A634.4.4.RB - Is Affirmative Action Ethical?

Affirmative action is a program usually established by government or sometimes private parties that is designed to give preference to the historically underprivileged by making access more equitable in education and employment. Historical injustices are not simply quelled for racial minorities, but for religious, national, ethnic, and sexual minorities (people of the lgbtqa community and women). Affirmative action is about access and opportunity. In a rather consequentialist perspective, affirmative action is about equality of outcomes, not just equality of opportunity. For deontologists, affirmative action may be seen as a head start in a foot race, as the goal of securing more spaces for under-privileged groups in arenas that lead to higher success rates causes some to believe that minorities are getting positions and acceptance in institutions simply because they are minorities. 

President Lyndon B Johnson originally past affirmative action so that they are more more minorities within the government and better opportunities for minority agencies to secure government contracts, since minority voices were starkly under-represented and unrepresented and high-paying government positions and development contracts (U.S. Department of Labor).

In to University of Virginia's Office of Equal Opportunity Programs site, UVa notes that federal contractors must (Rector and Visitors of the University of Virginia, 2012):

• identify and remove barriers that negatively affect underutilized groups;
• support inclusion through respect and equal dignity of all persons;
• review recruitment strategies to ensure focused outreach is occurring;
• ensure equal representation in all applicant pools for all job groups and at all levels in the organization; and
• put forth retention efforts and provide professional development opportunities for underutilized groups equal to the efforts and opportunities afforded others in the workforce.

From a deontologist perspective, these sound like decent methods; however, they are also broad and sound immeasurable. How, then, is affirmative action measured by educational institutions in accepting students? Affirmative action did not become an issue until universities started pushing for more diversity within admissions. In 1973, quotas were discussed in the determination of admission to the University of California-Davis. In this case a white man to the University of California-Davis because they set aside 16 out of 100 spots for med school admission for racial minorities, and he believed that he was denied entry because of the 16 spots designated for people of color; the man won and the Court ruled that quotas did not provide equal opportunity and that writing historical wrongs was not the duty of the government comma though the historical wrongs that were implemented by the government caused the historical injustices that call for affirmative action.
Justice Lewis F. Powell, Jr. stated (Regents of the University of California v. Bakke, n.d.):

The decision of the California Court presented us with two central questions; the first and the one widely perceived as the only ultimate question is whether the special admissions program discriminated unlawfully against Bakke either under the Constitution or under Title VI of the Civil Rights Act of 1964.

I will refer to this as Bakke admissions question.

The second and broader question is whether it is ever permissible to consider race as a factor relevant to the admission of applicants to a State University.

I will refer to this question generally as whether race maybe considered.

As will be perceived at this point, if the answer to the second question were negative, that is that race may never validly considered, this answer disposes of both issues.

In 1978, racial quotas were made illegal. However, they did post to note that diversity within higher education was a compelling government interest. In so much that these have been the two reasoning for affirmative action for the past 55 years, the Supreme Court has denied the rights of affirmative action policies to government contracts and has only upheld situations involving higher education, but have not ruled consistently on questions of racial quotas or preferences, thus further creating confusion and controversy. It has not always upheld affirmative action due to the strict reasoning of scrutiny tests. The government strict scrutiny level states it must show that the challenged classification serves a compelling state interest and that the classification is necessary to serve that interest (Linder, 2016).

For example the University of Michigan received two complaints about affirmative action, one about their undergraduate admissions process in another regarding their law school admissions process, in which only the law school's admissions process was upheld in promoting the goal of diversity. Anything that looks like a quota is struck down. Several states have gone forward to pass their own anti-civil rights laws that use verbiage such as “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin"; California, Washington, Florida, Nebraska, Arizona, New Hampshire, Michigan and Oklahoma have such bans (DeSilver, 2014). However, it seems the support is determined by how it is presented, as 63% of people said such programs aimed at increasing the number of black and minority students on college campuses were a good thing.

In John Rawls' A Theory of Justice (1971), he discusses the claims of moral desert and entitlements to legitimate expectations. To explain the difference, Cato Institute senior fellow Julian Sanchez notes (2011):

 To say someone deserves X is to say that X is in some sense an appropriate or fair reward in light of that person’s morally virtuous qualities or conduct. To say that someone is entitled to X is just to say that the person has a just claim to X, without any implied commitment to some deeper claim about their moral merit.

Rawls states that distributive justice is not a case of moral desert. It is also not a question of income and wealth but of connections to opportunities. For example, affirmative action has been used to make the estimate of academic promise equitable. The major defense against affirmative action has been that the majority (white people) should not be implicated or suffer from past wrongs. However, affirmative action serves many purposes that have nothing to do with punishing white people.

A University's purpose is to educate students. Race contributes to that education. In the same way that a university sees diversity within a student who grew up on a farm, or a student who was a soccer player, or a mathlete or one who struggled through a tragic accident that left him/her permanently disabled, such is the holistic experience that incorporates ethnic, national, racial, and religious difference (Hyman and Jacobs, 2009). Adding race and ethnicity to a long list of diversity considerations and complaining about it is as inane as if a student from Boston complained that a student from California was accepted to Harvard simply because they were closer and distance to the institution, or complaining that a international student was accepted over a domestic student because of an inference that domestic student should have a better shot at admissions over a "foreigner". Students who argue against affirmative action and admissions essentially state that there is a presumed criteria that they believe they meet, without actually knowing what the university is looking for. If affirmative action is seen as a reparation, it is a temporary solution to wrongs done to minorities that compensate for past injustice, which is the fault of the University and the government (institutional discrimination), not of the white student. Therefore, the white student injects themselves in a process that has nothing to do with them.

A majority student pleading that affirmative action discriminates against white people should note that white people have had affirmative action for more than four hundred years. Through nepotism, quid pro quo, and legacy admissions, white people have had astounding benefits stacked against minorities in terms of higher education. Princeton's Thomas Espenshade notes that legacy admits essentially have a boost that adds 160 SAT points to a candidate's record (on a scale of 400-1600)(Kahlenberg, 2010). There is also no evidence that alumni preferences increase giving, which is a defense used to defend the practice, saying it helps support low-income students with scholarships. Without legacy admission, alums still gave at the same rate. The stack is still weighted for white people.

Affirmative action is simply a matter of giving minorities a stack of unequal height to play with. Scholarly Excellence alone has never been the sole criterion for admissions. This does not mean that minorities get in at higher rates than white students or that a minority student with zero credentials would be accepted to an institution above a qualified white student. Affirmative action in its results helps white students. When whites learn only from their own time, they are ignorant to the global world and are ill-prepared to function in a society where diverse students have been raised to learn the culture of majority people but majority people aren't completely ignorant of diverse cultures. Therefore allowing diverse students saves colleges time and money in teaching diversity classes, which are usually electives rather than required courses, inside classrooms of different subjects and outside of the classroom on the campus. In addition, society as a whole needs diverse and educated voices that are trained on all levels of higher educational institutions. Therefore affirmative action is beneficial to the common good.

To end, I will allow a former Harvard admissions representative define once again affirmative action and why it is an ethical flag netted in a more inherently biased base (2015):

First of all, there are a number of small factors that can move the admissions needle in small amounts: location, economic background, race. You can just accept that these exist and don't really count for much—a slight counterbalance to the general advantages that wealthier folks tend to enjoy as a rule. Or you can spend millions of dollars on lawyers and consultants, and hundreds of hours fighting in court in order to claw back this tiny little potential advantage from those in the lower half of the socioeconomic spectrum.

References

Anonymous. (2015). Ivy League Admissions Are a Sham: Confessions of a Harvard Gatekeeper. Gawker. From http://gawker.com/ivy-league-admissions-are-a-sham-confessions-of-a-harv-1690402410

 

DeSilver, Drew. (2014). Supreme Court says states can ban affirmative action; 8 already have. Pew Research Center. From http://www.pewresearch.org/fact-tank/2014/04/22/supreme-court-says-states-can-ban-affirmative-action-8-already-have/

Hyman, Jeremy S.; Jacobs, Lynn F. (2009). Why Does Diversity Matter at College Anyway? US News. From http://www.usnews.com/education/blogs/professors-guide/2009/08/12/why-does-diversity-matter-at-college-anyway

 

Linder, Doug. (2016). University of Missouri–Kansas City. Levels of Scrutiny Under the Three-Tiered Approach to Equal Protection Analysis. Exploring Constitutional Conflicts. From http://law2.umkc.edu/faculty/projects/ftrials/conlaw/epcscrutiny.htm

Rawls, J. (1971). A theory of justice. Cambridge, MA: Belknap Press of Harvard University Press.

Rector and Visitors of the University of Virginia. (2012). Top Ten Most Frequently Asked Questions. Office of Equal Opportunity Programs. From https://www.virginia.edu/eop/AA%20Plan%20FAQs%205-1-09.html

Regents of the University of California v. Bakke. (n.d.). Oyez. Retrieved March 13, 2016, from https://www.oyez.org/cases/1979/76-811

Sanchez, J. (2011). Desert vs. Entitlement. Julian Sanchez. http://www.juliansanchez.com/2011/04/14/desert-vs-entitlement/

 U.S. Department of Labor. (n/d). Executive Order 11246. Office of Federal Contract Compliance Programs (OFCCP). From http://www.dol.gov/ofccp/regs/compliance/fs11246.htm