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.