Law: August 2012 Archives

The Los Angeles Times has an editorial up about the upcoming Supreme Court case that will revisit affirmative action. It argues several things, but one claim it makes strikes me as wrong. It points out that the Supreme Court has affirmed affirmative action as constitutional in a limited way, by saying:

1. Outright quotas, which reserve special spots for one group and only that group, violate the equal protection clause of the 14th Amendment.
2. Less absolute ways of giving preference to under-represented groups pass constitutional muster, provided they have the right justification and are narrowly-tailored to meet that justification.
3. The right justification is the compelling state interest of increasing diversity, not reparations for past maltreatment, overcoming the persistent lingering effects of past maltreatment, or counterbalancing for any current discrimination.

This is right as far as it goes, but I think the editorial's way of framing what Justice O'Connor's framework allows and doesn't allow as justifications is not quite right, because it doesn't take into account one of the most important recent diversity arguments, which brings together diversity with some of the other considerations. Here is how the editorial separates the justifications:

One of the most persuasive arguments for some racial preferences is that the underrepresentation of African Americans in the ranks of the highest-achieving college applicants is inseparable from this country's legacy of racial discrimination. Far from offending the 14th Amendment's guarantee of equal protection of the laws, such policies are consistent with that amendment's paramount objective of overcoming the effects of slavery.

The problem is that, beginning with the court's 1978 decision in the Bakke case from California, affirmative action has been based on a different rationale: that including students from different backgrounds enhances everyone's educational experience. That "diversity" justification, which looms large in the administration's brief, is valid as far as it goes. But it gives insufficient weight to the persistent racial disparities in income and education that continue to put minority applicants at a disadvantage.

The most significant development in the affirmative action discussion since the 2003 Supreme Court decisions is Elizabeth Anderson's work on integration, most supremely in her 2010 book The Imperative of Integration, which I consider a game-changer both in the moral debate about affirmative action and in how the legal issue of the diversity justification can fit together with the argument of the first paragraph I quoted above.

Anderson argues for a diversity justification that doesn't sound much like diversity simply enhancing the educational experience. What she argues is that increased interaction across racial lines is in fact the best way to overcome the effects of slavery, because the most entrenched structures that continue disparate racial effects stem from forces that are shown to diminish when there is more racial interaction, particularly at more intimate social levels, and one of the best ways to foster such increased social interaction is to get better representation at formative social institutions like schools, including dormitory housing assignments. Increased integration for the sake of better serving the educational purpose of these institutions is in fact what the Supreme Court's diversity justification allows for as a motive, and it doesn't limit itself to classroom experience. But Anderson argues that it is that very increased diversity and systematically more social interaction between races that will lead to the effects the first paragraph quoted above says should be the real justification for affirmative action.

So we can no longer say that these are separate issues. It's not that there are these separate justifications for affirmative action, and one justification is deemed by the Supreme Court to be unconstitutional, while the other, less-convincing, one is deemed constitutional. What Anderson has argued, rightly in my view, is that the one the Los Angeles Times editorial says is less convincing (but that the Supreme Court has endorsed) actually does meet the purposes of the first one that they find more convincing (but that the Supreme Court precludes). And it strikes me that this is the best and most convincing reason for wanting to increase diversity and promote higher levels of integration at the college and university level.

What strikes me as the most important countervailing argument is not the legal question of the 14th Amendment, as the Chief Justice and Justices Scalia, Kennedy, Thomas, and Alito seem to think. The 14th Amendment was crafted by people who had no problem with interracial marriage bans, so an original-intent justification won't work to ban affirmative action. Perhaps an original public meaning argument would, but 14th-Amendment jurisprudence has long accepted at least some cases where other considerations trump equal protection. The standard it has to meet varies for different groups, but discrimination of various sorts can be morally and legally justified in certain settings, provided the right criteria are met. The question is whether the diversity rationale or some other rationale can be strong enough to justify giving some (but not absolute) preference for having a more integrated incoming class in a university or college.

But there's another question that gets much less attention, and that's how that integration or diversity gets achieved. The 1978 Supreme Court case ruled out absolute quotas, because they reserved spots for specific under-represented groups no matter what. So even if the only applicants were grossly underqualified and would fail out in one semester, they couldn't give those spots to others. That's been recognized by the Supreme Court since 1978 to be too far. The 2003 cases established another way that the methodology can go awry. The University of Michigan's undergraduate admission program assigned specific numerical values to different under-represented groups, and there was a certain percentage increase or decrease in the numerical value assigned to those candidates for admission because of their demographic. That's not as absolute as reserving spots for certain groups and never giving them to anyone else, but it was too absolute for Justices O'Connor and Breyer, who joined the more conservative contingent on that case (whereas they joined the more liberal contingent on the law school case that established the diversity rationale as constitutional). So both those methods went too far, according to enough votes on the Supreme Court to get it established as precedent.

What I wish would get more attention is another matter of what might go too far. Assuming it's perfectly fine to want to increase the number of representatives of an under-represented group, one way to go too far in bringing them in is to bring in people who will be unable to do the college-level work expected of them at an institute of higher learning. It was easy for me to see the disvalue in students unable to do college-level work when I tutored for the Syracuse University football team. Some of the team members I tutored needed some extra help but could do fine with that help. (One in particular was a stellar student.) But a few really had either very low ability or severe under-preparation and needed to be at a community college. There's a low enough retention rate on major athletic programs that admissions offices need to do a better job at resisting some of the candidates team coaches try to bring in.

Why can't the same true of affirmative action admissions? So even if race-consciousness is an important consideration in college admissions, many of the arguments against affirmative action would still have some moral force in leading admissions offices to be more careful in who they give a leg up to on their diversity justification. It seems too quota-like if they're just trying to achieve a certain percentage (which I'm sure they are -- the numbers bear that out, as Justice Thomas' dissent to the 2003 cases substantiated). Not being absolute makes it not an absolute quota. But not being absolute doesn't make it not a non-absolute quota. If they have a goal of a certain percentage, and they try to achieve it by bring in candidates who really aren't best served by being there, then they're morally failing, even if they have some wiggle room and aren't reserving an absolute number of spots for certain groups. It seems to me that this is what is in fact going on in most university and college affirmative action programs, and I don't think it serves the groups it's aiming to help. The populations who are under-prepared are not best served by bringing them to institutions they're not prepared for. They're best served by programs that help them before they get to college, as states where affirmative action has been outlawed have been able to do in order to do a back-door kind of affirmative action to get their quota goals met without allowing admissions to be race-conscious in any overt way.

Also, there's the issue of blindness to important diversity issues while focusing only on mere racial assignment. The important concern should be getting more integration with populations who really have barriers to integration. If you look at race and ignore other factors, then the children of immigrants and middle-class under-represented populations tend to get the benefit of those policies, when the most needy non-immigrant descendants of American slaves are not getting the help they need to achieve and get accepted to higher-learning institutions. Even when affirmative action helps the individuals it's intended to help, which I've already argued is not always the case, it's not usually helping those who most need it. Specifically targeting it to help them won't help them either. It's the other programs that help them earlier that really need the most effort. This is indeed something that even Justice Thomas, one of the strongest opponents of affirmative action on the Supreme Court, would be delighted to support. A key component of his resistance to affirmative action is recognizing how little it does to help the people who most need help and how much it might in fact harm some of them. There seems to me to be something right about that, and affirmative action simply isn't the answer to that problem.

So what would I conclude about all this? I do think an integrative purpose for some race-awareness in admissions can be perfectly fine and compatible with the equal protection concern of the 14th Amendment. I also think those who engage in such admissions policies need to be really careful that they're doing it in a way that achieves that goal well, and I suspect most of them do not. I also think what colleges and universities do with them once they arrive matters significantly, and it's important that they not foster so much of a tie among under-represented students that they form less-significant social ties with over-represented groups, as happened every single year at Brown University when I was there, because of a well-meaning program that happened before the bulk of other students arrived that allowed minority and international students to form social ties that lasted them their entire four-year Brown experience in ways that, for many, led them not to form as many ties with other groups. (This can happen in non-racial ways too. The evangelical Christian groups can lead evangelical students to do that.)

There was a legitimate purpose for such things. Consolidation and solidarity can provide those with similar experiences to unite over them and realize that they are not alone in their experiences. Community within an identity group can be a very good thing. Nonetheless, integration (particularly a kind of social integration that doesn't ignore difference but allows different people to recognize and understand their differences) is the best means to overcoming racial problems, and I think those who use the diversity justification for affirmative action have a moral obligation to ensure that they actually foster integration rather than fostering segregation once the under-represented students are there. That takes walking a fine line and being concerned about two things at once, things that seem hard to seek both together. You have to balance out various considerations. This is a more complex issue than either side usually presents it as. I'd like to see the Supreme Court recognize that when they revisit it this coming term, but I suspect we'll instead continue with two sides who each see only half the picture.



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