How America's top court justifies affirmative action
The Economist explains
How America's top court justifies affirmative action
FIFTY years ago, President Lyndon Johnson spoke of
the need for affirmative action in an address at Howard University.
“You do not”, Mr Johnson told the graduates, “take a person who, for
years, has been hobbled by chains and liberate him, bring him up to the
starting line of a race and then say, ‘You are free to compete with all
the others,’ and still justly believe that you have been completely
fair.” This race metaphor—along with the image of “leveling the playing
field”—continue to animate debates about racial preferences in hiring
and education a half-century later. But curiously, these justifications
for giving special consideration to certain applicants have little to do
with how America’s Supreme Court has addressed the question. And in
their most recent foray into the constitutionality of affirmative action, Fisher v University of Texas, the justices seem flummoxed by their own jurisprudence.
The Supreme Court has never said that race-conscious admissions policies may be used as tools to redress racial inequality per se. When,
in 1978, the justices announced that racial identity may be examined as
one factor among many in sorting through applications, they said that
“preferring members of any one group for no reason other than race or
ethnic origin is discrimination for its own sake”. The only legitimate
justification for keeping an eye on race, Justice Lewis Powell wrote in Regents v Bakke, is
the state’s compelling interest in “the educational benefits that flow
from an ethnically diverse student body.” What are those supposed
benefits? The Bakke court describes them as an “atmosphere of
‘speculation, experiment and creation’” that is “essential to the
quality of higher education”. Heterogeneity of race and ethnicity
contributes to a “robust exchange of ideas” in the classroom. And
diversity has a broader impact outside the university’s gates. “It is
not too much to say”, Justice Powell wrote, “that the ‘nation's future
depends upon leaders trained through wide exposure’ to the ideas and
mores of students as diverse as this nation of many peoples”. This wider
point was developed 25 years later in Grutter v Bollinger, a
2003 case in which the court upheld the admissions policy at the
University of Michigan law school. In addition to a richer classroom
discussion, the Grutter court held, diversity promotes “cross-racial understanding and the breaking down of racial stereotypes”.
In
questioning the lawyer defending the race-conscious admissions regime
at the University of Texas last week, several justices took a rather
blinkered view of these benefits. Chief Justice John Roberts seemed to
presume that diversity is only about rich discussions. “What unique perspective”, he asked,
“does a minority student bring to a physics class?” And in a rejoinder
to Solicitor General Donald Verrilli, who noted that “our military
leaders believe that it is imperative that we have officer corps that
are not only diverse but capable of leading a diverse military”, Justice
Samuel Alito missed the point when he asked whether minority students
admitted through a top-percentage plan “make inferior officers” compared
to those accepted under a race-conscious policy. The Grutter rationale
says that classroom diversity serves people of all races by giving them
a chance to get to know each other in a context where “the path to
leadership [is] visibly open to talented and qualified individuals of
every race and ethnicity”. Integrated schools, Justice Sandra Day
O'Connor wrote in that case, “better prepare students for an
increasingly diverse workforce [and] for society”. In order to pass
constitutional muster, an affirmative action policy must pursue benefits
for all students, and for society writ large, rather than merely for
those whose ancestors have been “hobbled by chains”.
Few
would contest the value of different people working together
productively in harmony and mutual understanding. But the evidence for
the value of affirmative action is mixed. Richard Sander says that
preferences can be bad for members of racial minorities by setting them
up to fail at universities where they cannot compete. (This is the
“mismatch” thesis that was rather inelegantly described in last week’s Fisher hearing by Justice Antonin Scalia.) Other researchers respond that
it is a mistake to deprive underrepresented minorities of the “benefits
of an elite education” and elite schools of the “benefits of the rich
diversity” based on data showing weaker results for some students of
colour. Students with lower academic credentials could be provided with
“interventions” that could “mitigate any negative match effects”,
suggest Peter Arcidiacono and Michael Lovenheim of the National Bureau
of Economic Research.
