life.”²⁶⁰ It only makes it difficult for those who are making admissions decisions to acknowledge and counter their own implicit biases in ways that may counteract and make up for such discrimination. Making race salient is not only important for combatting biases that Black and Latinx students may face during the admissions process, but also could be critical to addressing the biases that the complaints in these affirmative action cases argued had occurred against Asian Americans through aspects like alumni interviews. Here again, it would be race consciousness and awareness of how racism and bias might be invisibly operating to the disadvantage of a person of color that could stimulate action to correct for any biases.

The majority’s decision in SFFA has even broader implications for our society in the fight to reduce and, ultimately, eliminate racial bias and harm against people of color. The other means by which implicit racial bias might be temporarily reduced is through the facilitation of a more counterstereotypic community. Research has shown, for example, that exposing people to more individuals who contradict widely held stereotypes about particular racial groups helps to temporarily reduce implicit biases.²⁶¹ Again, however, SFFA makes it unlikely that this approach can be utilized to reduce implicit racial bias. As Justices Sotomayor and Jackson predicted in their dissents, SFFA increases the chances that racial and ethnic diversity at selective colleges and universities nationwide will decrease, thereby “reserving ‘positions of influence, affluence, and prestige in America’ for a predominantly white pool of college graduates.”²⁶² Because racial diversity on campuses with selective admissions is likely to decrease as a result of SFFA, white students on such campuses are less likely to encounter significant numbers of counterstereotypic peers in their classrooms and activities, thus resulting in less regular disruption to their commonly held implicit racial biases and to their ways of understanding the world.

The final way to reduce and, in fact, eliminate implicit bias is through “a sustained process of cultural change.”²⁶³ Such cultural change, however, cannot occur without a richly diverse community. As school leaders, administrators, and educators know far too well, “[r]acial and class-based isolation prevents the hearing of diverse stories and counterstories” and keeps people, particularly those whose positionality allows them to remain oblivious to race and racism, from overcoming “the unthinking conviction that [their] way of seeing the world is the only one — that the way things are is inevitable, natural, just, and best.”²⁶⁴

Conclusion

I put myself back in the narrative . . . .

— Elizabeth “Eliza” Schuyler Hamilton (as imagined by Lin-Manuel Miranda)²⁶⁵

In the musical Hamilton, playwright Lin-Manuel Miranda ends his narrative about Alexander Hamilton with the song “Who Lives, Who Dies, Who Tells Your Story.”²⁶⁶ Among the many teachings in this song is the lesson that those who may find themselves on the outside looking in often have very little control over how their story, their narrative, is remembered and told, particularly after death. Only those who survive long enough and are empowered with voice truly have the opportunity to shape how their histories and narratives are told and remembered — that is, unless someone else close to them who survived longer and had access to the tools for telling and disseminating stories later chose to take on the task of relaying their narratives.

In Hamilton, the story of Alexander Hamilton, though not as celebrated as the stories of Founding Fathers like Thomas Jefferson, gains prominence on the national stage in part because of the work of his wife, Eliza, who puts herself “back in the narrative,” stops “wasting time on tears,” uses her additional fifty years of time to tell her husband’s tale, and relies on allies like her sister to push forward both Alexander Hamilton’s and her story.²⁶⁷ Although it took more than 150 years after Eliza Hamilton’s death in 1854 before Ron Chernow’s book Alexander Hamilton²⁶⁸ would inspire Miranda’s masterpiece²⁶⁹ and Miranda’s play would make Alexander Hamilton’s life and narrative more of a household story, audience members are able to catch a glimpse of the power of putting oneself back into the narrative through Eliza’s, Chernow’s, and Miranda’s work.

At the same time, Hamilton, like many other narratives, left key stories untold.²⁷⁰ Indeed, critics lamented the play’s failure to even grapple with its hero’s more complicated connections to the enslavement of Black people, whether they were through his in-laws or his mentor, President George Washington, all of whom owned enslaved people.²⁷¹ Critics also decried the play’s embellished portrayal of Hamilton as an abolitionist.²⁷² Others argued that the play Hamilton “use[d] the talents, bodies, and voices of [B]lack artists to mask an erasure of people of color from the actual story of the American Revolution.”²⁷³ In fact, some bemoaned the exclusion of people of color from Hamilton’s overall story about the nation’s founding and revolt against England and wondered why their stories could not have also been centered in this narrative of beginnings.²⁷⁴ In this sense, one can see through Hamilton the ways in which the lives of people of color, particularly Black people, have been disregarded, unacknowledged, and set aside to offer a new optimistic story that does not include them.²⁷⁵ In SFFA, Chief Justice Roberts did just that: he offered a revisionist and whitewashed narrative about a colorblind Constitution, country, and Court that did not and does not at all comport with the lived realities of people of color in this nation. In fact, he did worse. He offered the type of single story about Black and Latinx people that author Chimamanda Ngozi Adichie has warned against. As Adichie so eloquently explained in her TED talk, by creating a single story about Black and Latinx people — by “show[ing] [Black and Latinx students] as one thing, as only one thing, over and over again,”²⁷⁶ Chief Justice Roberts is helping to transform that story into the definitive story of Black and Latinx people in the eyes of all who have accepted and embraced his narrative in SFFA. Ironically, in all his talk about how affirmative action legitimates stereotypes, the Chief Justice has helped to reify them. As Adichie explained: “The single story creates stereotypes, and the problem with stereotypes is not that they are untrue, but that they are incomplete. They make one story become the only story.”²⁷⁷ For this reason, for many, SFFA signified an erasure of many nonwhite stories in the future.²⁷⁸

Yet, such an erasure is not inevitable. For instance, just as Hamilton disappointed some of its audiences, it also offered joy and hope for possibilities of greater inclusion for different voices and stories.²⁷⁹ Indeed, one of the most inspiring aspects of Hamilton is how Miranda was able to push his audiences to explore and even reimagine future possibilities. To look at and hear old stories from long-ignored faces and bodies in the present. To take in old voices through new mouths, words, and rhythms in the play. Indeed, Miranda, a playwright of color, used narrative devices created by Black people, hip hop and rap, and assembled a cast of nearly all people of color, to share a story of a white widow, Eliza, and her white-Caribbean husband in ways that highlighted the longstanding and consistent contributions of immigrant communities and that aligned with contemporary movements like those against racialized police profiling and brutality and anti-immigrant sentiments and actions.²⁸⁰

Similarly, just as SFFA may work to stifle diversity at some institutions and silence certain voices of color, it also offers a powerful reminder, especially through the voices of Justices Sotomayor and Jackson, but also subtly in the majority opinion, of the need for outsiders to persist in telling the nation’s complete histories and their own narratives. As Delgado once proclaimed, “stories and counterstories can serve an equally important destructive function. . . . They can help us understand when it is time to reallocate power,”²⁸¹ and they can “attack” the “complacency” that comes from “comforting stories” and can help to deconstruct harmful stock stories.²⁸² Despite its deep misunderstanding of racism and its revisions of history and reality, Chief Justice Roberts’s opinion in SFFA explicitly instructed people of color to share stories about race and racism in their lives, stories that have the power to disrupt and contest stock stories that have long centered whiteness and that can pull the narrativity of law out from “under erasure.”²⁸³ As such stories are told, the narrators of these accounts and reports must, like narratology does, pay attention to the various parts of their narratives, considering and understanding how their narratives can and should combine in a plot to convey particular meanings and implications, and must share collective stories in ways that line up with their lived realities, as opposed to the “formalize[d] conditions of telling” that the Chief Justice offered through his imagined world in SFFA.²⁸⁴ After all, as Brooks proclaimed, narratives do more than simply detail the events that have occurred; they “give them a point, argue their import, proclaim their results.”²⁸⁵ In short, students, faculty, staff, and administrators who value diversity, inclusion, equity, and belonging must reinsert themselves back into these narratives, sharing their own and others’ compelling life stories, boldly and unabashedly, in admissions essays, in classrooms, in media interviews, in courtrooms, plus more, to create a record that can and will continually work to reshape the dominant narratives of exclusion and that will continue to reshape the perspectives and lessons of those who are listening and reading.

Similarly, even as students’ checked racial-identification boxes become suppressed in admissions processes, institutions must make efforts to make race, and the realities of racism, salient for decisionmakers in their communities, particularly for those who have lived their lives operating under the transparency phenomenon. Only with that type of consciousness, and the corrective actions that tend to follow from it, will we truly move towards achieving equality.

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* Dean and Ryan Roth Gallo & Ernest J. Gallo Professor of Law, Boston University School of Law (B.U. Law).  Special thanks goes to my husband, Jacob Willig-Onwuachi, and our children, Elijah, Bethany, and Solomon, for their constant love and support.  Many thanks to all of the Harvard Law Review editors for their hard work on this piece.  Additional thanks go to Professor Osamudia James and to my B.U. Law colleagues Jessica Silbey, David Seipp, Anna di Robilant, Ellen Frentzen, Jasmine Gonzales Rose, Nicole Huberfeld, Keith Hylton, Adam Krueckeberg, Gary Lawson, Alissa Leonard, Steve Marks, Nancy Moore, Ngozi Okidegbe, Portia Pedro, Danielle Pelfrey Duryea, Karen “KPL” Pita Loor, Ben Pyle, Victoria Sahani, Sarah Sherman-Stokes, Kate Silbaugh, Jed Handelsman Shugerman, Ted Sims, David Webber, Ron Wheeler, and Lisa Freudenheim for their feedback and insights and to Jack Beermann and Scott Hirst for including me in a last-minute workshop.  I also offer my thanks to former Provost Jean Morrison and Interim Provost Ken Lutchen for their research support.  This Comment is dedicated to Provost Jean Morrison, whose example of leadership and mentorship has taught me much about how to lead with “courage and determination.”  Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141, 2176 (2023).

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