On Nov. 1, high school seniors will submit Early Decision applications (to Carnegie Mellon, hopefully). That means it’s time for yet another Affirmative Action Forum piece.
In June, the Supreme Court decided against the affirmative action college admissions policies of Harvard and the University of North Carolina. Students for Fair Admissions, a legal advocacy group, had sued the two universities for racial discrimination against Asian people. The fact that they and other selective universities had been discriminating against Asian students was, to the plaintiffs, open and obvious.
The Supreme Court opinion describes how Harvard and UNC considered an applicant’s race through various parts of the review process, both implicitly and explicitly. In the last step of the process, for example, “[a]pplicants that Harvard considers cutting at this stage are placed on the ‘lop list,’ which contains only four pieces of information: legacy status, recruited athlete status, financial aid eligibility, and race.” (Note that, by considering financial aid eligibility, they are also discriminating based on income — and presumably not in the progressive direction.)
Both Harvard and UNC took into account the overall racial makeup of the school. Though it is illegal (by Regents of the University of California v. Bakke) for universities to set specific racial quotas, prior to this year, they had been allowed to set soft, unofficial quotas in this way. Universities must also have a non-racist practical rationale for the discrimination. Bakke allowed universities to consider someone’s race as a “plus.” However, given the limited number of seats in any university, this implies that for others their race was a minus. (Subsequent Supreme Court decisions expressed that explicitly negative race consideration was not allowed in college admissions.) The Supreme Court has now overturned Bakke, finding the rationales adopted by universities to be vague and unquantifiable, and with no clear endpoints.
Keep in mind that the Court ruling does not ban affirmative action as a whole. In fact, selective universities are still practicing affirmative action above-the-board in hiring decisions. According to a university policy, “Carnegie Mellon University is committed to Equal Employment Opportunity and Affirmative Action.” It is also stated that “[t]he university does not discriminate and is required not to discriminate in employment.” It is not clear, however, that this is true — at least in a colloquial sense.
According to the Equal Employment Opportunity Commission, “affirmative action under the Guidelines is not a type of discrimination but a justification for a policy or practice based on race, sex, or national origin.” It is not a discriminatory policy, then, but an “justification for a policy”, in the sense that it must be planned and not directed at specific individuals. Executive Order 1146 established that federal contractors could not discriminate on the basis of race, sex, and so on, and it also established that companies should “take affirmative action” not to discriminate. From the text of the executive order, one would not expect that this very same affirmative action is now taken to justify the actions it is associated with today.
According to today’s Equal Employment Opportunity Commission (EEOC), “the Supreme Court has recently recognized that voluntary compliance may involve voluntary affirmative action designed to eliminate racial imbalances in traditionally segregated job categories.” The fact is that in the case of racial discrimination, the United States has parallel and contradictory laws: it is illegal to discriminate intentionally, but because disparate impact is also illegal, organizations who end up with a racial imbalance are often legally encouraged to conduct some form of racial discrimination in hiring in order to correct the disparities.
In the case of Griggs v. Duke Power Co., it was decided that ostensibly race-neutral policies were not allowed if they had the end result of racial disparity in hiring or promotion. In an effort to mitigate this, companies might enact counter-tests to protect against emergent racial disparities, which might nevertheless still be found to constitute racial discrimination (as in Ricci v. DeStephano).
Government contractors face more requirements in this area; they are actually required to use affirmative action in hiring. Contradictory laws allow judges to decide against whoever they politically disagree with, and such contradictions should be resolved if we ever hope to move towards a more fair and liberal law.
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