The mourning after affirmative action: a composite counterstory about whiteness as property, fugitive pedagogy, and possibility

• Date: 19 March 2024
• Pages: 425-441
• DOI: https://doi.org/10.1108/EDI-01-2023-0023
• Published date: 19 March 2024
• Author: Uma Mazyck Jayakumar

The mourning after affirmative

action: a composite counterstory

about whiteness as property,

fugitive pedagogy, and possibility

Uma Mazyck Jayakumar

UC Riverside, Riverside, California, USA

Abstract

Purpose –In the aftermath of the Supreme Court’s 2023 decision to effectively end race-conscious admissions

practices across the nation, this paper highlights the law’s commitment to whiteness and antiblackness, invites

us to mourn and to connect to possibility.

Design/methodology/approach –Drawing from the theoretical contributions of Cheryl Harris, Jarvis

Givens and Chezare Warren, as well as the wisdom of Justice Ketanji BrownJackson’s dissenting opinion, this

paper utilizes CRT composite counterstory methodology to illuminate the antiblack reality of facially “race-

neutral”admissions.

Findings –By manifesting the impossible situation that SFFA and the Supreme Court’s majority seek to

normalize, the composite counterstory illuminates how Justice Jackson’s hypothetical enacts a fugitive

pedagogy within a dominant legal system committed to whiteness as property; invites us to mourn, to connect

to possibility and to remain committed to freedom as an intergenerational project that is inherently

humanizing.

Originality/value –In a sobering moment where we face the end of race-conscious admissions, this paper

uniquely grapples with the contradictions of affirmative action as minimally effective while also radically

disruptive.

Keywords Affirmative action, Race-conscious admissions, Critical race theory, Whiteness as property,

Counterstory telling methodology, Composite storytelling methodology, Fugitive pedagogy,

Higher education transformation, Possibility

Paper type Research paper

The first applicant says: “I’m from North Carolina. My family has been in this area for

generations, since before the Civil War, and I would like you to know that I will be the f ifth

generation to graduate from the University of North Carolina. I now have that opportunity to do

that, and given my family background, it’s important to me that I get to attend this university.

I want to honor my family’s legacy by going tothis school. ”Thesecond applicant says: “I’mfrom

North Carolina, my family’s been in this area for generations, since before the Civil War, but they

were slaves and never had a chance to attend this venerable institution. As an African American,

I now have that opportunity, and given my [ ...]family background, it’s important to me to attend

this university. I want to honor my family legacy by going to this school.”Now, as I understand

your no-race-conscious admissions rule, these two applicants would have a dramatically

different opportunity to tell their family stories and to have them count. The first applicant would

be able to have his family background considered and valued by the institution as part of its

consideration of whether or not to admit him, while the second one wouldn’t be able to becausehis

story is in many ways bound up with his race and with the race of his anc estors. So I want to

know, based on how your rule would likely play out in scenarios like that, why excluding

consideration of race in a situation in which the person is not saying that his race is something

that has impacted him in a negative way, he just wants to have it honored, just like the other

person had their personal background family story honored, why is telling him no not an equal

protection violation?

(Justice Ketanji Brown Jackson, oral arguments, SFFA v. UNC, 2022, pp. 65–66).

Counterstory

on “race-

neutral”

admissions

425

The current issue and full text archive of this journal is available on Emerald Insight at:

https://www.emerald.com/insight/2040-7149.htm

Received 20 January 2023

Revised 10 August 2023

Accepted 12 September 2023

Equality, Diversity and Inclusion:

An International Journal

Vol. 43 No. 3, 2024

pp. 425-441

© Emerald Publishing Limited

2040-7149

DOI 10.1108/EDI-01-2023-0023

Introduction to the problem and purpose

During oral arguments for Students for Fair Admissions, Inc. v. University of North Carolina,

Justice Ketanji Brown Jackson posed the above hypothetical scenario to point to the antiblack

consequences should the Supreme Court ban affirmative action in college admissions. Patrick

Strawbridge, the lawyer for Students for Fair Admissions (SFFA), was in the course of

arguing that “race-conscious”admissions violated white applicants’right to equal protection.

Knowing that the Court’s conservative majority was likely to concur with SFFA’s proposed

“no-race-conscious admissions rule,”which called for supposedly “race-neutral”practices,

Justice Jackson asked how that rule would not unfairly censor Black applicants from

disclosing their race (and associated disadvantages in a racially stratified society), when

white applicants’right to get their advantages counted (and therefore their race) would

remain intact. Strawbridge responded dismissively: Yes, he said, race shouldn’t be counted in

the 21st century. The racial aspect of the second applicant’s story shouldn’t be considered

because “equal protection requires that people of all races be treated equally”(Jackson and

Strawbridge, oral arguments, SFFA v. UNC, 2022, pp. 66–67).

On June 29, 2023, the Supreme Court’s conservative majority agreed with SFFA. They

effectively struck down affirmative action, ignoring forty years of legal precedent, and now

require facially “race-neutral”admissions practices at all institutions of higher education. In

their joint decision, which included the companion case SFFA v. President and Fellows of

Harvard College, the Court’s conservative majority ruled in favor of the plaintiff (SFFA),

determining that UNC and Harvard’s race-conscious affirmative action practices had violated

white and Asian applicants’right to equal protection. This co-opting of the Fourteenth

Amendment’s equal protection clause–intended to address centuries of racism against Black,

Indigenous, and other people of color–further embeds racism in college admissions. So the

majority’s decision reads as a surreal rehearsal of what Critical Race Theorists describe as the

“majoritarian”or “dominant”story [1]: in this case, the story is that a system that consistently

upholds white interests at the expense of all others is somehow inherently colorblind. This is a

story that Justice Jackson challenged powerfully during the trial and her dissent. Justice

Jackson returned to her hypothetical from oral arguments in her dissent from the majority

opinion. Naming the white applicant John and the Black applicant James, she imagined both

their families had been in North Carolina for seven generations, since UNC was founded in

1789. Expanding and contextualizing the hypothetical with a history of racism in United

States law and current data on racial disparities, Jackson showed how “at bare minimum, one

generation ago, James’s family was six generations behind because of their race, making

John’s six generations ahead”(Jackson, dissenting in SFFA v UNC, 2023, p. 14). Justice

Thomas’opinion, which concurs with the majority’s decision, attacks Jackson’s hypothetical:

“[W]hy is it that John should be judged based on the actions of his great-great-great-

grandparents?”(Jackson, dissenting in SFFA v UNC, 2023, p. 53). In this way, Thomas asserts

the majoritarian narrative that structural racism ended with slavery, blinking the reality that

is rendered so clearly by Jackson’s hypothetical and the legal history she details in her

dissent: the way that since Emancipation, the law and college admissions policies and

practices continue to create white advantage and Black disadvantage today, albeit through

facially race-neutral means. It is worth listening more deeply to Justice Jackson’s hypothetical

than Strawbridge, Thomas, and the Court’s majority did, because Jackson’s story poses a

brilliant and substantial challenge not only to SFFA’s framing of the case, but to deep

assumptions about whiteness and race that are at the heart of the law’s long history of (mis)

treating questions of equal opportunity.

Supreme Court Justices often use hypothetical scenarios when they question lawyers, in

order to explore the strengths and limitations of legal arguments. But Justice Jackson’s

hypothetical does more than that. In this paper, I place it in a longstanding tradition of

storytelling as a liberatory practice for Black, Indigenous, and communities of color, and what

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