Dissenting opinions in US Supreme Court ruling on affirmative action hold key lessons for SA - Daily Maverick

Progressives on the US Supreme Court bench and our own Chief Justice Raymond Zondo have endorsed the tie-breaker system to boost disadvantaged people. People who support pro-black affirmative action should pay attention.

Gabriel Crouse 
Progressives on the US Supreme Court bench and our own Chief Justice Raymond Zondo have endorsed the tie-breaker system to boost disadvantaged people. People who support pro-black affirmative action should pay attention.

The Supreme Court of the United States (Scotus) has ruled against pro-black affirmative action admissions in a case involving elite universities Harvard and the University of North Carolina (UNC). That court found that racial boosting violates the US Constitution (except in extremis), specifically the provision adopted after the US Civil War to abolish slavery that guarantees “the equal protection of the laws”.

Most local commentators will likely dismiss the judgment as “right-wing”, but I think the most interesting domestic race-law implication is what the pro-black affirmative action dissenting judges wrote. These are the arguments to keep US pro-black affirmative action and they are fascinating to South African proponents of BEE in the broader sense.

The dissenters were Judges Sonia Sotomayor and Elena Kagan (who, I’m proud to say, are Princeton alumni like me) and Ketanji Brown Jackson (who served on Harvard’s board and so had to recuse herself from part of the case). They all took great pains to say that while they support some affirmative action, this is not a blank cheque to go wild with what we might call a pencil-test approach.

In our country, the average professional critic bemoans BEE as a form of blatant elite enrichment, wants pro-black affirmative action, but has so little idea what that practically means in terms of changing the rules of the game, that calls for change typically amount to ‘Ramarousing’ speeches about doing BEE again while trying harder, under kinder leadership, with more team-spirit love for “our people”.

But curious South Africans, especially on the left, will look to the US since that country has been trying to undo its version of legal apartheid, called “Jim Crow”, since the 1950s, and both its mistakes and its triumphs will offer useful lessons.

Since 1954, the Scotus has ruled against the idea of “separate but equal”. Separating people by race is inherently unequal. Then in 1978, the Scotus ruled in favour of Harvard-style affirmative action but against “set-asides”.

Clearly defined points systems (like BEE), where candidates get something like 10 points out of 100 for being black, were also struck down. Instead, a Harvard-style “tip” or single “plus” within a “holistic review” has been permitted.

Racial ‘balancing’ and ‘targeting’
As Sotomayor wrote (internal quotations and references omitted), “consistent with the court’s precedents, Harvard properly considers race as part of a holistic review process, values all types of diversity, does not consider race exclusively, and does not award a fixed amount of points to applicants because of their race”. Hence, while there are “tips” when candidates are equally balanced there is no “mechanical use of tips” that would treat the difference between races like the difference between getting an A and getting an A+.

What about quotas or racial targeting? According to Sotomayor, properly understood, the data show that Harvard “does not utilise quotas and does not engage in racial balancing”.

Likewise, Jackson found that there “are no race-based quotas in UNC’s holistic review process. In fact, during the admissions cycle, the school prevents anyone who knows the overall racial makeup of the admitted student pool from reading any applications. More than that, every applicant is also eligible for a diversity-linked plus (beyond race) more generally. And, notably, UNC understands diversity broadly, including ‘socioeconomic status, first-generation college status… political beliefs, religious beliefs… diversity of thoughts, experiences, ideas, and talents’.”

In some actual cases, “a White student could receive a diversity plus while a Black student might not”.

What is “racial balancing”? It amounts to what South African law has come to call “racial targeting”, which starts as quotas and adds a measure of flexibility. A quota system is basically a “set-aside” system where each group has a “set-aside”: X% white, Y% black, Z% coloured, and so on. That is totally rigid. But “racial balancing” means aiming at those X%, Y% outcomes while allowing for deviations if the inputs make hitting those targets difficult.

Let me give a South African example. The Equality Court’s 2020 judgment in Cape Bar v Minister of Justice and Correctional Services upheld as lawful a decision to exclude a black female, advocate Ncumisa Mayosi, who received 138 votes — inserting a coloured male who received 30 votes instead — because, as the court summarised it, the “four seats for advocates, in terms of the Rules, must be composed of one white male, one white female, one black male and one black female” (emphasis added).

The Equality Court found this to be a lawful quota in what Americans would call a “separate but equal” judgment, which that country has prohibited since 1954.

Concerningly, the Black Lawyers Association (BLA) argued in the Cape Bar case for inflexible quotas of this “separate but equal nature” but “asserts that the quota should be at 75% black people and women”. In other words, the BLA’s formal court submission amounts to saying that if four black women get the top four vote tallies, one of them should get the chop to defeat apartheid.

More concerningly, the Equality Court opinion in this stressed that inflexible race quotas may be constitutionally valid by quoting Constitutional Court dicta to that effect. The Constitutional Review published a law review article titled What’s So Wrong with Quotas? by Dr Nomfundo Ramalekana, Senior Lecturer at UCT’s law faculty, which takes the same arguments further.

So while Jackson, Sotomayor, and Kagan’s opinions support affirmative action but oppose quotas, South African courts are leaning a different way.

Between US pro-black affirmative action thought leaders and South Africa there is an ocean.

We used to have a points system (including BEE) until, in the public sector, this was found to be not enough and racial balancing was added, then de facto absolute barriers were included by “targeting” the balance at “zero”, and de jure absolute barriers have returned by excluding companies from bidding to tender for roughly R1-trillion in government contracts without going through the balancing process first. “Set-asides” are the rule at the Legal Practice Council, the police, and so much more.

And it is not working for the poor. Black unemployment increased from roughly 25% to 35% during the BEE era.

So if you want to keep pro-black affirmative, but not absolute barriers, zero targets, or 10% bonus points for being black, what would affirmative action look like? Having ruled out the former as legitimate forms of affirmative action, what were Sotomayor, Kagan, and Jackson trying to rule in as the proper way to do it?

Race as a tie-breaker
Nothing gets to the difference between South African affirmative action and US affirmative action more clearly than this question by Sotomayor in the Harvard case: “If you have perfect scores on every metric, you’re not guaranteed a spot at Harvard because they have enough people with perfect scores of every background that exceeds their class limit. At some point, something has to break the tie… On every matrix, there’s going to be competing applicants. And you’re saying a school can’t look at its general diversity figures and say, among equal applicants, I might make race a tie-breaker?”

The lawyer arguing against affirmative action said, “no, you cannot do that”, you cannot even use race as a tie-breaker. That is now the law in the US. But the dissenters said no to a points system, target system, quota system, set-asides or absolute barriers, and “yes, we can” to a tie-breaker system.

The US is another country, is this relevant?

Tie-breaker in SA Constitution
The way local race-law proponents talk, there is no compromise between race and value for money. But anyone who has read our Republic’s Constitution on tenders, for example, knows that Section 217(1) requires that procurement must maximise “value-for-money”, as the Zondo Commission’s State Capture Report summarised it. Section 217(2) says that this “does not prevent” what it calls “transformative potential”.

The current “approach”, according to the State Capture Report, “leaves a critical question unanswered: is it the primary intention of the Constitution to procure goods at least cost or is the procurement system to prioritise the transformative potential identified in section 217(2)?

“In the view of the Commission the failure to identify the primary intention of the Constitution is unhelpful and it has negative repercussions… Ultimately in the view of the Commission the primary national interest is best served when the government derives the maximum value-for-money in the procurement process and procurement officials should be so advised”.

How, one could ask, is it possible to prioritise “maximum value-for-money” over race, while still keeping some form of pro-black affirmative action?

Easy. Use race as a tie-breaker. If two companies are selling equal products at an equal price the blacker company gets the tender. Just like at Harvard, if two candidates with perfect CVs come out in a tie the black one gets in.

Progressives on the Scotus bench and our Chief Justice, Raymond Zondo, have endorsed the tie-breaker system to boost disadvantaged people. People who support pro-black affirmative action should pay attention.

But then again, when have you ever heard of a BEE proponent who cares about how the rise of race law touches on the rise in black unemployment? I cannot think of anyone in the South African left-wing who would read the Sotomayor and Jackson dissents for lessons in moderation or rules-based alternatives to our current race law.

I cannot even think of any such person who has read Chief Justice Zondo’s report on “problems in the legislative design” and commented on his affirmative action analysis, either when it first came out or in the recent anniversary week that the report came back into public attention.

Gabriel Crouse is a Fellow at the Institute of Race Relations