Minority Rules: Michigan Affirmative Action

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More classic Parableman. From 4 July, 2003, my discussion of the affirmative actions cases last summer, just before the first time I ever covered this issue in an ethics class. I've changed my views a bit since then (which I hope to get to shortly), but I haven't altered anything here except to put links in for the biblical references and to add a title. For those who don't get the double entendre, it refers to both the underrepresented minorities of affirmative action policies and (more importantly) the small minority of Supreme Court justices (two out of nine) whose position became law through these cases.

On 23 June, 2003 the United States Supreme Court decided two cases on affirmative action. Two lawsuits against the University of Michigan, one involving the law school admissions and the other for undergraduate admissions. Here are the fundamental issues.

Equal Protection and Affirmative Action as Racist:

Is it racist to make admissions decisions according to race? The issue involves the Equal Protection Clause (which is really a phrase, grammatically speaking) of the Fourteenth Amendment. Chief Justice Rehnquist, Justice Scalia, and Justice Thomas agree that using race to decide between two qualified candidates does not violate the Equal Protection Clause, and such a policy is even recommended given that certain minority groups are underrepresented. Most people think this is what affirmative action is. That, however, is not the case. Most affirmative action policies (even the ones who deny this of themselves) do have lower standards for underrepresented ethnic groups. The Michigan case involved black, Latino, and Native American applicants who would not have met the admissions requirements but were admitted, with race making the difference, whereas white, Asian, or other candidates were turned down for admission despite their qualifications. The three above-named justices consider this practice racist against the candidates who are turned down for admission in favor of less qualified students. When the school is a state-funded institution (even if it is private with some public funding), it violates the equal protection of the laws guaranteed by the Fourteenth Amendment. Because only three justices hold this view, it is therefore a minority view among the Supreme Court.

The Reparations Argument:

One view that�s been given to justify affirmative action is that underrepresented groups are owed some reparations for wrongs done in the past. For instance, due to the wrongs of American slavery and the injustices that followed it, opportunities have been denied to blacks. Therefore, affirmative action is a way to make up for those injustices, with black students being helped to succeed by given an easier chance to attend better colleges and universities. Interestingly, not one of the Supreme Court justices endorsed this position. A lot of resistance to this idea comes from the Western individualistic mindset, according to which one is responsible only for one�s own wrongs. If I�m not a racist, then I shouldn�t be held responsible for my racist ancestors, and therefore I don�t owe the descendants of slaves anything. I think this mindset needs to be revised significantly, but I don�t think that will change the legal arguments.

First off, racial justice will never happen unless white mindsets that are a result of racist history are changed. Every culture has its good and bad, and there�s still bad in the predominant white mindset (not that the predominant black mindset is perfectly good either). If each culture can learn from the others and adopt the good in the others, that would make for a significant advance in race relations. This involves understanding other perspectives, and it requires being willing to consider how others will respond to what one does. Simple facial expressions or how one carries oneself can carry such significance, and people affected by it notice it immediately. Those doing it may not even notice, and it�s usually not intentional. However, it has demeaning and degrading consequences, and therefore it�s often called residual racism, as the influence of the history of racist beliefs. The recent Trent Lott brouhaha over his comments about Strom Thurmond illustrates this. Trent Lott isn�t stupid, and he wouldn�t have deliberately said something that he knew could have been interpreted as endorsing Senator Thurmond�s former segregationist view. That would have been political suicide, and calling Senator Lott a racist over something like this is not just silly but divisive and unproductive. If he�s a racist (i.e. if he holds racist beliefs), this isn�t evidence of that. What it�s evidence of is that he hasn�t pulled himself out of the predominant white mindset. Senator Thurmond ceased to be a segregationist such a long time ago that a mainstream white politician like Senator Lott has no trouble focusing on his recent policies on typical conservative issues. That�s what Senator Lott was referring to. The problem is that most black people have associations with him that white people might not automatically sense. Senator Lott just wasn�t thinking about the fact that black people would hear his comments as ignoring the segregationist policies of the very campaign he was discussing. For that, it�s unfair to call him a racist (i.e. someone with racist beliefs), but it�s fair to say that his comment was the result of residual racism (in this case societal forces at work that lead white people to underestimate the negative effects of the history of racism on black consciousness), and it is quite fair to say that Senator Lott was at least being insensitive. I see no grounds for attributing to him the view that segregationist policies would have been good, but he should have considered how black people (or even sensitive white people) would have taken his comment, with its associations about a segregationist campaign. Republicans who care about the interests of black people were right to ask him to step down, because he showed that he wasn�t thinking about the concerns they�ve been trying to advertise themselves as caring about. There�s already so much resistance in the black community, with their undeserved deference to the Democrats who rely on their vote but don�t do anything to earn it, that Republicans need to be without blemish for black people even to consider voting for a Republican. So overcoming racism will require considering how others will see one�s actions and hear one�s words. However, it�s not clear that this requires affirmative action, so the legal issues won�t necessarily be decided on that basis. Seeing from the perspective of others (and this goes both ways) needs to happen before racial justice is complete, but I don�t see how affirmative action even serves that end, never mind how it would be required.

The second thing about the Western individualism that I would caution against is its abandonment of group solidarity and group responsibility. I think we need more of a notion of community responsibility. In the Hebrew Bible, Isaiah, Daniel, and Ezra shared in the sins of their people as they were lamenting them (see Isaiah 6, Daniel 9, and Ezra 9). Each saw a need for public community repentance for the evils of his own generation. We need to do the same, and it will be harder to combat the values of our own community unless we see ourselves as part of it, and our own repentance needs to come even if we harbor no racist views of our own. Racial injustice and racial tension will be strong until both sides do this. There�s so much resistance to this in the American mindset. The American way is to compartmentalize and separate, but it�s inconsistently applied. When terrorists fly planes into the World Trade Center, Americans are a united community against those others who would do such a thing. American patriotism reigns supreme, and all Americans identify with the good things that really are true about the United States. However, this doesn�t happen when American values or even American government policies lead to evil. Then it�s the other guy who does it. This is totally inconsistent, and racial harmony will never happen until we overcome it. The racial divisions themselves are a result of American individualism, though it involves community solidarity within a smaller group, but it�s an �us� against �them� mentality, and that involves thinking of each group as a unit not responsible for the wellbeing of the other, not responsible even to understand the other. People care about themselves and their own, but that in itself involves some notion of community, so there�s this weird tension between community and division when it comes to race.

The notion of racial justice at work among most white Americans is that black people should be given the same opportunities as white people, and therefore if they don�t succeed it�s based on how they handled what they were given. This wouldn�t mean black people are stupid for not succeeding in school. It would mean that those who are smart enough to do very well (but who somehow don�t) aren�t taking advantage of the opportunities wisely. The standard liberal explanation for this is that black people really don�t have equal opportunities. This may be so, but John McWhorter�s arguments have convinced me that peer pressure against doing well in school (which is viewed as a �white� thing) is the main reason black students have a lower success rate in academics. This also explains quite well why most black people in academia (who did do well in school to get there) seem to frown on black intellectuals who are interested in academic pursuits for their own sake rather than being an academic purely for the sake of �black� issues. It�s certainly true that social justice and understanding black history are good things, but why is someone not �black� who is interested in Chaucer or in pure mathematics for the sheer joy of understanding and knowledge? If the liberal explanation is correct, affirmative action then comes in to help black students by giving them an equal shot. If McWhorter is right, affirmative action doesn�t do that at all but merely lowers the standards for black students, which in turn gives them a lower target to shoot at, which leads to lower performance among black students. He goes so far as to say that affirmative action policies are racist against black people (not against white, as Chief Justice Rehnquist, Justice Scalia, and Justice Thomas argue), since they prevent black people from succeeding by giving them nothing to shoot for. With lowered standards for admission, candidates are admitted who can�t succeed at the institution that normally has higher standards, and the drop-out rate is higher for underrepresented minorities, who would have done fine at institutions with lower standards across the board. So this policy actually hurts the students it�s intended to help.

So group responsibility is a good thing, and we need to work toward it. If the liberal explanation of why black students don�t do better is right, then we have an argument for affirmative action. John McWhorter agrees that this would be a good argument if that were the reason, and it was a good reason for affirmative action originally. However, much of the racial disparity is gone now. Interracial marriage is becoming far more common. The black middle class was virtually nonexistent when affirmative action was first implemented, and now it�s booming. Most of the black students who take advantage of affirmative action policies are middle class, and the fact that their parents have an education and value education has no impact on their willingness to succeed in school. The fact that they have more economic opportunities and more exposure to computers and other technologies also seems to have little effect. This confirms McWhorter�s explanation over the liberal explanation. He�s certainly right that admissions committees don�t need to have affirmative action policies because of their own reluctance to admit underrepresented minorities, whereas in the business world people tend to favor those more like them and might have some unintended bias to overcome. So it seems that in principle this argument for affirmative action could have some merit in the environment that fits how they describe the current scene, but their description doesn�t seem right, so that argument fails. A better application of community responsibility across racial lines would be if white people a greater effort to help black students succeed in the first place rather than allowing them to wallow in community self-pity while blowing off their opportunities for education, assuming good colleges will let them in anyway.

Another argument might come from economic disadvantage, but that would be an argument for lower standards among poor people, not lower standards among black people. No admissions committee actually does that unless the poor people they admit are black, which shows that it�s race issues and not economic status that drives it. Somehow the racist notion that black people are necessarily poor is behind this argument, even if it�s unacknowledged. Such an assumption harms the potential for black people to do well economically, though history has shown that such a harm will be overcome as it�s been overcome in many cases already.

It�s interesting the justices didn�t give this sort of argument for affirmative action anyway. It may be that white people as a community owe something to black people. Constitutionally, though, can a state institution (or a state-funded institution) use that as a reason to favor black candidates who are underrepresented at that institution? The Supreme Court has a long history of reading the Equal Protection Clause as saying that a state can�t use race (or any other way of distinguishing between two people) as a way of favoring one over the other unless the state has a rationally motivated interest in doing so. It doesn�t seem to be in the state�s future interest to require white people to give up some of their equal protection rights so that black people can have lowered standards for admissions, if the only argument for doing so is that white people as a community have some undefined way of owing it to black people. If the issue is the good aspects of diversity, then that�s a different argument, and I will look at that in the next section, but that�s not the argument here. Therefore, the justices of the Supreme Court didn�t even consider the reparations argument.

Diversity as a State Interest:

Four justices advocate seeing diversity as a state interest to the point of being willing to allow both Michigan policies � the undergraduate admissions policy and the law school�s slightly different method of counting race as a part of a student�s qualifications. Justice Stevens, Justice Kennedy, Justice Souter, and Justice Ginsburg saw no problem with either policy. Four is still a minority in nine-person Supreme Court, so this view still did not win out. What�s interesting is that these four agree with the three above that it�s inconsistent to allow one of these policies and not the other, which is what the decisions ended up doing. So a majority of the Supreme Court justices � a majority of seven at that � disagreed with the actual outcome of the decisions, seeing them as jointly inconsistent. Since they were two different cases, the three lined up with the two who didn�t see this as inconsistent for a majority of five, and then the four lined up with the two for a majority of six, and the decisions were rendered in opposite directions. Justice O�Connor and Justice Breyer were the only two who agreed with both decisions and the only two who thought it was consistent for the two decisions to come out as they did. Therefore, a majority of two justices won the day on a court of nine justices. That�s simply an accident of there being two cases. It�s not too helpful to speculate on what would have happened had there only been one case, but I think we can rest assured that the decision wouldn�t have been what we got here, and that may be fortunate or unfortunate, and there�s no way to tell, since it could have gone either way. Some compromise would have been needed, but it wouldn�t likely have been what we got.

So the four justices who agreed with both cases (and the two who agreed with just the law school admissions policy) have declared it constitutional to use diversity as a reason for distinguishing between people based on race. That seems ok if it�s the mistaken notion of affirmative action that most people seem to have, in which an underrepresented minority candidate gets picked over an equally qualified or even a slightly more qualified candidate whose ethnic group is well represented. All nine justices agree with that sort of policy. However, what happens if it�s a candidate who is much less qualified? The admissions policies in question involve admitting an underrepresented student with a GPA one point lower and 200 points lower on the SAT over a white or Asian student at the higher level. That seems hugely significant, and most people who face these facts are surprised at the disparity. In the face of such lowered standards, is diversity alone enough of a reason to admit students who will have a harder time doing well at the institution? Is diversity enough reason to discourage students of that ethnic group from doing well enough before college to meet the standards everyone else has to meet just to get into college?

The group of four justices says yes with both policies. The group of three says no to both policies. McWhorter argues that there was a time when diversity was a good reason to admit underrepresented groups with lowered standards. He still thinks it�s a good reason in the business world. With more perspectives on the table and more life experience, you have a more diverse group of people who can bring more to the job. What about a university community? More perspectives are certainly good when it comes to learning. Having students interact with professors of a different ethnic group can be not just eye-opening but bridge-building and even trust-building. However, one needs only to look at current collegiate racial dynamics to see that diversity is only minimally achieved in the classroom and is almost nonexistent in social spheres. Universities even seem to encourage this by isolating minority groups with separate orientations and living quarters. This is encouraged segregation. Whatever the cause (and some of it is simply the understandable desire to be among those who seem familiar), diversity is not a social reality in university life. Black students hang out with black students. Look at any university dining center for obvious evidence of this. In the classroom, some classes are fairly mixed racially, but look at which classes black students are �encouraged� by their community to take. African American studies, or whatever your favorite institution chooses to call it, is full of black students. How many of these students fulfill their history, sociology, literature, and philosophy credits with other classes? Some of them certainly do, but the peer pressure favors the specialized courses if the institution allows it. It�s not viewed as a respectable interest for a black student to like philosophy or literature, but when it�s about black issues or the history of the black people, that�s different. This anti-intellectualism (whose cause is more in the black community than in the university system) leads to separatism and self-imposed segregation. White students naturally incline toward more mainstream interests, since they normally have no overwhelming interest in black history or philosophy of race, though many will take a course or two in areas not in their main interest. So there is overlap, and many white students and black students find themselves in the same classes, but there�s an overwhelming sense of community and black solidarity in the �black� courses, which leads to more black students having less contact with students who aren�t black. This leads to less of a sense of diversity than the policy of affirmative action is supposed to provide.

So it�s not clear that the policy serves the interest the state has in diversity. If black students were encouraged to be interested in thinking for its own sake and encouraged to do well in school because it�s simply better for them if they do, then you would be furthering diversity at the institutes of higher learning. This could even be with state-sponsored programs, as California has done since affirmative action was made illegal. With the current mindset of separatism and anti-intellectualism, it doesn�t seem as if affirmative action is really providing a diverse environment. It�s more of a few different separated groups who interact in some official capacities but not regularly enough and on a personal enough level to be worth the lowered standards it requires, given the negative effects I mentioned above.

The Very Minority Position That Won:

Justices O�Connor and Breyer are the only two justices who thought the law school policy was ok but not the undergraduate policy. To see how strange their view is, it�s worth looking into their reasoning. The fact that seven other justices, three of them conservative, three of them liberal, one of them right in the middle, disagreed is testament to the strangeness of the view. The idea is that quota systems were declared unconstitutional in the groundbreaking Bakke decision 25 years ago. The problem with quotas is that they reserve spots for underrepresented minority students regardless of qualifications. I guess the reasoning here is that qualifications have to matter, but it doesn�t matter if race counts more than qualifications. The law school policy can count race more than grades or LSAT scores, so in that regard it�s similar to the undergraduate policy. What�s wrong with the undergrad policy as far as the majority of two is concerned is that it�s closer to the quota systems of the past by doing it by the numbers. Assigning certain points to race is too mathematical, and eyeballing it with a more subjective evaluation of candidates as whole persons is less like the quota systems somehow, even though both involve standards being drastically lowered so that race can count more than qualifications. The difference is how the evaluation is done (more mathematically or more subjectively), not in what is being done or how significantly race will affect the decision. The nicer aspect of the law school�s method is that cultural factors that really do make someone a more well-rounded candidate can be figured in, making it not so clearly race-based as much as culture-based, but the practical matter is that it was used simply to get more students in simply because of color, with lowered standards. It wasn�t used to the potential that the Supreme Court majority of two saw in it that they thought wasn�t in the undergraduate policy, simply because law school candidates aren�t the same sort of pool as an undergraduate pool of candidates would form, with the wide variety of features that might make for a well-rounded student to make up for other qualifications being lower. The fact of the matter would still remain, however, that admissions committees will tend to look for these sorts of things to increase their minority numbers, as has happened in California. They officially list it as other factors, but their intent hasn�t changed. They simply want to increase their minority numbers. So I can�t see how this position that won, which was only held by two justices anyway, could have a significant enough basis to make the difference between the law school policy and the undergraduate policy one recognized as a constitutional matter. Even if there�s some difference, and the law school one is better, I can�t see how that makes one of them legitimate in the face of equal protection issues while the other one violates the constitutional rights of those who would be harmed by these policies (which McWhorter argues isn�t just the white or Asian students but very much includes the students admitted by affirmative action policies).

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