Are Racial Preferences Benign? How About Treating Them as Takings That Require Just Compensation?

According to a recent article by John Katzman and Steve Cohen:

 Affirmative action’s original intent was to incorporate more minority students, specifically blacks and Hispanics, into elite universities. But blacks and Hispanics have actually lost ground in the admissions race over the past 25 years, as recently reported by the New York Times . And while the original policy was intended to help minorities, Asian-American students feel they are taking the biggest hit. As a result, many have filed lawsuits against Ivy League schools such as Harvard, claiming that to gain admission, Asian-American students, on average, have to score 140 points higher on the SAT than white students, 270 points higher than Hispanic students, and 450 points higher than African-American students.

 Thus, Asian students have to score 450 (!!!) points higher than African-American students and White students must score 310 points higher. These are not small differences, and affirmative action is not a tie-breaker, nor a thumb on the sclae, but a truckload of bricks on the scale.


Here is what I would like you to think about concerning our class discussion of racial preferences, particularly as part of the educational admission/financial aid process.

Some supporters of AA argue that using race as a "plus" is benign in the sense that it helps some deserving students without harming anyone else? They argue, for example, that Jennifer Gratz was probably not denied a seat in the class at Michigan, because she was only one of many white students whose applications for admission were rejected.

How about a hypothetical to illustrate this issue!

So let's assume that an elite state law school has, say, 3500 applications for a first year class of 250. The school admits 180 students (including 5 minority applicants) with very high GPAs and LSATs "on the merits," and 70 students with much lower academic credentials who receive a substantial racial "plus" based upon their status as minority applicants.

And lets say that 1000 white applicants with very good GPAs and LSATs (lower than the 180 "merit" students, but quite a bit higher than the 70 students who received the racial plus) are denied an offer of admission.

Questions:

How many of the 1000 rejected students actually lost a seat in the class?

How many of them believe they were unfairly denied a chance at a seat in the class on the basis of their race?

Is this belief concerning unfair treatment reasonable? Why or why not?

Is there some way that the state university could address the real harms caused by AA (both the lost seats and the lost opportunity to compete without regard to race) without sacrificing the racial diversity that some believe is critical to the university's educational mission?

How about treating racial preferences as a kind of taking that requires just compensation? Here is an idea I posted to a conlaw professors listserv:

I don't have a problem with the ends of racial diversity, just with the means of using racial preferences to redistribute opportunities from young adults of one race to young adults of another race.

Why should we single out a few young adults to pay for the costs of a "compellingly" important social goal? Why shouldn't all of society bear these costs in the form of taxes? So why not view AA as a taking that requires just compensation. Here is how it might work in the admissions area.

First, make admissions decisions on the basis of all relevant factors without taking race into account (this might require redacting admissions applications to prevent admissions committees from knowing the race of applicants).

Now after you have your "on the merits" class, proceed to apply the racial preferences by taking some seats away from the first admitted class and awarding those seats on the basis of the racial preferences. So lets say applicants 1-20 are chosen to be the sacrificial lambs whose seats are taken and transferred to the minority applicants. Why not treat this as a taking and pay applicants 1-20 some just compensation (say, $10,000 to 20,000) for the lost educational opportunity. Is it not far better to share the sacrifice among all the state's taxpayers, than to impose the full cost of diversity on the few young adults who were chosen--on the basis of their race--to give up the seat they had earned on the merits?

Isn't this a less restrictive means, even if it ends up with a rather steep price tag and the political costs of raising taxes to pay the bill?

What do you think? Is this a less restrictive means of advancing the goal of racial diversity in education without imposing racial harms on innocent bystanders? Notice that it addresses both kinds of racial harms discussed above. All students get an equal opportunity to be admitted without regard to race under the first admissions process. Students not admitted under the first step know that they were not denied admission on the basis of race, so we no longer need to consider their complaints. We know which students were harmed by the racial plus factor, and we proceed to compensate them economically and send them on their way to the school that is their second or third choice.

What are your thoughts?