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Affirmative Action for Whom?

cutout of white man on corporate ladder elevated above peers

Wednesday, Laura Siscoe challenged affirmative action advocates to reflect on their apparent tunnel vision: if what we seek are diverse campuses and workplaces – environments that attract and support students and colleagues who possess a diverse set of skills and approach problems from unique vantage points – then why confine our focus simply to race and gender categories? Surely realizing the intellectual diversity we claim to crave would require looking at characteristics that aren’t simply skin-deep – factors like socio-economic background or country of origin, just to name a few. If diversity in thought really is our goal, it seems there are better ways of getting there.

Laura is no doubt right that much more could be done to diversify campuses and workplaces. But, at minimum, it seems prudent to protect the gains that historically marginalized groups have secured. Time and time again, formal legal equality – that each enjoys identical treatment under the law – has failed to secure equality of opportunity – that each enjoys a level playing field on which to compete. And when policies like race-conscious admissions go away, we revert back to the status quo all too quickly. (The NFL’s lack of diversity at the head coach position and the impotence of the Rooney Rule offers a compelling example.)

Critics of affirmative action, however, are quick to characterize such policies as special treatment for the undeserving. But it’s important to separate the myth from the reality. As Jerusalem Demsas writes in The Atlantic, “No one deserves to go to Harvard.” There is no obvious answer to who the best 1200 applicants are in any given year. At some level, there is no meaningful distinction between the different portraits of accomplishment and promise that candidates present – their “combined qualifications.” No magic formula can separate the wheat from the unworthy; there is no chaff. There are grades; there are scores; there are awards; there are trophies; there are essays; there are statements; there are kind words and character references. But there is no mechanical process for impartially weighing these various pieces of evidence and disinterestedly ranking applicants’ relative merit. Nor is there an algorithm that can predict all that a seventeen-year-old will become. (This is perhaps why we should consider employing a lottery system: the infinitesimal differences between candidates coupled with the boundless opportunities for bias suggests it is the height of hubris to insist that the final decision remain with us.)

Contrary to critics, then, affirmative action is not a program for elevating the unqualified – a practice geared to inevitably deliver, in Ilya Shapiro’s unfortunate choice of words, a “lesser black woman.” Ultimately, affirmative action is a policy designed to address disparate impact – the statistical underrepresentation of the historically marginalized in positions of privilege and power. It’s aimed at addressing both real and apparent racial exclusion on the campus and in the workplace.

Those skewed results, however, need not be the product of a deliberate intention to discriminate – a conscious, malicious desire to keep others down. “Institutional networks,” Tom Beauchamp reminds us, “can unintentionally hold back or exclude persons. Hiring by personal friendships and word of mouth are common instances, as are seniority systems.” We gravitate to the familiar, and that inclination produces a familiar result. Affirmative action, then, intervenes to attempt to break that pattern, by – in Charles J. Ogletree Jr.’s words – “affirmatively including the formerly excluded.”

But just how far should these considerations extend? Some, for instance, complain of the inordinate attention paid to something as limited as college admissions. Fransisco Toro writing in Persuasion has argued that we should stop wringing our hands over which segments of the 1% gain entry. There are far greater inequalities to concern ourselves with than the uber-privileged makeup of next year’s incoming Harvard class. We should be worried about the social mobility of all and not just the lucky few. Let affirmative action in admissions go.

But one of the Court’s fears, from Justice Jackson to Justice O’Connor, concerns colleges’ ability to play kingmaker – to decide who inherits power and all the opportunities and advantages that come with it. They have also worried about where that power goes – that is, which communities benefit when different candidates are crowned. This is most easily witnessed in the life-and-death field of medicine, where there is, according to Georgetown University School of Medicine,

an incredibly well documented body of literature that shows that the best, and indeed perhaps the only way, to give outstanding care to our marginalized communities is to have physicians that look like them, and come from their backgrounds and understand exactly what is going on with them.

Similarly, the Association of American Medical Colleges emphasizes that “diversity literally saves lives by ensuring that the Nation’s increasingly diverse population will be served by healthcare professionals competent to meet its needs.” Minority representation matters, and not simply for the individual applicants themselves. Even the selection process in something as seemingly narrow as college admissions promises larger repercussions downstream.

Given the importance of representation, the gatekeeping function of colleges and employers, and the way discrimination works, some form of intervention seems necessary. And we don’t seem to have a comparable remedy on hand. “Affirmative action is not a perfect social tool,” Beauchamp admits, “but is the best tool yet created as a way of preventing a recurrence of the far worse imperfections of our past policies of segregation and exclusion.” That tool could no doubt stand to be sharpened: gender is a woefully crude measure of disadvantage and race is a poor proxy for deprivation. Still, the tool’s imprecision needn’t mean abandoning the task.

There’s reason why integration remains an indispensable, if demanding, goal. As Elizabeth Anderson claims, “Americans live in a profoundly segregated society, a condition inconsistent with a fully democratic society and with equal opportunity. To achieve the latter goals, we need to desegregate — to integrate, that is — to live together as one body of equal citizens.” We must ensure that everyone can see themselves reflected in our shared social world.

In the end, affirmative action is simply one means by which to accelerate desegregation – to encourage diversification in the positions of power that were formerly restricted. And it was never designed to last forever, as Wes Siscoe recently explored. Affirmative action is merely a stopgap measure – a bridge to carry us where we want to be: a colorblind world where superficial differences no longer act as impediments to advancement. Unfortunately, the equality of opportunity we seek is not yet a reality for all – we have not arrived.

Diversity of What?

photograph of the legs of people waiting for a job interview

Affirmative action privileges individuals who belong to particular social groups in processes of hiring and institutional admission. The practice still receives a great amount of endorsement from those in higher education, despite widespread public disagreement over the issue. The recent U.S. Supreme Court ruling thrust the issue into the limelight, fueling further debate. While there are a variety of moral arguments that can be employed in support of affirmative action, one of the most prominent is that affirmative action policies are morally permissible because they promote more diverse colleges and workplaces.

However, it is clear that not all forms of diversity should be included in the scope of affirmative action policies. We would balk at a college seeking a diverse range of shoe sizes amongst applicants. Similarly, we would scratch our heads at a company choosing employees based on the diversity of their culinary preferences. So which kinds of diversity should affirmative action policies target? In order to answer this question, we must first consider which kinds of diversity colleges and workplaces have reason to promote.

There are different kinds of reasons for action. For the sake of this discussion, let’s consider two distinct sorts of reasons: moral and prudential. Moral reasons are those which apply to individuals or groups regardless of the particular goals of that individual or group. Prudential reasons, on the other hand, apply only when an individual or group has particular goals.

I have a moral reason, for example, to be honest when filing my taxes. However, I might also have a prudential reason to lie, insofar as it would be good for my business’s bottom line to avoid paying a lot of taxes. But moral and prudential reasons need not only point us in conflicting directions. Oftentimes we have both moral and prudential reason to perform a particular action. For instance, I have a moral reason to keep my promises to my friends as well as a prudential reason to do so. If I want my friends to remain in my life, this gives me a prudential reason to honor the promises I make to them.

The moral/prudential reasons distinction is helpful in determining which kinds of diversity colleges and workplaces have reason to promote. Let’s start with the category of moral reasons. Some claim that our societal institutions bear a moral responsibility to privilege certain groups in admissions and employment. Typically, this argument is applied to racial minorities who have been subjected to historical injustices. If such a moral responsibility really does exist, it provides societal institutions with a moral reason to engage in affirmative action along racial lines.

The challenge for the proponent of this style of argument is to both defend why such a moral responsibility applies to all societal institutions (as opposed to merely some) as well as to explain why this moral responsibility trumps all other competing responsibilities and reasons that such institutions might have. Put differently, even if institutions have a moral reason to favor racial minorities in admissions and employment, a further argument must be given to show that this moral reason isn’t outweighed by stronger, countervailing reasons against affirmative action.

Now we can turn to the category of prudential reasons. Given the goals of colleges and businesses, what kinds of diversity might they have reason to promote? In the United States, affirmative action tends to be race- and gender-based. But if we consider the underlying goals of universities and employers, it’s not immediately clear why these are the types of diversity they have most reason to promote. Of course, there are important differences in the foundational goals of businesses and institutions of higher education. Colleges and universities are presumably most concerned with the effective education of students (as well as staying financially viable), while businesses and corporations tend to aim at profit maximization.

The spirit of open-minded inquiry that characterizes institutions of higher education seems to provide reason to promote diversity in thought. If the ideal college classroom is a place where ideas are challenged and paradigms are questioned, intellectual diversity can aid in achieving this goal. However, it is not immediately obvious that racial or gender diversity promote this end, particularly since the majority of individuals advantaged by affirmative action are from similar socio-economic backgrounds. In order to defend affirmative action along the lines of race or gender, a case would have to be made that selecting for these categories is a highly effective way of selecting for intellectual diversity.

A similar point holds true in regards to affirmative action policies put in place by employers. Given the fundamental goal of profit maximization that businesses and corporations possess, these institutions have prudential reason to choose individuals who best help achieve this end. There does exist compelling empirical evidence that more diverse groups tend to outperform less diverse groups when it comes to problem-solving, creativity, and other performance-based metrics. However, these studies tend to demonstrate the upsides of a team possessing diverse skills, rather than diverse racial or gender identities.

Thus, it appears businesses and corporations have prudential reason to create teams with diverse skills, but more argument must be given in order to make the case that selecting for racial or gender diversity is an effective way of achieving this goal. Insofar as proponents of affirmative action seek to defend the practice on the grounds that it promotes diversity, it is imperative we get clear on which kinds of diversity our societal institutions have the most reason to promote.

Is Students for Fair Admissions Good Constitutional Law?

photograph of college gates with students beyond

Last month’s Supreme Court decision invalidating the affirmative action programs used by Harvard University and the University of North Carolina to make undergraduate admissions decisions has, of course, generated a great deal of commentary – so much, indeed, that it easy to lose sight of two important issues: first, what were the arguments by which the Court arrived at its conclusion, and second, whether those arguments are any good in constitutional terms. As it turns out, both issues are more complicated than one might have thought based on the bite-sized encapsulations the media tends to provide.

Given that even the dissenting opinion in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, written by Justice Sonya Sotomayor, accuses the Court of “upend[ing] the status quo based on their policy preferences about what race in America should be like,” it is worth asking at the outset whether the Court’s arguments even merit close examination. Are they not, as the Court’s opponents tend to believe, mere post hoc rationalizations for imposing the policy preferences of the Court’s conservative wing? This complaint rings somewhat hollow coming from critics who generally countenance a place for judicial value judgments in constitutional jurisprudence; and in any case, it is mostly irrelevant. Whatever the Justices’ policy preferences or value judgments, they recognize that they are constrained to furnish public justifications for their decisions in terms of the doctrines and canons of judicial reasoning that constitute the tradition of American constitutional thought. Even if the public justifications are post hoc, they – and not the Justices’ policy preferences or value judgments – are what the public sees, and what judges and lawyers must rely upon, and ultimately the Court’s decisions stand or fall with them.

The Court’s argument that Harvard’s and UNC’s race-conscious policies are unconstitutional is simple in outline: the Equal Protection Clause of the Fourteenth Amendment prohibits racial discrimination by the states unless it is narrowly tailored to further a compelling government interest (this test is known as “strict scrutiny”); the colleges’ policies are racial discrimination, thus subject to strict scrutiny; they do not further a compelling government interest and are not narrowly tailored; therefore, they are unconstitutional.

No one disputes the argument’s first premise – that the Equal Protection Clause prohibits racial discrimination unless it passes the strict scrutiny test. This actually turns out to be important, because it means that everyone agrees racial discrimination by the states could be permissible. One need not read the Clause this way: it says simply that no state shall “deny to any person . . . the equal protection of the laws.” This categorical-sounding language could be interpreted as imposing an absolute ban on racial discrimination. The Court has chosen not to interpret it as an unqualified ban, and instead has allowed racial discrimination in a number of contexts – for example, segregating prison inmates by race to prevent imminent, serious harm from a race riot. And that means that the Court must consider whether the state’s interest is sufficiently compelling to justify racial discrimination.

It is less clear whether everyone on the Court agrees that Harvard’s and UNC’s affirmative action programs are racial discrimination in the sense that triggers strict scrutiny. Although Justice Sotomayor’s dissenting opinion purports to show why they pass strict scrutiny, thus implying that they are racial discrimination subject to this test, this may be because Justice Sotomayor chose not to contest the Court’s practice, which goes back to the first affirmative action cases, of analyzing affirmative action programs as if they were a form of racial discrimination. Indeed, in a way this question of whether affirmative action programs are racial discrimination gets to the heart of the disagreement between the majority and dissenting opinions, which concerns the meaning of the Equal Protection Clause itself.

For the majority, the Clause stands for the proposition that the Constitution “should not permit any distinctions of law based on race or color.” In other words, for the majority the Constitution presumptively forbids any law, policy, or regulation that classifies people by race and distributes benefits and burdens on that basis, on the theory that such classifications are inherently arbitrary and unjust. Thus, the Court approvingly quotes Brown v. Board of Education (1954) as saying that segregation in public schools would be wrongful “even though the physical facilities and other ‘tangible’ factors may be equal” – the “mere act of separating” is bad enough. The remedy is that the law should be formally colorblind.

By contrast, the dissenting opinion presents a view of equal protection that is less formalistic and more functionalist. According to this view, equal protection aims to eliminate racial “caste” systems, which are partly maintained through the state’s treatment of racial minorities in ways “denoting ‘inferiority as to their status in the community.’” On this view, racial classifications may only become problematic when they function to perpetuate or express the racial values of the caste system. Assuming that affirmative action programs do not do this, it might be argued that they do not even count as racial discrimination, and so are not subject to strict scrutiny at all. Again, the dissenting opinions do not go quite this far, but it is an implication that follows logically from their interpretation.

Who is right here? It is important to recognize that to be “right” in this context is not, at least in the first instance, a matter of moral judgment. Instead, it is about the proper interpretation of the Equal Protection Clause. In a sense, the issue is what ideal – the law as colorblind or as eliminating racial caste – was guiding those who drafted or ratified the Fourteenth Amendment, Congressmen who legislated during and just after it was passed, and others who might have insight into how it was understood at that time. The dissenting opinion can, and does, point to numerous examples of contemporaneous laws passed by Congress, such as the law creating the Freedman’s Bureau, as evidence that equal protection was thought to be fully compatible with color-consciousness. But that evidence is only so persuasive, given that these laws were largely addressed to ex-slaves, not Blacks as such; and more importantly, both sides agree that the Constitution’s bar on racial discrimination is merely (though strongly) presumptive. In other words, since the majority concedes that some racial discrimination passes strict scrutiny, the obvious reply is that, for example, the law creating the Freedman’s Bureau was racial discrimination and was perhaps understood as such, but it was thought to be necessary to meet the compelling needs of newly-freed slaves. Since no one in 1868 talked about these issues using terms like “strict scrutiny,” “race conscious,” or “colorblindness,” and since Congress was addressing a set of issues very different from those we now confront, it is difficult to be sure whether the congressional proponents of apparently race conscious laws saw them as justified racial discrimination or not racial discrimination at all. That is a somewhat fine distinction for your average Congressman.

In any case, as I mentioned, the Court’s opinion presumes that affirmative action is racial discrimination subject to strict scrutiny, and the dissent does not strongly contest that claim. So, let us consider why the Court held that affirmative action fails strict scrutiny. Its principal argument is that in order to justify racial discrimination, the government’s interest, or the goal it is trying to achieve, must be sufficiently “coherent” and “measurable” to be “subjected to meaningful judicial review”; and racial discrimination must be necessary to achieve the goal. According to the Court, the Harvard and UNC programs fail on both counts. Harvard identified the following educational benefits that its program helps facilitate: “training future leaders in the public and private sectors”; preparing graduates to “adapt to an increasingly pluralistic society”; “better educating its students through diversity”; and “producing new knowledge stemming from diverse outlooks.” Although the Court calls these aims “commendable,” it complains that “it is unclear how courts are supposed to measure any of these goals.” And even if they could be measured, the Court asks, “how is a court to know when they have been reached[?]” In addition, the Court questions whether assigning students to racial categories “furthers the educational benefits that the universities claim to pursue.” The Court’s point here, which is consistent with the racial skepticism evinced by a number of Justices during oral argument, is that racial categories are arbitrary and say relatively little about a person’s outlook or experience. Indeed, the Court also accuses Harvard and UNC of engaging in racial stereotyping, assuming that “[students] of a particular race, because of their race, think alike.”

On its face, these criticisms seem to have some merit. In the context of the rest of the Court’s constitutional jurisprudence, however, it is difficult to resist Justice Sotomayor’s claim that the Court here “moves the goalposts” of strict scrutiny in order to arrive at its preferred conclusion. Prima facie, the Court should consider the diversity goals of affirmative action programs sufficiently concrete to be compelling because it has in the past, in Regents of the University of California v. Bakke (1978), Grutter v. Bollinger (2003), and Fisher v. University of Texas at Austin (2013). The Court also previously found the “plus factor” approach to affirmative action sufficiently well-connected to those goals. In other contexts, the Court has approved of such nebulous compelling interests as “protecting the integrity of the Medal of Honor,” “public confidence in the judiciary,” or “maintaining solemnity and decorum in the executive chamber.” The Court could reply that it seriously misapplied strict scrutiny in the past, although in its opinion it claims that it “never permitted” admissions programs like Harvard’s and UNC’s, without explaining in detail how the programs at issue in Bakke, Grutter, or Fisher were relevantly different (Justice Gorsuch’s concurrence is less cagey about the fact that SFFA overrules the earlier cases). It could also claim that the standards of concreteness or measurability are higher in the equal protection context because the Constitution so disfavors racial discrimination, but that, too, would represent a departure from the Court’s previous approach.

On the whole, the Court’s reasoning in SFFA is unconvincing. The Court plumps for a formalistic conception of the Equal Protection Clause that focuses on a particular means – racial classification – divorced from an appreciation of its substantive end. In a different world, the Court might have decided long ago that affirmative action programs do not even qualify as racial discrimination in the sense relevant to triggering strict scrutiny. Even if they do, the Court’s strict scrutiny analysis places high hurdles in front of affirmative action programs that the Court has not used in other contexts.

All of that said, no one can be surprised at the demise of affirmative action. Starting with Bakke, the Court has never shown much enthusiasm for it. First, it decided that strict scrutiny applies, which in any context imposes a tough burden on the government to justify the law under review. Second, it held that remedying the effects of past discrimination is not a compelling government interest because it is an “amorphous concept of injury that may be ageless in its reach into the past.” This forced institutions like Harvard to rely on the argument that affirmative action is necessary to achieve the educational benefits of a diverse student body, which is perhaps a less compelling rationale. Boxed in by these two moves, the defenders of affirmative action were always fighting uphill.

Allen v. Mulligan, the Voting Rights Act, & Non-Ideal Theory

photograph of Alabama road map

On Thursday, June 8th, the Supreme Court of the United States announced what many consider a surprise ruling. In Allen v. Milligan, a 5-4 verdict affirmed a lower court’s judgment that Alabama likely violated the Voting Rights Act (VRA) by discriminating against Black residents via Congressional districts. Chief John Roberts and Justice Brett Kavanaugh joined Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson with Roberts authoring the majority opinion.

What precisely was at issue? In January 2022, a federal court ruled that, due in part to racially polarized voting patterns in the state (meaning that one’s race is highly predictive of the candidate for office that one prefers), the Congressional districting plan for Alabama likely discriminated against Black residents. The districts were largely unchanged from previous plans. However, looking closely at how the districts break down by county, one notices some oddities – the borders of the single majority Black district jut across counties and include only segments of metropolitan areas like Birmingham and Mobile, while the other six districts primarily follow county lines. As a result, there is only one majority minority population Congressional district in Alabama, despite Black residents making up about 27% of the state’s population. A redistricting plan proposed by the challengers, drawn around county borders, would result in two districts where the Black population would make up about 40% of the electorate in each.

The majority opinion put forward two primary points. It largely affirmed the Court’s ruling in Thornburg v. Gingles, which offered several criteria to test whether the effects of election laws are discriminatory. Among these are whether the votes of a protected class are diluted. Some hallmarks of vote dilution include “packing” and “cracking” the votes of a minority population – the former occurring when larger numbers of members of a particular protected class are placed into a single district, and the latter when small numbers of that class are scattered into a large number of districts. The court ruled in favor of the challengers to Alabama’s district, in part due to finding that their proposal avoided these issues and served as a reasonable alternative.

Further, the majority opinion objected to arguments offered by the state of Alabama. Specifically, the majority agreed that while district makers should not be strictly motivated by racial considerations, they must certainly be aware of them. However, Kavanaugh’s concurrence specifically did not sign onto this portion of the majority opinion, instead agreeing with Justice Clarence Thomas that “the authority to conduct race-based redistricting cannot extend indefinitely into the future,” although noting that this was not an argument raised by Alabama.

Thomas offered a lengthy dissent from the majority opinion, in which he objected to several points. The primary thrusts of his criticisms were as follows. First, he affirmed a view he has argued for since at least 1994, that violations of section 2 of the VRA only deal with one’s ability to register to vote and to physically cast a ballot – so districting cannot be a violation in his view. Second, he argued that the “reasonable alternative” plan offered by the challengers failed to serve as a race-neutral benchmark for redistricting, as it was designed with race in mind. Third, the plaintiffs in this case sought a proportional system of voting power based on race. (Though Roberts argues at multiple points in his opinion that the plaintiffs were not seeking race-based proportional power, and that Gingles explicitly rules this out.) In concluding his dissent, Thomas argues that the kind of redistricting accepted by the majority is, ultimately, a kind of segregation as it divides voters based on racialized lines, writing that it “does not remedy or deter unconstitutional discrimination in districting in any way, shape, or form. On the contrary it requires it.”

Admittedly, I lack the legal expertise to directly assess the merit of the majority or the dissenters’ jurisprudence and application of case law. Nonetheless, I think it is worthwhile to examine the philosophical ideas behind each position.

There is an obvious kind of appeal to the dissenting position that race is not a category we should consider from a legal perspective. After all, race is, as John Rawls put it, arbitrary from a moral point of view – it is not something that we control and, while it may shape how others perceive us, it does not by itself directly determine our preferences, attitudes, or competencies. Thus, to allow it to shape our decision-making is to make decisions based in part on something that ought not matter. Further, perhaps creating policies, in part, out of concerns about race may create the possibility for discrimination. To modify a statement made previously by Roberts, the way to stop discriminatory organizing of districts by race is to stop organizing districts by race altogether.

However, this point may overlook a crucial philosophical distinction, namely, the difference between ideal and non-ideal theory. There are multiple ways of understanding this distinction. One particularly relevant way is as follows. Ideal theory is concerned about the standards that we believe our society ought to be organized around. In the present case, this would be the standard of racial equality – that an individual’s race should not matter to their life’s outcomes, or the decisions that policy makers generate. Non-ideal theory, on the other hand, looks at the ways in which and reasons why we have failed to reach these ideals previously. To adopt non-ideal theory about race in the United States, for instance, requires recognizing the ways in which racial discrimination has occurred throughout its history, and use those reflections to inform our judgments about how to achieve racial equality now. Failure to consider non-ideal theory may simply result in maintaining the advantages created by hierarchal systems in the past, by leaving those inequalities unchecked and unaddressed.

The members of the majority, Kavanaugh in particular, seem to adopt a non-ideal perspective about districting in Alabama. Perhaps, in the future, we will not need to pay attention to the racial demographics of Congressional districts. But given the history of racial discrimination in the United States, the districts as previously drawn have the effect of minimizing the political power of the Black population even if that was not the intention of those who proposed those districts at present.

So, the members of the Court seem to disagree about the right balance to strike between our ideals and the means we should take to achieve those ideals. Namely, they disagree about whether non-ideal theory is appropriate to guide our decision-making when it comes to voting rights. But it is worth noting that the Court is set to rule on affirmative action in the near future, and many believe that their decision will bring about its end. Thus, how Roberts and Kavanaugh vote on that case will be particularly interesting. If, indeed, they rule against affirmative action it suggests the following view: voting rights are the kind of rights that our policies must address in a racially conscious way, but access to economic and educational opportunities do not warrant race consciousness. However, our economic rights and freedoms may serve as the scaffolding promoting rights of political participation. For instance one may not be able to vote unless one is able to afford to take time off from work to go to the ballot box, as not all states guarantee time off to vote, and even fewer grant paid time off. So, it is not immediately obvious that such a distinction is tenable, at least in a philosophic sense, once we begin to adopt the perspective of non-ideal theory.

Affirmative Action and the Long Road to Justice: Are We There Yet?

photograph of paths converging on college quad

The Supreme Court will soon decide the fate of affirmative action. On October 31, 2022, the Court heard oral arguments for cases that Students for Fair Admissions (SFFA) has brought against Harvard and the University of North Carolina arguing that their race-conscious admissions policies are unconstitutional. The Court’s decision is expected to be announced by the end of June, and many expect that the ruling will forbid race-conscious admissions altogether, limiting colleges and universities to recruiting diverse student bodies through race-neutral means.

While it was always clear that this day would come eventually, on the eve of the Court’s decision a central question looms large: Are we ready for the end of affirmative action?

When the Supreme Court ruled on Grutter v. Bollinger (2003), its most recent affirmative action case, the Court made it clear that the practice of race-conscious admissions should not continue indefinitely. While upholding a race-conscious admissions program at the University of Michigan’s Law School, Sandra Day O’Connor wrote for the majority that “race-conscious admissions policies must be limited in time,” speculating that “25 years from now, the use of racial preferences will no longer be necessary.” Jeffrey Lehman, the Dean of Michigan’s Law School, agreed, saying that “The question is no longer whether affirmative action is legal; it is how to hasten the day when affirmative action is no longer needed.”

Justice O’Connor’s thought that affirmative action should have a limited lifespan is far from novel, as many defenders of affirmative action have supported its eventual dissolution. Supreme Court Justice Harry Blackmun, in his Regents of the University of California v. Bakke (1978) opinion allowing for certain forms of race-conscious admissions, anticipated a day that affirmative action programs would be a “relic of the past,” hoping that day might come “within a decade at the most.

And the idea that affirmative action should come with an expiration date is still the clear opinion of the Court. In October’s oral arguments, Justice Elena Kagan said that “everybody would rather achieve all our racial diversity goals through race-neutral means,” adding that all the Court’s affirmative action cases “indicate that race-neutral means are better.” Even though affirmative action is currently legal, the consensus is that such policies are merely temporary.

This, of course, raises the important question why a ruling about what is just and fair would only be temporary. If everyone agrees that race-neutral policies are what is ultimately fair, then why allow preferential treatment for some in the short term?

One way to think about this question is through the lens of what the political theorist John Rawls calls “transitional justice.” Rawls observed that, even after we identify what an ideal society would look like, there is still the remaining issue of how we should transition from our current society to one that is completely just. For this reason, questions of transitional justice ask what steps we can take to create a society that more closely mirrors the ideal.

Just like it can be difficult to decide what is ideally just, it can also be very challenging to identify what sorts of policies help us most effectively transition to that ideal. Suppose, for example, that there is a society where hate crimes against religious minorities are particularly widespread and rarely prosecuted. In order to create a more just society, it is obvious that the court system needs to punish such wrongdoing. However, if a new leader comes to power and cracks down on these crimes, the political backlash may well make the society even more unjust than it was before. How should the society respond? By prosecuting only some of the most egregious crimes? By punishing all offenders, but only with a lenient sentence?

Along with showing the difficulty of crafting transitional justice policies, this example also reveals that the demands of ideal justice and transitional justice can easily come into conflict. In the ideal case, justice might ultimately demand that all religious hate crimes be met with a harsh sentence, but perhaps the best transitional policy for a given society is to only punish the worst of those crimes. And if a society adopts this latter policy in hopes of one day reaching the ideal, the question will always remain of when the society should move from this transitional policy to one that more closely embodies the ideal.

With the contrast between transitional and ideal justice in hand, we can make sense of the fact that, while the Supreme Court has historically endorsed affirmative action, such policies have always been thought to come with an expiration date. The practice of race-conscious admissions was never meant to be the ideal, but rather a way to move from a world of overt racial discrimination and exclusion to one where all students can be considered on their individual merits.

Adopting race-conscious admissions policies, though, does raise the difficult issue of when to end them. We have not yet reached O’Connor’s 2028 cutoff, but we are far past Blackmun’s 1988 deadline. Is eliminating affirmative action the next step in making the United States more just?

Some defenders of affirmative action think that race-neutral policies cannot yet ensure diverse student bodies. In October’s oral arguments, Justice Sonia Sotomayor observed that, of the nine states that have eliminated affirmative action altogether, “the numbers for underrepresented groups have fallen dramatically.” After the passage of Proposition 209 in 1996, outlawing affirmative action in California’s public institutions, the percentage of Black students at Berkeley fell from 6.4% to 3.6%, and the percentage of Hispanic students was reduced from 16.3% to 9.4%. Other defenders of affirmative action have argued that race-conscious admissions should not be just about creating diverse student bodies, but righting historical injustices.

On the other side of the debate, those who think that affirmative action has run its course hold that the supposed benefits of race-conscious admissions no longer justify departing from the ideal. Affirmative action policies can increase racial tension, raising the odds of a backlash against racial minorities instead of reversing racial discrimination. There is also evidence to suggest that affirmative action can actually hurt the students that it is intended to help, as students who enter college with less competitive academic credentials have markedly higher rates of attrition than if they attend institutions where their qualifications are more comparable to their peers.

According to these affirmative action critics, we have reached a point where race-conscious admissions policies make our society less rather than more just. In their minds, the next step in our journey towards creating a just society is to no longer employ racial preferences in college admissions. In the words of Chief Justice John Roberts, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

To Slay Affirmative Action, Justice Alito Discovers Racial Skepticism

photograph of Harvard's campus gates closed

There was a fascinating moment last Monday in the oral argument for Student for Fair Admissions v. University of North Carolina. During his colloquy with Ryan Park, the North Carolina solicitor general representing UNC, Justice Samuel Alito raised the hypothetical case of an Afghan applicant who is not admitted because, having indicated that he is Asian on his application, he doesn’t receive the “plus factor” the university gives to African Americans or Hispanics as part of its affirmative action program. “What,” the Justice asked, “is the justification for lumping together students whose families came from China with someone — with students whose families came from Afghanistan? What do they have in common?” Pressing his point, Justice Alito asked Park what exactly UNC learns about a student from the “mere checking of a box.” “Why — why do you give a student the opportunity to say one thing about me [sic], I’m Hispanic, I’m African American, I’m Asian? What does that in itself tell you [about the student]?”

The discussion was pregnant with irony. The Court’s six conservative justices seem poised to strike down policies premised on the rejection of a philosophy of race known as racial naturalism — the discredited view that racial categories pick out heritable, biological features which are shared by all and only members of a given race and explain behavioral, characterological, and cultural predispositions in individual persons and groups. This conception of race underpinned centuries of trans-Atlantic slavery and racial apartheid in the United States and elsewhere. Yet Justice Alito’s line of questioning suggested that at least ostensibly, one motivation for his opposition to these policies is a line of thought diametrically opposed to racial naturalism — racial skepticism.

According to racial skeptics, because racial naturalism is false, there is nothing in the world that answers to our racial terms. Put another way, for racial skeptics, either terms like ‘Black,’ ‘White,’ and ‘Asian’ refer to races as that notion is understood by racial naturalists, or they refer to nothing at all.

Because races don’t exist, those terms have no referents, much as the terms ‘witch,’ ‘ghost,’ or ‘Zeus’ do not refer to anything real in the world. When Justice Alito suggested that the checkbox categories on college applications are arbitrary and tell us nothing about an individual, he was implicitly invoking this skeptical line on race. If racial terms do not refer because races do not exist, then describing an individual using a racial term says nothing informative about them; it’s akin to describing someone as a witch or a warlock. If that’s so, then the choice to describe a person using one racial term rather than another must be arbitrary.

Before delving more deeply into the philosophy of race, it may be instructive to flesh out the legal context of Alito’s remarks. The seminal case in the Supreme Court’s affirmative action jurisprudence is Regents of the University of California v. Bakke, where the Court held that while the university’s racial quota system for medical school admissions violated the Fourteenth Amendment’s Equal Protection Clause, schools can still use race as one factor in admissions decisions. But in subsequent rulings, the Court narrowed this holding in two key ways. First, it declared that all so-called “benign” racial classifications are subject to strict scrutiny analysis, where the government must prove that the classification is narrowly tailored to further a compelling government interest. The “narrow tailoring” requirement means that a school has to prove to the court that no viable race-neutral alternative exists that would further its compelling interest. Second, the Court held that racial preferences may not be used to remedy general societal discrimination.

This leaves only obtaining the educational benefits of a diverse student body as a constitutionally acceptable goal for racial classifications in higher education.

Thus, in the most recent challenge to affirmative action at UNC and the companion case against Harvard, the schools have been forced to argue that relying upon self-reported racial characterizations to give certain applicants a slight leg up over others is the only way to achieve the particular educational benefits that flow from a diverse student body. In that context, Alito’s argument that racial terms fail to pick out anything real about applicants has bite. It suggests both that “diversity” is better defined in non-racial terms and that racial classifications are not a particularly effective means to achieve whatever educational benefits diversity entails.

But racial naturalism and racial skepticism are not the only views available in the philosophy of race. One influential alternative is racial constructivism.

According to this view, while biological races do not exist, various social, political, and economic practices have brought about the widespread grouping of individuals into certain categories. Our racial terms refer to these groupings. Furthermore, because this racial labeling has concrete effects on an individual’s well-being and access to opportunities and resources, a person’s racial category often says something meaningful about that person’s experiences. But racial identity is not simply a matter of society imposing a label on a passive subject. In the context of a society in which racial labeling remains strongly predictive of certain life outcomes, a person’s racial self-ascription can indicate that she possesses a perspective quite different from that of people of other races.

Accordingly, a racial constructivist might reply to Justice Alito’s question that while categorizing applicants into races does not provide the kind of information racial naturalists thought it did, it is also not a vacuous exercise. An applicant’s self-ascription as, say, Black tells us that she likely possesses a perspective informed by the experience of being labeled Black — a label that has a particular significance in American society. Having that kind of perspective represented on campus carries obvious benefits for a university or college’s intellectual culture.

Although racial ascriptions may be meaningful in ways relevant to the mission of higher education, there is a plausible argument that other sorts of categorizations, which perhaps have the added constitutional benefit of being formally “race-neutral,” are more meaningful still.

In oral argument for the case against Harvard, Justices Gorsuch and Kavanaugh asked the plaintiffs’ counsel, Cameron Norris, whether a plus-factor for descendants of slaves would be constitutional. Norris said that he doubted it because this classification would not be race-neutral. This is debatable: While it is possibly true that almost all people who count themselves descendants of slaves in the United States are Black, it is far from the case that all Blacks in the United States are descendants of slaves. Although the exchange between Norris and the Justices was inconclusive, it raises the possibility of more targeted forms of affirmative action based on classifications that are potentially better proxies for the differences in perspective that a university or college may want to facilitate through its admissions policy.

Justice Alito’s discovery of racial skepticism was a clever rhetorical gambit, pressing the denial of racial naturalism into the service of striking down policies that are themselves premised on the denial of racial naturalism and that seek to ameliorate the malign effects of that philosophy. Unfortunately, in their ignorance of an alternative conception of race — racial constructivism — counsel for Harvard and UNC may have hamstrung their defense of those policies. Nevertheless, there is some reason to hope that even in the absence of formally race-based preferences in admissions, universities can still give some degree of consideration to the unique experiences of racial minorities in this country.

Brian Flores, Equal Opportunity, and Affirmative Action

photograph of NFL emblem on football

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We need to talk about Brian Flores’s lawsuit – the ex-Miami Dolphins head coach alleging racial discrimination and, once again, highlighting the lack of diversity in owners’ boxes and front offices around the league. But this isn’t a story about the NFL. It isn’t even about sports. Instead, this is a story about affirmative action; it’s a story about the relationship between equality of opportunity and equality of outcome, between fairness and equity.

The NFL has a problem (okay, the NFL has a few problems). One of the most obvious ways to see this is in representation. African Americans make up 70% of the NFL’s player base, but there is only one Black head coach working in the league today. (And there are even fewer Black owners.) While any result that fails to produce absolute statistical proportionality need not suggest nefarious intent, the degree to which these figures diverge warrants at least a raised eyebrow. It’s difficult to explain why so few Black players make the transition from the field to the front office. You’d think that at least some of the skills that made for a stand-out player might also translate to their proficiency with X’s and O’s. More generally, you’d expect that the same interest and commitment that leads so many African Americans to play the game at a professional level would produce a corresponding number of others deeply invested in coaching or managing.

Enter: the Rooney Rule. In an attempt to shake up this monochrome landscape, league officials implemented a policy requiring teams to interview at least one (now two) minority candidates for any head coaching vacancy (now coordinator positions as well). The hope was that by guaranteeing that a more diverse pool of finalists gets the opportunity to make their pitch, diversity in the coaching ranks would soon follow. It was assumed that all these candidates needed was to be given the chance to change hearts and minds in person. At long last, progress might finally be made in erasing the vast differences in the way white and non-white coaches have historically been evaluated.

The details of Flores’ lawsuit confirm that no such revolution has come to pass. Owners and general managers treat the Rooney Rule as a mere formality – another hoop that must be jumped, another box that must be ticked. The organizations identified in Flores’s suit scheduled a sit-down as formally required, but apparently couldn’t bring themselves to take him or the interview seriously. The results of their deliberations had been decided long before Flores walked into the room. These executives were playacting, but couldn’t even be bothered to try to disguise it. That said, Flores’s allegations aren’t about a failure of etiquette or good manners, they concern a league that still refuses to acknowledge even the appearance of racial bias, let alone the existence of an actual, pervasive problem. It seems the Rooney Rule may have been doomed from the start; as it turns out, the problem runs much deeper than simply putting a face with a name.

So who – if anyone – might be to blame for the NFL’s present predicament?

A not insignificant number of folks will answer: no one. Brian Flores isn’t owed a head coaching gig. These organizations are free to hire whomever they so choose. Head coaches represent a significant investment of time and resources, and it would be absurd for anyone to dictate to NFL teams who is and is not the most qualified person for the job. Jim Trotter, for example, recently recounted his interchange with an owner who suggested that anybody griping about the lack of representation in the NFL “should go buy their own team and hire who they want to hire.”

Others, meanwhile, will be inclined to point to race-conscious policies (like the Rooney Rule) as the guilty party. To these voices, it seems completely wrong-headed to pick some number out of thin air and then complain when we fail to reach that arbitrary diversity benchmark. Looking at race is precisely what got us into this mess, so surely it’s absolute folly to think that intentionally putting our thumb on the scale could get us out of it.

What’s worse, mandating that teams do their due diligence – and, more specifically, demanding that due diligence take the particular form of race-conscious interviewing practices – reduces people of color to tokens. It’s no wonder Flores reports feeling embarrassed – these folks will say – the Rooney Rule set him up, time and time again, to be treated as nothing more than a courtesy invite. Flores was required to go on performing while everyone else in the room was in on the joke. And we should expect none of that behavior to change, they’ll say, if we continue to force hiring committees to go through the motions when they’ve already made up their minds.

This, critics will tell you, is precisely the trouble with initiatives so enamored with equality of outcome – or equity – where an attempt is made to jerry-rig some result built to suit our preferred optics (say, having management roles more accurately reflect teams’ composition). We shouldn’t focus all our attention on meticulously shaping some preferred result; we can’t elevate some and demote others all according to irrelevant and impersonal considerations based in appearances. Any such effort refuses to appreciate the role of individual choice – of freedom, responsibility, and merit. (Owners don’t want to be told how they have to go about picking a winner, they know exactly what winners look like.) As long as we can maintain the right conditions – a level playing field of equal opportunity where everyone receives a fair shake – then we have no cause to wring our hands over the (mis)perception of unequal outcomes. There’s no need to invoke the dreaded language of “quotas,” there’s no cause for infringing on the people in charge’s freedom to choose. You simply call the game, deal the cards, and let the chips fall where they may.

Brian Flores’s lawsuit, however, insists that the deck is stacked against him and others like him. Indeed, Flores’s claim is that equality of opportunity does not exist. He’s alleging that he’s been passed over in the coaching carousel specifically because he is Black. Flores supports these claims with his personal experience of sham interviews and by pointing to a double standard evidenced by the accelerated rise of white coaches in comparison to their more accomplished Black counterparts. In essence, Flores argues these experiences and findings (as well as the individual accounts of some 40 other Black coaches, coordinators, and managers) all indicate racial discrimination is an all-too-real force in the NFL. Without an intentional and forceful intervention, business as usual will continue.

Given this fresh round of accusations, the NFL can’t continue to take a hands-off approach to the problem of representation; it clearly isn’t going to work itself out. Even the meager measures the league put in place to support equal opportunity are not being followed. The Rooney Rule has no teeth and seems to have resulted in no tangible gains. In the end, the policy relies on honorable intentions, personal commitments, and good-faith efforts. As Stephen Holder of The Athletic writes,

We just have to come to terms with an undeniable and inconvenient truth: You can encourage and even incentivize people to do the right thing. But what you cannot do is make them want to do the right thing.

The only way things change is if the people in power take the policy seriously, and it’s not clear that the appropriate carrots or sticks exist for encouraging teams to comply with the letter of the law – let alone embrace its spirit. Achieving the desired result demands an alternative approach. At some point outcomes have to matter.

So, where does that leave us? What have we learned? Where do we go from here? It’s difficult to know how to go about balancing two competing convictions: 1) focusing solely on equality of outcomes disrespects individuality 2) relying solely on equality of opportunity assumes an unbiased system. Or, perhaps more pointedly: 1) it’s wrong to reduce people solely to their various group identities, but 2) it’s also wrong to fail to appreciate the way people, organizations, institutions reduce people solely to their various group identities.

There is no obvious way to bridge the chasm between these two commitments. But maybe we could start by acknowledging that it isn’t hopelessly reductive to think that it might be best if, for instance, the next Supreme Court Justice wasn’t another white man; to think that no single group identity is so inherently qualified as to explain an absolute stranglehold on the positions of power and privilege; to think that for only the eighth time in 230+ years it might be best to break with tradition. Because, if the Rooney Rule has taught us anything, it’s that if you don’t ever actually commit to change, it doesn’t ever actually happen.

Ethics and Job Apps: Why Use Lotteries?

photograph of lottery balls coming out of machine

This semester I’ve been 1) applying for jobs, and 2) running a job search to select a team of undergraduate researchers. This has resulted in a curious experience. As an employer, I’ve been tempted to use various techniques in running my job search that, as an applicant, I’ve found myself lamenting. Similarly, as an applicant, I’ve made changes to my application materials designed to frustrate those very purposes I have as an employer.

The source of the experience is that the incentives of search committees and the incentives job applicants don’t align. As an employer, my goal is to select the best candidate for the job. While as an applicant, my goal is that I get a job, whether I’m the best candidate or not.

As an employer, I want to minimize the amount of work it takes for me to find a dedicated employee. Thus, as an employer, I’m inclined to add ‘hoops’ to the application process, by requiring applicants to jump through those hoops, I make sure I only look through applications of those who are really interested in the job. But as an applicant, my goal is to minimize the amount of time I spend on each application. Thus, I am frustrated with job applications that require me to develop customized materials.

In this post, I want to do three things. First, I want to describe one central problem I see with application systems — what I will refer to as the ‘treadmill problem.’ Second, I want to propose a solution to this problem — namely the use of lotteries to select candidates. Third, I want to address an objection employers might have to lotteries — namely that it lowers the average quality of an employer’s hires.

Part I—The Treadmill Problem

As a job applicant, I care about the quality of my application materials. But I don’t care about the quality intrinsically. Rather, I care about the quality in relation to the quality of other applications. Application quality is a good, but it is a positional good. What matters is how strong my applications are in comparison to everyone else.

Take as an analogy the value of height while watching a sports game. If I want to see what is going on, it’s not important just to be tall, rather it’s important to be taller than others. If everyone is sitting down, I can see better if I stand up. But if everyone stands up, I can’t see any better than when I started. Now I’ll need to stand on my tiptoes. And if everyone else does the same, then I’m again right back where I started.

Except, I’m not quite back where I started. Originally everyone was sitting comfortably. Now everyone is craning uncomfortably on their tiptoes, but no one can see any better than when we began.

Job applications work in a similar way. Employers, ideally, hire whosoever application is best. Suppose every applicant just spends a single hour pulling together application materials. The result is that no application is very good, but some are better than others. In general, the better candidates will have somewhat better applications, but the correlation will be imperfect (since the skills of being good at philosophy only imperfectly correlate with the skills of being good at writing application materials).

Now, as an applicant, I realize that I could put in a few hours polishing my application materials — nudging out ahead of other candidates. Thus, I have a reason to spend time polishing.

But everyone else realizes the same thing. So, everyone spends a few hours polishing their materials. And so now the result is that every application is a bit better, but still with some clearly better than others. Once again, in general, the better candidates will have somewhat better applications, but the correlation will remain imperfect.

Of course, everyone spending a few extra hours on applications is not so bad. Except that the same incentive structure iterates. Everyone has reason to spend ten hours polishing, now fifteen hours polishing. Everyone has reason to ask friends to look over their materials, now everyone has reason to hire a job application consultant. Every applicant is stuck in an arms race with every other, but this arms race does not create any new jobs. So, in the end, no one is better off than if everyone could have just agreed to an armistice at the beginning.

Job applicants are left on a treadmill, everyone must keep running faster and faster just to stay in place. If you ever stop running, you will slide off the back of the machine. So, you must keep running faster and faster, but like the Red Queen in Lewis Carrol’s Through the Looking Glass, you never actually get anywhere.

Of course, not all arms races are bad. A similar arms race exists for academic journal publications. Some top journals have a limited number of article slots. If one article gets published, another article does not. Thus, every author is in an arms race with every other. Each person is trying to make sure their work is better than everyone else’s.

But in the case of research, there is a positive benefit to the arms race. The quality of philosophical research goes up. That is because while the quality of my research is a positional good as far as my ability to get published, it is a non-positional good in its contribution to philosophy. If every philosophy article is better, then the philosophical community is, as a whole, better off. But the same is not true of job application materials. No large positive externality is created by everyone competing to polish their cover letters.

There may be some positive externalities to the arms race. Graduate students might do better research in order to get better publications. Graduate students might volunteer more of their time in professional service in order to bolster their CV.

But even if parts of the arms race have positive externalities, many other parts do not. And there is a high opportunity cost to the time wasted in the arms race. This is a cost paid by applicants, who have less time with friends and family. And a cost paid by the profession, as people spend less time teaching, writing, and helping the community in ways that don’t contribute to one’s CV.

This problem is not unique to philosophy. Similar problems have been identified in other sorts of applications. One example is grant writing in the sciences. Right now, top scientists must spend a huge amount of their time optimizing grant proposals. One study found that researchers collectively spent a total of 550 working years on grant proposals for Australia’s National Health and Medical Research Council’s 2012 funding round.

This might have a small benefit in leading research to come up with better projects. But most of the time spent in the arms race is expended just so everyone can stay in place. Indeed, there are some reasons to think the arms race actually leads people to develop worse projects, because scientists optimize for grant approval and not scientific output.

Another example is college admissions. Right now, high school students spend huge amounts of time and money preparing for standardized tests like the SAT. But everyone ends up putting in the time just to stay in place. (Except, of course, for those who lack the resources required to put in the time; they just get left behind entirely.)

Part II—The Lottery Solution

Because I was on this treadmill as a job applicant, I didn’t want to force other people onto a treadmill of their own. So, when running my own job search, I decided to modify a solution to the treadmill problem that has been suggested for both grant funding and college admissions. I ran a lottery. I had each applying student complete a short assignment, and then ‘graded’ the assignments on a pass/fail system. I then choose my assistants at random from all those who had demonstrated they would be a good fit. I judged who was a good fit. I didn’t try to judge, of those who were good fits, who fit best.

This allowed students to step off the treadmill. Students didn’t need to write the ‘best’ application. They just needed an application that showed they would be a good fit for the project.

It seems to me that it would be best if philosophy departments similarly made hiring decisions based on a lottery. Hiring committees would go through and assess which candidates they think are a good fit. Then, they would use a lottery system to decide who is selected for the job.

The details would need to be worked out carefully and identifying the best system would probably require a fair amount of experimentation. For example, it is not clear to me the best way to incorporate interviews into the lottery process.

One possibility would be to interview everyone you think is likely a good fit. This, I expect, would prove logistically overwhelming. A second possibility, and I think the one I favor, would be to use a lottery to select the shortlist of candidates, rather than to select the final candidate. The search committee would go through the application and identify everyone who looks like a good fit. They would then use a lottery to narrow down to a shortlist of three to five candidates who come out for an interview. While the shortlisted candidates would be placed on the treadmill, a far smaller number of people are subject to the wasted effort. A third possibility would use the lottery to select a single final candidate, and then use an in-person interview merely to confirm the selected candidate really is a good fit. There is a lot of evidence that hiring committees systematically overweight the evidential weight of interviews, and that this creates tons of statistical noise in hiring decisions (see chapters 11 and 24 in Daniel Kahneman’s book Noise).

Assuming the obstacles could be overcome, however, lotteries would have an important benefit in going some way towards breaking the treadmill.

There are a range of other benefits as well.

  • Lotteries would decrease the influence of bias on hiring decisions. Implicit bias tends to make a difference in close decisions. Thus, bias is more likely to flip a first and second choice, than it is to flip someone from making it onto the shortlist in the first place.
  • Lotteries would decrease the influence of networking, and so go some way towards democratizing hiring. At most, an in-network connection will get someone into the lottery but it won’t increase you chance of winning the lottery.
  • It would create a more transparent way to integrate hiring preferences. A department might prefer to hire someone who can teach bioethics, or might prefer to hire a female philosopher, but not want to restrict the search to people who meet such criteria. One way to integrate such preferences more rigorously would be to explicitly weight candidates in the lottery by such criteria.
  • Lotteries could decrease interdepartmental hiring drama. It is often difficult to get everyone to agree on a best candidate. It is generally not too difficult to get everyone to agree on a set of candidates all who are considered a good fit.

Part III—The Accuracy Drawback

While there are advantages accrue to applicants and the philosophical community, employers might not like a lottery system. The problem for employers is that a lottery will decrease the average quality of hires.

A lottery system means you should expect to hire the average candidate who meets the ‘good fit’ criteria. Thus, as long as trying to pick the best candidate results in a candidate at least above average, then the average quality of the hire goes down with a lottery.

However, while there is something to this point, the point is weaker than most people think. That is because humans tend to systematically overestimate the reliability of judgment. When you look at the empirical literature a pattern emerges. Human judgment has a fair degree of reliability, but most of that reliability comes from identifying the ‘bad fits.’

Consider science grants. Multiple studies have compared the scores that grant proposals receive to the eventual impact of research (as measured by future citations). What is found is that scores do correlate with research impact, but almost all of that effect is explained by the worst performing grants getting low scores. If you restrict your assessment to the good proposals, researchers are terrible at judging which of the good proposals are actually best. Similarly, while there is general agreement about which proposals are good and which bad, evaluators rarely agree about which proposals are best.

A similar sort of pattern emerges for college admission counselors. Admissions officers can predict who is likely to do poorly in school, but can’t reliably predict which of the good students will do best.

Humans are fairly good at judging which candidates would make a good fit. We are bad at judging which good fit candidates would actually be best. Thus, most of the benefit of human judgment comes at the level of identifying the set of candidates who would make a good fit, not at the level of deciding between those candidates. This, in turn, suggests that the cost to employers of instituting a lottery system is much smaller than we generally appreciate.

Of course, I doubt I’ll convince people to immediately use lotteries on major important decisions. Thus, for now I’ll suggest that for smaller less consequential decisions, try a lottery system. If you are a graduate department, select half your graduating class the traditional way, and half by a lottery of those who seem like a good fit. Don’t tell faculty which are which, and I expect several years later it will be clear that the lottery system works just as well. Or, like me, if you are hiring some undergraduate researchers, try the lottery system. Make small experiments and let’s see if we can’t buck the current status quo.

Affirmative Action and A Medical University’s Attempt at No Girls Allowed

Slightly angled view of the exterior of a large complex of buildings known as the Tokyo Medical and Dental University with a stand of trees in front

On Friday, August 3rd, the Japanese government urged Tokyo Medical University to uncover the results of their investigation into allegations that the entrance exams of women were altered to prevent them from qualifying as applicants. In 2010, successful female applicants reached 38 percent and sources report that efforts began to reduce this increase in potential female doctors, resulting in 10% of successful exam scores being lowered.

Japan’s prime minister, Shinzo Abe, has an economic platform that touts equality, with a focus on improving women’s place in the workforce. With initiatives that together have been dubbed “womenomics”, Abe’s policies have been praised as beginning “a new era in female success.” He aimed to achieve gender equality in the workforce by 2015. Currently, 3.7% of executives of Japanese companies are women, 73% of Japanese companies have no women at the management level, and 57.7% of women are engaged in “non-regular” employment. A new era is badly needed because Japan has been sliding down the World Economic Forum’s world ranking of the gender gap. In 2008, it ranked 80th, but it was down to 111th in 2017 and 114th in 2017. This slipping has brought skepticism to the effectiveness of Abe’s womenomics initiatives.

It is an uphill battle to reverse the gender issues in the workforce when Members of Parliament publicly claim that single women are a burden on the state and should be producing more children. Yet it was the sexist conception of women as worse candidates because of their association with family responsibilities that was the very prejudice cited as motive behind Tokyo Medical University’s application falsifications.

The difficulties in meeting the goals of workforce equality has made Abe revise his goals this year: “In 2016 the government revised an ambitious national target of filling 30% of senior positions in both the public and private sectors with women by 2020. The new targets were 7% for senior government jobs and 15% at companies.” Setting such goals and quotas is controversial, and some executives and government officials worry that these policies may increase the “quantity” of women in the workforce while allowing the “quality” to decrease.  

The concerns with setting goals to increase representation in the workforce or universities are not new, and invoke the debate over strategies of affirmative action. “Affirmative action” refers to steps taken to increase the representation of marginalized groups, either in university systems, government, or the workplace.

In 1965 in the US, the Civil Rights Act included affirmative action language that barred companies, unions, or other institutions from discriminatory practices. In particular, the Department of Labor put into place regional numerical goals to increase fair representation in the workforce.  

The use of gender and racial preferences in hiring and admissions is, of course, controversial. In their favor is the consideration that giving marginalized groups preference is just, given these groups’ previous exclusion: this preference rights the harm, therefore evening the playing field. This consideration has been attacked because the wrong is systemic but the redress individual. In other words, someone could get preferential treatment who may not have faced discrimination themselves in their individual life.

Further, this preferential treatment may come at the cost of the non-preferred groups who are not responsible for the systemic problems faced by the marginalized groups. We could think of the harm in terms of an applicant or employee receiving “less consideration,” or in terms of not getting their right (if there is one) to “equal consideration”. Thus, appeals to justice, rights, and harms can be brought out both in favor of bringing race and gender into play when making workplace and university choices as well as leaving them out.

However, the very pervasiveness of privilege given to white people and men is often cited as justification for giving preferential treatment to the less privileged. James Rachels and Mary Anne Warren point to the likelihood that non-marginalized individuals have benefited or would benefit from their privileged positions as justification to use preferential practices as a way of neutralizing this imbalance. This can be taken to mitigate the concern about the systemic versus individual level of harm and reparation.

The use of race and gender as criteria for employment and admission seems to some to be problematic in principle, whether used to increase or decrease an applicant’s favorability. For instance, Lisa Newton’s objection to affirmative action is that it uses race and gender to distinguish among people, which is what was objectionable in creating conditions of marginalization in the first place: “Just as the previous discrimination did, this reverse discrimination violates the public equality which defines citizenship” (Newton 1973, 310).

In practice in the US, affirmative action in the workforce has been implemented since the ‘70s in order to be in line with anti-discrimination policies — rather than on the justification of righting past wrongs, offsetting unfair advantages, appropriately rewarding the deserving, or producing some social goods. Instead, the preferential treatment righted the discrimination that would continue from practices that were permissible before the Civil Rights Movement.

The quotas and goals that Abe and his policies aim towards in Japan would impact the workforce considerably. Expectations of women and men have varied significantly and the efforts to close the gender gap would have far reaching effects (some estimate increasing women’s presence in the workforce would increase Japan’s GDP by 13%). Preferential hiring practices may be one tool in altering the workforce’s landscape, but there are social features that also need to be dealt with.  

In 2016, while the percentage of men and women with university degrees did not vary significantly (59% of women and 52% of men), the family and household responsibilities certainly did: women completed an average of 4.26 hours of housework a day versus 1.38 hours completed by men, and while women spent an average of 7.57 hours with children, men spent less than half that much (3.08 hours). Japan faces a childcare crisis, making it difficult to lighten the household responsibilities on women and allow them in the workforce.  

The underlying attitudes about the roles of women loom large in the efforts to close the gender gap in the workforce as well as Tokyo Medical University’s recent efforts to keep that gap in place in medicine. A key tool to deal with a history of discriminatory practices has been affirmative action, preferential weighing of marginalized groups in order to reach some desired level of representation. The effectiveness of this tool and the grounds of justifying the preferential treatment come with difficult questions of equality and distributive justice. Policies themselves won’t change bigoted attitudes, of course, and perhaps ideally gender and race wouldn’t be parameters that would matter in hiring practices. They demonstrably affect a person’s outcome in the workforce, however, and have throughout history.


Affirmative Hesitations in India and the United States

In February of 2016, caste tensions that have always smoldered under the covers of Indian life were shocked back into the open. February’s caste riots in Haryana, India, brought much needed attention to the ways in which the long-outlawed caste system manifests itself in modern India. These rioters joined the peculiar yet growing number of protesting high castes. The Jats, members of a high caste in northern India, violently protested to change their status from a high caste to a low caste to gain from the government sanctioned benefits enjoyed by the lower castes.

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