Kevin McMahon
Philosophy 408G
Affirmative action in college admissions is a form of reverse discrimination that gives some students a disadvantage based solely on their race. Affirmative action may have once been needed to “level the playing field”, but it is no longer serving the same purpose. Even though the playing field may not be entirely level yet, affirmative action in its current form, has turned into a discriminatory device that works against individuals who had no part in the problems out of which affirmative action grew. We will discuss here some of the glaring problems of affirmative action, and why it should be ended. We will also discuss a few other possible ideas to try and level the playing field more, without using reverse discrimination.
The history of
racial inequality and discrimination in the
The Civil Rights Act of 1964 made the bold claim that discrimination on the basis of race is wrong. As Robert Fullinwider explains however, this means different things to different people. It was obvious, in some cases, what it meant but not in others. The “no colored apply” was definitely discriminatory in nature. Other practices seemed innocent, but were not. Fullinwider uses the example of a factory with a rule that you must be recommended by a current employee to be eligible for hire.[1] In this case, since all the current employees are white, this policy would create an unfair disadvantage to prospective black employees since they would be less likely to know any current employees. The court then decided that these practices, those that had a high likelihood of excluding certain groups, were to be considered discriminatory unless the company could show good reason why such a rule was necessary to their business operations.
Even with the “banning” of discrimination though, it seemed as if blacks still were not appearing in proportional numbers to their population. Even if specific policies might have been done away with, discrimination was still there. It was a product not only of personal prejudices but also of an age-old system.
Outreach and recruitment policies were the first policies to be considered addirmative action. Many people needed to be made aware that they would be allowed certain jobs or admission to certain schools. Efforts needed to be made to contact and attempt to bring in those individuals who had previously been denied opportunities. This could be achieved in different ways. One way would be to advertise in a black newspaper instead of only in a publication read mainly by whites.
This practice was first instituted in the wake of Executive Order 11246 which set forth guidelines for federal contractors in 1972. According to this order, companies had to examine their potential selection pool after it was broadened to include minorities. Using this broadened pool, they had to set for themselves a goal that they thought was reasonable in terms of integrating minorities. They then had to come up with a plan as to how they were going to attain their own set goals. The government would later check on your company at selected intervals to see if you were on track to make your goals. Although it was not intended as such originally, this led to a quota system. It was not expressly a quota, but since treating it as such guaranteed to keep the government off your back many companies did treat it that way. The idea of integration was so against the grain of scoiety that it seemed as though, in some cases, forcing blacks into the workplace to start was the only way to really get the ball rolling.[2]
This quota system
led to a different form of affirmative action know as race restrictive. This includes things like specific quotas and
set-aside systems. A specific quota is
“race restrictive” because no matter how many qualified applicants you get from
any one pool of individuals, you have to choose a certain number from each race
whether or not their qualifications are all the same. This quota put a restriction on the number of
white applicants that could be admitted based on the number of black applicants
admitted. One of the early cases that
demonstrates this clearly involves the state police in
The other type of
race-restrictive affirmative action involves set-asides. This involves setting aside a number of
available slots and allowing them only to be filled by minorities. The federal government used this in handing
out its contracts. Perhaps, though, the
paradigm example would be the Bakke case.
The
When passing their
ruling on the Bakke case, the Supreme Court also made a ruling on preferential
policies. They allowed for race to be
considered as one of many factors when considering an applicant for a job or
for admission to a school. Race could
count for a few extra points when considering a large range of different
factors. As long as race was not a major
factor in the decision making process, the Supreme Court felt it was okay to
use. The regents of the
That is a brief overview of what affirmative action is. It comes in many different forms and many different strengths. Obviously, race restrictive policies are a much stronger form of affirmative action than are race preferential policies. Also, the amount of weight given to the race factor in race preferential policies allows for them to come in varying strengths. For example, it might be only used as a tiebreaker, a very weak form of preference; or it might be given enough weight to beat out a slightly more qualified applicant.
Let us first look
at the instances that have already been found to be unconstitutional. Race restrictive policies such as quotas and
set asides were ruled unconstitutional by Bakke. Quotas are wrong for the same reason that set
aside programs are. They cause a clear
case of reverse discrimination. Assuming
that the 85th ranked applicant to the
Race restrictive affirmative action then, is a form of reverse discrimination. People are not being treated equally regardless of the color of their skin. Proponents of affirmative action say that it is not discrimination because we are merely giving minorities a better shot at achieving admission. It sounds as though we are only helping the minority applicant. In this case though, when we help the minority applicant, we are also hurting the other applicant solely because he happens to be from the majority. This is true even in the case that he was more qualified. Although any system we use will deny some and accept others, we are not required to use any system that relies on race as a motivating factor in the denying process. It is wrong to deny someone something only because they happened to be born a certain color.
Some claim that, legally or not, these policies are not discriminatory against whites because they are not meant maliciously. Dworkin said, in his article for affirmative action, “But the case for affirmative action does not reflect, either directly or indirectly, prejudice against white citizens.”[5] Unfortunately though, even if it is unintentional and non-mailicous, these kind of policies do discriminate against people based on the color of their skin. Just because it was not intentionally meant to discriminate does not mean that it is not wrong. One of the examples Fullinwider uses, in his defense of affirmative action, was that of a factory that required all of its janitors or laborers to have a high school diploma. He agreed with the courts when they held that a practice like this could count as discrimination, “whether or not the company intended such a result.”[6] There is no reason that discrimination can not go both ways; it is possible to discriminate against someone even if they are in the majority. Many of the problems with race restrictive policies are the same problems that can be found in race preferential policies.
Racial preference policies, though not as blatant bad as race restrictive, are also wrong. College acceptance boards come up with their own list of what things they consider when choosing which students will be accepted and which students will not be accepted. Part of this process must include some sort of ranking of all the qualified applicants, that is those applicants that meet the minimum requirements. The court allows that one of these many factors can be considerations of race. How strong of a factor it is to be, can be decided by the school choosing to make such a factor a part of their admissions policies. It is against the law to use that factor as a negative against minority applicants because that would be discriminating against them on the basis of their race. Oddly enough though, it is okay to give them a little plus in their ranking based on their race since we are only helping them (and thereby hurting the equally qualified majority member).
For example, let’s take a random pool of applicants containing, say, 100 students. Now, take two students at random from that list of 100. Student “A” happens to be a white student from the Midwest and student “B” happens to be a black student from California. For example, let’s look at all of the typical factors used by colleges, except race, and rank these 100 students. This sort of “merit scale” will be discussed more fully a little later. Let’s say that student “A” is ranked number 85 out of 100 and that student “B” is ranked 87 out of 100. The school only has room for the top 85 students on its ranking of applicants. Now, say in the effort of helping blacks, the college gives all black applicants two “bonus” points when figuring out the ranking. When we consider the race preference in their admission list student “B” jumps to 85 and is thus admitted to the school whereas student “A” lost two standing points in the ranking because we helped out student “B”. So even though we were only helping student “B” by giving him a little preference, in effect, we discriminated against student “A” because he is not black.
We did not give him equal treatment regardless of his race. We violated his rights when we discriminated against him. This is one of the things that was banned by the civil rights acts of 1964. The act did not read, “regardless of race, unless you are white then we can count it against you.” It simply stated that all discrimination was wrong. “The Civil Rights Act of 1964 says, in rather plain language, much the same thing that CCRI says.”[7]
Not to be one hundred percent negative on affirmative action, I must add that outreach and recruitment programs are a great thing. We want to reach out to everybody who has the ability to compete and make it through the admissions process. We want to allow ourselves to pick from the largest number of qualified applicants to choose whomever is the best. We want to let people know that we want to have the best students we can, regardless of their race. If that means the extra expense of advertising in black/Latino/women’s publications then we must do it. If it means going to inner-city schools to encourage the students there to apply then we must do that too. Everyone should have the same opportunity to compete for the limited seats at universities.
It is for these reasons that I propose we ban all but outreach and recruitment forms of affirmative action. These forms are discriminatory in nature, whether that discrimination is aimed at whites or non-whites. They tend to take away what one person has earned, and give it to someone else who has not earned it. In the beginning of the civil rights movement some race restrictive and race preferential policies might have been needed. This was because even equally, or more qualified, minority applicants would be passed over for promotions, or simply not hired at all. This is not the case today, at least in college admissions. I do not pretend to be able to argue against affirmative action in all aspects of our nations daily business because I am sure there are companies and individuals who make their hiring and firing decisions based on race and or gender. I would also argue though, that this does not only go against minority applicants. There are most certainly some individuals out there who have prejudiced against whites in the same reverse situation.
Generally, in university admissions, there is no unwritten rule to not allow black applicants into certain schools. You do not get strikes against you on your application based on your race, unless of course you are white; then you do. When we take out the racial considerations in college admissions we realize that by and large, college admissions processes are fair.
This is why we should revert to, at least in university admissions, a meritocracy. Those people that read and rate the applications have to be totally race neutral. Using a meritocracy is the only way to ensure that those individuals that have earned their place get to keep it. If you work hard through your high school years and you get good grades and become a well rounded student then there is a college out there for you. There are many objections to a meritocratical method of university admissions; most of these are good objections but are easily overcome with the right solutions.
One large objection is that we cannot know what constitutes merit, so we therefore cannot use merit to decide who should be admitted. The fact is that we already do use merit to admit people, we only either add a little extra bonus point or deduct a point in the merit column based on the race of the applicant. Even though our methods might not be perfect, we have figured out some rating scale based on high school grades, SAT scores, well written essays and extracurricular activities. Each of these factors are given a certain amount of weight, and it is by combining all of these factors that we are able to look at a total student picture to rate each student. If a student scored poorly on the SAT, and yet was brilliant in their essay and their high school grades, we might conclude that they do not take standardized tests well, and their rating will be largely unaffected by their SAT score. Different factors would not all have the same weight for every student. If any student did bad in some areas, but was exceptionally good in others they still might be in the top rankings. Overall though, the hard-working smart students would have a high merit rating and those students who fail miserably throughout high school would have a low merit rating.
Factors such as the ability to overcome adversity could also be included in such a merit scale. For example, a student born to a poor family in a shelter who works hard and graduates high school would have major points in this area for showing great fortitude. A student who manages to get good grades in school while supporting his family would be very meritorious. This, presumably, would help out all disadvantaged students, white and black, who had to go through major struggle to get where they are. This could also help out because it could work like bonus points. Even if a student does not have the same merit rating, considering everything but the adversity factor, this can help even them out because they had to work extra hard just to get to that point. [8]
The most debated factor that is sometimes included in the merit file by colleges today, is the race factor. Even if we take out idyllic notions of helping people from a disadvantged race, there are other purported reasons for it. The main argument for allowing race as a factor is the diversity issue. I do not doubt that diversity of ideas and diversity of background help create a better learning environment for everyone. What I do take odds with is the idea that using race as a factor is the only way to achieve this diversity goal. Just because someone happens to be black, or happens to be white does not dictate what their beliefes and ideas are. If we take black and white applicants who grew up in the same neighborhood and attended the same schools, they would be very similar in ideology. It is the nature vs. nurture argument again. Just because two people are born different colors, does not mean that they see the world through totally different eyes. It seems as if using geographic and/or financial diversity as factors would be a better way of achieving an intellectually diverse student body. And this way, we would not have to rely on race as a factor at all, but we would still be able to have diversity.
Many people have specific arguments about whether the SAT and other entrance exams are race biased. If this truly is the case, then that is a problem with the test and not one that will be remedied by affirmative action. There is some reason though to believe that the test itself is not racially biased. Traditionally blacks do score lower on the SAT than do whites, that has been shown to be true. One could then assume that if the test itself were biased, then blacks with lower slightly lower SAT scores would have fairly equal grades to whties with higher scores. Unfortunately for the bias proponents, this has been shwon to be false. As Christopher Jenks reports in “Racial Bias in Testing”, black undergraduates also tend to show lower grades on average than do their white counterparts.[9] This then shows that the SAT is a fair predictor of college grades, at least when compared along racial lines.
Other arguments against the meritocracy include the idea that the “old boy’s network” actually rules as opposed to merit. In college admissions things like that need not play a role. Although some schools do have special preference for children of alumni and for children of employees, this need not be the case. We can eliminate some programs, and indeed we will need to, if we intend to utilize a meritocracy in college admissions. Also there needn’t be any worry of hidden racism either. We can accomplish this by assigning every applicant a number, and that number is the only specific identification on their application. There will be no question of your race on your application as is on most college applications now. There will be no place for your name either, so an ethnic name will not give one away. There will be no opportunity to use anything but the merit of that student to decide whether or not to admit them. Some might say that their school might give them away, or their address as well. No school in the United States is 100 percent black or 100 percent white. Same thing with cities; there are plenty of whites who live in the inner cities, or housing projects and other things of the like. This concept might not work in the business realm but I believe that it can work in university admissions.
Some individuals try to argue that we must give preferential treatment to minority applicants because we treated them so badly in the past. In the past they were discriminated against, and to pay for the previous injustices done unto them we need to give them bonus points on their applications. This is a form of compensatory justice that is wrong. As discussed earlier, when we give bonus points to the minority we are really subtracting points from the majority. In college admissions most of the people that get points taken off for being white never played any part in discriminating against blacks. Also, most of the black applicants were not discriminated against in the same sense as those in the past. It is unfair to the white applicant to say “because your father and your grandfather discriminated against blacks, we are going to discriminate against you”, how unfair![10] That is like telling a five year old that because his father killed someone but died before he could serve out his prison sentence that unfortunately he must now go to prison.
I do not deny that the playing field might not be perfectly level, but there ways other than preferential treatment to help remedy this. One of the reasons people say that the playing field is not equal is because not everyone gets the same quality secondary education. There are three reasons people make this claim. One, some people claim that schools with a higher percentage of white students get more funding and better teachers. Also that they are considered better schools when it comes to the ranking of college applicants. Second, inner cityand other poor schools do receive less funding, and therefore do get more outdated material to use. Third, students who can afford to go to a private school will have a better shot at college admissions because most private schools look better when universities compare the merit of their applicants.
My proposal will be able to reach around these inequalities in secondary education to give more people an equal shot at admission. It is an idea similar to that adopted by the University of California just recently. Their idea, which takes effect fall 2001, is to take the top four percent of high school graduates in their state and guarantee them admission.[11] I don’t know how they came to the number four but my proposal will use a slightly different system anyway.
What I propose is to divide the total number of available slots for incoming freshman into two groups. For example if a school has room to admit 5000 new students, then 2500 would be group A and 2500 would be group B. First, group A would be filled by taking the top X percent of the states public high schools, where X would be the percent that would exactly fill those 2500 slots. Then, after group A was full, group B would be filled by using the normal race blind ranking system for all remaining applicants. This would guarantee that even students from underprivileged schools could be guaranteed a college education. Anyone, white, black, or other has the same chance of making it into the university as long as they are willing to work hard and strive to be the best in their school. They do not have to have the best SAT scores, they do not have to have better grades from a prestigious high school, they merely have to work their hardest. No one would then be excluded because they went to an inferior school.
This is just one example of how we can work college admissions in a fair way without having to give preferential treatment based on race. Racially preferential, and racially restrictive rules, although written in good faith and for good reasons, no longer serve their purpose. Now they merely discriminate against the majority. There is no need for such policies, therefore they should be abandoned. The only aspect of affirmative action we should keep is the original outreach and recruitment; that should be maintained to help give a more varied pool of applicants. We can then choose the best from that pool and avail ourselves of a racially diverse population without giving anyone a preference because of their race.
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[1] From Robert Fullinwider, pg 10.
[2] From Drew S. Days III in “Affirmative Action and the Constitution” pg 16.
[3] From Benjamin Hooks in “Affirmative Action and the Constitution” pg 13.
[4] From the Supreme Court Report of the Bakke case.
[5] From Ronald Dworkin pg 100.
[6] From Robert Fullinwider pg 10.
[7] From Robert Fullinwider pg 10.
[8] Idea of using adversity as a factor of merit was taken from Judith Lichtenburg’s notes on an early draft of this paper.
[9] From Christopher Jenks in “Racial Bias in Testing” pg 72.
[10] From Olen and Barry pg 368.
[11] From Associated Press article 3/19/99 The Daimondback pg 3.