Minority v Minority Only Benefits the Privileged

by | Aug 18, 2023

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About Almas Shaikh

Almas is a human rights lawyer from India. She is currently reading as a DPhil candidate (PRS) at the University of Oxford and is a Barbara Mills Graduate Scholar in Law. She focuses on the role of intersectionality in Indian discrimination law, under the supervision of Professor Sandra Fredman.

The US Supreme Court’s decision Students for Fair Admissions v Presidents and Fellows of Harvard College (2023) dealt a blow to substantive equality in education. The petition claimed that providing race-based considerations in the admissions criteria of Harvard and the University of North Carolina (UNC) was unfairly prioritising certain minority races over other races. The court held that the admission process violates the 14th Amendment which grants equal protection under the laws. The case found that universities failed to operate their race-based admissions programs (colloquially referred to as ‘affirmative action’) in a manner that is ‘sufficiently measurable to permit judicial review’.

I contend that this ruling forces the courts to ‘make complex determinations of [the] deserving and undeserving beneficiaries’ of Affirmative Action measures. Comparing and contrasting different minorities in this way has created a false and dangerous narrative which reenforces a hierarchy of disadvantage, promoting an environment of additional discrimination as well as infighting. This leads to a divisive and fractured vision of  equality, with larger structures of power overlapping to create inequality.

However, this is not localised only to the US Affirmative Action debate. In India too, the Janhit Abhiyan v Union of India (2022) decision drew comparisons between the marginalised caste groups and economically weaker sections of society. In this judgment, the Supreme Court of India upheld the 109th Constitutional Amendment (Art. 15(6) and 16(6)) providing reservations (a quota system) to economically weaker sections of society while simultaneously excluding the discriminated castes as constitutionally valid. It created an environment where both caste and class-disadvantaged communities are forced to fight each other to prove who deserves the limited resources more (in this case, access to both education and employment).

In the US, the demographic of students in higher education, and especially in Ivy League schools, has largely reflected the privilege and hegemony of white people, particularly white men. To offset this generational advantage, Harvard and UNC considered different criteria which speaks to the complete identity of an applicant, including but not limited to their race. The Court’s 2023 decision ignored this overarching framework of the Admissions process, and held that the consideration of race will benefit some minorities over the others. However, the process will now pit minorities against minorities; for instance, the African American and Hispanic community versus the Asian American community. Not only does the Court’s decision ignore the intersectional reality of an applicant’s identity, but it also creates a hierarchy of disadvantage. This further fabricates the question of who amongst the minority population ‘deserves’ to be given a seat within the educational institution, further perpetuating the harmful myth of the model minority.

Similarly, in India the Court managed to create an illusion of separation between caste and class. In reality, most marginalised caste communities have also experienced the most class-based disadvantage. While both marginalised caste and class groups face economic inequality, the former also experiences caste discrimination. The law fails to understand the nuance of this intersectional experience of ‘sameness and difference’. Instead, by distinguishing caste and class as inherently separate, it creates animosity and competition between the various disadvantaged groups.

Not only is this formulation creating a wedge between different minorities, but it also misplaces the onus on dominant groups to respond to overarching structures of power. Take for instance Chief Justice Roberts’ opinion of the Court in the Harvard case: ‘Harvard’s consideration of race has led to an 11.1% decrease in the number of Asian-Americans admitted to Harvard.’

If the increase in African American and Hispanic students is directly proportional to the decrease in the number of Asian-American students admitted to Harvard, then only an x’ number of seats are available to minority students to begin with. This is a limited space in the already rarefied bubble of university students. The understanding then is that the number of minority students as a whole, i.e., ‘x’ remains the same within the larger group, while only within the minority group will different minorities compete with each other to get the prized seats. It forces one to measure oneself against other minorities, comparing disadvantages and creating a false hierarchy. The relative number of white and dominant groups of students remains the same. This is akin to ensuring that the school ultimately remains predominantly white (or in the case of India, predominantly of the dominant caste).

In these two cases, the judgments ensure that this already privileged majority retains its position and power, without ever questioning its ubiquity or purpose. At the same time, it goes a step further to successfully divide minorities along race, class and/or caste lines, forcing them to fight amongst themselves in order to access education or employment. This comes at the cost of questioning and/or dismantling the position of the privileged majority.

Both these judgments ignore the intersectional reality of affirmative action by reducing it to only hinge upon single axis factors such as race, caste or class. Grillo insightfully remarks: ‘We have spent a lot of time arguing over whose pain is greater. That time would be better used trying to understand the complex ways that race, gender, sexual orientation, and class (among other things) are related’. Overarching systems of oppression work together to create barriers – education and employment being an important site of this battle. While the oppressor might not be the same, the structures which lead to oppression are similar, if not the same. Pitting different groups against each other (as with Asian-American students versus African American and Hispanic students; or marginalised caste groups versus economically weaker sections of the Indian society) creates an unnecessary ranking system of disadvantage. It ignores, in the words of P H Collins, the matrix of domination which is disadvantageous to Asian-American, African American, Hispanic and other minorities.

In an age where there is an ever greater need to adapt Affirmative Action to identity-based experiences, the myopic application of colour-blindness by the US Supreme Court, or the ignorance of caste-based economic disadvantage by the Indian Supreme Court, can only be detrimental to the project of substantive equality. It will make applicants relive past trauma, drastically reduce representation, contribute to stereotyping, and fail to acknowledge the ‘intergenerational transmission of inequality’. Importantly, in this harmful competition of showcasing who is the most vulnerable, the broader ‘commitment to eradicating the ideology of domination that permeates the [current] culture on various levels – sex, race, and class’ is ignored.

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