Affirmative action arguments

          RACIAL SEGREGATION AND ANTI-JEWISH QUOTAS

   Are colleges and universities free to define their missions however they please, so that any admissions policy that fits the declared mission is fair ? If so, what about the racially segregated campuses of the American South not long ago ? As it happens, the University of Texas Law School had been at the center of an earlier constitutional challenge. In 1946, when the school was segregated, it denied admission to Heman Sweatt on the grounds that the school did nit admit blacks. His challenge led to a landmark U.S. Supreme Court case, Sweatt v. Painter(1950) , which dealt a blow to segregation in higher education. 
   But if the only test of fairness of an admissions policy is its fit with the school's mission, then what was wrong with the argument the Texas Law School presented at the time ? Its mission was to train lawyers for Texas law firms. Since Texas law firms did not hire blacks, the law school argued, its mission would not be served by admitting them. 
   You might argue that the University of Texas Law School, as a public institution, is constrained in its choice of mission to a greater extent than private universities. It is certainly true that the notable constitutional challenges to affirmative action in higher education have involved state universities ---the University of California at Davis (in the Bakke case) , the University of Texas (Hopwood), and the University of Michigan (Grutter) . But since we are trying to determine the justice or injustice of using race --- not its legality --- the distinction between public and private universities is not decisive. 
   Private associations as well as public institutions can be criticized for injustice. Recall the sit-ins at lunch counters protesting racial discrimination in the segregated American South. The lunch counters are privately owned, but the racial discrimination they practiced was unjust nonetheless. (In fact, the 1964 Civil Rights Act made such discrimination illegal.)
   Or consider the anti-Jewish quotas employed, formally or informally, by some Ivy League universities in the 1920s and '30s. Were these quotas morally defensible simply because the universities were private, not public ? In 1922, Harvard's president, A. Lawrence Lowell, proposed a 12 percent limit on Jewish enrollment, in the name of reducing anti-Semitism. "The anti-Semitic feeling among students is increasing," he said, "and it grows in proportion to the increase in the number of Jews." In the 1930s, the director of admissions at Dartmouth wrote to an alumnus who had complained about the growing number of Jews on campus: "I am glad to have your comments on the Jewish problem," the official wrote. (Bold & underscore vos's.) "If we go beyond the 5 per cent or 6 per cent in the Class of 1938, I shall be grieved beyond words." In 1945, the president of Dartmouth justified limits on Jewish enrollment by invoking the mission of the school : "Dartmouth is a Christian College founded for the Christianization of its students." 
   If, as the diversity rationale for affirmative action assumes, universities may set any admissions criteria that advance their mission as they define it, is it possible to condemn racist exclusion and anti-Semitic restrictions ? Is there a principled distinction between the use of race to exclude people in the segregationist South and the use of race to include people in present - day affirmative action ? The most obvious answer is that, in its segregationist days, the Texas Law School used race as a badge of inferiority, whereas today;s racial preferences do not insult or stigmatize anyone. Hopwood considered her rejection unfair, but she cannot claim that it expresses hatred or contempt.
   This is Dworkin's answer. Segregation-era racial exclusion depended on "the despicable idea that one race may be inherently more worthy than another," whereas affirmative action involves no such prejudice. It simply asserts that, given the importance of promoting diversity in key professions, being black or Hispanic "may be a socially useful trait." 
   Rejected applicants such as Hopwood might not find this distinction satisfying, but it does have a certain moral force. The law school is NOT saying that Hopwood is inferior  or that minority students admitted instead of her deserve an advantage that she does not. It is simply saying that racial and ethnic diversity in the classroom and the courtroom serves the law school's educational purposes. And unless the pursuit of of those purposes somehow violates the rights of those who lose out, disappointed applicants can't legitimately claim that they've been treated unfairly. 

                       AFFIRMATIVE ACTION FOR WHITES ? ? 

   Here is a test for the diversity argument : Can it sometimes justify racial preferences for whites ? Consider the case of Starrett City. This apartment complex in Brooklyn, New York with twenty thousand residents, is the largest federally subsidized middle-income housing project in the United States. It opened in the mid-1970s, with the goal of being a racially integrated community. It achieved this goal through the use of "occupancy controls" that sought to balance the ethnic and racial composition of the community, limiting the African American and Hispanic population to about 40 percent of the total. In short, it used a quota system. The quotas were based not on prejudice or contempt, but on a theory about racial "tipping  points'' drawn from the urban experience. The managers of the project wanted to avoid the tipping point that had triggered "white flight" in other neighborhoods and undermined integration. By maintaining racial and ethnic balance, they  hoped to sustain a stable, racially diverse community. 
   It worked. The community became highly desirable, many families wanted to move in, and Starrett City established a waiting list. Due in part to the quota system, which allocated fewer apartments for African Americans than for whites, black families had to wait longer than white families. By the mid-1980s, a white family ad to wait three to four months for an apartment, while a black family had to wait as long as two years. 
   Here then was a quota system favoring white applicants---based not on racial prejudice but on the goal of sustaining an integrated community. Some black applicants found the race-conscious policy unfair, and filed a discrimination suit. The NAACP, which favored affirmative action in other contexts, represented them. In the end, a settlement that allowed Starrett City to keep its quota system but required the state to expand minority access to other housing projects.
   Was Starrett City's race-conscious way of allocating apartments unjust ? No, not if you accept the diversity rationale for affirmative action. Racial and ethnic diversity play out differently in housing projects and college classrooms, and the goods at stake are not the same. But from the standpoint of fairness, the two cases stand or fall together. If diversity serves the common good, and if no one is discriminated against based on hatred and contempt, then racial preferences do not violate anyone's rights. Why not ? Because, following Rawls's point about moral desert, no one deserves to be considered for an apartment or a seat in the freshman class according to his or her merits, independently defined. What counts as merit can be determined only once the housing authority or the college officials define their mission.