Preferential Treatment

 

There is a controversy over which name to use:

 

bullet "reverse discrimination" or "reverse racism" (those opposed to it)
bullet "affirmative action" (those supporting it)
bullet "preferential treatment" (more descriptive)

 

Although there are occasions on which, due to a documented history of illegal discrimination at a company or an institution, a court may order a company or institution to include racial, socio-economic or sexual classifications in its program of admissions, hiring or promotion, it is normally the case that the practice is a voluntary program of including racial, socio-economic or sexual classifications in methods or standards for admissions, hiring or promotion.

 

Various parameters:

bullet Education v. Employment
bullet Private v. Public
bullet Tie-breaking v. Selection of less qualified applicants
bullet Goals v. Quotas

 

At least five possible positions to adopt on the practice:

 

(1) It is unconstitutional because it violates rights protected in the Constitution.

(2) It is permitted by the Constitution but it violates a person's moral rights.

(3) It is permitted by the Constitution but it is a bad idea because the costs outweigh the benefits.

(4) It is permitted by the Constitution and it is a good idea because the benefits outweigh the costs.

(5) It is permitted by the Constitution and it is morally obligatory because justice requires it.

 

 

Arguments in favor of (5): Justice Requires It

(i) Argument based upon past injustice:

Preferential treatment is morally obligatory in order to correct past discrimination. Certain groups, or members of certain groups, were discriminated against due to their race, class or sex, in the past; hence compensation is owed to those groups, or members of those groups. Preferential treatment is the appropriate form of compensation.

 

Counter-argument to argument based on past injustice:

Compensation is indeed owed to those who were discriminated against in the past by those who did discriminate. However, the practice of preferential treatment:

(a) benefits those who themselves have not been, and are not currently, victims of discrimination;

(b) does not benefit those who have suffered from discrimination in the past

(c) harms those who have not been, and are not currently, perpetrators of discrimination;

(d) fails to harm those who did discriminate in the past

 

Preferential treatment programs are both over-inclusive (including those who should not be included) and under-inclusive (failing to include those who should be included). The benefits and burdens are  not distributed as they should be.

 

Counter-argument: a past injustice may be such that those who currently benefit from it nevertheless owe compensation to those who were harmed by it, even if those who currently benefit from it did not perpetrate the injustice themselves. It may be that the only people who may be in a position to benefit from this compensation are people who were not themselves harmed by it. Let's say that my father steals a car from your father, and gives it to me when he dies, without telling me that it is stolen. I use it. Your father dies and you find out that, in fact, his car was stolen. You track it down and find me driving it. Do I owe you compensation?

 

(ii) Argument based on present injustice:

Discrimination in the past has put certain groups, or members of groups, behind, through no fault of their own, and placed other groups, or members of groups, ahead, through no achievement of their own. Even if people today did not commit injustices themselves, they continue to benefit from them. Those who worked as slaves allowed certain families to gain wealth; the descendents of those families retain this wealth (say). If those who were discriminated against had been allowed to be educated and trained and to take jobs, they would have developed more skills and more seniority, and would be in a position to help others join the workforce (say). Hence the competition for places, jobs and promotions is unfair, since some have a head-start on others, on the basis of past discrimination. Preferential treatment is the way to restore fair competition, a "level playing field", by giving minorities a head-start (or handicapping non-minorities).

 

Counter-argument:

The argument depends on speculation. How can we tell who would currently be admitted, hired or promoted if there had not been injustice in the past? Must we assume that things would be so very different?

 

(iii) Argument based on future consequences:

Preferential treatment promises many beneficial consequences. It will (a) provide positive role models, (b) eliminate stereotypes, and (c) bring economic success and professional services to groups who need them most.

 

Counter-argument:

First of all, does preferential treatment really have these beneficial consequences? Secondly, preferential treatment also has harmful consequences, such as increasing tension between groups in society, perpetuating myths of inferiority, creating doubts in the minds of those who are given preferential treatment, and, possibly, decreasing quality or productivity in schools and the economy.

 

Reply to counter-argument:

There are beneficial consequences and they do outweigh harmful consequences, if there are any. Furthermore, preferential treatment is needed because other practices, such as vigorous recruitment, inducements, and improvements in welfare, early education and health services by themselves either do not work or take too long to work.

 

Argument in favor of (2): Violates moral rights

Argument against preferential treatment based on moral rights: preferential treatment violates the following moral rights:

 

bullet Right to be judged on one's own merit
bullet Right to be judged as an individual, not as a member of a group
bullet Right not to be excluded because of one's race, class or sex

 

But does it violate these rights? If it does not, and if it does improve society, then is it morally justified? However, even if it is morally justified, it is a further question as to whether it is legally permitted. Are programs of preferential treatment unconstitutional?

Typically, any action of a state that that uses a racial , ethnic or gender classification violates the Equal Protection Clause of the Fourteenth Amendment ("No State shall make or enforce any law which shall... deny to any person within its jurisdiction the equal protection of the laws"), unless there is a legitimate and compelling state interest that cannot be served in any other way. Preferential treatment programs do use racial, ethnic, and gender classifications.

 

Argument in favor of (1): It is Unconstitutional

Regents of the University of California v. Bakke, U.S. Supreme Court, 1978.

The Medical School opened in 1968 with 50 students. It increased enrollment until 1971, at which point the class was capped at 100 students.

The entering class of 1968 had no African-Americans, no Mexican-Americans and no Native Americans. Over the next two years the faculty devised a special admissions program to remedy the situation.

In 1973 and 1974, Allan Bakke, an ex-military (Viet Nam veteran) engineer, aged 33, applied and was rejected both times.

 

bullet UC Davis Medical School
bullet Entering class of 100
bullet Two admissions programs: general and special
bullet 84 students were admitted through the general program (candidates whose GPA was higher than 2.5) by a committee for that program

16 were admitted through the special program by a special committee for that program (candidates did not have to have a GPA higher than 2.5)

 

(1) General Program

Approximately one out of six applicants were interviewed and the following factors were taken into account:

(a) Interview summaries

(b) Overall GPA

(c) Science courses GPA

(d) MCAT scores

(e) Letters of recommendation

(f) Extracurricular activities

(g) Other biographical data

The applicant was then given a "benchmark score". (Committee chairman could also include people with "special skills").

 

Applicants were also asked if they wished to be considered as "economically and/or educationally disadvantaged" (1973) and whether they were members of a "minority group", i.e. African-Americans, Chicanos, Asians, Native Americans (1974).

 

(2) Special Program

16 places were reserved for the special program, administered by a separate committee made up of minority groups.

Such applicants did not have to meet the 2.5 GPA cut-off and were not ranked against those in the general program.

Approximately one out of five applicants were interviewed and were given benchmark scores. These top choices were given to the general program committee which could reject them for failing to meet course requirements or other specific deficiencies. The special program committee continued to recommend candidates "until 16 special admission selections had been made".

During a four-year period 63 minority students were admitted to the medical school through the special program. (Maximum, i.e. 4 x 16, would have been 64.)

 

(Note: this means that every year the committee found 16 candidates whom they considered qualified and whom the general admissions program approved.)

(Note that during this time 44 minority students were admitted through the general program).

 

In 1973, Allan Bakke was rejected by the general admissions program, because at that late stage in the application process the minimum benchmark score was 470 out of 500, and he had only 468. At this time, the special program still had four unfilled places. (Filled later?)

In 1974, applying early, he had a benchmark score of 549 out of 600, and was again rejected.

In 1973 and 1974, applicants with lower benchmark scores were admitted through the special program.

Bakke filed to compel UC Davis Medical School to admit him, citing: (a) violation of Equal Protection Clause of the Fourteenth Amendment; (b) violation of the Californian constitution; (c) violation of provision no. 601 of Title VI of the Civil Rights Act of 1964.

 

"Archibald Cox... speaking for UC... affirmative action programs are the only effective means of increasingly the absurdly small number of black doctors".

(p. 574)

 

"Of course, if Bakke is right that such programs, no matter how effective they may be, violate his constitutional rights, then they cannot be permitted to continue." (Dworkin, p. 574)

 

"There is no language in the Constitution whose plain meaning forbids affirmative action." (Dworkin, p. 576)

 

Were Bakke's ights violated?

 

(1) Right to be judged on one's own merit?

- Medical schools include more than GPA.

- Medical schools make judgments about which factors "will make the most useful doctors". Thus in arriving at a benchmark score the committee makes "a subjective evaluation of the applicant's chances of functioning as an effective doctor, in view of society's present needs for medical service".

- If the above does not constitute "merit", then applicants are not selected on the basis of "merit". If the above does constitute merit, then "merit" includes e.g. race: "If a black skin will, as a matter of regrettable fact, enable another doctor to do a different medical job better, then that black skin is by the same token "merit" as well." (Dworkin, p. 577)

 

(2) Right to be judged as an individual, not as a member of a group?

- All applicants are judged on the basis of, e.g. standardized test scores: is this consideration as a member of a group?

- Bakke was rejected by other medical schools for being too old (33 yrs): is this consideration as a member of a group?

- The medical school did allow non-minorities to apply for the 16 places by its own language (however, no non-minorities were accepted, and the court found that the committee had decided against admitting any).

 

(3) Right not to be excluded because of one's race, class or sex?

"Every citizen has a constitutional right that he not suffer disadvantage, at least in the competition for any public benefit, because of the race or sect or religion or other natural or artificial group to which he belongs is the object of prejudice or contempt." (Dworkin, p. 578)

This right is violated by racist exclusions ("color bars"), sexist exclusions ("marriage bars"), and anti-Semitic quotas, for example. Exclusions based on race in particular have been "historically been motivated... because of contempt for the excluded race or religion as such."

"Bakke... says he was kept out because of his race. Does he mean that he was kept out because his race is the object of prejudice or contempt? That suggestion is absurd... [Whites were admitted through the general program.] He therefore means simply that if he had been black he would have been accepted, with no suggestion that this would have been so because blacks are thought more worthy or honorable than whites." (Dworkin, 578)

 

 

The Supreme Court ruled that:

The goal of achieving a diverse student body is sufficiently compelling to justify consideration of race in admissions: "race or ethnic background may be deemed a "plus" in a particular applicant's file. However, this consideration "does not insulate the individual from comparison with all other candidates for the available seats". The "Davis special admissions program... tells applicants who are not Negro, Asian, or Chicano that they are totally excluded from a specific percentage of the seats in an entering class." Hence, it was unconstitutional.

In short: a goal of having more minority students is not unconstitutional; a quota of minority students is unconstitutional.

 

Subsequent rulings that have upheld Bakke v. Regents (1978):

 

Grutter v. Bollinger (2003)

Barbara Grutter applied to the University of Michigan law school to start in 1997 and was denied a place. She sued for discrimination, alleging that the Law School used race as a "predominant" factor, giving applicants who were ethnically underrepresented (including African-Americans, Hispanics and Native Americans) a significantly greater chance of admission than students who were equally qualified, and that there was no compelling interest to justify this use of race.

District Court ruled that (a) the university law school's interest in student diversity in its law class was not compelling, that (b) the law school's goal of having a "critical mass" of minority students was the equivalent of a quota, and that (c) race should not be a consideration in the admissions process. The Court of Appeals, on the basis of Bakke v. Regents (1978), reversed. Diversity is a compelling interest (subject to strict scrutiny), and race can be used as a consideration in an admissions policy, although it must not amount to a quota; the goal of having a "critical mass" of minority students was not equivalent to a quota.

Supreme Court concurred with the Court of Appeals in overturning the decision of the District Court, and ruled that the Law School's "narrowly tailored" use of race in its admissions, according to which no one is included or excluded solely based on race, although race is a factor, is constitutional, in furthering a compelling state interest in having a diverse student body.

 

Gratz v. Bollinger (2003)

The University of Michigan's College of Literature, Science and the Arts, starting with applications in 1997-98, had a 150-point scale to rank applicants, with 100 points needed to guarantee admission. The University gave applicants who were ethnically "underrepresented" , including African-American, Hispanic and Native American applicants, an automatic 20-points bonus on this scale.

Jennifer Gratz applied for a place at the University of Michigan's College of Literature, Science and the Arts to start in 1996, and was denied a place; Patrick Hamacher applied to start in 1998, and was denied a place. They filed a class action lawsuit in 1997 alleging that "violations and threatened violations of the rights of the plaintiffs and the class they represent to equal protection of the laws under the Fourteenth Amendment... and for racial discrimination."