Guy-Uriel Charles and Affirmative Action

As we await the Supreme Court’s decision in the Harvard/UNC affirmative action case, I saw a speech recently given by Prof. Guy Uriel Charles at Harvard which made some excellent points about how to think about affirmative action.  I’m going to try to summarize his thinking, which is about points on a spectrum, and expand it using some “Law & Economics” points as well.  

Prof. Charles is the Charles Ogletree Professor at Harvard Law School and he directs the Charles Hamilton Institute for Race & Justice.  Both are prominent names in the history of civil rights and he is well qualified.  Prof. Charles creates three mental buckets for affirmative action.  At one extreme is a rigid, quota-based approach, where we measure outcomes and worry less about how we got there.  This is the approach taken by people who advocate for things like reparations, which were discussed after the Civil War but never implemented (“40 acres and a mule”), and also the place where quota-based affirmative action systems might reside.  Rightly or wrongly, we long ago rejected that approach as unduly rigid, creating obvious unfairnesses of its own.  Like so many things in legal and actual life, one can conceptualize in terms of buckets or categories when in reality there are points on a spectrum, so some of the most extreme forms of DEI initiatives might fall in this bucket, although others are more moderate.

The approach that we in fact “settled” on, for roughly the last 50 years, was softer, where race could be taken into account in admissions, and other areas of affirmative action such as hiring, but in a softer, and thus more subjective, way.  This balanced society’s discomfort with quotas, while recognizing that history, with its racism and unfairness, has its claims.

Prof. Charles makes the point that the category or bucket that falls in the other direction is a pure process approach, where everyone is given an “equal” opportunity to succeed or to fail.  Viewed most charitably this is a libertarian’s dream, and society’s dream of equality as well, but it fails to take into account the adage that the rich and the poor are both free to sleep under bridges.  Where you start is a major determinant in where you end up.  It is impossible to deny that Blacks are on average poorer than whites, get worse educations, suffer more at the hands of the criminal justice system, suffered from things like mortgage redlining perpetrated by federal housing agencies after WW II helping to contribute to a massive wealth gap, and suffer from worse health care and a whole host of other social maladies, all of which make the “race” unfair, like giving the white runner a pair of sneakers and the Black runner sneakers and a pair of 20 pound ankle weights and telling the spectators that both runners have an equal chance.  

This third bucket of course is where Prof. Charles fears the Supreme Court is going to drive us between now and the end of June, and thereafter.  Already academia is taking steps to try to counteract that outcome.  While the administrators at academic institutions won’t openly acknowledge it, that is part of why they are de-emphasizing things like the SATs, on the hope that they can still be allowed to take “softer” criteria into account in admissions decisions, without having to acknowledge that Asians are in fact being strongly disadvantaged by the current system (and are moving from Blue to Red voting patterns as a consequence).  (Another reason for colleges and universities to dispense with the SATs is to encourage more applications, so they can reject more applicants, keeping their US News “exclusivity” index high, but that is a different subject for a different day.)

Another way to think about Prof. Charles’ “buckets” involves Law & Economics.  Two Nobel Prize-winning economists are relevant, Ronald Coase and Kenneth Arrow.  Most of us were taught a bastardized form of the Coase Theorem in law school.  It says that any efficient economic outcome can be reproduced by a market-based negotiation.  The theory is a favorite of Chicago-school legal scholars because the logical consequence is free markets rule, and the third bucket is therefore nothing to fear.  But the underlying assumptions of perfect information, zero transactions costs, no externalities and no normative issues with the distributional fairness of the starting point which unquestionably impacts the outcome, as well as no normative issues about what is a cost belonging to whom, are so unrealistic that the theorem actually demonstrates how the perfect third bucket is impossible to achieve as a practical matter.  Indeed, as Prof. Coase has himself acknowledged, if the perfect conditions of economic efficiency actually existed, there would be no discrimination in the first place as discrimination by definition is economically inefficient.  Prof. Arrow’s Optimality Theorem is to the same effect, in a more rigorously mathematical way.  

You have to think about that every time you hear someone on the Red Team say something like “the way to stop discrimination is to stop discriminating.”  That is, unfortunately, just a way of putting your thumb on the scale, which means deliberately ignoring that while we may be doing better than we did 50, 60, 70, 80, 90 and even 160 years ago when the Emancipation Proclamation was issued, there are still some pervasive problems in the system that impact the starting point and thus the ultimate outcome of a pure process-based system that Prof. Charles’ third bucket represents.  Like it or not, the fairness of the starting point, and of the process that unfolds from there, affects the fairness of the ultimate outcome.

In fact, there are benefits to the ambiguity of our current affirmative action approach.  Maybe the best solution is to have that approach evolve, to allow our institutions to take account not just of race, but economic disadvantage generally.  Large sections of the country have become economically hollowed out, and the anger that generates has unquestionably affected our politics.  Not just Blacks are impacted by unfair starting points and unfair processes unfolding from there.  And not all Blacks are adversely impacted in such a fashion either.  A broader view of disadvantaged starting points that takes more than race into account might make affirmative action much more palatable to the country at large.  J.D. Vance was an eloquent supporter of this way of thinking before he decided to run for the Senate and became a full-on Trumpist in the process.  Some institutions are adapting to this approach and I personally hope more will follow.  I also hope that the Supreme Court will give hard thought to these issues in writing its opinions in the Harvard and UNC cases.         

The views expressed here are those of the author, and do not necessarily represent or reflect the views of NYCLA, its affiliates, members, officers or Board.