Constitutional Admissions (and Hiring) Policies to Replace Affirmative Action
Rick Garlikov

Although I think that black people are generally at a serious unfair disadvantage for developing their potential to be successful in America, and although I think that the Supreme Court decision in the North Carolina and Harvard cases will serve in the short run to maintain or exacerbate that disadvantage, I believe that the court’s decision that affirmative action based on race is unconstitutional will enable and require colleges and society at large to better and more fairly come up with ways to overcome the consequences of discrimination – presuming that they want to be fair to groups that have been disadvantaged in the past and that still face discrimination in the present.  Although some universities may not care to be fair to disadvantaged groups, those are not the universities that had affirmative action programs anyway, so what I am discussing here is intended to be a replacement policy for affirmative action policies and programs universities wanted but which the Supreme Court has said were constitutionally prohibited.

First, however, there is no reason in an “information age” like ours that knowledge and wisdom need to be limited to relatively few universities.  There are good teachers at many undergraduate colleges and at community colleges.  Knowledge is not necessarily a limited resource; it can be readily disseminated, accessed, assimilated, and multiplied if teachers and students want to do that.  It does not have to be confined to Harvard, Yale, Stanford, Michigan, MIT, or Cal Tech.

 But, for the sake of discussion, let’s assume there are limited beneficial educational resources for the number of people seeking them and that choices have to be made which students should have access to them and which should be denied that access.

 Now imagine you are a track coach who has two applicants for one slot on your team or a baseball coach with two applicants for one available position, and in the first case one of your prospects has run just under a four minute mile routinely, but the second applicant averages 4 minutes 30 seconds.  On the face of it, of course, the faster runner deserves the open slot, based on speed, which is the point of running races in track.  But suppose that all the other applicant’s races have been with her/him having to carry a 50 pound backpack.   Or suppose in the baseball case, one applicant has hit 50 home runs a season, and the other 30, but the one that hit the thirty did it with one hand tied behind his/her back at each at bat.  Would it be wrong to give the slots you have to the runner with the slower times or the batter with the fewer home runs – based on likelihood that when the handicaps are removed, the ones who had to labor under them will do far better than the ones who did not? 

 Shouldn’t colleges, universities, and employers accept people on the basis of their likely future accomplishments under fair conditions rather than on their past achievements under unfair ones?  Shouldn’t colleges and universities be free to choose the applicants they think will most benefit society from an education there, not just the ones who have most benefited from resources and opportunities unfairly distributed and unfairly available to them in the past?  And shouldn’t universities, not legislatures or federal judges, be the best people to decide who the most promising students will be that will make the most of their education?

 There are at least two different problems with the disadvantages caused by discrimination: 1) it is unfair, and it 2) holds people back in a way that prevents their development into the most productive and helpful people they can be, both for society and for themselves.  Affirmative action is intended to try to right the previous unfairness by leveling the playing field and to make up for short-changing people before by allowing them extra opportunities to make up for what they missed.  It is like providing medical care to those we injured so that they can contribute more and earn more in fair compensation for their greater contribution.  You cannot say a race is fair only if your “opponent” is denied a counterbalancing advantage after you have kneecapped him.  You don’t get to take advantage of the disabilities you have inflicted and disadvantages you or your group have caused. 

 But “opponent” is the wrong way to think of other people, for economics should be considered more of a concerted effort of contribution toward a whole than a contest or competition.  The more each person can contribute, the more there is for him/her to be able to fairly receive in return, and the more there is for each co-contributor to be able to fairly receive also.  Even in sports, players and teams need worthy opponents in fair contests in order to enjoy the most revenues and provide the most thrills for their fans and audiences, and so even with a competition there is and ought to be cooperation.  If there have to be losers in an economy, however, that means the economy is being inefficient and not making the most of its available talent.  As I understand it, one of the reasons Bear Bryant was such a successful football coach was that he played all his good players during games so that they were each rested and strong while playing, instead of making them compete for individual records or honors.  His players traded individual honors for team championships, as every coach supposedly encourages their players to try to do, but doesn’t necessarily assist them in doing it or making that a realistic pursuit or one realistically desirable for them.

 People who believe they benefited from the prior bigotry and prejudices, which disadvantaged those discriminated against, argue that now leveling the playing field disadvantages them and discriminates against them, but that is not necessarily true because this shouldn’t be a zero sum game where anyone’s benefit must come at the expense of someone else’s loss.  Society and everyone in it can benefit the most when everyone is working in concert to build the best society with the most benefits and fewest burdens, and with the burdens and benefits most fairly and reasonably distributed.  The way an economy works is that people working in concert with each other by dividing their labor and specializing, and then trading their own goods and services with each other, will each produce far more than they consume and far more than any of them would have on their own.  Any economy can be thought to work like an old fashioned barn-raising in a frontier community.  It would be very difficult for any person to build his own barn by himself, but all working together can build barns fairly readily for each and all of them.

 Colleges should base admissions on whom they think would learn the most and benefit society the most from attending their school, whether they graduate or not.  That is, after all, what they are trying to get at, not just let in people based on their past academic achievements.  It is like when people call you to invest in their financial programs and say that in the past fifty years, their institution’s investments have quadrupled, and you say “I don’t really care about your past fifty years without my money.  What about the next twenty years with it, if I were to invest with you?  And what if the investment resources you had available to you meant that you should have made a ten-fold profit, not just a four-fold one?”    It should not (just) be what you have done to get into college with the resources you had available to you; it’s what you will do with what they will teach you and provide for you through other general university life opportunities once you are there.  A student with previously poor educational opportunities, but who made the most of them, could likely be a better college student and more productive person than one who previously achieved more but only applied himself half as much to the opportunities he had which were four times more than the ones the other student had.

 For example, the best students I ever taught philosophy and ethics were the students in a predominantly black community college, whose grades in inner city Birmingham public schools – some of which were poorly maintained and had broken windows and/or little heat in winter – were mediocre at best.  Those students were extremely bright and reflective, but their intelligence had never been brought to light and tapped before.  I asked a local, academically prestigious college to interview one of them for admission without looking first at his previous grades, which were not very good, and they phoned me after the interview to let me know they had accepted him on the spot because “he was the most impressive student they had ever interviewed”.  He most likely would not have even been given an interview by an admissions office that just looked at his previous grades.  On the other hand, when I dropped out of the combined undergraduate/medical school scholarship program I had been accepted to, my advisor said I was not the only one and that somehow or other their admissions criteria must be incorrect because many of the students who were dropping out of this program and dropping out of medical school in general were the ones with the best grades and test scores that they assumed would then be the most successful medical students.  They were trying to determine where their current system was going wrong and how best to remedy it.  The previously most successful applicants were not panning out to be the most successful students and promising graduates.

 The main problem is how best to overcome the prior disadvantages caused by discrimination often resulting from racial prejudice, but also caused by poverty and other causes for lack of beneficial educational resources.  Because bigotry and discrimination are, of course, terrible, inhumane, and unfair things in themselves, whatever else colleges and universities can do to end them is imperative, but a more achievable immediately  important goal for them is to find ways to best develop the talents, skills and abilities of students who have been disadvantaged for any reason, not just racism.  That includes having admissions policies that depend not just on students’ past achievements, which favors those students who had the most opportunities already, but which depend on the promising futures that students could have given the opportunities the college can provide for them.  That will require finding ways to determine students’ potentials for future achievement, based on more than just their past actual achievements.

 But trying to help people who are simply statistically likely to have been disadvantaged by the system does not necessarily help the people who need and deserve it the most because of actual unfair disadvantages which have hidden their full potential and delayed their reaching it – their own individual potential for self-actualization and their potential for making a contribution to society and fairly benefiting from making that contribution.  Someone statistically likely to have been disadvantaged is not someone who necessarily was actually disadvantaged.  Black children who attended good schools and who are from a wealthy family with hard working, well-educated, successful, nurturing parents are not disadvantaged; whereas a white student from much less educated and less nurturing parents who attended a poor school is.

 Colleges, universities, businesses, and other institutions in the U.S. who sincerely want to help people of color who have been disadvantaged by racism, or all students who have been disadvantaged by lack of resources for any other reason, can still do that, but by understanding what can overcome their specific past disadvantages and meet their present and future needs in ways that  would be fair and reasonable to overcome those disadvantages.  There are a number of possible ways to do that.

 The general idea is that when B is what is important and A probably, but not necessarily, leads to B, the criteria for determining when B exists should be more specific to B itself than it is to A.  For example, in hiring or determining the wages to pay someone to work for you, although education and years of prior work experience often make a person more productive in a company, since they do not always do that, it is important to determine a person’s likely or actual productivity for your business, not just look at their prior education and years of experience.  In regard to college admissions, the point should be not just finding out who has learned enough, or the most, so far, but who can learn enough, or the most, in the future to be productive for him/herself and for society.  That is not necessarily easy to do, but it should be the goal.

 One final point, many politicians in this new dark age of anti-intellectualism today sneer at knowledge and degrees, particularly higher degrees, in areas they think worthless, such as the arts and humanities, and many, even in science.  There is some sad and perversely funny irony, of course, in politicians, especially the many of them who are lawyers, finding other people’s degrees to be worthless.  But in an age not long past, what John Gardner warned against now is just as true, but for the opposite reason.  What Gardner wrote was:

“The society which scorns excellence in plumbing as a humble activity and tolerates shoddiness in philosophy because it is an exalted activity will have neither good plumbing nor good philosophy: neither its pipes nor its theories will hold water.”

To fit that into today social and political mindset would be to express it as:

The society which scorns excellence in science, philosophy, and the other humanities as worthless activities because they do not understand them, and tolerates shoddiness in plumbing because they understand the use and need of it, will have neither good plumbing nor good philosophy, science, or understanding of human nature; neither its pipes nor its theories will hold water.”

Individuals and society will benefit and blossom the most when everyone can be educated the best they can be.  And politicians, especially those who are neither very bright, nor particularly moral or well-educated (regardless of their degrees) are not the ones best suited to make the determination of what constitutes that nor what will most likely bring it about.  Nor are judges who were appointed primarily on the basis of their partisan politics and their own social prejudices.