Under President Obama, the federal government offered schools voluntary guidelines showing how race could be used to promote diversity. The law as written (LAW) makes it clear that race can be used as one factor among many when admitting students and so the Obama administration was operating within the law—albeit with a push in favor of using race as a factor. The Trump administration has not changed the LAW but has replaced the Obama era guidelines by copy-pasting those from the Bush era. These guidelines also fall within the LAW but change the preference in favor of race-neutral methods of admission.
On the one hand, it might be thought that this change is not a significant change. After all, the LAW remains the same, the only change is in the guidance offered by the government. As such, school admissions could remain the same.
On the other hand, the guidance offered by an authority can have rather significant impact on what occurs. To use an analogy, two sports referees could both follow the exact same rules as written (RAW) but elect to place a different emphasis within these rules. To use another, nerdier, analogy, those familiar with role-playing games like D&D are most likely aware of how differently Dungeon Masters can apply the very same rules based on what they emphasize.
Given that Jeff Sessions has said that this change marks a return to the rule of law, it seems certain that the Trump administration thinks that this change is a substantial change—that by encouraging schools to voluntarily use race as one factor among many the Obama administration was breaking the LAW. As Sessions sees it, pushing a race-neutral approach (saying that race can but should not be used) is in accord with the LAW. As noted above, I think Sessions is half right. The LAW allows race to be used as one factor, so encouraging or not encouraging it seem to be equally allowed under the LAW. As with sports and D&D, the referee or Dungeon Master can encourage a specific sort of game while staying within the RAW.
The easy and obvious interpretation of the intent of this change is that Sessions wants schools to stop using race in admissions; although the LAW allows this when other factors are also given consideration. Given that the Trump administration is not violating the LAW anymore than the Obama administration, there would seem to be no real basis for legal challenges to this guidance—especially since it is just a copy of the Bush administration’s policy. However, there do remain some interesting moral questions in terms of the push of the guidance.
As noted above, the Obama administration encouraged schools to use race as a factor while the Trump administration encourages a race-neutral approach. The ethical question is, obviously enough, which is morally better?
As an athlete and gamer, I certainly favor a merit-based approach to competitions. To use an analogy, I would regard it unfair if I placed first in a race, yet this award was given to someone else because of some factor other than how well they ran. For example, if the race director said, “you know, white guys have had enough trophies, so that Hispanic guy you beat gets this trophy”, I would rightfully regard this as unfair. To be honest, I would also regard it unfair if I was tied at the finish and the other person was given the trophy because they were, for example, Asian. Of course, it would also be unfair if I got the trophy for the tie because I was white.
The same sort of reasoning would seem to apply to academics as well. If the top applicants all or mostly happen to be the same race, then it would be unfair to reject them to accept lower ranked candidates who happened to be of a different race. After all, a key part of fairness in competition is that each person receives what they have justly earned. This approach does have considerable appeal, especially since the principle of fairness is such a solid principle. It is thus perhaps ironic that the principle of fairness can be used to argue for using race as a factor in admissions. To make this case, I will return to my running analogy.
Every race director must decide how to handle awards. In some cases, the awards go to the top three runners to finish. On the face of this, it is fair: everyone has a shot at winning based on their ability, training and effort. However, if this approach was always used in all races, then a very small group of people (mostly young males) would win all the awards over and over. Older runners and women would generally never win an award.
For some, this would still seem utterly fair: everyone is running the same race from the same starting line and it all comes down to training, ability and effort. What could be fairer? There is, of course, an answer to this.
Since people vary in their running ability due to age and sex, most races also have age and sex groups for awards. This is also based on the principle of fairness: the young males have an advantage over the older runners and female runners that means that even the best older or female runner will probably lose to the best young male runner. The age and sex groups are thus intended to be fair by taking these factors into account. While everyone still competes for the top overall awards, people also compete within their age and sex groups—which makes for fairer competition. So, 70-year-old woman who will not beat the 20-year-old male varsity cross country runner in the local 5K can still compete fairly in her age group and win a trophy fairly. It must, of course, be noted that people vary in their intuitions about fairness. Some would think that the competition should always be open to everyone and that age and sex groups for awards are unfair—after all, no matter how well the 20-year-old male does, he cannot win that 70-year-old female 1st place award. This is, of course, the view that it is fair if a small number of people always win and everyone else loses. The competing intuition is that the winning should be spread out in a principled way, while still allowing the very best to win the overall awards. My intuitions, shaped by years of running, is that this is a fair system: the overall best get the overall awards, but everyone gets to compete in groups based on factors that do impact performance, namely age and sex. To return to education, similar considerations of fairness apply.
As with a running race, it is tempting to say that competition for a slot at a university should be settled by who is the best applicant and that considering race would be unfair. However, the principle of fairness also requires that the competition is not unbalanced by unfair advantages held by some of the competitors.
If everyone under consideration for admissions to schools had roughly the same quality of public K-12 education, grew up in conditions that allowed them to fully develop their abilities (such as having adequate nutrition), and faced roughly equal social obstacles, then it would indeed be unfair to use race as a factor. To use an analogy, if runners did not lose any speed as they aged, then having a special master’s (an athlete 40 or older) award would be unfair.
However, the quality of education, the conditions faced by people growing up and the social obstacles vary greatly between people and these tend to be linked strongly to race. As such, when people compete for admission, minorities tend to be at a disadvantage because of the unfairness of the challenges they faced growing up. As such, the principle of fairness comes into play in at least two ways here.
First, the competition among potential students is unfair in that some students are at a disadvantage that has been imposed upon them by the social, economic and political conditions in America. This is analogous to the disadvantage imposed by age on runners. As such, compensating for these disparities in the competition would be fair.
Second, to suddenly insist that college admissions should be “fair” while tolerating extreme unfairness in everything prior to that admission (such as public K-12 education) is utterly hypocritical. To insist on this sort of “fairness” is, instead, to insist on a continuation of unfairness under the mask of virtue. Someone who is truly concerned with fairness would focus on the unfairness that puts students at a disadvantage, such as grotesque educational and economic disparities. When those are addressed, and everyone can compete based on ability and effort, unfettered by discrimination, then race should no longer be considered a factor in admissions. This is because it would no longer be a factor.
Clearly the “guidance” issue does not really have teeth – in the article you linked, Peter McDonough, the VP and general council on education, says that this kind of change in official “guidance” happens all the time, and he doubts that colleges will change existing practices. The one thing that he does note is that colleges who do continue to use race as a part of a larger admissions policy may find themselves challenged.
I think that Sessions’ description as a “return to the Rule of Law” is appropriate. While the LAW has not changed, I think that the Obama administration had a tendency to allow for the relaxation or creative implementation of LAW that they did not agree with or otherwise did not support. As I have pointed out in other posts, I think there is a moral benefit to following a rule of law or, if it is that controversial, changing the law. Immigration and Marijuana come to mind most prominently.
I’m not sure that your analogies to sports or gaming really go deep enough, and I think they miss the mark entirely in some areas. For a race (sports, not ethnic) to have age and gender grouping to make competition fair, this kind of thing can be dangerous to an institute of higher learning. If standards are lowered to accommodate lesser prepared individuals based on ethnic or demographic considerations, what does that do to the more qualified candidates? What if the next 10K you run, you find that there are some 50 year olds that have been added to your age group, because they came from an area that didn’t sponsor running as robustly as your community? You might find yourself with an easy win, but also a lack of challenge within your age group, and feel as though you have wasted your money entering the race. Your victory, albeit real, would be shallow and represent no substantial accomplishment for you. Further, and this is the real point, after several races of this kind, you may not become the runner you had hoped to become.
I don’t know about you, but students like this appear in my classroom often. It makes it difficult to follow the challenging pace I might set for an advanced class – these students may fall hopelessly behind, require many hours of help, or drag down the pace of the class. The grading policy would indicate that they should just fail the class or get low grades, but given the history of how they got into the school in the first place, that hardly seems fair or moral. At what point to we stop making allowances for them, and force them to compete at the level they belong?
I also think that Affirmative Action leads to unconscious, or even conscious bias on the other side. I have experienced it myself, and I had to have a long heart-to-heart with myself to understand where it came from and what it meant.
There was a point in my life where I had little choice as to which physician I needed to see – I chose an orthopedist from the list and went to see him – and was surprised to note that he was African American. I had a very uncomfortable unease about him. This unease really surprised me, but I realized that it wasn’t due to an inherent racism on my part, but more of a policy-driven racism. My question about him was not that he would be less intelligent or less able as a physician for any reason at all based on his race, but that he might be less competent for other reasons and have been given a series of Affirmative Action “breaks” along the way.
I don’t know if it’s possible for a medical student to finish med school and enter private practice with help from Affirmative Action all the way – and ultimately I was very happy with this doctor and what he did for me – but the pause was there, the bias was there, and it was not caused by him – it was caused by the system. Admission to medical school is not a “trophy” it is an expectation. While the New York marathon has all kinds of categories for people to compete, the top prizes still go to the elite runners from whatever background they emerge.
In other areas, schools can develop reputations for recruiters in industry. “Open Enrollment” schools, or those with strong Affirmative Action diversity policies may, as a result, carry those policies throughout a students’ academic career and, like the 10K race example, may turn out students who have been less challenged and who are not prepared to compete at high levels once they graduate.
I realize that this is a very thin-ice argument that can be misinterpreted easily. I am NOT saying that diversity is bad, or that non-white students are less capable or less intelligent than their white counterparts at all. I AM saying that a race-based admission policy has the potential to allow lesser qualified individuals into the system, and lead to an overall lowering of standards – which can cascade outward and beyond the school itself.
I think part of this issue is based on our current perception that college is an “entitlement”, not an opportunity or an obligation. I think that if applicants are able to compete academically but are economically disadvantaged, it’s appropriate to look at their finances and offer need-based awards to help them get to the place they deserve to be – however, to use race as an acceptable metric is exactly the kind of profiling that is decried when used by the police. College is not for everyone, but our attitude has become that it should be. I think that’s wrong – and it leads to the bigger problems of Affirmative Action and the pretense of “doing good” on the part of lawmakers and politicians.
I also agree with you wholeheartedly that it is patently unfair to allow this problem to get as far as college admissions – that the school systems need to be fixed much earlier than that. One example is seen right here in my city – over the last 20 years or so the city has been in a general economic decline based on some large businesses leaving town. This has negatively affected the city tax-base, and the effects of this have become a kind of domino effect – most obviously in the city public school system. The economy of the city is definitely on the rebound, but the quality, the reputation, and even the hiring ability of the school systems will take a long time to return. And those who graduate from the city high schools have very little opportunity to attend college. Nor, based on their education (or lack of it), should they be pushed in that direction.
On the other hand, there are a group of wealthy people (the former president of my University is among them) who founded a Charter School in the city. This is a much, much better answer – the first class graduated from this school a couple of years ago, and with race as a complete non-issue, were admitted to some pretty good schools on merit alone.
It’s not the answer, but it is an answer, and one that addresses the problem where it needs to be addressed.
Mike, what if the policy you endorse ends up hurting the very people it was designed to help?
Would your position change?
On utilitarian grounds, sure.
Evidence, should you care to consider it.
Over the past few years, researchers have begun to produce large datasets that make it possible to compare the fortunes of minority students who attend universities that use varying levels of admissions preferences. In many contexts, scholars find that students perform better, both in the shortterm and the longterm, when students’ credentials are closer to those of their classmates. When students are surrounded by peers who have much higher credentials, they often have more trouble persisting in a difficult major, graduating from college or getting a good job.
This phenomenon is known as the “mismatch effect,” and last month I published a study in the Stanford Law Review, trying to determine whether the mismatch effect operates in law schools. Legal education is an ideal place to study these effects because nearly all law schools rely on similar, largely numerical admissions criteria and have standardized grading schemes. And nearly all states require law graduates to take bar exams before they can practice law. My study focused on black law students and compared black and white outcomes.
I found that law schools almost universally use very large preferences for blacks to achieve something very close to racial proportionality. The credentials gap between white and black students is about 30 times larger than it would be in a race-blind regime.
Starting a highly competitive curriculum with a large academic disadvantage, blacks wind up clustered in the bottom tenth of the class at nearly all law schools. I estimate the mismatch effect increases the number of black dropouts from law school by 40%, and increases the number of blacks failing their first bar exam by 80%.
http://newsroom.ucla.edu/stories/050223voices_preferences
There is so much to deal with here that I will comment on one issue at a time.
On reading your post, my first reaction was “OK, departments change policy after elections. Obama has a policy. Trump has a different one. So it goes.” and I stared to think about the substance.
However, on starting to get facts, I find that this entire story is being so misrepresented as to be a lie.
The first thing I found is that this action is not some targeted one-off. Last November, Jeff Sessions ended the policy of “Regulation by Guidance”. In US law, departmental regulations are governed by the Administrative Procedure Act, which mandates a process of “Notice-and-Comment Rulemaking”. This requires any executive agency to publish a proposed rule and read public comments on it. While the agency is not bound by any comments, the process affords an opportunity for public airing of the issues arising.
The Obama admistration found it too cumbersome and slow to adhere to the legal process. They therefore created an unofficial policy of “Regulation by Guidance”.
Guidance Documents are administrative memos and papers with the purpose of clarifying regulations and laws.
The Obama administration, not wanting to publish many regulations, and subject them to scrutiny, instead issued “Guidance Documents” which the civil servants could interpret as pseudo-regulations, or having the force of regulations.
Last November, Jeff Sessions “issued a memo prohibiting the Department of Justice from issuing guidance documents that have the effect of adopting new regulatory requirements or amending the law. The memo prevents the Department of Justice from evading required rulemaking processes by using guidance memos to create de facto regulations.”
“Guidance documents can be used to explain existing law,” Associate Attorney General Brand said. “But they should not be used to change the law or to impose new standards to determine compliance with the law. The notice-and-comment process that is ordinarily required for rulemaking can be cumbersome and slow, but it has the benefit of availing agencies of more complete information about a proposed rule’s effects than the agency could ascertain on its own. This Department of Justice will not use guidance documents to circumvent the rulemaking process, and we will proactively work to rescind existing guidance documents that go too far.”
https://www.justice.gov/opa/pr/attorney-general-jeff-sessions-ends-department-s-practice-regulation-guidance
Since then, the DoJ has been reviewing and rescinding many Guidance Documents that overstep their proper function. Now there is a media storm about this one, in which the story does not mention that this is one of a series. That is tantamount to a lie.
It is a truth universally acknowledged that Obama expanded the power of the Executive Branch in many ways. This was one of them. That was one of the things I found concerning when trump was elected. I find myself impressed, and a bit surprised, that the Trump administration, instead of taking advantage of this assumed power, is rolling it back.
There is so much to deal with here that I will comment on one issue at a time.
God bless you my man. Well researched. And whilst reading through all that abuse of executive power, I really have to question why suspicions of the ulterior motives of a significant percentage of those in power in the Democratic party are consistently treated in the press and academia as being beyond the pale.
I find myself impressed, and a bit surprised, that the Trump administration, instead of taking advantage of this assumed power, is rolling it back.
I know, right? A politician who actually does things in line with what his party is supposedly philosophically in favor of. For some people on the right, yet another sign that PDJT is really a closet Democrat. Or something. My purloined copy of the NeverTrumper playbook is out of date. This happens every couple of weeks or so. Looking forward to the new edition.
My second issue is with the footrace-prize analogy. This is not consistent with the college admissions question, most immediately in terms of the aspct of “prize”.
In running, or any other sport, or for that matter academic competitions like spelling bees or math olympiads, prizes are rewards in themselves. Pehaps qualification for a higher-level event might have been a more appropriate analogy, but once prizes are given, that’s the end of it. There is no question of which recipient will be able to do more good for themselves or the world. The prize-giver has no ongoing interest in the progress of the winner. In amateur competitions, the prize has a small dollar value, and is largely symbolic; the prize itself is not life-changing. It may come from entrance fees, perhaps bolstered by sponsorship. In professional competitions, the prize may be significant, but comes from money paid in ticket sales and/or ad sales and/or sponsorship by the people who consider their money well spent to see the event or to boost their brand image.
The purpose of the competition, therefore, may be characterised as the enjoyment of the participants, plus commercial profit.
In college admissions, the organisers and prize-giver analogues are the colleges and the state. Their interests are different. Colleges have a monetary interest, of course, in receiving income. Even as non-profits, they want to pay staff, build, buy equipment. They also have a strong interest in their brand – in ensuring that their graduates get good jobs, have positive careers, reflect credit on the college to make it easier for them to recruit in future. All agree that motives of the state include investing in educating and training for the next generation, and after that become hazy, many involving social engineering. However, the colleges and the state share a primary goal of choosing the people most likely to graduate, and make best use of the education.
Since the “prize-givers” of admissions have an ongoing interest in how the “prize” is used and the progress of the recipients, they have reasons to set criteria to favour that, and not a strict “fairness” of the event on the day. This makes the analogy inapposite.
I will consider the fairness issue in the next part.
True, the analogy does break down because (as you note) a person who wins a race gets a trophy; while the person who wins college admission gets access to that education/social prestige. However, I think that the competition part as it relates to fairness still holds well enough.
Considering Fairness.
While the word “competition” is often used when referring to college admissions, it differs from the competition in a sporting event.
The primary difference is purpose. While the main purpose of a sporting event is the enjoyment and satisfaction of the participants, and possibly the money made by the organiser, the main purpose of college admissions is selecting people who will graduate successfully.
A perception of approximate fairness among the participants and viewers of sporting events is essential for fulfilling their primary purpose. Most participants will receive less enjoyment and satisfaction from competitions that involve gross mismatches. However, many competitions go beyond that by instituting separate competition segments even when there is no obvious reason to believe a fundamental handicap exists, such as we see in chess or in team leagues, and many sports at amateur level.
No perception of fairness is required to achieve the primary goal of college admission. Distorting the optimum selection or candidates to attempt to accommodate wildly varying perceptions of fairness would compromise the primary objective. [*]
As it is, the success of admissions is never guaranteed, but it seems to be generally agreed that the best known predictors are consistently high grades in high-school, ACT/SAT scores, and superior preparation for entry-level courses. Candidates that do not meet thresholds in these areas indicating a high probability of completing the course should be and are ranked low on the admissions lists. I believe this is uncontroversial.
However, we must assume there is some threshold of these criteria above which we reach diminishing returns on the likelihood success, and in that region a college that has excess applications of high standard must decide to select further by other criteria. I tried to make my way through the amici in Grutter v. Bollinger to find arguments for these criteria as they relate to race, but found mostly repetition and vagueness. However, the Supremes deferred to the college’s “educational judgment that such diversity is essential to its educational mission.” The question that occurs to me, then, is why different colleges come to different conclusions about what is essential to their educational mission. However, that is a tangent.
So this judgment, which forms the current basis of US law, was made not on grounds of fairness, but on grounds of meeting secondary objectives of the selection process. The schools that use race as a factor in admissions do not themselves advocate for these policies on grounds of fairness.
What might grounds of fairness be? Who is to decide? How is the state to decide who is to decide? Whatever grounds are chosen, which selection objectives should they supercede, and to what extent? and why is college to bear the burden of correcting any perceived previous unfairness? Should colleges offer all people who meet the threshold for likelihood to graduate a number in a lottery for admission? Should secondary criteria other than someone’s idea of fairness play a part?
I would like to pay tribute to the Babylon Bee, which does satire without vulgarity or meanness, for this example of a possible implementation of fairness:
https://babylonbee.com/news/democratic-socialist-candidates-primary-win-revoked-after-all-her-votes-forcibly-redistributed/
In the original post, three sources of potential unfairness are listed: “same quality of public K-12 education, grew up in conditions that allowed them to fully develop their abilities (such as having adequate nutrition), and faced roughly equal social obstacles”. The first two of these are clearly economic, and some programs have addressed these issues directly rather than through the loose proxy of race. Notably, the Texas Top 10% plan, which guarantees anyone a place who places in the 90th percentile of their graduating class. This ensures that people in areas of lesser economic advantage will have a path to a college place. As for social obstacles, I think anyone who has been a teenager will attest that there are social obstacles other than race. There are also clear genetic factors for academic attainment; should colleges attempt to compensate for these as well?
TL;DR:
1. No concept of fairness should override a threshold of likelihood of success.
2. The colleges that admit with race as a factor do not claim fairness as a motive.
3. We have no agreement on what fairness would mean, or how it would be implemented
4. After Supreme Court decisions, colleges may use race as part of the consideration of admissions (Fisher I & II), though not in quotas or as an overwhelming factor, but individual states may forbid consideration of it to colleges within them (Schuette). We don’t have clarity. Having the Federal government take its thumb off the scales is at least a start.
[*] However, it should be noted that the U.S. offers at least 5,000 “competition segment” analogues for this anyway – the approximate number of degree-granting institutions. Of course, there are more segments than this, considering differing requirements of separate departments and programs, but 5,000 is still a lot of options, and as far as I can tell from a cursory search, anyone who can fill out applications in the US, and afford to attend or qualify for a loan, will find a place in at least one of them. This means that we are not discussing which candidates can find a place, but which candidates can find a place in one of their preferred colleges.
More evidence that affirmative action hurts those it was designed to help.
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3112683