Arguing Affirmative Action

Affirmative action has long been one of the most contentious of topics in the US. The concerns have generally centered on issues of race and ethnicity—always touchy subjects. One might define affirmative action as taking positive steps to redress an imbalance. It usually becomes an issue in school admission policies, but also arises in hiring actions.

The subject came up again recently when the Michigan legislature passed a law, the Michigan Civil Rights Initiative, prohibiting state universities from using race and ethnicity in consideration of admission. A federal appeals court ruled 2-1 against the law. The state argued that admission should only be based on academic merit, while those against the law argued that the colleges already give special consideration to many classes of applicants, such as veterans, athletes, those from rural backgrounds and those with lower income, so why select race and ethnicity for special treatment.

These arguments always involve emotional responses to the issues. I was reminded that Michael J. Sandel, a respected Harvard professor, provided a coolly considered academic treatment of the issue in his book: Justice: What’s the right Thing to Do? Let’s turn to him for some enlightenment on how to approach this issue.

Sandel points out that all universities, including public ones, use diversity arguments to justify their admission processes. That would be the source of many claims of discrimination. If a public university mandates that so many slots will be filled with foreign students, with out-of-state students, with athletes, with musicians, is that any different than deciding that the desire for diversity requires some degree of racial or ethnic balance? Sandel quotes from a Harvard-introduced legal brief in favor of the diversity argument.

“If scholarly excellence were the sole, or even the predominant criterion, Harvard College would lose a great deal of its vitality and intellectual excellence....The quality of the educational experience offered to all students would suffer....A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer. Similarly, a black student can usually bring something that a white student cannot offer. The quality of the educational experience of all the students in Harvard College depends in part on these differences in the background and outlook that students bring with them.”

Harvard provides a compelling argument in favor of diversity, and indirectly in favor of affirmative action. If one agrees with this argument, then one is likely to be in favor of affirmative action. But this is actually an emotional response. How does one convert this into a legal argument?

Most objections to affirmative action based on race and ethnicity, as in Michigan, resort to the claim that admission should be based solely on academic criteria. Sandel relies heavily on the work of Ronald Dworkin, “a rights-oriented legal philosopher.” The conclusion is that if a university defined its goal to be such, then it would be bound to examine academic achievement and promise as the sole criteria for admittance. But probably none would do such a thing.

“Universities define their missions in various ways. Dworkin argues that no applicant has a right that the university define its mission and design its admissions policy in a way that prizes above all any particular set of qualities—whether academic skills, athletic abilities, or anything else. Once the university defines its mission and sets its admission standards, you have a legitimate expectation of admission insofar as you meet those standards better than other applicants.”

Much of the emotion involved in the arguments derives from what Sandel would call a basic misconception about fairness.

“Admission is not an honor bestowed to reward superior merit or virtue. Neither the students with high test scores nor the student who comes from a disadvantaged minority group morally deserves to be admitted....admission is justified insofar as it contributes to the social purpose the university serves....The mission defines the relevant merits, not the other way around.”

Are there limits to what a university can do in defining its mission?

“All fairness requires is that no one be rejected out of prejudice or contempt, and that applicants be judged by criteria related to the mission the university sets for itself.”

Given these considerations, one could argue that the Michigan law would have required that classes of applicants would have to be treated to a different set of admission requirements (academic only) than other students. That can be construe as prejudicial. The Michigan law would have been fair if it had defined the mission of the university to consider only academics for all students.

People who delve into the manipulation of admission criteria should be careful of what they wish for. Concentration on academic achievement and academic promise can lead one in interesting directions. Andrew Hacker and Claudia Freyfus point out some interesting student body changes that have occurred over time in their book Higher Education?. Since women seem to perform better than men in high school, admittance committees are seeing themselves pushed to produce enrollments with many more women than men.

“At a typical four-year college, you’ll count 127 women for every 100 men. By the time the graduation rolls around, there will be 133 women for each 100 men receiving degrees.”

Private schools seem to be able to control this imbalance by biasing their admission standards in favor of men. But what of public universities, especially those whose legislatures have demanded an academics-only approach? According to the authors

“....federal courts overturned a University of Georgia attempt to give extra admission points to men.”

Talk about situational morality!

The authors quote another interesting example.

“Due to the stress on grades and scores, Asians now outnumber Caucasians at the University of California’s Berkeley, Los Angeles, San Diego and Irvine branches. True, California has a large Asian population. Even so, whites still outnumber them by a factor of four in the state’s college age cohort. The simple fact is that whites, even in better-off families, aren’t doing as well in California’s high schools. A wag told us that UCLA is now said to stand for Unhappy Caucasians Lost among Asians.”

It must be frustrating to be a young white male these days. So many of them with so much power, yet they don’t seem to be able to compete with anyone.