The Morality of Affirmative Action is Complicated; Its Legality, Less so
Last October, the Supreme Court began hearing arguments on what promises to be a seminal pair of cases challenging affirmative action policies used by Harvard and the University of North Carolina. The question at hand is whether admissions policies that weigh the race of applicants are congruent with the Civil Rights Act of 1964. Given the court’s “conservative” supermajority, prognosticators have concluded that affirmative action is as good as gone by this time next year. If that is the case, it is worth reflecting upon why the issue has taken such a prominent place in our politics.
To begin, what exactly is affirmative action? The American Civil Liberties Union, a stalwart defender of the practice, defines “race-conscious admissions” (a euphemism for the original euphemism) as policies that “allow universities to consider a student’s race as one factor in the admissions process in order to help create a diverse student body that enriches the educational experiences of all students.”
That all sounds well and good, but leading universities only have so many spots to give out, and every supplemental student admitted for “diversity” is one less admitted purely on academic merit. In practicality, this means that students of minority races that record lower academic outcomes on average are given preference over those who perform better. One Princeton study finds that, at highly selective universities, affirmative action provides an advantage equivalent to an additional 230 SAT points to African Americans, 185 for Hispanics, and a loss of 50 points for Asian Americans in comparison to whites.
Undoubtedly, these preferences shape the racial makeup of student bodies; elite universities that employ affirmative action accept more black and Hispanic applicants and fewer Asian applicants than they otherwise would, absent the policy. But it must be remembered that these practices affect a small fraction of all college students, let alone Americans. Most schools have little use for affirmative action as they accept the vast majority of all applicants, ensuring a fair degree of diversity from the get-go. It is only those institutions whose standards are exceptionally high that feel the need for preferential treatment, since the top scorers in high school are disproportionately Asian—by an enormous margin—while other races fall drastically short of their demographic shares.
Why, then, is affirmative action the contentious topic that it is? Why is it that virtually everyone in America has an opinion about this policy that affects so few people? And why are views on the matter divided along partisan lines: Democrats more in favor, and Republicans far more against?
Most who enter the affirmative action fray attempt to intellectualize the debate. Perhaps discrimination today is the only way to rectify the discrimination of the past—or maybe, as Chief Justice John Roberts has written, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Affirmative action may enhance the college experience through greater diversity, but it also may harm minority applicants who don’t meet typical standards by “mismatching” them with overly difficult schools. Yet once again, none of these arguments pertain to most voters. Instead, what truly seems to politicize the issue are competing conceptions of fairness widely held by the two major parties.
In his phenomenal book, The Righteous Mind, social psychologist Jonathan Haidt identifies fundamental moral differences between liberals and conservatives—one of which involves contrasting understandings of fairness, something highly valued by both camps. “Fairness” on the left generally means equality, while on the right, it refers to proportionality. To a liberal, minority students should have a relatively equal chance of admission compared to their white or Asian peers, regardless of substantial differences in average academic standings. To a conservative, one’s chances of admission should be directly proportional to their success in high school. Herein lies the disagreement.
Is one moral sensibility inherently superior to the other? It’s doubtful. As Haidt explains, most of our ethical inclinations are the products of evolution. The objectively righteous stance on affirmative action may never be known, assuming there is one at all. What is certainly not ambiguous, however, is what federal law currently dictates.
Title VI of the 1964 Civil Rights Act demands that “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” Do premier universities receive federal funding? Yes, through a variety of grant and loan programs. Does affirmative action discriminate on the basis of race and deny some students access to these universities? Quite clearly. Therefore, affirmative action is plainly unlawful, and if the Supreme Court considers the issue unblinded by ideology, the justices will and should end its use. It really is as simple as that.
The court’s constitutional role is not to decide political disputes; that is the exclusive domain of legislatures. Rather, it is to interpret and apply the law as written—and as the law is currently written, universities’ affirmative action policies are in blatant violation. The last time that the court took up affirmative action, then Justice Sandra Day O’Connor wrote in her majority opinion that race-based admissions should only be deemed lawful until they are no longer “necessary.” In response, Justice Clarence Thomas correctly countered that policies do not suddenly become illegal only after they have achieved their desired outcome.
If voters wish to amend the law to allow racial preferences in admissions, they are free to do so (though this seems unlikely, seeing as how the decidedly liberal California recently rejected a proposition to do just that). Until then, the law says what it says and means what it means. Its position is not one of a mere ethical attitude, but of a universal principle: equality before the law.
Imagine, for a moment, that the most prestigious universities in America were actively favoring white and Asian applicants over black and Hispanic applicants. Is there any question that the activists presently advocating affirmative action would resoundingly decry this as unlawful? They would be right to do so, too. The Civil Rights Act does not explicitly protect blacks, or Hispanics, or Asians, but all individuals from racial discrimination. Come summer, the Supreme Court will have a chance to finally enforce it.
Read the full piece from the Standford Review here.