ogc163
Superstar
MICHAEL SANDEL: I wonder if I could begin with a provocative quotation from a lecture you’ve given. You’ve said that affirmative action is not about equality, it’s about “covering ass.” What did you mean by that and what do you think generally about the ethics of affirmative action?
GLENN LOURY: I was drawing the listener’s attention to the difference between the institutional interest in having a diverse profile of participants and the interests, as I understand them, of the population which may be the beneficiary of this largesse. My point was: if you want genuine equality, this is distinct from titular equality. If you want substantive equality, this is distinct from optics equality. If you want equality of respect, of honor, of standing, of dignity, of achievement, of mastery, then you may want to think carefully about implementing systems of selection that prefer a population on a racial basis. Such a system may be inconsistent over the longer term in achieving what I call genuine equality; real equality; substantive equality; equality of standing, dignity, achievement, honor, and respect.
I set this within a historical context in which African Americans—beginning from exclusion, slavery, Jim Crow segregation, widespread discrimination—are actually diminished in terms of the development of our competitive and productive capacities. Education was not equal in 1930 for blacks and whites, nor in 1950, nor in 1970 for that matter. There are all kinds of negative consequences of discrimination in employment, residential location, segregation, and so on that impede development within the African American population of the latent potential capacities to perform. Given such a history, one can’t expect at day one that there’s going to be equality of, say, test scores because the background condition is one of unequal opportunity to develop human skills. So that’s the status quo ante. That’s the baseline from which we are attempting to move towards something that’s more equal.
I see this as a difficult problem, not a simple one. I don’t object to affirmative action in principle saying that it’s racial discrimination in reverse, or that it’s unfair to white people. That’s not my argument. If I’m transitioning from a status quo ante of black exclusion, I may want to rely upon some preferential methods as a temporary, stop-gap mechanism. But, at the end of the day, I must address myself to the underlying fundamental developmental deficits that impede the ability of African Americans to compete. If, instead of doing so, I use preferential selection criteria to cover for the consequences of the historical failure to develop African American performance fully, then I will have fake equality. I will have headcount equality. I will have my-ass-is-covered-if-I’m-the-institution equality. But I won’t have real equality.
I’m not here concerned with any particular mechanism of selection—you may not like the SAT score and prefer to rely on letters of recommendation or high school Grade Point Averages for college admissions. But whatever the mechanism of selection, it should eventually be applied in the same way for selecting African Americans as others. Otherwise the consequence is going to fall short of what I’m calling genuine equality. That’s a statistical argument, not an ethical argument. Are those criteria—SAT scores, ACT scores, high school grades, advanced placement classes, and so forth—correlated with the performance of the selected person in the competitive venue after selection or are they not? If they are not correlated, we shouldn’t be using them. At all. Why would you use them if they’re not predictive of how people are going to perform after they’re selected? But if they are correlated, then if we use them differently for African Americans than for others, there will be on average different performance post-admission for African Americans than for others.
Now, if I’m getting on average different performance by race, that’s not equality. We can pretend it doesn’t exist, we can look the other way, we can grade inflate, we can formulate various institutional responses to the objective fact of racially differentiated average performances in our competitive venue. We can live with it, but it’s not equality. That’s what I’m trying to get at—the quality of equality. It’s the difference between counting people by race while saying we’re open and inclusive and adopting an objective means of promoting and measuring performance which allows people to achieve genuine equality of honor, standing, and respect.
MS: Your argument against affirmative action is not that it’s unfair to white students. But some people do make that argument. Cheryl Hopwood, for example, brought a suit in Texas in which she argued that affirmative action is unfair because she had higher test scores than many black students and Latino students who were admitted while she was not. But your objection is that affirmative action produces a kind of “fake equality” for African Americans. Would you say that affirmative action as practiced today in Brown and Harvard where you and I teach amounts to “fake equality”?
GL: That’s hard, Michael. Let me preface this by saying I’m talking about selection at the right tail here when I make this argument about ass-covering versus substantive equality. I’m not talking about hiring or selection at the fat part of the distribution of the population. So part of the honor being conveyed comes from the distinction of having been identified as one of the persons in society who excel; who are extraordinary in their achievement; who are in the top five or 10 percent or whatever it may be. Brown admits about 1,800 students from over 30,000 applications. I imagine something similar is true at Harvard. The very fact of having been selected is meant to convey that we have vetted you, we have compared you to others, we have found you to be extraordinarily outstanding and we have selected you. So that is honor. That is a certification of merit. I’m not saying that the fact of your outstanding performance means that you have some right or entitlement, but I’m saying that the mechanisms of selection are in part stamping people and certifying them as being extraordinary among their peers.
Peter Arcidiacono, the economist who was the expert witness for the plaintiffs in the Harvard affirmative action case, is studying students at Duke who elect to pursue science and engineering and mathematics-type curricula. He wants to know how likely it is that a student will elect to leave the technical curriculum and switch over to a softer, less quantitative line of study, as a function of race and their pre-admissions characteristics, their test scores and grades and so on. He finds that more than half of the African American students at Duke who matriculate with an intent to pursue STEM area studies end up switching out before they graduate. I don’t remember the number exactly but something like 10 or 15 percent of white students in the same situation switch out. But he also finds that when he controls for the test scores and grades, there’s no racial disparity in the likelihood of leaving STEM. His data from Duke indicate that the African American students with an interest in STEM but lower quantitative qualification in their pre-admissions profile simply are unable to persist in the study of the technical curriculum. That’s the kind of thing I say is inconsistent with “genuine” equality as I’m defining it.
Let me give another example: I’ve been told—sotto voce—by partners at big law firms in New York and Chicago that they are hiring associates of color who they don’t think are really that good. But they know that they’re going to have to make some of them partners because the firm can’t stand the reputational hit of having a class of partners with an inadequate number of people of color. And, without wanting to be quoted by name, they say, “I shudder at the prospect in some cases because I know that the people that we’re dealing with here are really not as good as I would like to see them be in order for me to make this promotion decision. But the logic of affirmative action in a way compels this and now I’m confronted at the firm with an ex post facto situation in which everybody knows that there are these disparities by race and the performance of people within the firm, but nobody is willing to say it because it’s politically incorrect to do so.” That’s the kind of situation that I would hope to avoid.
Affirmative action in 1980 is one thing—thinking of that as a year marking the transition from the era of discrimination to an era of aggressive effort to achieve diversity and inclusion. But affirmative action as a permanent, institutionalized practice of racially differentiated standards of selection is problematic.
MS: Harvard’s argument has long been, “We’ve always sought a diverse class. Putting race aside for the moment, that has sometimes meant giving preference to people from under-represented parts of the country like Idaho because we don’t want everyone to come from Massachusetts and New York. That is geographical diversity.” It also emerged in the lawsuit, and in the brief prepared by the Duke economist you mentioned, that in the six years leading up to the trial, the admittance rate at Harvard for legacy applicants—the children of alumni—was about one in three while the general admittance rate was about one in 20. You say that fake equality confers a certification of honor and excellence according to different standards of merit. Does that objection also apply to geographical diversity? And what do you think of legacy preferences?
GL: I’d have to consider the background conditions of dignity and respect against which the various groups that you’re identifying—legacies, athletes, people of color, blacks—are operating. Sure, the rich kid who has three generations of Harvard alumni in the family and gets selected to be admitted ought to have an asterisk next to their name. You’re at Harvard, but you’re at Harvard because your father bought your way in. That is a blemish. It should be a blemish. Rational inference based on everything that we know means that the fact of selection should not convey the same information if we know that the person got an advantage. But those people are not operating against the headwind of racial stigma. You can’t identify the beneficiary of the legacy preference at a glance. So it may be that they can live with that asterisk in a way that I—and this is my personal assertion, every African American might not affirm it—would not be prepared to live with. Unfortunately, African Americans have something to prove. The shadow of doubt that covers us means people don’t think we’re good enough. We have to show that we’re good enough. They know that we’re coming in with all of these disadvantages. We have to demonstrate that we’ve overcome them.
That’s the context in which the burden of the reputational hit the group might take from being preferred in selection is more onerous on a subpopulation which labors in this environment of stigma and doubt. Now, that’s not an argument for legacy preferences. Frankly, I think the question of legacy preferences is a question for the institution itself. It’s not something that I would advocate, but I can see the argument for building loyalty over generations within these family lines. The university is a private charity that depends to some degree on the beneficence of its alumni. And so this is a device to cultivate a kind of connection to the university within a set of people in the population whose generosity may benefit future generations allowing the financial aid budget to be more generous et cetera. I can see that kind of an argument.
And a person can argue that gatekeepers to elite institutions like Harvard or Princeton or Brown might want to have some people of color coming through its winnowing process. This is Bowen and Bok’s argument in The Shape of the River—that society as a whole has a profound interest in having within its stratified elites a representative number of people of color so as to sustain the legitimacy of institutions and to facilitate the smooth operation of society. So I’m not a colorblind person. I would actually subscribe to the argument Randall Kennedy makes in his book For Discrimination: “Look, I acknowledge that this is racial discrimination we’re engaging in here when we do affirmative action, but it’s not racial discrimination that should be precluded by the 14th amendment to the constitution.” He then gives the functional arguments about why you might want to do something like this in the interests of society. So my concerns about affirmative action don’t go all the way down. They’re not fundamental ethical objections. They are: What kind of world do we want to live in in 2050? Do we still want to be in the business of giving racial preferences for the selection at the right-hand tail of the distribution of human performance to African Americans then?
The alternative is to direct societal attention at the underlying structures that are generating the differences in performance. That is to say, if I want there to be more black physicists or more black literary critics, I’ve got to do something about the background educational dynamic that is producing such huge disparities in the performance of the black population on the criteria used to select students at a place like Harvard. I looked at the data that Arcidiacono and company released in the Harvard case. Stratify the applicant pool by academic index and look down the columns for black and Asian and white and you see very, very large differences in the relative performance of these groups. And then if you look at the rate of selection—your likelihood of being admitted if you’re in the sixth decile or the seventh decile of the population distribution of academic performance—the number is much, much higher for African Americans than it is for white Americans and the number for white Americans is higher—considerably higher—than it is for Asian Americans. So that regime necessitates the kind of difference in pre-admissions criteria by race which will be mirrored by differences in post-admissions performance by race, which is the thing that I’m concerned about.
GLENN LOURY: I was drawing the listener’s attention to the difference between the institutional interest in having a diverse profile of participants and the interests, as I understand them, of the population which may be the beneficiary of this largesse. My point was: if you want genuine equality, this is distinct from titular equality. If you want substantive equality, this is distinct from optics equality. If you want equality of respect, of honor, of standing, of dignity, of achievement, of mastery, then you may want to think carefully about implementing systems of selection that prefer a population on a racial basis. Such a system may be inconsistent over the longer term in achieving what I call genuine equality; real equality; substantive equality; equality of standing, dignity, achievement, honor, and respect.
I set this within a historical context in which African Americans—beginning from exclusion, slavery, Jim Crow segregation, widespread discrimination—are actually diminished in terms of the development of our competitive and productive capacities. Education was not equal in 1930 for blacks and whites, nor in 1950, nor in 1970 for that matter. There are all kinds of negative consequences of discrimination in employment, residential location, segregation, and so on that impede development within the African American population of the latent potential capacities to perform. Given such a history, one can’t expect at day one that there’s going to be equality of, say, test scores because the background condition is one of unequal opportunity to develop human skills. So that’s the status quo ante. That’s the baseline from which we are attempting to move towards something that’s more equal.
I see this as a difficult problem, not a simple one. I don’t object to affirmative action in principle saying that it’s racial discrimination in reverse, or that it’s unfair to white people. That’s not my argument. If I’m transitioning from a status quo ante of black exclusion, I may want to rely upon some preferential methods as a temporary, stop-gap mechanism. But, at the end of the day, I must address myself to the underlying fundamental developmental deficits that impede the ability of African Americans to compete. If, instead of doing so, I use preferential selection criteria to cover for the consequences of the historical failure to develop African American performance fully, then I will have fake equality. I will have headcount equality. I will have my-ass-is-covered-if-I’m-the-institution equality. But I won’t have real equality.
I’m not here concerned with any particular mechanism of selection—you may not like the SAT score and prefer to rely on letters of recommendation or high school Grade Point Averages for college admissions. But whatever the mechanism of selection, it should eventually be applied in the same way for selecting African Americans as others. Otherwise the consequence is going to fall short of what I’m calling genuine equality. That’s a statistical argument, not an ethical argument. Are those criteria—SAT scores, ACT scores, high school grades, advanced placement classes, and so forth—correlated with the performance of the selected person in the competitive venue after selection or are they not? If they are not correlated, we shouldn’t be using them. At all. Why would you use them if they’re not predictive of how people are going to perform after they’re selected? But if they are correlated, then if we use them differently for African Americans than for others, there will be on average different performance post-admission for African Americans than for others.
Now, if I’m getting on average different performance by race, that’s not equality. We can pretend it doesn’t exist, we can look the other way, we can grade inflate, we can formulate various institutional responses to the objective fact of racially differentiated average performances in our competitive venue. We can live with it, but it’s not equality. That’s what I’m trying to get at—the quality of equality. It’s the difference between counting people by race while saying we’re open and inclusive and adopting an objective means of promoting and measuring performance which allows people to achieve genuine equality of honor, standing, and respect.
MS: Your argument against affirmative action is not that it’s unfair to white students. But some people do make that argument. Cheryl Hopwood, for example, brought a suit in Texas in which she argued that affirmative action is unfair because she had higher test scores than many black students and Latino students who were admitted while she was not. But your objection is that affirmative action produces a kind of “fake equality” for African Americans. Would you say that affirmative action as practiced today in Brown and Harvard where you and I teach amounts to “fake equality”?
GL: That’s hard, Michael. Let me preface this by saying I’m talking about selection at the right tail here when I make this argument about ass-covering versus substantive equality. I’m not talking about hiring or selection at the fat part of the distribution of the population. So part of the honor being conveyed comes from the distinction of having been identified as one of the persons in society who excel; who are extraordinary in their achievement; who are in the top five or 10 percent or whatever it may be. Brown admits about 1,800 students from over 30,000 applications. I imagine something similar is true at Harvard. The very fact of having been selected is meant to convey that we have vetted you, we have compared you to others, we have found you to be extraordinarily outstanding and we have selected you. So that is honor. That is a certification of merit. I’m not saying that the fact of your outstanding performance means that you have some right or entitlement, but I’m saying that the mechanisms of selection are in part stamping people and certifying them as being extraordinary among their peers.
Peter Arcidiacono, the economist who was the expert witness for the plaintiffs in the Harvard affirmative action case, is studying students at Duke who elect to pursue science and engineering and mathematics-type curricula. He wants to know how likely it is that a student will elect to leave the technical curriculum and switch over to a softer, less quantitative line of study, as a function of race and their pre-admissions characteristics, their test scores and grades and so on. He finds that more than half of the African American students at Duke who matriculate with an intent to pursue STEM area studies end up switching out before they graduate. I don’t remember the number exactly but something like 10 or 15 percent of white students in the same situation switch out. But he also finds that when he controls for the test scores and grades, there’s no racial disparity in the likelihood of leaving STEM. His data from Duke indicate that the African American students with an interest in STEM but lower quantitative qualification in their pre-admissions profile simply are unable to persist in the study of the technical curriculum. That’s the kind of thing I say is inconsistent with “genuine” equality as I’m defining it.
Let me give another example: I’ve been told—sotto voce—by partners at big law firms in New York and Chicago that they are hiring associates of color who they don’t think are really that good. But they know that they’re going to have to make some of them partners because the firm can’t stand the reputational hit of having a class of partners with an inadequate number of people of color. And, without wanting to be quoted by name, they say, “I shudder at the prospect in some cases because I know that the people that we’re dealing with here are really not as good as I would like to see them be in order for me to make this promotion decision. But the logic of affirmative action in a way compels this and now I’m confronted at the firm with an ex post facto situation in which everybody knows that there are these disparities by race and the performance of people within the firm, but nobody is willing to say it because it’s politically incorrect to do so.” That’s the kind of situation that I would hope to avoid.
Affirmative action in 1980 is one thing—thinking of that as a year marking the transition from the era of discrimination to an era of aggressive effort to achieve diversity and inclusion. But affirmative action as a permanent, institutionalized practice of racially differentiated standards of selection is problematic.
MS: Harvard’s argument has long been, “We’ve always sought a diverse class. Putting race aside for the moment, that has sometimes meant giving preference to people from under-represented parts of the country like Idaho because we don’t want everyone to come from Massachusetts and New York. That is geographical diversity.” It also emerged in the lawsuit, and in the brief prepared by the Duke economist you mentioned, that in the six years leading up to the trial, the admittance rate at Harvard for legacy applicants—the children of alumni—was about one in three while the general admittance rate was about one in 20. You say that fake equality confers a certification of honor and excellence according to different standards of merit. Does that objection also apply to geographical diversity? And what do you think of legacy preferences?
GL: I’d have to consider the background conditions of dignity and respect against which the various groups that you’re identifying—legacies, athletes, people of color, blacks—are operating. Sure, the rich kid who has three generations of Harvard alumni in the family and gets selected to be admitted ought to have an asterisk next to their name. You’re at Harvard, but you’re at Harvard because your father bought your way in. That is a blemish. It should be a blemish. Rational inference based on everything that we know means that the fact of selection should not convey the same information if we know that the person got an advantage. But those people are not operating against the headwind of racial stigma. You can’t identify the beneficiary of the legacy preference at a glance. So it may be that they can live with that asterisk in a way that I—and this is my personal assertion, every African American might not affirm it—would not be prepared to live with. Unfortunately, African Americans have something to prove. The shadow of doubt that covers us means people don’t think we’re good enough. We have to show that we’re good enough. They know that we’re coming in with all of these disadvantages. We have to demonstrate that we’ve overcome them.
That’s the context in which the burden of the reputational hit the group might take from being preferred in selection is more onerous on a subpopulation which labors in this environment of stigma and doubt. Now, that’s not an argument for legacy preferences. Frankly, I think the question of legacy preferences is a question for the institution itself. It’s not something that I would advocate, but I can see the argument for building loyalty over generations within these family lines. The university is a private charity that depends to some degree on the beneficence of its alumni. And so this is a device to cultivate a kind of connection to the university within a set of people in the population whose generosity may benefit future generations allowing the financial aid budget to be more generous et cetera. I can see that kind of an argument.
And a person can argue that gatekeepers to elite institutions like Harvard or Princeton or Brown might want to have some people of color coming through its winnowing process. This is Bowen and Bok’s argument in The Shape of the River—that society as a whole has a profound interest in having within its stratified elites a representative number of people of color so as to sustain the legitimacy of institutions and to facilitate the smooth operation of society. So I’m not a colorblind person. I would actually subscribe to the argument Randall Kennedy makes in his book For Discrimination: “Look, I acknowledge that this is racial discrimination we’re engaging in here when we do affirmative action, but it’s not racial discrimination that should be precluded by the 14th amendment to the constitution.” He then gives the functional arguments about why you might want to do something like this in the interests of society. So my concerns about affirmative action don’t go all the way down. They’re not fundamental ethical objections. They are: What kind of world do we want to live in in 2050? Do we still want to be in the business of giving racial preferences for the selection at the right-hand tail of the distribution of human performance to African Americans then?
The alternative is to direct societal attention at the underlying structures that are generating the differences in performance. That is to say, if I want there to be more black physicists or more black literary critics, I’ve got to do something about the background educational dynamic that is producing such huge disparities in the performance of the black population on the criteria used to select students at a place like Harvard. I looked at the data that Arcidiacono and company released in the Harvard case. Stratify the applicant pool by academic index and look down the columns for black and Asian and white and you see very, very large differences in the relative performance of these groups. And then if you look at the rate of selection—your likelihood of being admitted if you’re in the sixth decile or the seventh decile of the population distribution of academic performance—the number is much, much higher for African Americans than it is for white Americans and the number for white Americans is higher—considerably higher—than it is for Asian Americans. So that regime necessitates the kind of difference in pre-admissions criteria by race which will be mirrored by differences in post-admissions performance by race, which is the thing that I’m concerned about.