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NEGATING AFFIRMATIVE ACTION

By Joel Levin

Affirmative action ended today in the United States educational system. In a decision authored by Chief Justice John Roberts in the case of Students for Fair Admissions v. President and Fellows of Harvard College, the Supreme Court declared to be illegal all educational affirmative action programs, both those in a private university (albeit one enjoying public funding) and at a public university: that is, Harvard University and the University of North Carolina. Chief Justice Roberts held: 

Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful endpoints. . . . We have never permitted admissions programs to work out that way, and we will not do so today.

The case was a blend, as so many constitutional cases are, of political ideology and constitutional interpretation. But at heart, it was strictly interpreting the language of the Equal Protection Clauses of the U.S. Constitution that provoked a withering scrutiny of any official policy that dared to intrude on such a strict interpretation. That is, any official evasion of so-called race neutrality was to be barred, regardless of whether the society itself was constituted in a way that anyone can believe is race-neutral. Put differently, certain types of discrimination are illegal; racial discrimination is a type that is illegal, and affirmative action is a species of racial discrimination. Thus, whether in Latin (Q.E.D.) or in ordinary English, affirmative action is illegal.

Having taught the issue of affirmative action – sometimes called reverse discrimination – to law and philosophy students for decades, I want to make a few comments on an extremely complex subject. These comments are brief. This issue merits, at a minimum, reading through the new Supreme Court case to capture the full essence of the many issues found in the majority opinion, the concurrences, and the dissents. Better, it would reward reading some of the excellent literature, pro and con, in the field (the classics are Boris Bitter’s The Case for Black Reparations as probably the best exposition in favor, while Thomas Sowell’s Black Education: Myths and Tragedies is probably the best in opposition. Both make reasoned arguments, take impersonal positions, back their arguments by evidence, and are clearly in search of solutions). That literature clarifies the debate and reveals some of the more poorly thought-out arguments. Let me a few highlights of that debate in no particular order.

First, being right on constitutional law and being right on good public policies are not the same thing. The Constitution might well require a particular outcome that is bad policy, bad economics, bad governance, bad democracy, and likely to lead to civil war. The Fugitive Slave Clause of the Constitution, Article IV, Section 2, Clause 3, might serve as one example of just plain poor, immoral, and disastrous policy. Without that ethical and political baggage, the 18th Amendment, barring the prohibiting the sale, manufacture, or transportation of alcohol, would be another. Thus, regardless of whether one agrees with affirmative action or not, the Constitution is not the only place to judge the merits. It may not even be a very good place to look for the right course of action of such a policy. The Constitution might not let the government remedy past injustices due to race because it uses race to effectuate that remedy. That might arguably be a sound constitutional argument, but two things are true: the conservative Republican Justice Lewis Powell found in his majority decision in the 1978 Supreme Court case of Regents of the University of California v. Bakke that educational diversity was a compelling state interest, and remedial justice is typically considered to be a sound goal of good public policy.

Second, discrimination in education is exactly how the admissions process works. Admissions officers and procedures discriminate among students based on all sorts of matters: test scores, courses taken, grades, class rank, recommendations, personal essays, geographical diversity, legacy, athleticism, artistic talent, and a host of other features. Discrimination in this broad sense merely involves selecting one thing over another, along with employing reasonable criteria for choosing among the candidates. Some types of discrimination appear perfectly proper, e.g., high test scores, extracurricular activities, or success in sports; while others we hold to be pernicious, e.g., racial or gender discrimination or disability. That said, we should not be fooled into thinking that what seems benign system discrimination – discrimination about things other than race or gender or ethnicity – leads to a meritocracy, as the criteria used to elevate people is often not due in any complimentary way to their own merit. Studies continually show that the best way to get into a good college is to be the offspring of a rich father. That is not merit, but the luck of genetics and demographics. Disadvantaged students do not take the kind of Honors and AP courses necessary to gain their high test scores, do not have the spare time or resources to become involved in a number of prestigious extracurricular activities (think: national moot court competitions), and do not have the money and coaching to become good tennis or lacrosse players. We can have any college admission system we want. Still, we should be hesitant to call any particular form of it fair or meritocratic in the face of such obvious injustices. 

Third, affirmative action might be promoted in at least two very distinct ways. It could be promoted as the correction of past injustices, or it could be promoted as leading to a diverse school population. These are not the same thing. There may be advantages, for example, to making any school more diverse, although what those advantages amount to is often problematic, controversial, hard to measure, and at times self-defeating. For example, being unable to carry a tune or to read music are not uncommon characteristics, but to see these unmusical traits as ways to promote diversity at Juilliard or Curtis Conservatory seems crazy and self-defeating of the mission of a music school. Similarly, with those lacking math skills. Having them attend MIT or Cal Tech seems self-defeating and ludicrous. Of course, racial discrimination seems not like that, but we would need to define what diversity means in that way. It may be difficult and prickly in today’s society to be sure who is a member of a racial minority (Meghan Markle complained that early on in contending for acting roles in Hollywood, she encountered the problem that directors could not decide if she was black or white) and who is not.

Moreover, how much diversity does one want: should it mirror the population with the same percentage of blacks, Latinos, those of various racial mixes, Native Americans, Native Americans by tribe, Arabs, Jews, Italians, gays, tall people, short people, or for color diversity: albinos (a group Judge Posner sarcastically suggests is overlooked for diversity)? These are complicated matters, some important and some obviously irrelevant to any real consideration. They point out the fact that, for affirmative action, choosing criteria is a complicated matter.

As to corrective justice, previous injustice is a complicated issue. There is no question but that a number of members of minorities are significantly worse off in palpable and morally significant ways than members of a relevant majority or elite minority. How would promoting their admission help? Should we provide affirmative action to Barack Obama’s daughters? What about the offspring of wealthy South Americans who qualify as Hispanic or Latino? What of the problem, discussed by Sowell, of the affirmative action Peter Principle (my label): promoting those the primary and secondary education system have failed to university places for which they are not ready or prepared? Should we take somebody who might do extremely well at a modest state school and place them in an Ivy League university based on past racial injustice, a university where they may struggle? Conversely, how can it be racial discrimination, after all, if the criterion for admission is not race, but discrimination based on race? That is, one would get admission benefits for being a member of a group of victims, and such a victim group in no way implicates any constitutional issues of racial equality. Thus, any argument favoring affirmative action, based solely on correcting past injustice, might not need to face the constitutional issues that the same program would face if rooted in claims of diversity. 

Fourth, it is an almost absolute certainty that there is no genetic difference among humans, at least categories of humans based on ethnicity, gender, and race. Genetic structure is identical, a matter of the human genome. This has also been solidly established in earlier genetic work, as one might see in Stephen Jay Gould’s, The Mismeasure of Man. Members of every group can achieve at the highest level. No longer do we think that, for example, that blacks cannot play quarterback (Warren Moon) or be outstanding scientists (Sylvester Gates)or lead armies (Colin Powell); or that women cannot lead nations (Margaret Thatcher) or win Nobel prizes in physics (Marie Curie); or that others, perhaps South Asians for example, could not achieve greatness in mathematics (Srinivasa Ramanujan) or economics (Amartya Sen) or in achieving peace (Mahatma Gandhi). What then do we make of inferior test scores among so many population groups at so many different times? The answer, of course, is due to the effects of social or historic or structural discrimination, historically carried through to the present. As to the cases just decided by the Supreme Court, they mainly concerned African-Americans. One might look at the 400-year history of America, where African-Americans spent half the time as slaves, half of the rest subject to the brutality of Jim Crow, almost all the time impoverished, kept illiterate, prevented from attending decent schools or buying homes, and at times barred even attending schools at all or living in certain neighborhoods. Dealt this hand, qualification for university admission based on doing well on the BC calculus test is not in the cards.

We might take a moment to hear what to examine one of the dissents here (as we have already heard from Chief Justice Roberts). This is the voice of Justice Ketanji Brown Jackson: 

With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces “colorblindness for all” by legal fiat. But deeming race irrelevant in law does not make it so in life. And having so detached itself from this country‘s actual past and present experiences, the Court has now been lured into interfering with the crucial work that UNC and other institutions of higher learning are doing to solve America’s real-world problems. No one benefits from ignorance. Although formal race-linked legal barriers are gone, race still matters to the lived experiences of all Americans in innumerable ways, and today’s ruling makes things worse, not better.

Fifth, for any set of positions, there may be a group of applicants that qualify for those positions where that group is greater than the positions themselves. There may be 5000 qualified applicants applying for 1000 places in a college or, as in a previous Supreme Court case, Ricci v. DeStefano, more qualified applicants for promotion to senior firefighter senior officers than there are positions. Take the senior firefighter issue for a moment. Suppose one way to differentiate between applicants, all of whom are qualified, is to consider their verbal SATs. This might be considered a very rough and ready marker of verbal adeptness or even intelligence. Should we use that? That is, among already qualified individuals, would that be a good way to sort out those who are qualified from those who are more qualified, or, rather, does being somewhat better at a particular test score make one somewhat more competent for that position? Should it matter or matter much? It might be the case that once a certain threshold of competency is achieved, additional other skills are largely irrelevant. 

Consider the job of being a teller at a supermarket. Two people want to apply, one a near math genius with a very high IQ, the other with a pretty good math IQ. Being a teller requires reasonable math ability. Does the fact that the math genius is able to do calculations faster make that person a more attractive candidate? Or, put differently, would we want someone in that position who might do better with the customers, might have better relationships with other employees, might have a history of having worked harder to learn the math, or might have some social or work habit or life story to be a better hire? Do we think someone with somewhat higher math SATs will necessarily do better at or for the University of North Carolina than someone who, from a worse economic background and with fewer demographic advantages, has a somewhat lower SAT score? Might we think, in fact, that even to get close to the same SATs as the individual with demographic and economic advantages, perhaps let’s say within 50 points (600 versus 650), the candidate with the lesser score might be thought to have even higher innate IQ, more drive, more ambition? Affirmative action, at least, in theory, is one method to test in advance that possibility. 

Affirmative action is not reparations, although they are not completely unrelated. Both speak to corrective justice (although not directly connected, of course, to diversity), and both present a problem in ascertaining who should be entitled. Qualification is a vague concept for affirmative action, but almost crystal clear in its certainty when measured against entitlement to reparations. Social history, intermarriage or other reproductive methodology, personal stories, and complex family histories all matter. Moreover, who ought to pay is also difficult, as those held to account are not likely to be the actual wrong-doers. Yet it is even more problematic than that. Normally we seek corrective justice from the actual wrongdoer: the person who stole your lawnmower or hit you with their car while you are in a crosswalk. We don’t hold descendants responsible for sin onto the third or fourth generation, biblical command or not. Distant descendants of slaveowners might object to paying for the sins of their ancestors. It is worse for those who later came to America. For the immigrants and their descendants since 1865, they may think of themselves as in need of reparations themselves as victims in their own countries. One solution, pointed out by Boris Bittker, is simply to locate resources – jobs, daycare, community colleges, parks, employment, government offices, public transportation – disproportionally in economically distressed and low demographic neighborhoods. This is a program agnostic as to why those doing poorly are struggling, whether because of past discrimination or otherwise, but is likely to capture as beneficiaries those who probably were. In any case, in terms of correcting past injustice, the tenor of the Chief Justice Roberts decision seems to be highly skeptical of, if not oblivious to reparations, but even to the issue of the corrective placement of additional resources. 

Sixth, we don’t know how to deal with groups. There is an essential paradox in the way our society constitutes itself, one expressed in various ways. It is expressed in the conflict between cooperation and competition, between individual freedom and group solidarity, between charity nearby and indifference afar. We name and enumerate so-called protected groups, those subject to special protection because victims of past attacks. We are wary about their present treatment. For example, an employer might terminate a worker by simply saying, “You are a thief”, but may raise flags and problems by saying, “You are a ‘fill in the blank’ thief, if ‘fill in the blank’ names a protected class based on race or religion or ethnicity or gender or age or some other category. We recognize this everywhere, not because we think it is a good idea to single out groups, but because we take note of groups historically and presently singled out for poor treatment, for hate crimes, for exclusion, for violence, for discrimination of every type. If that is so, why can’t we promote those groups? Why is not advantageous opportunity a form of protection? 

Seventh, aside from identifying the beneficiaries – whether the offspring of slaves (not Obama), those identified with an oppressed group that has historically been linked to slaves (Obama), those raised are in geographical and economic circumstances typical of the descendants of slaves (not Obama) or subject to inferior social treatment and consideration toward the group identified as the descendants of slaves (Obama), or something else, or combination of things (maybe Obama for law school entry, but once admitted not as a Harvard Law graduate for law firm employment) – affirmative action is both an under- and an over-inclusive tool. It is under-inclusive in that a number of those whose circumstances are the result of either episodic or historic or regional or systematic discrimination – whether racism, or sexism, or antisemitism, or nationalism, or otherwise – are often not included in any particular affirmative action program. Perhaps one has lived in poor circumstances, because one immigrated from persecution in Russia or Yemen or El Salvador or from the Central African Republic or had been treated badly through systemic impoverishment in the hills of Appalachia or on the Indian reservations of Oklahoma. These may or may not be captured in any particular affirmative action program. Thus, any program is likely flawed in that it will fail to include many who ought to qualify as victims under whatever general and universalizable criteria are used. 

It is also over-inclusive, not only including those who have, at least in recent generations, done well, those who, despite their group’s histories, themselves have never really suffered from some of the systemic issues. Again, this might include someone like President Obama, whose mother was white and whose father was Kenyan. He is not a descendant of anyone who suffered slavery, Jim Crow, segregation, and the rest. Affirmative action programs are proxies for remedies for groups who have suffered from discriminatory practices. This raises the question as why we should not consider personalizing the proxy to the individual level, not just using the imperfectly constructed group. The short answer is the same as the one that justifies proxies generally: it takes too much time, it is too expensive, and it is too difficult to be precise. However, it may be better to design programs that give additional admission advantages to those impoverished or otherwise left behind as a method of reaching a greater percentage of individuals one wants to provide with corrective justice than any affirmative action program. This is a feature of fallible design, not one that is inherent, but one difficult to solve. 

Eighth, admissions programs, like hiring programs and other ways of choosing, use a variety of measures to guide selection. There may be general agreement on what counts as better or worse for a selected candidate in certain areas. For example, a military sniper candidate might be the person who does better at the shooting range, a major-league shortstop would have enhanced quickness and throwing arm, a successful clergyman likely need a reassuring bedside manner, and a surgeon’s steady hands and nerves. We have no such reassurance for those we admit to universities and colleges. They arrive with underdeveloped and under-determined talents, talents they often don’t know they have. They also arrive with any number of difficulties, ones they may or may not know they have. To use our examples, they may not know whether they want, or have the talent to qualify, to be an army ranger, a major-league baseball player, a clergyman, or a surgeon. How are we to measure admission when we don’t know which of these they may choose?

But it is worse than that. Colleges and universities use a variety of criteria to figure out who they should admit, and much of that criteria is not comparable one to another. Affirmative action certainly falls into that pattern. One might be able to measure test scores against one another, AP tests versus the SATs, and either of them versus the GPA of any individual student. One might even, with some difficulty (but becoming more adept with experience), be able to measure the range and commitment of outside activities, looking at after-school sports versus the Math Club versus volunteering for charity versus working at a part-time job. These might be measured against one another to see if there is some common currency that would allow the school to look at persistence, dedication, achievement, and success. That said, measuring that against test scores and grade point average involves incommensurate measuring, as it is hard to see how one single currency could be used to rate each of them. Affirmative action is just another incommensurate criterion. How should we judge any deprivation to an individual who is a member of a large group against experiences of various degrees of deprivation over a wide area and over a long period of time? Moreover, how should we apply the markers of grade point average or participation in the French Club or playing on the lacrosse team against those experiences or judge their weight? Should we discount those when considering a member of a disadvantaged group? How? Is it different for an African-American or Latino or Native American, or recent immigrant? These present practical problems, both administrative and judgmental. When figuring out who should belong, they give rise to moral issues and feelings of resentment, particularly when we get it wrong. The problem is: it is too easy to get it wrong.

As to the political issue, affirmative action has traditionally been considered legally permissible, so suddenly changing it, with nothing that has occurred that would merit change, is simply further evidence of a Supreme Court concerned more about policy than precedent, more about ideology than law. We already knew this based on any number of decisions, most recently, Dobbs v. Jackson, the abortion decision that reversed Roe v. Wade, and NYSPRA II v. Bruen, which struck down a 100-year-old New York State law requiring licenses to carry a concealed weapon.

That is, even if affirmative action in education were constitutionally impermissible under the membership of the current, but not prior, Supreme Court (and now it is), the question would remain whether it makes sense as policy. There is a non-trivial concern, raised by Justice Thomas, that the taint of affirmative action colors all who are thought to be its recipients. People often think someone achieved what they did because of affirmative action, rather than their merits, even if the affirmative action was rooted in their merits, but use that fact to demean or diminish them. In fact, the degree of any benefit is probably impossible to know. Did some school admissions officer give a great deal of credence to past discrimination of the group which the applicant is a member, or just a slight thought, with two candidates who are otherwise pretty much the same competing for a single place with the candidate from the disadvantage group historically disadvantage group now suddenly given the nod? It is an interesting fact about our society that any number of those who might achieve in the corporate or medical or financial arena got to where they did because of legacy or athletics or idiosyncratic talent, but that is not held against them. (It may even be celebrated). Nevertheless, Justice Thomas’ point is an important one.

In any case, searching for solutions to the myriad injustices of the world by microscopically scrutinizing the intent of the slaveholding fathers who never had the intent to seek solutions to these injustices seems not only a terrible way to interpret the Constitution, but a dreadful way to run a democracy. Perhaps we should consider strict adherence to the Constitution to imply not just loyalty and fidelity to text or to the thoughts of an idiosyncratic band of individuals from the 18th century but, rather, to a more basic framework of coherent and just principles. Such a framework is found, among other places, in the Preamble to the Constitution and the opening lines of the Declaration of Independence. These guarantee that all in society might hope to enjoy the freedom, equality, opportunity, safety, and fairness necessary to prosper and flourish.