Affirmative Action as Corrective Justice
The Moral Argument in Defense of Racial Preferences in College Admissions
The Supreme Court last week essentially ruled that all race-based affirmative action (RBAA) programs in college admissions are illegal. (By “affirmative action” I mean programs or policies that give preference to some applicants over equally qualified others. This is different from programs that seek to increase diversity through recruiting or other means.) In Students for Fair Admissions v. Harvard the majority decided against the affirmative action programs at both UNC and Harvard. (You can read the entire decision here.)
It has been a long time coming. The slow death of RBAA started way back in 1978 with Regents of the University of California v Bakke, when the court ruled that the UC-Davis medical school’s affirmative action program violated the “Equal Protection Clause” of the 14th Amendment.
The Allan Bakke Case
In that case, Allen Bakke, who is white, complained that he was denied admittance due to preferential consideration given to minority applicants. The court decided that universities have a “compelling interest” in promoting diversity among their student body (a claim that the current conservative majority denies), but that the means to achieving such diversity must be “narrowly tailored.” The problem with the UC-Davis affirmative action program was that it set aside 16% of its available places for eligible students who were then judged by a separate admissions committee. (For an excellent criticism of the court’s decision, I recommend Ronald Dworkin.)
The ruling meant that college admissions offices could give some preference to minority applicants but could not establish rigorous quotas or set aside minority spots for applicants who would not compete against the broader pool of applicants. (The court’s recent decision against Harvard and UNC has effectively nullified that earlier ruling.)
It is worth noting, however, that the UC-Davis medical school’s affirmative action program was not strictly raced-based but targeted toward “economically and/or educationally disadvantaged” applicants. Some white students were allowed to apply for these spots. And if there were not enough qualified applicants, those spots would be opened up to the broader applicant pool.
It is also worth noting that Bakke had no legitimate grounds to complain. Although it is true that his grades and test scores were higher than some minority applicants who were admitted, his scores were also higher than many of the white students who were admitted. It is thus unlikely that he would have been admitted even if UC-Davis had no affirmative action program.
Why was he denied admissions if his GPA and test scores were higher than students who were admitted? The main reason might have been his age. At thirty-three years old, Bakke was rather long in the tooth for an entering medical school student. That probably explains why he was not accepted to any of the ten other medical schools he applied to, including his alma mater, U of Minnesota.
But also, admission to the medical school was based on more than just GPA and test scores. There was also an interview process. Bakke was granted an interview at UC-Davis but failed to impress. One of his interviewers described Bakke as “rather limited in his approach” and was put off by Bakke’s “very definite opinions which were based more on his personal viewpoints than upon a study of the total problem.”
The Recent Harvard Case
An important element in that first case, like most of the subsequent challenges to RBAA programs in university admissions, is that the decision applied only to public universities. That is because the 14th Amendment protections apply only to discrimination from the government or public institutions. Private universities have long been allowed to discriminate on the basis of race, religion, and gender. That’s why we have black colleges, women’s colleges, and religious colleges.
Harvard is a private university. Thus, its affirmative action program need not respect the 14th Amendment rights of its applicants. Ironically, the majority ruled that Harvard’s affirmative action program is illegal — though not unconstitutional — because it violates Title IV of the Civil Rights Act of 1964. (The good news is that Congress could pass a law legalizing such programs at private universities. The bad is that they won’t.)
A Matter of Justice
Naturally, the court’s decision has been celebrated by conservatives and criticized by liberals. The law, however, should not be decided on ideological grounds. (That does not mean that it isn’t, but it shouldn’t be.) There are, of course, legitimate criticisms of the court’s decision based on purely legal grounds. But I am a philosopher, not a lawyer. The question I am concerned with is whether the decision is just. Unless you deny that there can be unjust laws, you must accept that the moral evaluation of the decision is distinct from its purely legal evaluation. And unless you are a moral nihilist, you must agree that our laws should be just. Thus, the question of justice is primary.
So, what are the moral arguments for and against RBAA programs in college admissions? A good place to start might be Justice — What’s the Right Thing to Do? by Canadian philosopher and public intellectual, Michael Sandel. (… might be, but isn’t.) This best-selling book contains a chapter dedicated to the issue (Chapter 7, “Arguing Affirmative Action”). One argument Sandel cites in favor of race-based affirmative action in college admission is that it compensates for past injustice, such as Jim Crow laws and segregated schools. He rightfully dismisses this argument, since those who benefit from RBAA are not the same individuals who were harmed in the past. The other pro- argument, which he takes more seriously, is the diversity argument. Such programs promote racial diversity, not only in the student body but also in professions and leadership roles.
The big weakness of the diversity argument is that it is not a matter of justice but rather about promoting socially desirable goals. That is a problem because we generally think of justice as having priority over the pursuit of the public good. However laudable our aims, we should avoid employing unjust means to achieve them. According to Sandel, RBAA programs conflict with an important element of justice, viz. desert. College admissions, he claims, should be decided primarily on the basis of merit.
The rest of the chapter contains some interesting discussion about what counts as “merit” when it comes to college admissions. But Sandel misses the most important argument in favor of RBAA. College admissions is not, pace Sandel, primarily an award or an honor; it is an opportunity. That might suggest that it is a matter of distributive justice, which it would be in an ideal world. But in the real world that we live in, RBAA in college admissions is a matter of corrective justice.
Corrective justice involves responses to injustice that aim to rectify. Paradigmatic examples include punishing wrongdoers and compensating victims of wrongdoing. But those are responses to particular acts of injustice. RBAA, by contrast, is a response that corrects for systematic injustice. The systematic injustice in this case is the fundamental inequality of public K-12 education.
Why Corrective Justice Supports Race-Based Affirmative Action
A substantial portion of public K-12 education funding comes from local property tax revenues. That means that schools in poor neighborhoods, with disproportionately non-white student bodies, receive significantly less funding than those in wealthy neighborhoods, with predominately white student bodies. This can make it difficult, if not impossible, for students who graduate from high schools in poor, non-white neighborhoods to gain admittance into good universities — no matter how smart and talented those applicants may be.
One of the primary measures used in college admissions decisions is high school GPA. But GPA alone says little about a student’s qualifications; the level of difficulty of the coursework also matters. Earning a B+ in calculus is more impressive than earning an A in math 101. A poorly qualified student could maintain a high GPA by taking only the most rudimentary courses possible to earn a diploma. Thus, college admissions offices look to the number of AP (advanced placement) courses to separate the wheat from the chaff.
Now consider two equally bright, skilled, and industrious high school students applying to the University of California, both of whom graduate with a 4.0 GPA. One of these students, Ingrid, attended Inglewood High in Los Angeles; the other student, Beverly, attended Beverly Hills High School across town. Inglewood High, located in a low rent district, is 97% black and Latino and offers only three AP courses. Beverly Hills High, located in one of the wealthier districts in the region, is less than 9% black and Latino and offers fourteen AP courses.
No matter how bright and ambitious Ingrid is, she simply cannot earn the same credentials as Beverly can. As Justice Sotomayor noted, educational inequalities such as this “place underrepresented minorities multiple steps behind the starting line in the race for college admissions.” Thus, RBAA programs merely move up the finishing line for those students to make the competition fair.
Some might object that the best way to correct for this sort of injustice would be for affirmative action programs to give preferences based on economic disadvantage rather than race. I agree. But we should keep in mind that the reason why black students tend to be economically disadvantaged is due to systematic racism (which does not apply to white students who are equally economically disadvantaged). More importantly, white students who graduate from schools like Inglewood are usually eligible for the same affirmative action considerations as non-white students.
I am not suggesting that RBAA is the perfect solution. A better solution would require radical change to how primary and secondary public education is funded along with other systematic injustices that are the source of the problem. Until then, demanding color-blindness in college admissions ignores the reality of injustice in our education system. To quote Sotomayor again, “Ignoring race will not equalize a society that is racially unequal.”
