1.4: A Defense of Affirmative Action (Noah Levin)

4 A Defense of Affirmative Action
Noah Levin⁶

Certain groups are overrepresented in both faculty and student positions in academic institutions as a whole. The faculty, staff, and students at any institution rarely, if ever, have the same proportions that would be expected or desired to properly represent the population that the institution is supposed to serve. In other words, the faculty lacks the same diversity the students have, and often the students lack the same diversity the institution should expect. For example, Jewish males (of which I am a part) appear in faculty positions at a much higher rate than they do in the regular population (and win Nobel prizes at a much higher rate, too). I won’t get entirely into the reasons for why this might be the case, and when a minority group is over-represented in a positive situation (like employment, not incarceration), it is not usually of concern. Despite what some people might want to think, I am not in my current academic position due to some worldwide conspiracy group planting Jews in community colleges teaching throngs of people how to think for themselves. I cannot, however, deny that I was lucky enough to be born in a position, place, and to parents that allowed me the luxury of arriving at this position (with much college debt still to be paid). There are those born with much, much less than I had (and also those born with much, much more), and it was no choice of their own that resulted in a life that did not afford them the same educational and social opportunities I had. As a result, they might not have the scores, education, background, or knowledge of how the system works to get into the college or university of their choice, or perhaps even any college at all. Their potential, hunger, and interest for success, however, could certainly be enough to excel at many schools. But because of something outside of their control, they were not up to the “standards” the schools were looking for and would not be given that chance. When we assess the situation, it turns out there is a very strong correlation between these types of students and race (but there are also correlations between income level, school districts, family history, etc.). To put it more bluntly and directly: because of their race, many capable students are denied admission and not allowed a chance to succeed at a particular school that should serve them. But should these students be given a chance? And, if so, how could a system that ensures they get a fair chance work?

I maintain that it is appropriate to implement affirmative action protocols when certain conditions and restrictions are met. A fair system can even mean that the students who benefit from these policies can fail at a higher rate than their counterparts, but this doesn’t lessen the moral obligation to provide them with a chance to succeed. While I will focus this analysis on academics and education, this situation can be true in any number of areas, like college and university faculty, or in employment, as infamously occurred in the Alabama State Troopers in the 1960’s where black troopers were systematically denied promotions through a flawed advancement system.

Underlying my defense of affirmative action is the desire for a system that is fair and just. It is morally unacceptable to have systems that fail to provide disadvantaged students a fair chance at opportunities where majority individuals are thereby given an advantage simply because of their majority status. Fairness with regard to punishment can provide a helpful analogy in appreciating what a just system of student admission into colleges and universities can look like. It is equally unjust to give people lighter punishments than they deserve as it is to give them harsher punishments. The whole idea of a punishment is that it is fitting and what is deserved. In both cases (of light and harsh punishments), people get something other than what they deserve, and we might react similarly to such situations. When a rapist gets off with no prison time and a battered prostitute gets 25 years for defending herself against her abuser, we can, and should, act equally disgusted if both punishments are unjust because they are unjust. Fairness demands that people get what they deserve, and, in the situations that affirmative action is meant to correct, people are being treated unfairly and receiving a drawback (or a benefit for those that stand to gain from having no corrective policies) for something that is no fault of their own and thus do not deserve.

Fairness is an extremely complicated concept as multiple elements must always been considered alongside each other and somehow made commensurable (that is, we can find a way of comparing the two – like how we can compare apples and oranges if we judge them based on sweetness). A policy that skews fairness in favor of one candidate almost invariably results in another candidate being treated unfairly. It is certain that many candidates that get rejected can claim legitimately they were treated unfairly, so we must seek a balance that errs on the side of fairness for the greater good. This is an explicitly consequentialist approach, but I know no other way of resolving the issues. If we wanted to focus on other concepts, like those of desert or a Kantian notion of respect, then we are left with the same problem we began with: how will we properly compare the types of desert (the noun of “deserve,” the word used in “just deserts” which means people get what they deserve) in the analysis and how do we properly respect an individual holistically and compare their respect to others? A system that maximizes fairness is the best we can do. And affirmative action is merely ensuring that a fair system, all things considered, is implemented when choosing between applicants with diverse backgrounds.

There is a famous image of three children of varying heights trying to watch a baseball game over a wooden fence. One is much taller than the fence, one can barely look over it, and one is too short to see over it. They all want to watch the game and we are in a position to help them achieve this, so the question is, how do we help? One response is that we ought to treat them all equally. This would mean giving them each the same boost, so we give each of them a single box to stand on. The taller one gets a better view, the middle-sized one gets a better view, and the shortest one still can’t see over the fence. This clearly isn’t what we wanted, as we want to try to obtain a fair result where each of them can see the game in the same way. In other words, we want equitable treatment. So what’s the next picture in this story? The tallest child gets nothing, the middle child gets one box, and the smallest child gets two boxes, making all of their heads the same height, getting the same experience of the game. Is this what we want? Or should there be a requirement that you be “tall enough” to be able to enjoy a baseball game?

Should we just tell the shortest child to “grow taller”? Or ask the taller one to “kneel down”? It is, after all, not their faults that they are the heights they are, and I don’t want to hold this against them. There is one more option, however: remove the fence or replace it with a chain-link fence. This would be ideal, where each person is given fair access to watch the game without any real or perceived barriers unique to them because of their background. In this case, the systemic barrier is removed, inequity is addressed, and all participants are treated equally. This is the goalpost: if the world worked in this way, there would be no need for affirmative action. But there are barriers set up that prevent people from achieving things simply because of who they are. We are in a position to fix this inequity in many situations, and we ought to do so.

The systemic inequalities that can result in the need for affirmative action policies are captured by two Latin phrases used in both legal and philosophical discussions: de dicto and de facto. It is important to remember that in both of these circumstances discrimination occurs. De dicto means “from the word” and captures situations where discrimination is written into the law or policies. For example, laws of segregation (that persisted in many countries, particularly the United States and South Africa) are de dicto because they explicitly state that certain individuals are not allowed access to certain things. De facto means “in fact” and captures situations where, regardless the reason and in the absence of de dicto discrimination, discrimination is, in fact, occurring. Wage discrimination, especially based on gender, that is prevalent in virtually every country does not enjoy any de dicto discrimination, but nonetheless is discrimination as a de facto occurrence.

The history of affirmative action, especially in the United States, is relevant in appreciating my arguments. Regents of the University of California v. Bakke, 438 U.S. 265 (1978) was the first major test of affirmative action where Allan P Bakke sued for admission to the UC Davis medical school on the belief he was unfairly rejected due to his status as an over 30-year-old white male while less-qualified minority candidates were admitted under a quota system. A quota system ensures that there is a certain number of minority applicants admitted for certain numbers of majority, meaning white, candidates (in this case, at least 16 minority candidates had to be admitted for every 100 majority candidates). A quota system, the Supreme Court ruled, was unconstitutional since it did not treat applicants as individuals but as mere members of a racial group. Thus, they ruled that Bakke ought to be admitted and that affirmative action policies could not be based on quotas, but race could still considered when making admissions decisions. The general attitude of the Bakke case as upheld in two later cases involving the University of Michigan in 2003, Grutter v. Bollinger, 539 U.S. 306 and Gratz v. Bollinger, 539 U.S. 244, the combination of which said that admissions standards can give preference to underrepresented minorities provided they do not result in a quota or guaranteed admission since diversity can be in the best interest of the goals of the University. The Supreme Court did make clear, however, that policies can only remain in place while there appears to be a systemic problem of unjustified discrimination against minorities.

My argument rests on the idea that there remains unjust discrimination that we ought to correct. When there is not a proper representation of a minority class in a particular place of education or employment and there is no obvious reason why this isn’t the case (as opposed to the lack of NBA players under 5-feet tall, which is entirely understandable), then there is likely a problem that we ought to be concerned about correcting and an affirmative action policy might be the appropriate method to rectify the situation.

A Bona Fide Occupational Qualification (BFOQ) is a powerful concept to aid in understanding when discrimination can be justified. BFOQs are used in employment law to appreciate which traits are genuinely needed in a position, and thereby indicate which traits a hiring agent may justifiably discriminate in favor of or against. For example, it is a BFOQ to have a background and requisite degrees or competence in Philosophy to teach Philosophy in college (the same goes for other subjects). Being able to compete on the basketball court is a BFOQ to playing in the NBA; being tall is not. To be denied a chance at playing professional basketball solely for being short would be unjustified. While being tall generally grants a significant advantage, it is not necessary to play, as the incomparable 5’3” Muggsy Bogues proved. BFOQs are meant to pick out which things an individual must have in order to be minimally competent to perform as desired.

The affirmative action policies I am advocating for are only those where candidates meet justifiable BFOQs. It is to no one’s benefit to have a system where people are set up to fail, but once a candidate meets a minimum standard, it would seem the only reason to deny them a spot is because there is someone else that is more qualified. The “more qualified” condition can be due to objective or subjective valuations, but it is important to note that candidates that meet the BFOQs are not unqualified, they are just not the strongest candidates. Therefore, as long as the candidates being admitted can meet minimal criteria, there is nothing to be said against them being qualified for the position. However, this raises another concern: are the criteria being used to determine BFOQs fair? The way to find the answer is the same as the way I am using to defend affirmative action: are candidates that could be successful experiencing de facto discrimination due to unfair practices? If the answer is “yes”, then the criteria ought to change to be more inclusive.

But what is to be said against my argument? Why should we not have policies of affirmative action? There are four solid reasons opposing it:

I agree that all of these are concerns, but that only (4) is a real problem. For (1), while it is true that there do not appear to be rampant de dicto discriminatory policies, the idea that we ought not concern ourselves with other types of discrimination is simply wrong: there still exists concerning de facto discrimination in many areas, and we are under a moral obligation to rectify it if the problem is a result of no fault of those individuals being discriminated against and we are in a position to do something about it. Since both of these appear to be true, we ought to seek affirmative action policies. (2) can, and will, certainly happen. But is this enough to remove the policy? Mere perception of the beneficiaries of affirmative action doesn’t seem to be enough to remove the policies, as those that benefit from them still deserve to benefit from them, regardless of how they will be perceived, which is the fault of others, not themselves. Additionally, they might not be in a position of success without the policies, undermining this reasoning as well. It is hard to believe (3) since the whole point of affirmative action is to help minorities succeed and assumes they want to succeed. Why would anyone seek anything if they didn’t want success? Similar to my response to (2), even if this were true, it doesn’t seem to be enough of a reason to avoid affirmative action policies. (4) is simply the result of implementing affirmative action policies. This will happen. But when the purpose of affirmative action is greater societal fairness and the good of society, the individuals given an advantage by affirmative action may actually be the ones that merit the position the most. Choosing someone over someone else due to an affirmative action policy is not the same as condemning the looked-over majority candidate to failure; it is telling them they must look for success somewhere else. For minority candidates, without affirmative action policies, there might not be anywhere else to look. Doors will always be opened for majority candidates to come and go; affirmative action simply wants to make sure that the door won’t be locked for those that have to open it themselves.

So, how should these policies be implemented? I am uncertain. There are many ways they can be applied, from giving people more points for minority status in a system that ranks candidates using points, to using the “hated” quota system in which a minimum number of minority candidates must be chosen (which could include choosing unqualified candidates, something that might be problematic, not to mention the fact quotas have been deemed unconstitutional). When the goal is overall fairness and ensuring that minority candidates achieve the same level of consideration afforded their majority counterparts all things considered, then the most effective policies at achieving that ought to be implemented. I hope that someday we will not need policies enforcing this type of fairness and that we all may shed our innate biases against others, but this day may never come, so the need for affirmative action policies may never disappear.

For Review and Discussion

1. Does having affirmative action policies make decision procedures more just? Why or why not?

2. When might affirmative action policies be good to use?

3. The Supreme Court has stated that affirmative action policies that work as quotas (where a certain number of minority candidates must be chosen) are unconstitutional. It has also been established that we have unconscious biases that we cannot control and influence our decisions, like how everyone (regardless of height) appears to prefer taller people over shorter people. Should quotas be allowed if they are meant to protect us from our inherent biases? Why or why not?