Abstract

Excerpted From: Angela Onwuachi-Willig, Roberts's Revisions: A Narratological Reading of the Affirmative Action Cases, 137 Harvard Law Review 192 (November, 2023) (285 Footnotes) (Full Document)

In law, one of the stories told by some scholars is that legal opinions are not stories. The story goes: legal opinions are mere recitations of facts and legal principles applied to those facts; they are the end result of a contest between opposing sides that have brought the parties to an objective truth through a lawsuit. In these scholars' eyes, legal opinions are objective, neutral, disinterested, and free from the emotion of narratives. Yet, as feminist legal scholars, Critical Race scholars, and law-and-humanities scholars have long asserted, legal opinions themselves can also be read as narratives, narratives constructed in a way to offer one version of the facts and the legal principles applied to them as the objective truth.

In a seminal article published nearly twenty years ago in the Yale Journal of Law and the Humanities, Professor Peter Brooks posed a critical yet underexplored question: “Does the [l]aw [n]eed a [n]arratology?” In essence, he asked whether law as a field should have a framework for deconstructing and understanding how and why a legal opinion, including the events that the opinion is centered on, has been crafted and presented in a particular way. After highlighting that “how a story is told can make a difference in legal outcomes,” Brooks encouraged legal actors to “talk narrative talk” and study “perspectives of telling.” He invited lawyers and legal scholars to consider in their analyses of opinions “who sees and who tells,” what is the “explicit or implicit relation of the teller to what is told,” and “how cases come to the law and are settled by the law.” According to Brooks, the more that lawyers begin to apply a narratology to the law, the more lawyers will be able to see the “constructedness” of narratives in opinions--to understand “how they are put together and what [lawyers] can learn from taking them apart.” Similarly, he argued, the more lawyers accepted that the study of narrative in the law “demands analytic consideration in its own right,” the more lawyers would see “how narrative discourse is never innocent but always presentational and perspectival.”

Few things reveal the power and truth in Brooks's call for a narratology in the law more than the line of U.S. Supreme Court cases concerning affirmative action in higher education. This year, in two cases that colleges and universities closely watched, Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, the U.S. Supreme Court issued a joint opinion that reshaped nearly fifty years of precedent on race and admissions, holding that Harvard College and the University of North Carolina (UNC) violated the Equal Protection Clause of the Fourteenth Amendment in their use of race in their admissions processes. In so ruling, the Court offered “a moment of narrative peripeteia, a reversal that forces a re-reading, an anagnorisis or recognition that makes the past bathe in a different light.” That rereading, specifically the re-reading of the line of opinions that culminated in the decision in the Students for Fair Admissions, Inc. (SFFA) opinion, highlights two critical revelations about the Court's jurisprudence on race-based affirmative action in higher education.

First, the re-reading reveals how Chief Justice Roberts has forced a new understanding of what the Equal Protection Clause requires in the affirmative action landscape by revising history, precedent, and reality through omissions, misstatements, and untruths. Second, the re-reading exposes how the perspectives of telling and the “narrative glue” in SFFA are rooted in what Professor Barbara Flagg defines as the “transparency phenomenon,” meaning an invisibility of whiteness, racism, and racism's everyday impacts for everyone, whether advantaging or disadvantaging, to white people. Specifically, it shows that the “doxa” that Chief Justice Roberts relied on in crafting the majority opinion--the “set of unexamined cultural beliefs that structure[d] [his] understanding of everyday happenings” a simplistic understanding of race and racism that is not grounded in the substantive realities of life for people of color. Such doxa include beliefs (1) that race is not socially constructed and is defined only by skin color; (2) that racism is aberrational; (3) that “Jim Crow racism” is the only racism that law should redress; (4) that racism is so obvious that people of color, including teenagers applying to college, will know all the ways that they are being discriminated against to discuss them in their essays; (5) that treating people “equally” and with “equality” requires treating them all exactly the same without accounting for history and context; (6) that the “traditional” means for measuring “merit” in admissions are race neutral and do not systemically advantage white people; (7) that white people do not still benefit from discrimination that occurred prior to Brown v. Board of Education; (8) that affirmative action creates preferences for Black and Latinx people; and (9) that he and his majority colleagues are simply “call[ing] balls and strikes” (as opposed to choosing how to rewrite past precedent and which facts to emphasize and ignore).

This Comment seeks to guide readers through this narratological rereading by offering a critical examination of SFFA. Part I of this Comment provides a brief account of narratology, storytelling, and their imports. Part II delves into the doctrine of affirmative action in higher education, detailing the assumptions--the “doxa”--underlying the decision in SFFA and highlighting how the Chief Justice revised history, precedent, and reality to craft new doctrine about what the Fourteenth Amendment requires of colleges and universities in their admissions processes.

Part III then reveals a major danger in the majority's presumption that the suppression of an applicant's checked racial-identification box or boxes will somehow remove racial considerations in all aspects of an applicant's file review except the essay portions. It does so by highlighting how race, a social construct, and the effects of racism are frequently present in considerations of every applicant's file, whether or not an applicant's self-identified race is explicitly known by admissions-file reviewers. More importantly, Part III shows why the Court's move away from explicit race consciousness in admissions will work to deepen rather than lessen the impacts of racial bias. Specifically, Part III utilizes social science research to demonstrate why refusing to explicitly acknowledge race and, in fact, trying to suppress considerations of race will actually make it impossible to remove implicit, as well as explicit, racial bias from the admissions evaluation process. Implicit bias research reveals that making race salient in the assessment of people--as is done with the review of admissions files during a holistic review process--may be a necessary precursor to reducing the effects of nonconscious racial bias. Furthermore, much like scholars such as Professors Devon Carbado, Cheryl Harris, Jonathan Feingold, and Stacy Hawkins have done and as Justices Sotomayor and Jackson did in their SFFA dissents, Part III argues that the discontinuation of the use of race in admissions will actually result in further racial discrimination against applicants of color, particularly Blacks, in the admissions process. Finally, this Comment concludes with lessons on how future stories about race, racism, education, and admissions can and should be reframed to ensure a truly equal society for all.

[. . .]

I put myself back in the narrative .... --Elizabeth “Eliza” Schuyler Hamilton (as imagined by Lin-Manuel Miranda)

In the musical Hamilton, playwright Lin-Manuel Miranda ends his narrative about Alexander Hamilton with the song “Who Lives, Who Dies, Who Tells Your Story.” Among the many teachings in this song is the lesson that those who may find themselves on the outside looking in often have very little control over how their story, their narrative, is remembered and told, particularly after death. Only those who survive long enough and are empowered with voice truly have the opportunity to shape how their histories and narratives are told and remembered--that is, unless someone else close to them who survived longer and had access to the tools for telling and disseminating stories later chose to take on the task of relaying their narratives.

In Hamilton, the story of Alexander Hamilton, though not as celebrated as the stories of Founding Fathers like Thomas Jefferson, gains prominence on the national stage in part because of the work of his wife, Eliza, who puts herself “back in the narrative,” stops “wasting time on tears,” uses her additional fifty years of time to tell her husband's tale, and relies on allies like her sister to push forward both Alexander Hamilton's and her story. Although it took more than 150 years after Eliza Hamilton's death in 1854 before Ron Chernow's book Alexander Hamilton would inspire Miranda's masterpiece and Miranda's play would make Alexander Hamilton's life and narrative more of a household story, audience members are able to catch a glimpse of the power of putting oneself back into the narrative through Eliza's, Chernow's, and Miranda's work.

At the same time, Hamilton, like many other narratives, left key stories untold. Indeed, critics lamented the play's failure to even grapple with its hero's more complicated connections to the enslavement of Black people, whether they were through his in-laws or his mentor, President George Washington, all of whom owned enslaved people. Critics also decried the play's embellished portrayal of Hamilton as an abolitionist. Others argued that the play Hamilton “use[d] the talents, bodies, and voices of [B]lack artists to mask an erasure of people of color from the actual story of the American Revolution.” In fact, some bemoaned the exclusion of people of color from Hamilton's overall story about the nation's founding and revolt against England and wondered why their stories could not have also been centered in this narrative of beginnings. In this sense, one can see through Hamilton the ways in which the lives of people of color, particularly Black people, have been disregarded, unacknowledged, and set aside to offer a new optimistic story that does not include them. In SFFA, Chief Justice Roberts did just that: he offered a revisionist and whitewashed narrative about a colorblind Constitution, country, and Court that did not and does not at all comport with the lived realities of people of color in this nation. In fact, he did worse. He offered the type of single story about Black and Latinx people that author Chimamanda Ngozi Adichie has warned against. As Adichie so eloquently explained in her TED talk, by creating a single story about Black and Latinx people--by “show[ing] [Black and Latinx students] as one thing, as only one thing, over and over again,” Chief Justice Roberts is helping to transform that story into the definitive story of Black and Latinx people in the eyes of all who have accepted and embraced his narrative in SFFA. Ironically, in all his talk about how affirmative action legitimates stereotypes, the Chief Justice has helped to reify them. As Adichie explained: “The single story creates stereotypes, and the problem with stereotypes is not that they are untrue, but that they are incomplete. They make one story become the only story.” For this reason, for many, SFFA signified an erasure of many nonwhite stories in the future.

Yet, such an erasure is not inevitable. For instance, just as Hamilton disappointed some of its audiences, it also offered joy and hope for possibilities of greater inclusion for different voices and stories. Indeed, one of the most inspiring aspects of Hamilton is how Miranda was able to push his audiences to explore and even reimagine future possibilities. To look at and hear old stories from long-ignored faces and bodies in the present. To take in old voices through new mouths, words, and rhythms in the play. Indeed, Miranda, a playwright of color, used narrative devices created by Black people, hip hop and rap, and assembled a cast of nearly all people of color, to share a story of a white widow, Eliza, and her white-Caribbean husband in ways that highlighted the longstanding and consistent contributions of immigrant communities and that aligned with contemporary movements like those against racialized police profiling and brutality and anti-immigrant sentiments and actions.

Similarly, just as SFFA may work to stifle diversity at some institutions and silence certain voices of color, it also offers a powerful reminder, especially through the voices of Justices Sotomayor and Jackson, but also subtly in the majority opinion, of the need for outsiders to persist in telling the nation's complete histories and their own narratives. As Delgado once proclaimed, “stories and counterstories can serve an equally important destructive function .... They can help us understand when it is time to reallocate power,” and they can “attack” the “complacency” that comes from “comforting stories” and can help to deconstruct harmful stock stories. Despite its deep misunderstanding of racism and its revisions of history and reality, Chief Justice Roberts's opinion in SFFA explicitly instructed people of color to share stories about race and racism in their lives, stories that have the power to disrupt and contest stock stories that have long centered whiteness and that can pull the narrativity of law out from “under erasure.” As such stories are told, the narrators of these accounts and reports must, like narratology does, pay attention to the various parts of their narratives, considering and understanding how their narratives can and should combine in a plot to convey particular meanings and implications, and must share collective stories in ways that line up with their lived realities, as opposed to the “formalize[d] conditions of telling” that the Chief Justice offered through his imagined world in SFFA. After all, as Brooks proclaimed, narratives do more than simply detail the events that have occurred; they “give them a point, argue their import, proclaim their results.” In short, students, faculty, staff, and administrators who value diversity, inclusion, equity, and belonging must reinsert themselves back into these narratives, sharing their own and others' compelling life stories, boldly and unabashedly, in admissions essays, in classrooms, in media interviews, in courtrooms, plus more, to create a record that can and will continually work to reshape the dominant narratives of exclusion and that will continue to reshape the perspectives and lessons of those who are listening and reading.

Similarly, even as students' checked racial-identification boxes become suppressed in admissions processes, institutions must make efforts to make race, and the realities of racism, salient for decisionmakers in their communities, particularly for those who have lived their lives operating under the transparency phenomenon. Only with that type of consciousness, and the corrective actions that tend to follow from it, will we truly move towards achieving equality.

Dean and Ryan Roth Gallo & Ernest J. Gallo Professor of Law, Boston University School of Law (B.U. Law).