Affirmative Action Part II

Previously, I gave an argument in favour of affirmative action—those who are worse off because of race and sex, among other factors, don't deserve to be, so it's therefore permissible to discriminate based on race and sex to equalize opportunity. Today the U.S. Supreme Court released its decision on the affirmative action case it was considering, and while there are certainly better places to get information on the ruling (here, here, here, here) I want to consider two points that I didn't mention yesterday.

The first regards discrimination generally. We think discrimination is wrong because it picks out a characteristic over which an individual has no control, one that shouldn't make a difference to the issue considered. A black man refused entry to a university only because he is black is evaluated based on race alone, and there's nothing intrinsic about being black that makes one less well suited for university. The Fourteenth Amendment of the American Constitution protects the right of individuals to be treated equally as individuals, without regard to race. Americans have the right to be treated as individuals, not as members of a racial group to which they belong.

It's tempting, therefore, to conclude that any discrimination based on race is always unjust. This is a mistake. One can still be treated as an individual while including characteristics over which one has no control: grades do exactly this by failing to distinguish who achieves high grades through (undeserved) talent versus hard work. Similarly, one can still be considered as an individual while including race as a relevant, justified factor. For the Supreme Court, race can play a factor so long as such discrimination serves compelling government interests.

The second point involves the goals of a university. Society very rarely discusses just what universities are good for, which is why we hear so much piffle about universities (especially humanities departments) failing in their purpose to train citizens for the workforce. Mark Kingwell, a philosophy professor at the University of Toronto, does a good job of attacking that assumption, and providing a better alternative, here. Regardless of what goal is promoted, universities still must claim a purpose before we can judge if they're doing a good job of meeting it. Like the “make good workers” proponents, those who claim that only grades should matter for university admissions are assuming that scholarly excellence is the primary goal of a university, which it usually isn't and need not be.

The compelling reason considered in Fisher v. University of Texas at Austin is the educational benefits that accrue from having a diverse student body. (Other options, such as redressing historical wrongs have been ruled out because a university's mission is incompatible with deciding what wrongs have occurred and whether and in what way they ought to be addressed. That's for the courts, not universities, to decide.) Diversity, the Supreme Court has ruled, is a possible compelling reason, but admissions processes must withstand “strict scrutiny” to ensure that they're constitutional—that is, to ensure that race is not the defining feature of a student's application. This is why quotas are illegal in America. Part of “strict scrutiny” is a burden on the university to demonstrate that there's no workable race-neutral alternative it can use instead.

What makes the Fisher ruling boring is that the Court wasn't asked to consider the diversity question further. They upheld earlier rulings that diversity might be a compelling government interest, but they weren't asked to consider it again. The conservative justices are interested in pursuing that question, but this case didn't provide them the opportunity to do so. For now we have the status quo, but this question is certainly going to appear before the Court again soon.

Although Justice Thomas concurred with the majority in Fisher, he lays out why he would reject diversity as a compelling interest if asked to rule on it. Primarily, his reasons are that any claim at diversity can also justify segregation. To the University of Austin's claim that diverse admissions prepares students to become leaders in a diverse society, Justice Thomas says the following:

This argument was unavailing. It is irrelevant under the Fourteenth Amendment whether segregated or mixed schools produce better leaders. Indeed, no court today would accept the suggestion that segregation is permissible because historically black colleges produced Booker T. Washington, Thurgood Marshall, Martin Luther King, Jr., and other prominent leaders. Likewise, the University’s racial discrimination cannot be justified on the ground that it will produce better leaders.

He offers similar responses to other claims about the benefit of diversity.

Meanwhile, Justice Ginsburg wins the prize for best comment. She dissented, claiming that the majority erred in deciding that the case needs to go back to lower courts. To the possibility of alternative admissions policies which don't outwardly invoke race, Justice Ginsburg says “I have said before and reiterate here that only an ostrich could regard the supposedly neutral alternatives as race unconscious.”

So to really get at affirmative action we need to decide what a university is for and what sort of discrimination is justified in reaching the university's goal. Those are conversations worth having another time.