Affirmative Action




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TitleAffirmative Action
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Affirmative Action

Kareem Khalifa

Department of Philosophy

Middlebury College

Overview

  • Affirmative Action (AA): Definition & History

  • Arguments for AA, with Critiques

  • Arguments against AA, with Critiques

  • More Arguments, time pending



I. AA: Definition & History

  • Definition

  • Key Historical Developments

    • Equal Protection Clause (1868)
    • U.S. v. Cruikshank (1875)
    • Korematsu v. US (1944)
    • Civil Rights Act (1964)
    • Secretary of Labor's Revised Order No. 4 (1972)
    • Regents of UC v. Bakke (1978)
    • Bollinger Cases (2003)


I.A. What is Affirmative Action?

  • Affirmative action: taking positive steps to increase the representation of women and minorities in areas of employment, education, and business from which they have been historically excluded.

    • So defined, AA includes donating money to women and minority professional organizations.
  • However, typically we think of AA as involving preferential selection—selection on the basis of race, gender, or ethnicity.

  • Hereafter AA refers to preferential AA.



What AA is NOT

  • Preferential AA’s “purpose was not to compensate for past wrongs, offset unfair advantage, appropriately reward the deserving, or yield a variety of social goods; its purpose was to change institutions so they could comply with the nondiscrimination mandate of the Civil Rights Act.”



I.B.1.Equal Protection Clause (1868)

  • 14th Amendment: “No state shall make or enforce any law which shall… deny to any person within its jurisdiction the equal protection of laws.”

  • Intended meaning (looking at historical context): prohibits unequal treatment on the basis of “race, color, or previous condition of servitude.”

    • Purpose: to protect newly emancipated slaves.
    • Literal meaning is more general: provides legal protections to all US citizens.


I.B.2. Rational-Relation Test (RRT) (U.S. v. Cruikshank, 1875)

  • Clearly, not all laws treat people equally (e.g. criminal laws treat criminals differently than non-criminals). So when is that justified?

  • Courts decided that this was largely an issue for state legislators.

  • Only broad constraint was RRT: the unequal treatment of individuals must be reasonably linked to achieve some legitimate end.



I.B.3. Strict Scrutiny (Korematsu v. US, 1944)

  • A law must pass RRT AND it will also be subject to strict scrutiny from the courts if it also:

    • Restricts a fundamental right; or
    • Ex. Rights to vote, procreate.
    • Employs suspect classification.
    • Ex. Race, religion, national origin.
  • A law passes the strict scrutiny if and only if:

    • It serves a legitimate and compelling state interest, and
    • It does so in the least intrusive way possible, i.e. is “narrowly tailored.”


I.B.4. Civil Rights Act of 1964

  • No person in the US 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.



I.B.5. Secretary of Labor's Revised Order No. 4 (1972)

  • Requires universities to set up timetables and goals for utilizing underrepresented groups in the academy, including minorities but especially women.

    • Very few minority PhDs in 1972;
    • Far more women PhDs, but many of these PhDs were not getting university jobs.


Two “Spikes” in AA Debates

  • 1972-1980: controversy about both gender and racial preferences, because it was about hiring and education.

  • 1990s-early 2000s: controversy only about racial and ethnic preferences, because it was only about education.



I.B.6. Regents of UC v. Bakke, 1978

  • First prominent case raising the issue of whether affirmative action is “reverse discrimination.”

  •  UC-Davis med school had 16 slots allocated to minority students. Bakke was not a minority, but scored higher on admissions tests than many minority students who were accepted.

  • Bakke sued UC system on the ground that it violated the Civil Rights Act of 1964

  • Supreme Court ruled in favor of Bakke



I.B.7. Bollinger Cases, 2003

Grutter v. Bollinger
  • UMichigan Law School: diversity among students is a goal, but no quotas.

  • Supreme Court ruled for Bollinger (UMich).

Gratz v. Bollinger
  • UMichigan College of Literature, Arts, & Science (LSA): students given points for minority status.

  • Court ruled ruled for Gratz (white applicant).



II. Arguments in Favor of AA, with Critiques

  • Thomson’s Compensation Argument

  • Grutter v. Bollinger,

Majority Opinion

C. The Diversity Argument

D. The Michigan Mandate
    • aka, “The Integration Argument”


II.A. Thomson’s “Compensation” Argument

  • If a policy compensates a group for past unfair exclusion from certain privileges, then it is just.

  • AA is compensation for past exclusion of women/minorities from the academy & workplace based on sexism/racism.

  • Access to the academy & workplace are privileges.

  • Denying access to the academy & workplace based on sexism/racism is unfair.

  • AA is just.



Critique of the Compensation Argument

  • The beneficiaries of AA tend to be very well educated, relatively affluent women/minorities.

  • Among women/minorities, the well-educated, relatively affluent are least likely to have suffered from past unfair exclusion from the academy & workplace.

  • Younger white male applicants are most likely to suffer the greatest burdens from AA.

  • Among white males, younger applicants are least likely to have been responsible for past exclusions of women & minorities from the academy & workplace.

  • A policy that benefits those who are least likely to have been excluded and assigns the greatest burdens to those least responsible for that exclusion is not just.

  • So AA is not just.



II.B. Grutter v. Bollinger (2003): O’Connor (Majority) Opinion

  • A law passes the strict scrutiny test if:

    • It serves a legitimate and compelling state interest, and
    • It does so in the least intrusive way possible, i.e. is “narrowly tailored.”
  • UMich Law School used AA because various educational benefits flow from a diverse student body, e.g. cross-racial understanding, the breaking down of stereotypes, and enlivening classroom discussion.

  • A better-educated lawyers serves legitimate and compelling state interests.

  • If UMich provided a serious, good faith consideration of workable race neutral alternatives, then its admission policy is narrowly tailored.

  • UMich provided a serious, good faith consideration of workable race neutral alternatives.

  • So Michigan Law School’s admission policy serves: (a) a legitimate and compelling state interest (b) is narrowly tailored.

  • So Michigan Law School’s admission policy passes strict scrutiny test.



Rehnquist’s (Minority) Opinion

  • Either UMich’s policies promote “critical mass” for reaping educational beneficial diversity or they are quotas.

  • If these policies provided a critical mass, then presumably there would be comparable numbers of African-American, Native American, and Hispanic students admitted.

  • Far more African-American students were admitted than Native American or Hispanic students.

  • So these policies do not promote critical mass.

  • So there are quotas.

  • If there are quotas, then UMich fails the strict scrutiny test.

  • So UMich fails the strict scrutiny test.



Thomas’s (Minority) Opinion

  • A law passes the strict scrutiny test only if:

    • It serves a legitimate and compelling state interest, and
    • It does so in the least intrusive way possible, i.e. is “narrowly tailored.”
  • Michigan Law School’s admission policy is supposed to provide a marginally superior education while maintaining itself as an elite institution.

  • Neither a marginally superior education nor having elite institutions serves a legitimate and compelling state interest.

  • So Michigan Law School’s admission policies do not pass strict scrutiny.



II.C. The Diversity Argument

  • Increasing racial/ethnic diversity is one (but only one) way to make an educational environment more diverse.

  • All else being equal, a more diverse educational environment is better than a less diverse one.

  • Universities are entitled to improve their respective educational environments.

  • So universities are entitled to increase racial/ethnic diversity.



Justice Powell’s Advice

  • Race/ethnicity is only one way to increase diversity.

  • It can be a “plus” but it can’t be a “clincher” without comparing different students across many different dimensions of diversity.



Challenge to Powell’s Position

  • Why does diversity have to be multi-dimensional?

  • “…institutions will think it worthwhile to concentrate on some diversity factors rather than others. One college may emphasize admitting foreign students; another may make its mission to educate poor students; a third may specialize in getting science students who have shown unusual promise in high school”

  • So why is racial/ethnic diversity different? Furthermore, why does it matter if admissions boards use formulae (e.g. scoring systems) or more “holistic” measures?



II.D. The Michigan Mandate (Integration Argument)

  • The leadership of the state ought roughly to represent the state's population, ethnically and racially.

  • As the state's premier training ground for leadership, the University of Michigan ought to graduate rising generations of future leaders that conform to this representational goal.

  • To graduate such rising generations, it needs to admit racially and ethnically representative classes.



Why is Representativeness a Goal?

  • O’Connor: the very legitimacy of state institutions is undermined if important segments of the population—long excluded from participating at the highest levels—are not part of the operation of those institutions

  • Anderson: If the leaders who frame the political agenda and shape public opinion remain uniformly white, the common good gets shortchanged; it isn't really common.

  • If minorities are fairly represented in state institutions, then racial harmony will be improved.



III. Arguments Against AA, with Critiques

  • The Rights Objection

  • The Desert Objection

    • Coal Miner’s Son Argument
  • The Consistency Argument

  • The Side Constraint Argument

  • Cohen’s Physical Characteristics Argument



III.A. The Rights Objection

Critics of AA claim that it violates:
  • an applicant’s right “to equal consideration”

  • the right of the maximally competent to an open position

  • the right of everyone to equal opportunity



Goldman’s (Rawlsian) Reply to the Rights Objection

  • If positions should be awarded according to competence, then everyone must have the opportunity to gain comparable levels of competence in different areas.

  • If everyone must have the opportunity to gain comparable levels of competence in different areas, then everyone has equal opportunity.

  • So positions should be awarded according to competence only if everyone has equal opportunity.



III.B. The Desert Objection

Critics Claim that AA does not give people what they deserve (“confounds desert”) by
  • severing reward from a “person's character, talents, choices and abilities”

  • by “subordinating merit, conduct, and character to race”

  • by disconnecting outcomes from actual liability and damage



Rachels’s Critique of the Desert Objection

  • Women/minorities are discriminated against in many stages/facets of their lives.

  • If women/minorities are discriminated against in many stages/facets of their lives, then white males’ superior credentials (insofar as they are superior) do not reflect their greater effort, desert, or ability.

  • If white males’ superior credentials (insofar as they are superior) do not reflect their greater effort, desert, or ability, then their credentials merely reflect their luck at being born white males.

  • If white males’ superior credentials merely reflect their luck at being born white males, then AA does not confound desert.

  • So AA doesn’t confound desert.



III.B.1. The Coal Miner’s Son Argument

  • Only the least advantaged deserve AA.

  • Some white males are less advantaged than some African-Americans.

  • So some whites deserve AA more than some African-Americans.

  • Yet AA does not benefit any white males.

  • So AA does not give people what they deserve.



Challenge to Premise (a) of the Coal Miner’s Son Argument

  • AA does not aim to give people what they deserve; rather it aims to change institutions so that they can meet the nondiscrimination mandate of the Civil Rights Act of 1972.

  • Rebuttal To This Challenge: Just because AA doesn’t aim to do this doesn’t mean that it can ignore it.





III.D. The Side Constraint Argument

  • If P ought to be the case, then we should adopt the most effective means for bringing P about only if P does not violate any rights.

  • Preferential hiring/admissions violates white males’ right not to be discriminated against on the basis of race/gender.

  • So even if race/gender should not influence access to jobs and education, we should not adopt preferential hiring/admissions.



III.E. Cohen’s Physical Characteristics Argument

  • It is wrong, always and everywhere, to give special advantage to any group simply on the basis of physical characteristics that have no relevance to the award given or the burden imposed.

  • Preferential hiring/admissions gives special advantage to groups simply on the basis of physical characteristics that have no relevance to the award given or the burden imposed.

  • So preferential hiring/admissions is wrong.



Objections to Cohen

Against Premise (1):
  • We give special advantages to the elderly and disabled on the basis of physical characteristics.

  • So whether a physical characteristic is “relevant” or not is determined by political purposes.

Against Premise (2):
  • Preferential hiring does not give special advantage to groups simply on the basis of physical characteristics. The more relevant characteristics are social and historical.



Recap

  • The history of AA in the US is nearly 150 years in the making.

  • There are several arguments both for and against AA, that invoke several core philosophical concepts (justice, fairness, rights, etc.)



Appendices

  • More arguments for AA, with Critiques

  • UC Davis’s Rationale for AA

  • Brennan’s (Minority) Opinion on Bakke

More arguments against AA, with Critiques
  • The Constitutionality Argument

  • Gratz v. Bollinger: Rehnquist’s (Majority) Opinion



E. UC Davis’s rationale for their program

  • to reduce “the historic deficit of traditionally disfavored minorities in medical schools and the medical profession;”

  • to counter “the effects of societal discrimination;”

  • to increase “the number of physicians who will practice in communities currently underserved;” and

  • to obtain “the educational benefits that flow from an ethnically diverse student body.”



Justice Powell’s Assessment of UC Davis’s Rationale

  • Reason (i) is discriminatory.

  • Reason (ii) is a bad rationale for a university. Universities aim to educate, not “legislative policy or the adjudication of particular claims of illegality,”

  • Reason (iii) assumes that preferential admissions is the best means for increasing the number of physicians in underserved communities.

  • Reason (iv): a good rationale, but it does not justify admissions based only on race/ethnicity.



F. Brennan (Minority Opinion), Bakke

  • AA in med school admission is subject to strict scrutiny only if:

    • A fundamental right is involved in med school admission, and
    • The classification of people as “whites” is suspect, i.e. has been used to adversely affect those people.
    • The classification requirement was primarily intended to rule out only discrimination that has adverse effects, not “benign” and “remedial” forms of preferential treatment.
  • Neither a nor b is the case.

  • So AA in med school admission is not subject to strict scrutiny.



Powell’s (Majority Opinion) of Brennan’s Opinion

  • Brennan’s new, revised interpretation of equal protection clause is wrong because:

  • It would require us to revise precedents that have been in place since 1868.

  • It is not clear when a law is “benign.”

  • Preferential treatment may only reinforce common stereotypes without special protection from the government.

  • Those who are excluded by preferential treatment (e.g. Bakke) are bearing burdens of “redressing grievances not of their own making.” (416)



The key issue

  • Does equal protection under the law mean:

  • The state cannot deliberately burden someone by race if its purpose is to create or maintain caste (Brennan)

  • The state cannot deliberately burden someone by race in any way, shape, or form (Powell).



Appendix 2: More Arguments vs. AA, with Objections

  • The Constitutionality Argument

  • Gratz v. Bollinger: Rehnquist’s (Majority) Opinion



F. The Constitutionality Argument

  • Title VI: “No person…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.”

  • Title VII: All employment practices that discriminate on the basis of race, gender, religion, or national origin are prohibited.

  • AA excludes white males from participation in certain programs or activity receiving Federal financial assistance.

  • AA discriminate on the basis of race, gender, religion, or national origin.

  • So AA is unconstitutional.



Against Premise 4: Griggs v. Duke Power Company (1971)

Supreme Court’s Argument:
  • If a practice/policy aims to prevent ongoing and future discrimination, then it is not discriminatory.

  • AA aims to remove ongoing and future discrimination.

  • So AA is not discriminatory.



G. Gratz v. Bollinger: Rehnquist’s (Majority) Opinion

  • A law passes the strict scrutiny test if:

    • It serves a legitimate and compelling state interest, and
    • It does so in the least intrusive way possible, i.e. is “narrowly tailored.”
  • If UMich LSA narrowly tailored, then it considered each applicant as an individual.

  • The LSA assigns 20 out of 100 points to each minority applicant.

  • This policy does not treat applicants as individuals but as members of a racial/ethnic groups.

  • 20 points effectively provides instant admission to any minority applicant.

  • So the LSA’s admission policy is not narrowly tailored

  • So the LSA’s admission policy does not pass the strict scrutiny test.



Souter’s (Minority Opinion) Rebuttal

  • If a policy does not use quotas, then it’s “narrowly tailored.”

  • The LSA did not use quotas.

  • So the LSA is narrowly tailored.



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