Tag: Affirmative Action

DEI—a nuanced assessment

DEI — “diversity, equity and inclusion” programs or policies are efforts to promote fairness and full participation of people who have been historically underrepresented or subjected to discrimination. The normal standard of fairness when employing workers is that they are hired (or admitted to college) on the basis of merit—who best satisfied to the requirements for the job. This is what taxpayers who want the best results from their tax dollars, want as well.

Many universities set aside the admission of the best qualified students to reflect the fact that may blacks who might have greater potential than their past performance test score indicated because of racial discrimination should be given preferential treatment. But these “affirmative action” programs where struct down by the Supreme Courts 2023 ruling in Students for Fair Admissions v. Harvard and its companion case against the University of North Carolina, which effectively ended race-based affirmative action in college admissions.

To make room for more blacks, Harvard had raised the bar and thus discriminated against Asian applicants with higher scores. It is appropriate that the standards of equal treatment and merit should be observed for government jobs and public universities.

But private firms and colleges should be able to hire or admit whoever they want. Both firms and colleges may well want the social benefits from greater diversity. Not only can it make the workplace more interesting but the broadened understanding of different racial and religious groups generates greater social harmony as well.

I don’t know what DEI programs generally did or aimed for and am quite willing to believe that they wasted human resources. However, that is quite different from the desirability of properly educating our children about different races and cultures and the history of slavery and harms of racial discrimination. Along with civics, such instruction belongs in elementary school curriculums. Just as the enlightened treatment of gays, blacks, Muslims and other groups in movies and TV shows has led the way toward better understanding, exposure and education are important for building a better and more accepting society.

The government should not interfere in the choices of private firms and university about the composition of their work forces and student bodies.

Saving Liberalism

A society occupied by virtuous people, whose behavior is self-governed by the moral principles taught by the major religions, needs few laws from their governments.

If we are free—if we live in a free society—we can and will discriminate in our choices as we see fit. We will choose what is best for us and what we like most. We will choose our friends and clubs. In our economic dealings, if our choices are not based on the objective merits of a product or an employee (if we are an employer), we will suffer the consequences (pay more for an inferior good or service or less productive employee). Thus, our self-interest will drive us toward the right kind of discrimination/choices in the market. “Are Venture Capitalists Racists?”

Morally, making choices that treat others unfairly, dishonestly, or rudely, diminishes the harmony and quality of social life. The lack of such moral standards will diminish us in the eyes of others and ultimately in our own eyes. If every member of our society adopted and lived by such moral standards, we would be the freest, happiest, and most flourishing society possible.

In such a society, the government would only need to protect us from the few criminals (foreign and domestic) who attempted to violate our persons and our property, set the standards that allow markets to function efficiently, enforce our property and other rights, and adjudicate contract disputes. With regard to government employment and activities, the law should forbid discrimination on basis not relevant to the government’s purposes, e.g., when hiring workers, the government should not be allowed to discriminate on the basis of race, religion, sexual orientation, or national origin.    

In the laudable objective of overcoming a history of slavery and morally inappropriate discrimination our laws have gone further. The 1964 Civil Rights Act extended the antidiscrimination provisions appropriate for the government to private sector businesses serving the public. Businesses renting rooms (hotels) or selling goods (grocery stores or restaurants) were forbidden to discriminate on the basis of race, religion, sexual orientation or national origin. See the wonderful movie “Green Book” if you haven’t already.

Rather quickly the courts were asked to sort out the law’s application when it violated other individual rights such as adhering to one’s religious beliefs. Should a Satan worshiper cook, who does not believe in marriage, have to bake a wedding cake for someone’s wedding? I don’t mean to suggest that such questions can be or will be easily resolved, though in a free society in which the vast majority of residents adhered to good moral values, no one would need to be forced to provide any service they didn’t want to, and no one would be deprived of their wedding cake either.

A further step was taken toward allowing a greater exercise of individual judgement about race when the Supreme Court effectively overruled Regents of the University of California v. Bakke (1978), and validated some “affirmative action in college admissions provided that race had a limited role in decisions.” Otherwise giving “race-based affirmative action programs in college admissions processes violate the Equal Protection Clause of the Fourteenth Amendment” of the US Constitution. Students for Fair Admissions v. Harvard – Wikipedia

In my view, a college that bends admission criteria in order to increase the diversity of its student body is acting wisely and in the interest of the learning experience of its students. My view of a college having to satisfy a government given racial or some other quota is the opposite. “Affirmative action, based on the logic that disparities equal discrimination, entrenched the idea of equal results over equal treatment…. Later, in the mid-1980s, harassment law enshrined the idea that free speech must be suppressed to eliminate subjectively defined ‘hostile environments’ for protected groups….

“The steady devolution of lawmaking authority from Congress to administrators produces a paradoxical situation whereby organizations must violate the text of the law (non-discrimination) to satisfy activist interpretations of law. Colorblindness is now illegal.” “Two Roads to Woke”  “Affirmative Action”

Thus, two centuries of debate over how best to trade off and balance conflicting individual rights in order to maximize our overall freedom that helped produce the greatest human flourishing the world has ever experienced, is at risk of being shouted down and silenced. “Human Progress”  Shutting down that debate and related questions in order to spare one group or another the discomfort of hearing something they don’t want to hear would mean the end of the liberal/neoliberal world we have built.

To take but one example, I strongly disagree with much of the underlying premises of Critical Race Theory. But books explaining its views belong in the library and high school history class discussions. I will only convince my friends of its errors with my arguments, not by burning its books. We only conduct our lives on the basis of what we really believe. “Virginia Samuels library LGBTQ books”

So, what is to be done to preserve our classically liberal principles and personal freedom? The innovation and dynamism our freedom has enabled, which has so dramatically lifted our standards of living, has also forced adjustments on some that have not always been easy. Trade theory has always talked about the need to compensate the (few) losers. But the safety nets we have built have generally been inadequate and rarely received the attention they need. “Replacing Social Security with a Universal Basic Income” The other thing we must do is to use our freedom to speak to explain the powerful benefits of our neoliberal principles. Teach, teach, teach.  “Deirdre McCloskey – Why Liberalism Works–How True Liberal Values Produce a Freer More Equal Prosperous World for All”

Sabastian Edwards has written a wonderful book about the rise and potential fall of neoliberalism in Chile, which makes these points. Much misinformation surrounds the activities of the Chilean economists trained at the University of Chicago—the Chicago Boys–who transformed Chiles economy from the repressive import substitution, state dominated model prevalent in South America at the time to a neoliberal free market model of Milton Friedman and the Chicago school, during and following the dictatorship of General Augusto Pinochet following his 1973 overthrow of democratically elected President Salvador Allende. Edwards’ account is extraordinarily detailed and balanced. His advice at the end for saving neoliberalism, classical liberalism, freedom or whatever you want to call it deserves our most serious attention. “Chile-Project Chicago-The Downfall of Neoliberalism”

Affirmative Action

Like most Americans I believe that our laws should be color blind. That means that race should not be a factor in who to hire or who to admit to college. But put aside what is required by the law for a moment and ask: what is good admission policy for a university? What we consider “good policy” itself depends on the purpose or objective of the policy.

Let me focus on private universities and colleges that are not benefiting from taxpayer (our) money, if there are any, who are thus free to determine what they consider “good policy.” Such universities are likely to want to provide the best educational experience for their students possible.  Having smart, motivated students is an important component of an enriching intellectually stimulating environment.  Diversity of ideas, personalities, and ethnic backgrounds is also a good component of such an environment.

Basing student admissions solely on SAT scores or such metrics will, unfortunately, over-represent Asians and underrepresent blacks. The goal would not necessarily be exact proportionality of the share of these groups in the population (U.S. population or global population??), but it might well be sensible given the desire for diversity, to shade admissions a bit toward more blacks and fewer Asians. Enlightened university admissions officers might well operate this way. Catholic and Hebrew schools have a different purpose, but it is expressed more on the side of applicants than admissions officers. My point is that there can be a good and proper place for such judgements in a “good” society.

“In 2003, Justice Sandra Day O’Connor, writing the majority opinion upholding affirmative action in Grutter v. Bollinger, expressed the hope that race-conscious admissions would be unnecessary 25 years hence.”  “Harvard UNC affirmative action admissions before Supreme Court”  Because of earlier discrimination against blacks, in part through inferior elementary and secondary education, it was accepted as OK to temporarily discriminate modestly in favor of blacks when admitting students to a college or university. Such “affirmative action” has increased black college enrollment considerably. “Affirmative action-supreme court cases”

But 40 years of affirmative action (the waving of equal treatment under the law) is stretching the notion of temporary and the SC is likely to end it. In many respects it is about time. However, it also illustrates that the rigidity of a legal remedy in place of more nuanced judgement can be second best. This is a dilemma.

While enjoying an intellectually stimulating time in college may help attract good students, the real test of a college’s success is the extent to which the experience promotes a richer (in all senses) life after graduation. This requires admitting students who will benefit most from what the college offers, whatever their starting point. It requires looking deeper than such indicators as SAT scores. Prof. Roland Fryer’s experience suggests possible approaches. “Affirmative action-Supreme Court and college admissions”

As he often does, George Will confronts us with the frequent contradictions in our thinking on such tricky issues: “College racial discrimination and affirmative action”

The College Admissions Scandals

A few weeks ago, Ito and I went to “Admissions,” the very well performed and thought provoking play by Joshua Harmon about affirmative action, at Studio Theater. Several friends had independently attended the play and suggested that we get together for one of Ito’s superb dinners and discuss it.  So we enjoyed an evening discussing the pros and cons of “affirmative action,” the “temporary” suspension of nondiscrimination legislation meant to repair and make up for discrimination against blacks that made them less prepared for college. It is a complex issue without obvious solutions. The play did an excellent job of fairly presenting all perspectives on this issue.

My opinion is that suspending, even temporarily, equal treatment (merit-based college admissions) of applicants to universities and colleges, as is done with affirmative action, is not the best approach to achieving equal treatment of all. It attempts to treat the symptoms of racial discrimination rather than the disease. First of all, private universities (unlike state schools using tax payers’ money) should be free to establish whatever admission policy they want.  Any school I would want to attend will want to include an element of diversity in its student body as an important element of the education they offer and will build that into its admission policy in whatever way it considered sensible.

And now we are confronted with the revelation that some of the rich and famous paid bribes to get their underperforming children into top schools. As stated in the Washington Post: “the scope and sheer shamelessness of an elaborate scheme in which some of the country’s richest people allegedly paid bribes to get their children into top U.S. universities is truly mind-boggling.” https://www.washingtonpost.com/opinions/the-college-admissions-scandal-should-prompt-broader-soul-searching/2019/03/13/f67aa986-45b5-11e9-aaf8-4512a6fe3439_story.html

This is shocking and unacceptable for the same reason I oppose affirmative action. It violates the principle and standard of merit in hiring people or admitting them to college. Our country is one of the wealthiest and most respected in the world because firms and organizations allocate jobs, positions, and resources in general on their merits (i.e. qualifications for the job, etc.). In short, people and other resources are put to their most productive use.  Obviously, this is not always the case. But firms that fall short of this standard suffer lower profits than if they had adhered to it. In short, in the private sector there is an economic incentive to employ the resources (including people) that best fit the needs being filled. Companies that employ their under-qualified relatives suffer lower profits as a result. Hiring or admitting people on the basis of merit is also our standard of fairness that is widely admired throughout the world.

Affirmative action is a deliberate departure from this standard as are the recently revealed bribes and test score cheating for college admission. In the first case it is an effort to overcome the damage of earlier discrimination against a once enslaved people. In the second case it is an effort to overcome the deficiencies of intelligence or character in our own children. A world in which we acquiesce to standards other than merit will always favor the already well off. We will never fully achieve the high standards of merit based appointments we have set, but we should never stop trying. A powerful strength of the private sector in a competitive free market economy is that the economic incentives are in the right direction.

American universities may never achieve a perfect admissions system completely based on merit and devoid of personal bias, but we should encourage them aim for it. The world outside of the academic environment is unfair enough when it comes to race, gender, sexual orientation and religion to name a few. Let us try to instill in the younger generation the understanding that hard work and smarts are what gets you ahead– not money, influence and certainly not the color one’s skin. And let’s promote attitudes and policies that encourage and reward such a reality.

Liberty and the Overly Prescriptive State

Few things reveal a person’s views on liberty more than their attitude toward the right of others to say or do things they disagree with. The First Amendment to the Constitution of the United States protects our right of free speech and assembly, later interpreted to include the right of association. “The NSA Unravels a Civil Rights Era Win”/2013/08/29/ None of these rights is absolute (yelling fire in a theater, etc), but where we as a society draw the line has a great deal to do with how successfully our diverse citizens will live together in harmony and freedom.

The latest example of the imposition of the state into what should be private issues of belief is California’s ban on health practitioners “offering psychotherapy aimed a making gay youth straight.” The U.S. Court of Appeals for the 9th Circuit in San Francisco ruled that the law does not violate the free speech rights of licensed counselors and patients seeking treatment.” “US Court Upholds First in Nation Law Banning Gay to Straight Therapy for Minors”/2013/08/29/

Conversion therapy is a scientifically documented scam, but if its practitioners believe in it, it is not a deliberate fraud (maybe they do and many they don’t). We are freer, and live in greater harmony the more we allow people to pursue and experiment with their own beliefs. This includes things the rest of us might think are silly. Such freedom, when exercised within a strong set of moral values, also tends to move society more quickly to a more virtuous level. The caveat is that in allowing people to live according to their own creed, they must do no real harm to others.  Even the “doing no harm to others” standard is subject to discussion and can moved a bit this way or that – toward more freedom or less. In the case of the California law against conversion therapy, the law was aimed at protecting minors from harm inflicted by such therapy and we have rightly been quicker to protect minors than others. In short, drawing an appropriate line between private rights and state intervention is a serious and not particularly easy undertaking.

Those of you who are lucky enough to be Facebook friends of Jonathan Rauch, author of “Denial” and currently a contributing editor of the National Journal and The Atlantic, and a guest scholar at the Brookings Institute, have access to a very thoughtful discussion of the freedom of conscience, association and speech and equal protection of the law. In comments to one of Jonathan’s postings, Charlotte Allen, Tom Palmer, and Walter Olson, Walt Becker (a pseudonym), David Dalton and others explore the interface between the freedom of association and equal protection of the law in the context of same sex marriage. In such discussions it is critical for those of us who defend the importance and morality of liberty to clearly distinguish what we individually believe is right and good from what is or should be allowed under the law. The law should allow people to make their own stupid mistakes.

In reaction to slavery and Jim Crow laws, which legally discriminated against blacks, America has gone well beyond repealing such legislation and has adopted a range of anti-discrimination laws limiting the ability of “public” businesses to choose their employees and customers. These anti-discrimination laws are now increasingly being extended to GLBTs (Gays, Lesbians, Bisexuals and Transgenders). Personal beliefs and preferences, whether we agree with or respect them or not, thus confront state interference in our personal choices and behavior. Doctors, who do not believe in abortion, are required to perform them. Companies whose owners do not believe in contraception are forced to provide health insurance and condoms to employees wanting them. A New Mexico photographer and baker are sued for refusing to provide their services to a same-sex wedding ceremony.

Equal treatment in the law was put aside for Affirmative Action giving preference to blacks in some cases on what was meant to be a temporary basis until the damage of earlier negative discrimination could be reversed. The Supreme Court has now started to roll back such preferences. In the above Facebook debate, Charlotte, who has trouble accepting marriage equality for same-sex couples, takes a more libertarian position on other areas of state imposed morality when she says “Why can’t we give people the freedom to set the parameters of their own commercial transactions?” The optimal balance shifts over time and I doubt that we have it anyway.

The government, which is often a lagging reflection of public sentiment, has been one of the last to extend equal treatment to same sex couples. Pure profit motive led corporate American to move ahead several decades ago to extend “marriage” benefits to employee partners of whatever sex. They did so in order to attract the best employees without regard to their color, religious beliefs, or sexual orientation. Discrimination has an economic cost.

No church should be required to marry anyone they don’t want to or don’t believe would be consistent with their beliefs. Allowing same-sex couples to receive a marriage license and the legal benefits that come with it from the State, which is surely required by the principle of equal protection of the law, does not and should not obligate any church to do so. I think that the treatment of the Boy Scouts of American set the right example.  As a private club the law allowed them to exclude gay boys from membership if they wanted to. However, evolving social understanding and attitudes and deeper reflection by Boy Scout leaders are slowly leading the Boy Scouts to change this policy. Getting the balance right will never be easy, but I prefer to error on the side of personal freedom rather than government dictated morality.