[ Race, by definition, has never been neutral.]
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‘RACE NEUTRAL’ IS THE NEW ‘SEPARATE BUT EQUAL’  
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Uma Mazyck Jayakumar and Ibram X. Kendi
June 29, 2023
The Atlantic
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_ Race, by definition, has never been neutral. _

, Illustration by Ben Kothe / The Atlantic

 

On the first day of class in the fall of 1924, Martha Lum walked into
the Rosedale Consolidated School. The mission-style building had been
built three years earlier for white students in Rosedale, Mississippi.

Martha was not a new student. This 9-year-old had attended the public
school the previous year. But that was before Congress passed the
Immigration Act of 1924, banning immigrants from Asia and inciting
ever more anti-Asian racism inside the United States.

At the time, African Americans were fleeing the virulent racism of the
Mississippi Delta in the Great Migration north and west. To replace
them, white landowners were recruiting Chinese immigrants like
Martha’s father, Gong Lum. But instead of picking cotton, many
Chinese immigrants, like Gong and his wife, Katherine, opened
up grocery stores
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usually in Black neighborhoods, after being shut out of white
neighborhoods.

At noon recess, Martha had a visitor. The school superintendent
notified her that she had to leave the public school her family’s
tax dollars supported, because “she was of Chinese descent, and not
a member of the white or Caucasian race.” Martha was told she had to
go to the district’s all-Black public school, which had older
infrastructure and textbooks, comparatively
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classrooms, and lower-paid teachers.

Gong Lum sued, appealing to the Fourteenth Amendment’s
equal-protection clause. The case went all the way to the U.S. Supreme
Court. All nine justices ruled in favor of school segregation, citing
the “separate but equal” doctrine from 1896’s _Plessy v.
Ferguson_ decision.

“A child of Chinese blood, born in and a citizen of the United
States, is not denied the equal protection of the law by being classed
by the state among the colored races who are assigned to public
schools separate from those provided for the whites when equal
facilities for education are afforded to both classes,” the
Court summarized
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v. Rice_ on November 21, 1927.

A century from now, scholars of racism will look back at today’s
Supreme Court decision on affirmative action the way we now look back
at _Gong Lum v. Rice_—as a judicial decision based in legal
fantasy. Then, the fantasy was that separate facilities for education
afforded to the races were equal and that actions to desegregate them
were unnecessary, if not harmful. Today, the fantasy is that regular
college-admissions metrics are race-neutral and that affirmative
action is unnecessary, if not harmful.

The Supreme Court has effectively outlawed affirmative action using
two court cases brought on by Students for Fair Admissions (SFFA)
against Harvard University and the University of North Carolina at
Chapel Hill. Organized by a legal strategist named Edward Blum
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SFFA filed suit on behalf of Asian American applicants to Harvard as
well as white and Asian applicants to UNC to claim
that _their_ equal-protection rights were violated by affirmative
action. Asian and white Americans are overrepresented
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the student body at selective private and public
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and universities that are well funded and have high graduation rates,
but _they_ are the victims?

This is indicative of a larger fantasy percolating throughout society:
that white Americans, who, on average, stand at the more advantageous
end
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nearly every racial inequity, are the primary victims
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racism. This fantasy is fueling
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of Donald Trump and Ron DeSantis. Americans who oppose affirmative
action have been misled into believing that the regular admissions
metrics are fair for everyone—and that affirmative action is unfair
for white and Asian American applicants.

It is a fantasy that race is considered as an admissions factor only
through affirmative action. But the Court endorsed SFFA’s call for
“race neutral” admissions in higher education—effectively
prohibiting a _minor_
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metric such as affirmative action, which closes
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inequities in college admissions, while effectively permitting
the _major_ admissions metrics that have long led to racial
inequities in college admissions. Against all evidence to the
contrary, the Court claimed
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“Race-neutral policies may thus achieve the same benefits of racial
harmony and equality without … affirmative action policies.” The
result of the Court’s decision: a normality of racial inequity.
Again.

This is what the Court considers to be fair admissions for students,
because the judges consider the major admissions metrics to be
“race-neutral”—just as a century ago, the Court considered
Mississippi public schools to be “separate but equal.”

Chief Justice John Roberts, in his majority opinion
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recognized “the inherent folly of that approach” but doesn’t
recognize the inherent folly of his “race neutral” approach.

History repeats sometimes without rhyming. “Race neutral” is the
new “separate but equal.”

The Court today claimed
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“Twenty years have passed since Grutter, with no end to race- based
college admissions in sight.” In actuality, twenty years have
passed, with no end to racial inequity in sight.

Black, Latino, and Indigenous students continue to
be underrepresented
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selective public universities. After affirmative action was outlawed
at public universities in California and Michigan in the 1990s, Black
enrollment at the most selective schools dropped roughly 50 percent
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in some years approaching early-1970s numbers
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This lack of diversity harms both students of color
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students
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In its reply brief
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the UNC case, SFFA argued that the University of California system
enrolls “more underrepresented minorities today than they did under
racial preferences,” referencing the increase of Latino students at
UC campuses from 1997 to 2019
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But accounting for the increase in Latino students graduating from
high school, those gains should be even larger
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There’s a 23-point difference
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the percentage of high-school graduates in California who are Latino
and the percentage of those enrolled in the UC system.

Declines in racial representation and associated harms extend to
graduate and professional programs
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The UC system produced more Black and Latino medical doctors
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average in the two decades before affirmative action was banned, and
dropped well below the national average in the two decades after.

Underrepresentation of Black, Latino, and Indigenous students at the
most coveted universities isn’t a new phenomenon, it isn’t a
coincidence, and it isn’t because there is something deficient about
those students or their parents or their cultures. Admissions metrics
both historically and currently value qualities that say more about
access to inherited resources and wealth— computers and counselors,
coaches and tutors, college preparatory courses
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test prep—than they do about students’ potential. And gaping
racial inequities persist in access
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each of those elements—as gaping as funding for those so-called
equal schools in the segregated Mississippi Delta a century ago.

So what about class? Class-based or income-based interventions
disproportionately help white students _too,_ because their
family’s low income is least likely to extend to their community and
schools. Which is to say that low-income white Americans are far and
away _less_ likely
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low-income Black and Latino Americans to live in densely impoverished
neighborhoods and send their kids to poorly resourced public schools.
Researchers find
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80 percent of low-income Black people and 75 percent of low-income
Latino people reside in low-income communities, which tend to have
lesser-resourced schools, compared with less than 50 percent of
low-income white people. (Some Asian American ethnic groups are likely
to be concentrated in low-income communities, while others are not;
the data are not disaggregated to explore this.) Predominately white
school districts, on average, receive
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serving the same number of students of color.

When admissions metrics value SAT, ACT, or other standardized-test
scores, they predict not success
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college or graduate school, but the wealth or income
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the parents of the test takers. This affects applicants along racial
lines
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but in complex ways. Asian Americans, for example, have higher incomes
than African Americans on average
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but Asian Americans as a group have the highest
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inequality of any racial group. So standardized tests advantage more
affluent white Americans and Asian ethnic groups such as Chinese and
Indian Americans while disadvantaging Black Americans, Latino
Americans, Native Americans, and poorer Asian ethnic groups such as
Burmese and Hmong Americans. But standardized tests, like these other
admissions metrics, are “race neutral”?

Standardized tests mostly favor students with access to score-boosting
test prep. A multibillion-dollar
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and tutoring industry was built on this widespread understanding.
Companies that openly sell their ability to boost students’ scores
are concentrated
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immigrant and Asian American
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But some Asian American ethnic groups, having lower incomes, have less
access to high-priced test-prep courses.

Besides all of this, the tests themselves have racist
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Eugenicists introduced
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tests a century ago in the United States to prove the genetic
intellectual superiority of wealthy white Anglo-Saxon men. These
“experimental” tests would show “enormously significant racial
differences in general intelligence, differences which cannot be wiped
out by any scheme of mental culture,” the Stanford University
psychologist and eugenicist Lewis Terman wrote
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his 1916 book, _The Measurement of Intelligence_. Another eugenicist,
the Princeton University psychologist Carl C. Brigham, created the SAT
test in 1926. _SAT_ originally stood for “Scholastic Aptitude
Test,” aptitude meaning “natural ability to do something.”

Why are advocates spending millions to expand access to test prep when
a more effective and just move is to ban the use of standardized tests
in admissions? Such a ban would help not only Black, Native, and
Latino students but also low-income white and Asian American students.

Some selective colleges that went test-optional during the pandemic
welcomed some of their most racially and economically diverse classes
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after receiving more applications than normal from students of color.
For many students of color, standardized tests have been a barrier to
applying, even before being a barrier to acceptance. Then again, even
where colleges and universities, especially post-pandemic, have gone
test-optional, we can reasonably assume or suspect that students who
submit their scores are viewed more favorably
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When admissions committees at selective institutions value students
whose parents and grandparents attended that institution, this legacy
metric ends up giving preferential treatment to white
applicants. Almost 70 percent
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classes of 2014–19 at Harvard were white.

College athletes are mostly white and wealthy
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most collegiate sports require resources to play at a high level.
White college athletes make up 70 to 85 percent
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athletes in most non-revenue-generating sports (with the only
revenue-generating sports usually being men’s basketball and
football). And student athletes, even ones who are not gaming the
system, receive immense advantages in the admissions process
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thus giving white applicants yet another metric by which they are the
most likely to receive preferential treatment. Even Harvard explained
as part of its defense that athletes had an advantage in admissions
over nonathletes, which conferred a much greater advantage to white
students over Asian American students than any supposed disadvantage
that affirmative action might create. And white students benefit from
their relatives being more likely to have the wealth to make major
donations to highly selective institutions. And white students benefit
from their parents being overrepresented on the faculty
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colleges and universities. Relatives of donors and children of college
employees normally receive an admissions boost.

Putting this all together, one study found
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43 percent of white students admitted to Harvard were recruited
athletes, legacy students, the children of faculty and staff, or on
the dean’s interest list (as relatives of donors)—compared with
only 16 percent of Black, Latino, and Asian American students. About
75 percent of white admitted students “would have been rejected”
if they hadn’t been in those four categories, the study, published
by the National Bureau of Economic Research, found.

While private and public universities tout “diversity” recruitment
efforts, their standard recruitment strategies
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on high-income students who are predominantly white and Asian, at
highly resourced schools, positioned to have higher grade point
averages and test scores that raise college rankings. Public colleges
and universities facing declines in state and federal funding
actively recruit white and wealthy
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students who pay higher fees. At many institutions, including a UC
campus, “admission by exception,” a practice originally promoted
as a means of expanding opportunities for disadvantaged groups, has
been used
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enroll international students with the resources to pay U.S. tuition
fees.

Targeting international students of color to achieve greater diversity
on campus disadvantages American students of color. Targeting students
from families who can pay exorbitant out-of-state fees benefits white
families, who have, on average, 10 times the household net worth
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Black families.

Affirmative action attempted to compensate not just for these metrics
that give preferential treatment to white students, but also for the
legacy of racism in society. This legacy is so deep and wide that
affirmative action has rightly been criticized as a superficial,
Band-Aid solution. Still, it has been the only admissions policy that
pushes against the deep advantages that white Americans receive in the
other admissions metrics under the cover of “race neutral.”

If anti-affirmative-action litigants and judges were really supportive
of “race neutrality”—if they were really against “racial
preferences”—then they would be going after regular admissions
practices. But they are not, because the regular admissions metrics
benefit white and wealthy students.

Litigants and judges continue to use Asian Americans as political
footballs to maintain these racial preferences for white and wealthy
students. Particularly in the Harvard case, SFFA’s Edward Blum used
Asian plaintiffs to argue that affirmative action harms Asian American
applicants. No evidence
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such racist discrimination was found in the lower courts. According to
an amicus brief
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by 1,241 social scientists, the so-called race-neutral admissions
policy SFFA advocated for (which was just adopted by the highest
Court) would actually harm Asian American applicants. It denies Asian
American students the ability to express their full self in their
applications, including experiences with racism, which can
contextualize their academic achievements or struggles and counter
racist ideas. This is especially the case with Hmong and Cambodian
Americans, who have rates of poverty similar to or higher than those
of Black Americans. Pacific Islander Americans have a higher
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of poverty than the average American.

Pitting Asian and Black Americans against each other is an age-old
tactic. Martha Lum’s parents didn’t want to send their daughter to
a “colored” school, because they knew that more resources could be
found in the segregated white schools. Jim Crow in the Mississippi
Delta a century ago motivated the Lums to reinforce anti-Black
racism—just as some wealthy Asian American families bought into
Blum’s argument for “race neutral” admissions to protect their
own status. Yet “separate but equal” closed the school door on the
Lums. “Race neutral” is doing the same. Which is why 38 Asian
American organizations
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filed an amicus brief
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the Supreme Court in support of affirmative action at Harvard and UNC.

A century ago, around the time the Court stated that equal facilities
for education were being afforded to both races, Mississippi spent
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per white student compared with $8.86 per Black student in its
segregated schools. This racial inequity in funding existed in states
across the South: Alabama ($47.28 and $13.32), Florida ($61.29 and
$18.58), Georgia ($42.12 and $9.95), North Carolina ($50.26 and
$22.34), and South Carolina ($68.76 and $11.27). “Separate but
equal” was a legal fantasy, meant to uphold racist efforts to
maintain these racial inequities and strike down anti-racist efforts
to close them.

Homer Plessy had sued
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being kicked off the “whites only” train car in New Orleans in
1892. About four years later, the Court deployed
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“separate but equal” doctrine to work around the Fourteenth
Amendment’s equal-protection clause to defend the clearly unequal
train cars and the exclusion of Black Americans like Plessy from
better-equipped “whites only” cars. Later, the Court used the same
doctrine to exclude Asian Americans like Martha Lum from
better-equipped “whites only” schools.

The “separate but equal” doctrine was the Court’s stamp to
defend the structure of racism. Just as _Plessy v. Ferguson_’s
influence reached far beyond the railway industry more than a century
ago, the fantasy of “race neutral” alternatives to affirmative
action defends racism well beyond higher education. Evoking “race
neutrality,” Justice Clarence Thomas recently dissented
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the Supreme Court decision upholding a provision in the Voting Rights
Act of 1965 that prohibits racist gerrymandering.

Now that “racial neutrality” is the doctrine of the land, as
“separate but equal” was a century ago, we need a new legal
movement to expose its fantastical nature. It was nearly
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century ago that civil-rights activists in the NAACP and other
organizations were gearing up for a legal movement to expose the
fantasy of “separate but equal.” In this new legal movement,
defenders of affirmative action can no longer use the false framing of
affirmative action as “race conscious” and the regular admissions
metrics as “race neutral”—a framing that has been used at least
since the _Regents of the University of California v.
Bakke_ decision [[link removed]] in 1978,
which limited the use of affirmative
action. _Racist_ and _anti-racist_ is a more accurate framing than
“race neutral” and “race conscious.”

Affirmative-action policies are _anti-racist_ because they have been
proved to reduce racial inequities, while many of the regular
admissions metrics are _racist_ because they maintain racial
inequities. To frame policies as “race neutral” or “not
racist” or “race blind” because they don’t have racial
language—or because the policy makers deny a racist intent—is akin
to framing Jim Crow’s grandfather clauses and poll taxes and
literacy tests as “race neutral” and “not racist,” even as
these policies systematically disenfranchised
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Black voters. Then again, the Supreme Court allowed these Jim Crow
policies for decades on the basis that they were, to use today’s
term, “race neutral.” Voter-suppression policies today that target
Black, Latino, and Indigenous voters have been allowed by a Supreme
Court that deems them “race neutral
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lives in the guise of “racial neutrality.”

Everyone should know that the regular admission metrics are the racial
problem, not affirmative action. Everyone knew that racial separation
in New Orleans and later Rosedale, Mississippi, was not merely
separation; it was segregation. And segregation, by definition, cannot
be equal. Segregationist policies are racist policies. Racial
inequities proved that then.

The Court stated 
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today’s ruling, “By 1950, the inevitable truth of the Fourteenth
Amendment had thus begun to reemerge: Separate cannot be equal.” But
it still does not want to acknowledge another inevitable truth of the
Fourteenth Amendment that has emerged today: Race cannot be neutral.

Today, racial inequities prove that policies proclaimed to be “race
neutral” are hardly neutral. Race, by definition, has never
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neutral. In a multiracial United States with widespread racial
inequities in wealth
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and higher education, policies are not “race neutral.” Policies
either expand or close existing racial inequities in college
admissions and employment. The “race neutral” doctrine is
upholding racist efforts to maintain racial inequities and striking
down anti-racist efforts to close racial inequities.

Race, by definition, has never been blind. Even Justice John Harlan,
who proclaimed, “Our Constitution is color-blind” in his dissent
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v. Ferguson_, prefaced that with this declaration: “The white race
deems itself to be the dominant race in this country” and “it will
continue to be for all time, if it remains true to its great
heritage.”

In the actual world, the “color-blind” often see their color as
superior, as Harlan did. In the actual world, an equal-protection
clause in a constitution can be transfigured by legal fantasy yet
again to protect racial inequity.

“Separate but equal” then. “Race neutral” now.

_Uma Mazyck Jayakumar
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associate professor in the School of Education at the University of
California, Riverside.  Ibram X. Kendi
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writer at The Atlantic. He is the Andrew W. Mellon Professor in the
Humanities at Boston University and the founding director of the
university’s Center for Antiracist Research._

* affirmative action
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* Supreme Court Decision
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* fantasy
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