Affirmative action in college admissions is over.

That’s per a 2023 landmark decision  from the United States Supreme Court. In his concurring opinion, Justice Clarence  Thomas wrote that race-based admissions,   quote, “fly in the face of  our colorblind Constitution." This ruling overturned decades of laws and  policies put into place during the Civil   Rights movement that tried to repair  the harms of racial discrimination   in American life, and came to  be known as affirmative action.

As a professor, I think repairing  these harms and overcoming racial   discrimination in college admissions is essential. But is there a world in which  Justice Thomas is onto something? Is our Constitution colorblind?

And does that mean our laws should be? I'm Ellie Anderson, and this is  Crash Course Political Theory. [THEME MUSIC] I knew that affirmative action was  divisive. Folks on the right often   argue that laws should be race-neutral  in order to be fair, while those on the   left tend to argue for race-conscious  laws to balance the historical scales.

But what I didn’t know until I started  digging was that the seeds of this debate   can be traced all the way back to the  founding principles of our democracy. In episode 2, we introduced liberalism —  a political philosophy based on individual   rights. To be clear, this isn’t  about liberal or conservative   politics; it’s about the broader  concepts of freedom and liberty.

You know, the stuff we celebrate with fireworks  and hot dogs and bald eagle paraphernalia. Anyway, the philosopher John Locke was a  big influence on early American politics.   His idea of the social contract is baked  right into the Declaration of Independence. Basically, it says that liberalism relies  on a trade-off: the government protects   the people’s rights, and in return,  the people agree to be governed.

Bear with me, I’m getting  back to affirmative action. It turns out that this OG version  of American liberalism does rely,   much like Justice Thomas said, on what  political theorists call identity blindness. It suggests that rights for one protect rights  for all, so we don’t need to factor in social   identifiers like race, class, and gender.

It  assumes that we all start from the same place. But because the people who came up with liberalism  were 17th-century white guys, this version of   liberalism assumes we all start from that place.  To which, I’m gonna have to say: au contraire. Hold on, I’m gonna need a double for this one.

Much better. Let’s go. It turns out, I’m not the  first to object to this idea.

An author I often turn to, the British  political scientist Carole Pateman,   gave a major clapback. In her 1988 book  “The Sexual Contract,” Pateman points   out that the social contract  was created by men, for men. For women to have truly equal rights, she argued,   the social contract needed  a major feminist overhaul.

And in a similar spirit in 1997, Charles  Mills argued in “The Racial Contract” that   the white guys who created the social  contract weren’t talking about race   at all — because they assumed the  white perspective to be universal. This, he argued, was white supremacy right  there in America’s founding document. But that still doesn’t really  answer my question.

Who’s right? If the goal is to protect people’s rights,  does that require us to carefully consider   or to intentionally pay no mind to  race, gender, and other identities? And to be fair, some earlier philosophers  did think about these questions,   like John Stuart Mill back in 1859.

Well, sort of. I dug up his essay “On Liberty,” which says we  all have the fundamental right to be ourselves, to   forge our own path in life, so long as it doesn’t  interfere with others’ ability to do the same. He thought society would be better off if  people got to choose how to live according to   their own version of happiness, rather than making  everyone live the same version of “the good life.”

Think: funky thrift shop jacket  rather than mass-produced graphic tee. He called this right to explore “experiments  in living.” Sure, individuals are unique,   but by trying out different ways of living, we can  probably come up with some baselines for happiness  — things like having a roof over  your head or access to healthcare. But Mill was talking about  diversity of thought, behavior,   and lifestyle. He wasn’t talking about  how identity might be related to politics.

So, the question remained for me:  how is identity related to politics? Well, I can think about it in terms  of equal opportunity—we all want to   have the same chances of getting into  college, getting a job, buying a house. And we expect those decisions to be  made regardless of our race and gender,   how we feel about religion,   whether we’re disabled or non-disabled, and  so on.

And it’s equal opportunity laws that   theoretically put everyone on the same  playing field and squash threats of bias. But even with those laws in place, bias continues  to be an enormous problem in this country,   and this is where proponents  of identity politics come in. They say, hey, if inequality still exists  even when we try to avoid bias, maybe we   should stop turning away from identity  and start paying more attention to it.

Which—finally—brought me back to  affirmative action in college admissions. The civil rights movement of the 1960s  made discrimination based on race illegal,   so colleges started changing how they admitted  underrepresented students. Some schools,   like Harvard, took a holistic approach.

They considered race as one of many  factors in a person’s application. And they hired student recruiters to  visit high schools around the country and   encourage their peers to apply, especially  low-income and first-generation students. Other schools, like UC-Davis, put  a racial quota in place — they set   aside sixteen out of one hundred spots  for, quote, “qualified” minorities.

Neither of these approaches sounds perfect to me,   and that’s because they aren’t. Figuring  out how to codify fairness isn’t easy. But college admissions experts report that  when schools try to consider factors other   than race to boost their numbers  of students of color — things like   family income or GPA — nothing works as  well as when they take race into account.

Hold on. [ding] I think  I smell important documents. In 1963, before affirmative  action was signed into law,   only one percent of Harvard’s  student body was Black. Kinda feels like maybe there was some  systemic discrimination going on.

Almost sixty years later, Black students made  up over ten percent of Harvard’s class of 2022. And in case you’re wondering,   Black people accounted for about 14  percent of the U. S population that year.

Those in the identity politics camp would  argue that this growth wouldn’t have been   possible without race-conscious admissions.  And I should point out here that diversity in   student bodies doesn’t just benefit historically  underrepresented groups — research shows that   all students benefit from racial diversity on  campus, from academic achievement to preparing   for the workforce and even improving  intergroup relations down the road. But the people who disagree with Harvard’s  long-standing practice of race-conscious   admissions — and it was Harvard who got hauled to  the Supreme Court, along with the University of   North Carolina — point back to liberalism’s  identity-blindness to make their case. To take any identity factors into account,  they argue, is fundamentally unfair.

But fairness isn’t the only issue raised by  critics of identity politics. Some worry that   when you reduce complex people into a set of  simplified traits — what you’d call identity   essentialism — you risk misunderstanding  and maybe even stereotyping them. It’s like saying that everyone who  studies philosophy isn’t fun at parties. (I’ll have you know, I’m very fun at parties.  Especially when karaoke is involved.)  But the point is, in any group of people,  regardless of what they share in common,   you’ll find differences in their worldviews  and experiences, and even in how strongly   they identify with their group.

And  when you essentialize based on race,   well, that can start to look like racism. Other critics of identity politics worry that  when people focus too much on what makes them   different, they lose sight of the common  good. We should think about our “shared   destiny,” they argue, rather than divide  ourselves into various identity groups.

And still others warn that all this  focus on identity can stoke what   social scientists call tribalism,  where identity groups pull more   tightly together and become defensive  against those they consider outside. In practice, this sometimes  creates a sort of pendulum effect,   where progress for one group  triggers backlash from another. For example, when the Ku Klux Klan emerged  during the Reconstruction Era, it was largely   in response to Black Americans gaining  more rights after centuries of enslavement.

I think we can all agree that enslaved people  are not responsible for the rise of the KKK,   but this example shows that there’s a lot at stake,   whether or not we intentionally  bring identity into politics. But here, maybe, is something like a  happy medium. The political theorist   Iris Marion Young agreed that identity  politics can get in the way of pursuing   the common good.

But she didn’t  think we should scrap it altogether. She argued that we should take a more  sophisticated view of identity politics,   one she calls a "politics of difference.” Instead of a bunch of identity groups  competing for their own specific interests,   a politics of difference lets us  look at how individuals relate to   the social structures around them. It’s not identity that matters,   this theory says, but the reality that some social  groups are disadvantaged compared to others.

This avoids identity essentialism, and  it allows us to drill down and address   specific social issues based on specific  differences within specific contexts. Which helps us handle identity more concretely,   rather than talking abstractly about  "individuals,” like classical liberalism does. So what did I figure out?

Well, the “identity-blind” liberalism put  forward by John Locke, John Stuart Mill,   and John Rawls is a version of politics  where everyone leaves their identity behind,   supposedly for the sake of  neutrality and preventing bias. But for people whose identity  doesn’t match the dominant group,   or whose first name isn’t  John, that can feel impossible. Which gave rise to critics like  Carole Pateman and Charles Mills,   who offered an alternative view:  that all of us have identities,   and we shouldn’t have to check them  at the door in order to do politics.

And this context gives me a more nuanced lens for   thinking about affirmative  action, and so much more. Next time, we’ll talk about when—and  if—war is ever justified. See you then.

Thanks for watching this episode of Crash  Course Political Theory which was filmed   at the Basteel studio, and was made with the  help of all these nice people. If you want   to help keep Crash Course free for everyone,  forever, you can join our community on Patreon.