BPTL #4
Equal Education for Democracy
#4: Equal Education for Democracy
On Monday, October 31, the U.S. Supreme Court heard arguments related to the issue of affirmative action in higher education with special reference to Harvard University and the University of North Carolina. The specific issue that prompts this podcast is whether race should be used by educational institutions in selecting students for admission. Historical cases brought before the Supreme Court, as The Associated Press put it on October 30, “are known by a single name: Bakke, Grutter, Gratz, and Fisher. What they have in common is whether it is constitutional to use the criterion of race to promote diversity among the student body.
Although the universities claim that they use the criterion of race only as “one limited factor” and that it alone is never decisive, the philosophical question I wish to consider is whether even that practice would violate the fundamental moral principle or principles that are essential to democracy. Opponents of affirmative action claim that if admissions programs use race to achieve diversity, they discriminate against white and Asian American students. They say that the 14th Amendment to the U.S. Constitution and Title VI of the Civil Rights Act exclude affirmative action completely. The 14th Amendment applies to public institutions, and Title VI applies to private institutions that receive federal funds. Mark Oppenheimer, in an opinion piece published by the New York Times on November 6, 2022, reminds us that exclusion and favoritism in college admissions applies to other groups as well. Stanford University recently released a report concerning how Jewish students were inappropriately excluded by their college admissions officers in the 1950s. Oppenheimer says: “What’s surprising is that these discriminatory measures were, comparatively, so mild and so late to come about. Elite Northeastern schools perfected Jewish exclusion decades before Stanford got into the act.”
In the second podcast of this series, I argued that democracy is superior to other forms of government because democracy alone is consistent with morality and autonomy. To justify any form of government we must be able to appeal to moral claims that bind us together, and democracy alone can do that because it appeals to universal values for its ultimate justification rather than to arbitrary claims by isolated individuals and groups. Only moral values that apply to all will suffice for this purpose. Affirmative action favors some and excludes others, so it would seem to violate the proper guide for such decisions.
Dr. Thomas Gerety, who has a law degree as well as a Ph.D. in philosophy, is currently teaching a course for Osher Lifelong Learning Institute (OLLI) at Berkshire Community College (https://berkshireolli.org/F104TheNewCourtFall22) in which he is examining major cases that are being considered by the Supreme Court in its current session. Having served as president of Amherst College and Trinity College, he has substantial first-hand experience of the academic and administrative issues related to affirmative action. In that series about the current Supreme Court, Dr. Gerety has posed the basic question of what, exactly, should guide the Court in making its decisions. Of special concern is the claim that a position called “originalism” should be that guide, which currently seems to be shaping the conservative majority as it makes a “hard right turn” (Gerety’s term). Justice Antonin Scalia took the lead in offering that justification for the Court’s legal decisions; originalism currently seems to be embraced by Justices Thomas, Gorsuch, and Barrett. “Originalism” (also known as “textualism”) insists that the words and the intentions of the men who originally wrote the U.S. Constitution should shape the Court’s current decisions. Although the actual words in the Constitution and its subsequent amendments are and should be the starting point for any decision, the main problem with originalism is that literal interpretation of texts concerning values like justice generates disagreement and separates rather than unifies. The analogy with fundamentalism in interpreting scripture is obvious. Literal interpretation fails in several ways. First, the meaning of words is not fixed, so as time passes the words themselves often need to be changed; those changes inevitably distort what seemed to be stable and fixed. Even more troublesome, is the fact that history brings new events and new technologies that radically transform the world and its participants. I do not mean to say or infer that nothing is stable in law, religion, or any other arena where human values shape human lives. But seeking such stability through a mythical “original meaning” or a supposed literal interpretation of words is not the way to deal with this profound challenge.
As an alternative to originalism, many lawyers, judges, and legislators have long favored a so-called pragmatic solution. That path is especially popular in America where philosophers like William James, C.S. Peirce, and John Dewey and their many followers developed and defended Pragmatism, which turned away from an appeal to fundamental principles and focused on consequences. In England, Utilitarian philosophers such as Jeremy Bentham, James Mill, and John Stuart Mill also sought the solution through appeal to consequences, specifically the greatest good for the greatest number of people as measured by promoting maximum pleasure and minimum pain. Pragmatists and Utilitarians are willing to abandon a universal meaning for a term like “justice,” focusing instead on the amount of good a decision, a law, or a practice might contribute to the community as a whole. The central difficulty with both Pragmatism and Utilitarianism is that they are unable to avoid relativism and subjectivism. If values apply to and benefit only some individuals or some groups, they are of little help in manifesting democracy in the actual world. Making exceptions for some people that deprive others (as in the case of admissions to colleges or professional schools) simply cannot be justified on moral grounds. Therefore, I think it is best to justify legal decisions on universal principles rather than pragmatic or utilitarian values that vary from time to time and place to place.
The plaintiff in both of the cases that were heard by the Supreme Court on Monday, October 31, was a group called Students for Fair Admissions (S.F.F.A.) that opposes all racial classifications for any purpose, including race-based affirmative action. As I said in in Podcast #2, in a democracy all citizens must be treated fairly. The way to do that is by appeal to the universal moral law that is freely chosen, not imposed from the outside by other individuals, by an external political authority, or even by some divine being. The current cases concerning affirmative action specifically list whites and Asian Americans as those who think they are being deprived of their rights when priority is accorded to a specific group based on their race. The Asian American perspective is especially helpful in examining the principles and concepts implicit in this case.
Jeannie Suk Gersen, a professor at Harvard Law School, is the first Asian American woman to be tenured at Harvard law School. She attended the Supreme Court hearing on this case and wrote about this issue on November 6, 2022 in The New Yorker. In that article Gersen says: “The strongest aspect of the discrimination claim against Harvard involves something called the personal rating.” She recounts a 1969 report in the Harvard Crimson that claims the personal rating, assigned by admissions officers based on interviews, high school officials’ reports, and essays, “has become by far the most important factor in Harvard’s admissions process,” because the increased academic strength of the applicant pool was making it harder to select students based on grades and test scores. It reported that, for the class of 1968, “there is just about no correlation between admission to Harvard and such factors as SAT scores …[and] rank-in-class,” but “the correlation between admissions and the personal factor is better than 90 percent.’’ According to Gersen, S.F.F.A alleged in 2018 that “Harvard uses the personal rating, in which admissions officers score applicants on qualities such as ‘integrity, helpfulness, courage, kindness . . . effervescence,’” to discriminate against Asian American applicants. Gersen concludes her remarks by saying: “As Justice David Souter, for whom I clerked, said in his own dissent in Gratz, ‘Equal protection cannot become an exercise in which the winners are the ones who hide the ball.’ Meanwhile, the Asian Americans whose alleged treatment formed the factual bases of these cases could fairly be saddened to see both sides in the Supreme Court push aside the heart of their complaint in favor of further ball-hiding exercises.”
Let’s assume, as I believe, that African Americans have been unfairly treated throughout U.S. history and that establishing and preserving democracy demands that we bring an end to that immoral and unjust set of practices as quickly and effectively as possible. What seems clear, however, is that this goal cannot be achieved by depriving other groups of equal treatment through laws that discriminate against them. Professor Gersen reminds just how egregious has been the way Asian Americans have been and still are treated in the United States. Admission to highly competitive colleges and universities is a scarce resource that needs fair laws and practices, but it must be possible to justify whatever laws we enact and sustain through moral principles that apply to all. Dr. Gerety, in his OLLI course on November 4, considered some of the ways that diversity can be achieved and maintained without using race as a criterion for admission. He pointed out that there does seem to be a reduction in the number of people who are admitted to elite schools because their parents or grandparents attended that institution (so-called legacies). The number of people who gain admission because they are athletes is also questionable for the simple reason that the connection between intercollegiate sports and the academic aspect of college life is hard to justify. College and university administrators should create and implement other means that achieve that goal without violating the universal moral principles that bind us together in society. Professor Gersen’s discussion of “the personal factor” shows that whatever solutions we devise should address the core problem, which seems to go far beyond race.
No doubt the desires, passions, and aspirations of individuals does and should play a role in the process of applying to college, but the primary reason such institutions exist is academic, not social or recreational, especially if we consider the vital need for educating citizens so that they can go beyond their personal needs and desires and contribute to the common good. Education is important in a democracy because it helps students learn how to think for themselves. Without that kind of thinking, democracy is simply not possible. Here is where diversity matters. Democratic society needs diverse points of view both in the classroom and in the various extracurricular activities that are important to nurturing people as they prepare to be full human beings and effective citizens. I conclude by considering two aspects of the culture of ancient Greece, the birthplace of democracy, that relate directly to our current struggle for equality and diversity.
Liberal education, as I understand it, owes a great debt to Socrates and the kind of inquiry he practiced not in a classroom but in the agora where he went to urge young people to think about the personal and social values that make life worth living. In an era when vocational and technical education dominate throughout the globe, it is easy to forget about that Socratic model and why it matters. The ancient Greeks, especially the Athenians, educated people to speak in the legislature and in law courts so they could advocate laws that would promote the best possible life. Socrates realized that putting such power in the hands of the people (the demos) required constant vigilance to make sure that the rhetoric used by politicians and judges was honest rather than deceptive and manipulative. That need remains in the 21st century. Multiple perspectives, nurtured by diverse backgrounds and experiences, are essential for all educational institutions, whether they are elite colleges like Harvard or a local community college. Universal moral law and the kind of liberal education launched by Socrates go hand in hand.
This leads to a second practice from Athenian culture that might help promote diversity without being unjust to some students to help others, as is the case when we have racial preference, ethnic criteria, gender restrictions, or any other kind of quotas as part of the admissions process. The Athenian legislature and judicial structure consisted of approximately 1,000 citizens who were selected by lot. This method of selection was considered to be the most democratic way of selecting the participants, especially because it avoided subjective prejudice and manipulation by demagogues. The pool from which the candidates were selected by chance were all citizens who were considered to be equal from the standpoint of sovereignty.
Perhaps this model could be adapted in determining admission to higher education. In the United States, all citizens are entitled to an education through 12th grade at public expense. We have strong legal precedent that rejects the principle of “separate but equal” education, so that would seem to be a reasonable guide in higher education as well. Most institutions have a set of minimum requirements for admission. The University of North Carolina’s requirements are typical: https://www.northcarolina.edu/future-students/admission-requirements/. Each institution of higher learning, including undergraduate, graduate, and professional programs, should be allowed to stipulate whatever academic requirements are appropriate for its specific program, but the “personal factor” as described by Professor Gerson raises an alarm. Here is where bias, prejudice, and arbitrary factors seem likely to enter the picture. To avoid that danger and promote equality, why not select the students by lot? Once admitted, students are already accustomed to the practice of selecting dormitory rooms by lottery. If an applicant meets the admissions requirements for a particular institution or program, chance seems to be a more appropriate criterion in a democracy. Harvard College currently gets more than 60,000 applicants and selects approximately 2,000 people from that pool. In 2022 University of North Carolina at Chapel Hill received approximately 57,000 applications and accepted approximately 5300 students. The public/private distinction (University of North Carolina versus Harvard) does not resolve the matter because any institution that receives federal funds (and that applies even to Harvard students and research faculty) must comply with federal laws and guidelines. Those who favor meritocracy rather than democracy could choose to avoid all public funds and rely only on private funds in the form of gifts and fees, which would leave no doubt about the elitist nature of such institutions.