The Conundrum of Race and Affirmative Action in Higher Education

On 29 June 2023, the US Supreme Court struck down affirmative action on the assumption that “racialism simply cannot be undone by different or more racialism”. This is yet another step in the dismantling of antiracist policies in the name of colour blindness. Back in 1978, in the famous US Supreme Court case Regents of the University of California v. Bakke, Justice Lewis Powell, casting the deciding vote, ruled that affirmative action should be maintained in the name of the “compelling interest” of universities, in order to counter conservative views. Although his decision allowed affirmative action to continue, it also changed the meaning of race, no longer seen as a factor of discrimination, but rather through the prism of its contribution to the diversity of universities for the benefit of the student body. This represented a setback from the logic of compensation that underpinned affirmative action’s implementation in the 1960s, in the wake of the Civil Rights movements.

Are indirect affirmative action policies that bypass the language of race better able to avoid the risk of reifying race than policies that explicitly use the language of race? Without necessarily going so far as to raise the threat of racialism (i.e., the idea of endorsing a classification system based on a biological notion of race), opponents of affirmative action in most countries have pointed to a risk of reifying race, that is, of considering race as a natural or given fact instead of a social construction. In this respect, France and Brazil are two interesting cases to study as they have each implemented different strategies to circumvent this risk and respond to criticisms. In Brazil, opponents saw affirmative action as a threat to the founding myth of Brazilian racial democracy, which is based on both the rejection of race and the valorisation of “racial mixture”. Federal law 12/711 of 2012, which declares racial quotas as constitutional, was presented as a compromise. It allows racial quotas to be implemented only when subordinated to the class dimension, as all beneficiaries must come from the public school system. On the other side of the Atlantic, France is also renowned for its aversion to the idea of racial classification, and there is no law governing affirmative action on a national scale. However, in 2001 the prestigious higher education institution Sciences Po Paris implemented a form of indirect affirmative action policy through a programme called Conventions Éducation Prioritaire (CEP). Its beneficiaries, whose applications are assessed separately from those of other applicants, are selected not on the basis of individual or group characteristics, but on the basis of territorial anchorage. This criterion serves as an indicator of inequalities in education and is aimed primarily at people of immigrant descent, but also at young people from rural and overseas territories.

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Regarding the risk of reifying race, the question is: Are indirect affirmative action policies that bypass the language of race, such as those implemented by Sciences Po Paris, better able to avoid this risk than policies that explicitly use the language of race, as in the case of Brazil? To answer the question, I will assess the policies through the prism of both the criteria used to define beneficiaries and the rationales that underpin their implementation.

If we consider the territorial criterion used to define the beneficiaries of the CEP, an ethnography I carried out in the training workshops (ateliers Sciences Po) at high schools in the peripheral region of Paris shows that it reinforces the logic of colour blindness and the idea that it is the territory, and not the individual, that is the object of “preferential treatment”. As for the logic that underpins the CEP programme, its implementation takes place in a context where the problem of social exclusion from France’s grandes écoles is approached through the prism of diversity management, emphasising the search for “talent”, “potential” and “personality”.

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In addition to an objective of “diversification of the elite”, Sciences Po Paris also mobilises a discourse on the pedagogical function of diversity that converges with the American logic of diversity endorsed by the Bakke decision (Sabbagh 2006). In order to comply with the diversity expectations of the Sciences Po jury, potential beneficiaries are encouraged to strategically mobilise different dimensions of their sociocultural environment or skills that are racially coded, such as mastery of a mother tongue. This incentive is sometimes experienced as a form of social or ethno-racial assignment and can be perceived as antagonistic to the idea of personality, understood as a synonym for the recognition of one’s individuality. Candidates thus experience the tensions intrinsic to mobilising the repertoire of diversity in a context where race remains taboo and diversity is associated with an individualisation of difference.

In the Brazilian case, the social and racial criterion means that students are required to self-classify for the different quotas and are therefore led to reflect upon their individual characteristics to decide whether they are “legitimate” quota beneficiaries. What’s more, the establishment of commissions that verify applicants’ racial self-identification to fight against racial frauds raises the question of the delimitation of the black (preto) and brown (pardo) categories used for quotas, which indeed presents a risk of reifying race, as argued in an article I co-authored with Graziella Moraes Silva and Veronica Toste Daflon. However, race-based affirmative action in Brazil is underpinned by goals of remediation and social justice. In the early 21st century, the implementation of racial quotas – established in 2001 and legalised by the Supreme Court in 2012 – was accompanied by an explosion of debates about race and inequality within Brazilian society. As I show in an analysis of essays written by potential beneficiaries of affirmative action in 2003 and in 2022, quotas are no longer seen as a privilege but as a form of state reparation and a fundamental right of black people in Brazil. Furthermore, the shift from large-scale rejection to mass acceptance of racial quotas reflected in students’ essays goes hand in hand with the mobilisation of new frameworks to discuss race and inequalities. Students nowadays don’t use expressions such as “the black race” or “the race of origin”, which convey the idea that “races” exist as real social groups. On the contrary, they emphasise the interrelation between various factors of discrimination and refer to race as an aggravating factor of inequalities, rather than as an empirical reality.

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To return to our original question, the diversity rationale, used to justify affirmative action in the US since 1978 and used jointly with other arguments to justify the French CEP programme, risks to some extent reifying race. It conveys the idea that individuals are the bearers of social, cultural or ethno-racial differences, even if it is based precisely on an euphemisation of the racial dimension. Moreover, diversity is associated with the notion of merit and detached from the idea of collective rights, impeding a broader reflection on discriminations as an obstacle to social justice, possibly the best justification for affirmative action.

The success of affirmative action policies in Brazil, and their growing support among the young generation, shows that taking race into account as an important factor of social mobility and inequality is the best way to avoid its reification and to treat it for what it is. Race is not a set of embodied characteristics, which individuals might mobilise to serve productivity goals or enrich the perspectives of their peers. It is a social relationship around which domination is structured, and which we must take into account in order to remove its discriminatory potential.