Supreme Court

Threats to Affirmative Action and DEIA – by Marc Brenman

There is much confusion today between affirmative action, which is under threat by lawsuits in the U.S. Supreme Court, and Diversity, Equity Inclusion and Accessibility (DEIA), which is under no such threat, as long as practitioners stay away from race-based quotas and preferences. How can we educate the field about this?

The Supreme Court cases involve allegations by some Asian-American groups that their applicants should be admitted to prestigious colleges like Harvard at a higher rate because other applicants like African-Americans are given a preference. One should bear in mind that Asian-American students are already enrolled in such colleges at a rate far exceeding their presence in the American population, so these cases are not about proportional representation, or a “student body that looks like America.” In some cases, such as the University of California at Berkeley, the undergraduate enrollment is about 48% Asian-American. So these cases involve an extreme form of a desire for merit-based judgments by gate holders.

The challenges are based on Constitutional requirements that race-based decisions be subject to “strict scrutiny,” which requires findings of past historical discrimination, a compelling government interest in using race as a criterion, and attempts to use criteria other than race that have failed to achieve the goal. The universities state that diversity of their student bodies is a sufficiently strong interest. And here the word “diversity” starts to create confusion.

The confusion extends to practitioners of DEIA. There are also enemies of DEIA who relish the confusion and want to see DEIA go away. They believe that DEIA efforts and initiatives involve preferences and quotas based on race. They like what they have, like their dominant position in American society, and feel under threat by people of color and others they see as unlike them. The confusion between diversity efforts and affirmative action is sometimes perpetuated by DEIA practitioners who do indeed believe in race-based preferences and quotas. The DEIA field is the Wild West, with no controls over who enters it, hangs out a shingle, and sells training and consulting services.

There are also enemies of DEIA from without who oppose any mention of diversity efforts. There are those who just seem to have a poor grounding in civil rights and law in the US. These last want something good to happen in American society and don’t have the public policy foundation to make it so. A fourth category of confusers is diversity trainers who follow a name, blame, and shame curriculum of making white men cry. This fourth group will pull DEIA practitioners and efforts down faster than the right-wingers because their ideology is immoderate and intolerant. One can often identify members of the fourth category because they profess not to want allies from any group other than people who look like themselves, believe DEIA should focus solely on African-Americans, and cannot demonstrate anything quantitative they have accomplished on the ground in improving representation of traditionally discriminated against groups. They are quick to make accusations of colonialism, imperialism, oppression, white supremacy, white privilege, unconscious bias,  microaggressions, whitesplaining, and other linguistic silliness.  

A method of choosing employees and students based on merit, excellence, socioeconomic status, life accomplishments, and overcoming challenges cannot be legally challenged under the Constitution the way affirmative action can be. Lowering irrational, arbitrary, and discriminatory barriers to opportunity cannot generally be challenged. Even targeted outreach cannot be easily legally challenged.

If important decisions are made randomly there would be no discrimination, but people in power do not want such randomness because it would mean that their wealth, education, and social status would count for nothing. How do we want to be judged? Matthew 7 in the Christian New Testament says “Judge not, that ye be not judged. For with what judgment ye judge, ye shall be judged: and with what measure ye mete, it shall be measured to you again.” Who wants this kind of objectivity? Even I, who profess to be a staunch supporter of evidence-based thinking and decision making, don’t really want to be judged based on all my merits and demerits. I want as much grace and forgiveness as the next person.

Some of my progressive friends believe in merit far less than I do, which is an untenable position because clearly abilities and excellence vary. We make decisions based on merit all the time, such as when we hire a plumber to fix our houses, or a dentist or car mechanic. Nothing in the Constitution prohibits giving people a preference based on their low income or wealth. The original Constitutional implementation in fact bestowed such benefits, since for decades after it was ratified only landowning white men could vote. There are today numerous state and federal programs that give benefits to low income people or use means or needs testing to filter out those who don’t need financial aid or goods and services, such as housing vouchers and lifeline rates in Internet service or utilities. We also grant many exemptions and waivers based on inability to pay.

While we don’t use the term “needy” anymore, because it has gone down in the linguistic abattoir of cancelled language, it is still worth asking what American society and its denizens need. We used to have a consensus that democracy was such a need, but today even that belief and conclusion are no longer possessed by about 48% of the electorate.

In America we differentiate by wealth, with celebrity, athletic, and artistic prowess as proxy measures. Socioeconomic status (SES) is a way of measuring this differentiation. One of the interesting and disturbing aspects of socioeconomic status is that there is a heavy overlap with being African-American, Hispanic, or Native American and being low income. These groups are all disproportionately low income and low in family wealth. For example, on average African-American families have less than one tenth the wealth of white families. This disproportion has not decreased in decades and in fact got worse during the Great Recession of 2007-2012. It has been said that African-Americans will never catch up to whites in family wealth.

One of the traditional ways to catch up is through prestigious higher education. However, as the Harvard political scientist Raj Chetty and his team have shown, social and economic mobility in the US is declining. Why do we use wealth at all as a criterion? Because in America, like it or not, we often use wealth as a measure of success, and know that money is power. There are of course white Americans who are low income, for example coal miners in West Virginia, many people with disabilities, the homeless, and many divorced single mothers.

Even in a strictly merit-based system, there is nothing wrong with admitting more Asian-American applicants, Jews, white mothers of severely disabled children, or talented children of West Virginians. These groups and others introduce more diversity into institutions and organizations, if diversity is defined to include diversity of thought and experience.

We should incentivize use of merit, hard work, and achievement as criteria for benefits, and concentrate on success factors in life and education, rather than on failure factors. Since this is a complicated world, one can also understand that prestigious institutions like Harvard don’t want the majority of their student bodies to be Asian-American. We saw this same fear in the 1920’s when Ivy League schools introduced quotas to limit the number and percent of Jews they admitted. Groups in power want to stay in power, and want that appearance to be clear to all onlookers. What good is power if it is hidden? When we board an airplane, are we not paraded through First Class like peasants?

Race is a social construct, as is prestige and status. A social revolution is not upon us, and anyway one should be careful about desiring a revolution, since one can rarely predict who will be put up against a wall and shot. Positive social change in America is gradual except when determined by technology. When surrender occurs, it is usually to technology.

It could be that many more of us in the DEIA field must come to terms with these ideas, and not hold the conceit that DEIA belongs to only one or two racial and ethnic groups. We need to learn much more about rule of law, and be much more careful to think logically, critically, and make decisions based on evidence. We need to avoid political ideology. There is nothing wrong with making decisions based on morality and ethics, while recognizing that no one possesses the one clear solution.

graphic by Joshua Woods – unsplash
Marc Brenman

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