Affirmative Action & the Culture of Deceit

To be fair, Regents v. Bakke (1977) does not rank among the most execrable decisions in the Court's history. It is scarcely as bad as Dred Scott (1856) or Plessy v. Ferguson (1895). One could hardly rank it lower than the second tier from the bottom of very bad cases.

The Court had to decide whether affirmative action by state universities was a violation of the Equal Protection Clause of the 14^th Amendment. At question were admissions policies that unambiguously discriminated against Alan Bakke merely because of his racial identity.

The Court might have said that it is permissible to discriminate in favor of minority candidates against White candidates because the purpose of the policy was to remedy past discrimination against minorities. This would lead to the odd conclusion that equal protection protects some persons more than others, something Conservatives resolutely object to. While I am very skeptical about that proposition, there are arguments to be made in favor of it.

Current law protects persons with disabilities against discrimination and indeed requires a wide variety of practices intended to open access to public and private facilities and to create a "barrier-free world". The law does not protect short people, despite obvious difficulties that such people experience and reams of evidence that they suffer discrimination. Being an attitudinally challenged person myself, am I denied equal protection? Probably not. The purpose of the law is not to inhibit one population but to provide needed protection for groups that especially need it. This is a judgment call and it is one that legislatures are better able to make than courts.

On the other hand, the Court could have struck down affirmative action. They did neither. The Court struck down the California policy as a "quota system." This means that it roped off a number of positions for special admissions and all but posted a sign: no White person need apply. Instead, the Court determined that public universities could develop a system that includes race as one of a number of factors and by that means achieve exactly the same outcome as a quota system. Justice Powell:

It has been suggested that an admissions program which considers race only as one factor is simply a subtle and more sophisticated -- but no less effective -- means of according racial preference than the Davis program. A facial intent to discriminate, however, is evident in petitioner's preference program, and not denied in this case. No such facial infirmity exists in an admissions program where race or ethnic background is simply one element -- to be weighed fairly against other elements -- in the selection process… And a court would not assume that a university, professing to employ a facially nondiscriminatory admissions policy, would operate it as a cover for the functional equivalent of a quota system. In short, good faith [p319] would be presumed in the absence of a showing to the contrary in the manner permitted by our cases.

Notice the weasel words "facial," "assume" and "professing". The Court does not deny that the system they are advocating "is simply a subtle and more sophisticated -- but no less effective -- means of according racial preference than the Davis" quota system. In theory, Bakke would be eligible for any position in the UC Davis Medical School's freshman class. In practice, he would be effectively excluded from the same number of slots. In other words, the Court decided that discriminating against White applicants in favor of minority applicants is okay so long as you lie about it.

To see how this works, consider the admission system at the University of Texas at Austin which is challenged in the upcoming case Fisher v. Texas. From the WaPo:

The Texas system guarantees admission to students who graduate in the top 10 percent of their high schools' senior classes. Some 75 percent of those admitted as freshmen to the school in Austin each year have come from this pool, which has helped UT make great strides in increasing minority enrollment, which hovers between 18 percent and 20 percent.

The school decided that students who filled the remaining slots should reflect the state's growing diversity. UT took into account several factors in addition to grade-point average and SAT scores, including whether an applicant came from a one-parent household or one where more than one language is spoken. Ms. Fisher cites these considerations as constitutionally problematic.

There is nothing wrong with these admissions criteria except that they are clearly designed to discriminate on the basis of race and ethnicity while remaining facially neutral. That's okay as long as you think that it's racial and ethnic discrimination is okay as long as you discriminate in favor of the right people and you aren't too honest about what you are doing.

The Bakke decision mandated a culture of deceit in public university admissions. This is inherently corrupting. If we are going to practice remedial discrimination, we have to admit what we are doing. If we can't bring ourselves to admit that, we need another solution.

Comments

[larry kurtz]

You seem to be in good company, Ken. Income equality is the more equitable determinant:

http://www.npr.org/2012/02/27/147514069/affirmative-action-is-it-still-necessary

[D.E. Bishop]

This is a very interesting and complex topic, I think. I especially liked this sentence you wrote:

"The purpose of the law is not to inhibit one population but to provide needed protection for groups that especially need it."

Using that standard, which I believe is accurate and well-stated, we can throw out such things as a bad attitude. The point about little people was well-made, as that is a limiting condition beyond the control of the sufferer.

Isn't the nub of it determining what is beyond the individual's control, and does her or him harm? Or do we first consider the effect such a law might have on those who could be characterized as innocent bystanders? Is it a question of who takes precedence?

Here in St. Paul there is a lot of jaywalking, even on very busy streets. I usually do not wait for them, but if I see a child, or an adult with a child, I always stop and wait for them to cross. I believe that, regardless of inconvenience to myself, the safety of that child is more valuable. (If an adult walks out in front of me, as sometimes happens, I do indeed stop.)

I realize that is a simplistic example, but that is my theory of community/public responsibility/care. If I am the more able one, if I have more advantages, and if I know the other finds many more obstacles than I do, I let them go first.

If I feel like I'm the more fortunate one, I will give the opportunity to one less fortunate. (I guess that's part of what makes me liberal.) Notice that I am allowing no more than a chance. In my individual judgment, the barriers the other faces are significantly greater than mine.

I'm interested in reading your response, and any other readers, of course.

[Ken Blanchard]

D.E.B.: I agree that affirmative action can be defended on the grounds of concern for our fellows, though even on those grounds the case is suspect. It is far from clear that lowering admissions standards for certain groups has actually benefited those groups. It may well have resulted in the placement of a lot of folks into academic situations for which they were ill-prepared. The graduation rate of affirmative action applicants has been very disappointing.

However, the question is not whether the policy is a good one but whether it is constitutionally legitimate and whether we can be honest about what we are doing.

[D.E. Bishop]

What does being "honest about what we are doing", mean?

I am clear that usually affirmative action (AA) means giving an opportunity to someone whom the system/culture/history is stacked up against.

Are you talking about more detail? About numbers? For instance, if 10% of the population falls below the poverty rate, 10% of admissions should go to students who fit that definition? If so, once the 10% rate is hit, GPAs don't matter as much as income, or lack thereof. Therefore, regardless of how many students there are with sterling transcripts and recommendations, if they have too much money, they're out. If that part of the argument?

[Ken Blanchard]

D.E.B.: if we use SAT scores as an admission standard, and if we allow a targeted group to be admitted with a score a hundred points lower than non-targeted applicants, perhaps we have to be honest about that. In fact, colleges go to great lengths to deny that they have lower admission standards for special applicants.

[unicorn4711]

Grutter got it right. I've done a 180 on this issue and will explain. The language on race in America changes all the time, which I think adds to the argument of how obsurd the US idea of race is, but that's another argument. I'm using blacks for all people of dark skin tone, normally originating from Africa, African-American for the unique group of people who came to America through the slave experience, Latino for anyone of ethnic origin from what we call Latin America, regardless of their visible race, and Asian for anyone of any of the Asian ethnicity.

In America, race and wealth do correlate, at least for African-Americans and whites. Any policy proposal that doesn't solve this problem leaves us morally weakened. We'll be role models for the world when there is such a high level of inequality over something so dumb as race. However, we can't make up for historical discrimination with positive, racial discrimination. There's no principled way to find African-Americans who have been caught in a cycle of disadvantage since the evils of slavery and made up for the disadvantage of having grandparents and parents who were more likely to have lower education and wealth as a product of past discrimination. There's no way to find them without including the blacks newly arrived from Africa that can't possibly claim the sort of historical racial discrimination African-Americans can claim or to not include wealthy African-Americans who don't need our help. The issue only gets more complicated when Latinos (many whom are new arrivals) and Asians (who tend to do quite well without help, despite historical discrimination) are considered.

In short, Grutter, in my view, got it right. All we can do is look at the individual and attempt to build a diverse education environment, understanding diversity in the broadest sense that affects the character of the school. Geographic (which is a useful notion when you're a south dakotan, as many of best schools and top institutions are populated with leaders from the East Coast), political, cultural, ethnic, religious, linguistic--and since race is perceived as something in America--racial. I've learned a great deal from other racial backgrounds, who learned other languages before English, and who come from faith traditions I'm very hesitant to embrace. Since diverse environments produce a better atmosphere for discussion and thus learning, why not consider all the factors when we look for individuals to make up the student body during the admissions process? Since visible minorities do have a different experience in America, why not just admit it and put it on the admissions form? Sure, it can't be a hidden proxy for a quota, as you've noted, but why not consider it along with essays and mission statements as one of the many factors to consider when looking at the experiences and history of the candidate in attempt to achieve diversity.

[unicorn4711]

*we'll never be role models. Pardon the very obvious and meaningful typo.

[Mark Anderson]

I guess Ken, that you are all for an aristocracy in this country. If you don't have affirmative action, that's about all that's left. Why not have Romney for presidents he's the perfect example. He raised himself from overwhelming wealth into even more overwhelming wealth and wants to give it all to his kids.

[Ken Blanchard]

Unicorn: that was a very thoughtful post and I wish I had time to do it justice in reply. Let this suffice: diversity in education was the ground on which the Court decided Grutter v. Bolliger; however, it was a canard. There was no evidence that race based admissions actually contributes to diversity on campus. Race, as you point out, is a very poor proxy for genuine diversity. Colleges don't in fact consider individuals in their affirmative action policies. They consider only race, and that is what Grutter allows.

[Ken Blanchard]

Mark: nonsense about aristocracy aside, you seem to have missed the point. Affirmative Action means discriminating against people because they are the wrong color. I did not take issue with the Court for allowing such policies (though I indicate my reservations). I took issue with the Court for virtually requiring institutions to lie about it. I am dubious about the beneficial effects of affirmative action. I only say here that the Court should either bring itself to acknowledge that equal protection does not protect all races equally (which they have never been able to do), or strike affirmative action down.

[Mark Anderson]

Why is a comment about aristocracy nonsense? If you read Jefferson's letter to Adam's, it pretty clear that Mitt Romney doesn't agree with Jefferson. Here's the link: http://www.bigeye.com/aristocracy.htm My question would be to you, if you disagree with affirmative action, then what is your alternative? If you don't have one then you are perfectly happy teaching only white kids. You could explore an affirmative action that addressed only class, but I don't think you would because you don't believe that their is an aristocracy in America.

[Ken Blanchard]

No, Mark, I don't think there is an aristocracy in America. I don't think it because it is obviously not true. An Aristocracy is a class that enjoys legal and political status by way of inheritance. No such thing has ever existed in English speaking America. That is not to deny social and racial stratification, which is what I think you mean. I prefer to call things what they are.

My alternative to Affirmative Action is a colorblind constitution. I think the law and so far a possible all institutions should treat people as individuals rather than as members of a racial class. This would not result, as you seem to think, in me teaching only White students. Affirmative Action has little effect on Northern admissions for all sorts of reasons, yet my classes are diverse. It would have an effect on elite institutions, but that is a problem to be solved. It is abundantly clear that affirmative action doesn't solve it. It may well make it worse.

However, my point here was not against affirmative action but against telling lies about it.