On November 2nd, 2020, Brown professor of Economics and senior fellow at the Manhattan Institute Glenn Loury joined Harvard political theorist Michael Sandelâs course âJusticeâ to discuss the ethics of affirmative action in American higher education. What follows is a lightly edited transcript of that conversation.
MICHAEL SANDEL: I wonder if I could begin with a provocative quotation from a lecture youâve given. Youâve said that affirmative action is not about equality, itâs about âcovering ass.â What did you mean by that and what do you think generally about the ethics of affirmative action?
GLENN LOURY: I was drawing the listenerâs attention to the difference between the institutional interest in having a diverse profile of participants and the interests, as I understand them, of the population which may be the beneficiary of this largesse. My point was: if you want genuine equality, this is distinct from titular equality. If you want substantive equality, this is distinct from optics equality. If you want equality of respect, of honor, of standing, of dignity, of achievement, of mastery, then you may want to think carefully about implementing systems of selection that prefer a population on a racial basis. Such a system may be inconsistent over the longer term in achieving what I call genuine equality; real equality; substantive equality; equality of standing, dignity, achievement, honor, and respect.
I set this within a historical context in which African Americansâbeginning from exclusion, slavery, Jim Crow segregation, widespread discriminationâare actually diminished in terms of the development of our competitive and productive capacities. Education was not equal in 1930 for blacks and whites, nor in 1950, nor in 1970 for that matter. There are all kinds of negative consequences of discrimination in employment, residential location, segregation, and so on that impede development within the African American population of the latent potential capacities to perform. Given such a history, one canât expect at day one that thereâs going to be equality of, say, test scores because the background condition is one of unequal opportunity to develop human skills. So thatâs the status quo ante. Thatâs the baseline from which we are attempting to move towards something thatâs more equal.
I see this as a difficult problem, not a simple one. I donât object to affirmative action in principle saying that itâs racial discrimination in reverse, or that itâs unfair to white people. Thatâs not my argument. If Iâm transitioning from a status quo ante of black exclusion, I may want to rely upon some preferential methods as a temporary, stop-gap mechanism. But, at the end of the day, I must address myself to the underlying fundamental developmental deficits that impede the ability of African Americans to compete. If, instead of doing so, I use preferential selection criteria to cover for the consequences of the historical failure to develop African American performance fully, then I will have fake equality. I will have headcount equality. I will have my-ass-is-covered-if-Iâm-the-institution equality. But I wonât have real equality.
Iâm not here concerned with any particular mechanism of selectionâyou may not like the SAT score and prefer to rely on letters of recommendation or high school Grade Point Averages for college admissions. But whatever the mechanism of selection, it should eventually be applied in the same way for selecting African Americans as others. Otherwise the consequence is going to fall short of what Iâm calling genuine equality. Thatâs a statistical argument, not an ethical argument. Are those criteriaâSAT scores, ACT scores, high school grades, advanced placement classes, and so forthâcorrelated with the performance of the selected person in the competitive venue after selection or are they not? If they are not correlated, we shouldnât be using them. At all. Why would you use them if theyâre not predictive of how people are going to perform after theyâre selected? But if they are correlated, then if we use them differently for African Americans than for others, there will be on average different performance post-admission for African Americans than for others.
Now, if Iâm getting on average different performance by race, thatâs not equality. We can pretend it doesnât exist, we can look the other way, we can grade inflate, we can formulate various institutional responses to the objective fact of racially differentiated average performances in our competitive venue. We can live with it, but itâs not equality. Thatâs what Iâm trying to get atâthe quality of equality. Itâs the difference between counting people by race while saying weâre open and inclusive and adopting an objective means of promoting and measuring performance which allows people to achieve genuine equality of honor, standing, and respect.
MS: Your argument against affirmative action is not that itâs unfair to white students. But some people do make that argument. Cheryl Hopwood, for example, brought a suit in Texas in which she argued that affirmative action is unfair because she had higher test scores than many black students and Latino students who were admitted while she was not. But your objection is that affirmative action produces a kind of âfake equalityâ for African Americans. Would you say that affirmative action as practiced today in Brown and Harvard where you and I teach amounts to âfake equalityâ?
GL: Thatâs hard, Michael. Let me preface this by saying Iâm talking about selection at the right tail here when I make this argument about ass-covering versus substantive equality. Iâm not talking about hiring or selection at the fat part of the distribution of the population. So part of the honor being conveyed comes from the distinction of having been identified as one of the persons in society who excel; who are extraordinary in their achievement; who are in the top five or 10 percent or whatever it may be. Brown admits about 1,800 students from over 30,000 applications. I imagine something similar is true at Harvard. The very fact of having been selected is meant to convey that we have vetted you, we have compared you to others, we have found you to be extraordinarily outstanding and we have selected you. So that is honor. That is a certification of merit. Iâm not saying that the fact of your outstanding performance means that you have some right or entitlement, but Iâm saying that the mechanisms of selection are in part stamping people and certifying them as being extraordinary among their peers.
Peter Arcidiacono, the economist who was the expert witness for the plaintiffs in the Harvard affirmative action case, is studying students at Duke who elect to pursue science and engineering and mathematics-type curricula. He wants to know how likely it is that a student will elect to leave the technical curriculum and switch over to a softer, less quantitative line of study, as a function of race and their pre-admissions characteristics, their test scores and grades and so on. He finds that more than half of the African American students at Duke who matriculate with an intent to pursue STEM area studies end up switching out before they graduate. I donât remember the number exactly but something like 10 or 15 percent of white students in the same situation switch out. But he also finds that when he controls for the test scores and grades, thereâs no racial disparity in the likelihood of leaving STEM. His data from Duke indicate that the African American students with an interest in STEM but lower quantitative qualification in their pre-admissions profile simply are unable to persist in the study of the technical curriculum. Thatâs the kind of thing I say is inconsistent with âgenuineâ equality as Iâm defining it.
Let me give another example: Iâve been toldâsotto voceâby partners at big law firms in New York and Chicago that they are hiring associates of color who they donât think are really that good. But they know that theyâre going to have to make some of them partners because the firm canât stand the reputational hit of having a class of partners with an inadequate number of people of color. And, without wanting to be quoted by name, they say, âI shudder at the prospect in some cases because I know that the people that weâre dealing with here are really not as good as I would like to see them be in order for me to make this promotion decision. But the logic of affirmative action in a way compels this and now Iâm confronted at the firm with an ex post facto situation in which everybody knows that there are these disparities by race and the performance of people within the firm, but nobody is willing to say it because itâs politically incorrect to do so.â Thatâs the kind of situation that I would hope to avoid.
Affirmative action in 1980 is one thingâthinking of that as a year marking the transition from the era of discrimination to an era of aggressive effort to achieve diversity and inclusion. But affirmative action as a permanent, institutionalized practice of racially differentiated standards of selection is problematic.
MS: Harvardâs argument has long been, âWeâve always sought a diverse class. Putting race aside for the moment, that has sometimes meant giving preference to people from under-represented parts of the country like Idaho because we donât want everyone to come from Massachusetts and New York. That is geographical diversity.â It also emerged in the lawsuit, and in the brief prepared by the Duke economist you mentioned, that in the six years leading up to the trial, the admittance rate at Harvard for legacy applicantsâthe children of alumniâwas about one in three while the general admittance rate was about one in 20. You say that fake equality confers a certification of honor and excellence according to different standards of merit. Does that objection also apply to geographical diversity? And what do you think of legacy preferences?
GL: Iâd have to consider the background conditions of dignity and respect against which the various groups that youâre identifyingâlegacies, athletes, people of color, blacksâare operating. Sure, the rich kid who has three generations of Harvard alumni in the family and gets selected to be admitted ought to have an asterisk next to their name. Youâre at Harvard, but youâre at Harvard because your father bought your way in. That is a blemish. It should be a blemish. Rational inference based on everything that we know means that the fact of selection should not convey the same information if we know that the person got an advantage. But those people are not operating against the headwind of racial stigma. You canât identify the beneficiary of the legacy preference at a glance. So it may be that they can live with that asterisk in a way that Iâand this is my personal assertion, every African American might not affirm itâwould not be prepared to live with. Unfortunately, African Americans have something to prove. The shadow of doubt that covers us means people donât think weâre good enough. We have to show that weâre good enough. They know that weâre coming in with all of these disadvantages. We have to demonstrate that weâve overcome them.
Thatâs the context in which the burden of the reputational hit the group might take from being preferred in selection is more onerous on a subpopulation which labors in this environment of stigma and doubt. Now, thatâs not an argument for legacy preferences. Frankly, I think the question of legacy preferences is a question for the institution itself. Itâs not something that I would advocate, but I can see the argument for building loyalty over generations within these family lines. The university is a private charity that depends to some degree on the beneficence of its alumni. And so this is a device to cultivate a kind of connection to the university within a set of people in the population whose generosity may benefit future generations allowing the financial aid budget to be more generous et cetera. I can see that kind of an argument.
And a person can argue that gatekeepers to elite institutions like Harvard or Princeton or Brown might want to have some people of color coming through its winnowing process. This is Bowen and Bokâs argument in The Shape of the Riverâthat society as a whole has a profound interest in having within its stratified elites a representative number of people of color so as to sustain the legitimacy of institutions and to facilitate the smooth operation of society. So Iâm not a colorblind person. I would actually subscribe to the argument Randall Kennedy makes in his book For Discrimination: âLook, I acknowledge that this is racial discrimination weâre engaging in here when we do affirmative action, but itâs not racial discrimination that should be precluded by the 14th amendment to the constitution.â He then gives the functional arguments about why you might want to do something like this in the interests of society. So my concerns about affirmative action donât go all the way down. Theyâre not fundamental ethical objections. They are: What kind of world do we want to live in in 2050? Do we still want to be in the business of giving racial preferences for the selection at the right-hand tail of the distribution of human performance to African Americans then?
The alternative is to direct societal attention at the underlying structures that are generating the differences in performance. That is to say, if I want there to be more black physicists or more black literary critics, Iâve got to do something about the background educational dynamic that is producing such huge disparities in the performance of the black population on the criteria used to select students at a place like Harvard. I looked at the data that Arcidiacono and company released in the Harvard case. Stratify the applicant pool by academic index and look down the columns for black and Asian and white and you see very, very large differences in the relative performance of these groups. And then if you look at the rate of selectionâyour likelihood of being admitted if youâre in the sixth decile or the seventh decile of the population distribution of academic performanceâthe number is much, much higher for African Americans than it is for white Americans and the number for white Americans is higherâconsiderably higherâthan it is for Asian Americans. So that regime necessitates the kind of difference in pre-admissions criteria by race which will be mirrored by differences in post-admissions performance by race, which is the thing that Iâm concerned about.
MS: A striking feature of the argument youâve laid out, Glenn, is that your objection is not that affirmative action is unfair. You added that yours is not an ethical argument. I think it is an ethical argument, but of a different kind. We might distinguish between the argument that affirmative action is objectionable because itâs unfair to the Cheryl Hopwoods of the worldâthose who are not admittedâand the argument youâve made, which is that itâs objectionable because itâs patronizing, because it casts a shadow of doubt, it places an asterisk or what you call a blemish over the certification of merit for a group that is, especially for historic reasons, vulnerable to having shadows of doubt cast over their merit. Is that a fair account of your view?
GL: Iâm an economist. Iâve been teaching at Ivy League institutions for the last quarter century and Iâm pretty good at what I do. My papers appear in the top journals. Some of them have been cited thousands of times. I wouldnât mind winning the Nobel Prize in economics one day but itâs very unlikely to happen. No African American has ever won the Nobel Prize in economics. Suppose Black Lives Matter were to go to Stockholm and picket the committee that decides who gets the Nobel Prize. The honor that I would like to be able to bask in would become unattainable were there even a hint of political influence. Now, you may say thatâs you, Glenn Loury, youâre one-tenth of one percent of scholars with respect to this particular measure of virtuosity in economics research, so we can live with you not getting that honor if we can move the median of the population in a given direction. And I can understand why a person might make that argument. But my concern is that there are some kinds of goods which canât be redistributed. The very act of intervening in order to effect a redistribution destroys the quality of the good that is being redistributed. And I think human distinction is one of those goods.
MS: Paradoxically, the argument that worries about patronizing and the argument that worries about unfairness cut in opposite directions when we consider the legacy case. You might consider that itâs unfair to give an advantage to applicants simply because their parents attended Harvard, but that itâs not objectionable on the patronizing grounds because theyâre not vulnerable to this shadow of doubt. Whereas when weâre talking about African American applicants, youâre suggesting that the patronizing argument is more relevant and more important to consider whereas the unfairness argument has less weight. In the past, youâve given an eloquent cri de coeur that addresses the gatekeepers of elite institutions: âDonât patronize my people. Donât judge us by a different standard.â Can you elaborate on that argument, and the ethical and moral passion behind it?
GL: Youâre right, it is a cry from the heart. I donât know that itâs even an argument as much as it is the expression of a sentiment, though there is a certain logic behind it. I see the consequences of American history as leaving a huge project of the development of the human potential of African American people in this society. I see the legacy of our ignoble past as partly reflected in deficiencies or inadequacies of human development so that the relative number of African Americans performing in certain kinds of rarified intellectual pursuits is low. Taking the long view of history, the only viable solution to that historical inheritance is a focus on the development of the capacities of African American people to perform. That is a huge multi-dimensional decades-long project. Institutional dependence on racial preferences merely diverts us from that necessary task.
Now, I understand that the administration of an elite university, for example, doesnât have control over all of the venues of human interaction in which development should take place. They actually govern only a very small sliver at the end of the process of development. They donât control primary and secondary education. They donât control preschool education. They donât control the federal budget for support for families with low income, et cetera. So thereâs only so much that those decision-makers can do. But from a societal point of view, the challenge before us is to bring this segment of our population to a point where itâs able to fully realize its human potential which has, to some degree, been stifled by history.
But there are gatekeepers prepared to say, âWe can understand why African Americans who would like to enter into our selective venue are on average not as distinguished, but thatâs okay. We understand and we appreciate the fact that theyâve been disadvantaged. Not to worry. Thatâs okay. We will look the other way. We will establish a kind of soft bigotry of low expectations, a kind of deference. A double-standard.â And thatâs what Iâm against because I think the motivation for it, while perhaps noble, is nevertheless inconsistent with the dignity of the African American population. We are being treated to a certain degree like children. Weâre being excused from the burdens of performing at a very high level. You can see in some venues where African Americans do exceed at extraordinary rates, like competitive athletics, what it would mean to institute criteria of selection which attempted to redress the under-representation of others in those venues. It would mean in effect an asterisk next to the name of anybody who was preferred in that way. âYes, heâs in the NBA, but they have to have a certain number of whites in the NBA.â That kind of thing.
So the reflex of people is to say, âWeâre going to make a faculty appointment and we donât have any African Americans. Weâre looking at the letters and theyâre just okay, but we need to make this hire because weâre a top 10 department and we canât go on without any African Americans and so forth.â That is what Iâm asking gatekeepers not to do. Iâm saying wait. Iâm saying it doesnât have to happen overnight. Iâm saying lowering the standard in order to assuage your guilt or your pity, or to cover your asses, is not exactly an equalitarian move. And Iâm saying you donât treat us seriously, you donât treat us as equals, if youâre not prepared to insist that we perform to the same level as anybody else.
In your studentsâ questions, I have heard two themes. First, it may be that above a certain threshold the differences amongst individuals are not that important. So, you might want to say that people are âqualifiedâ and have that be some kind of categorical and not a continuously differentiated judgment, if they exceed that threshold. Therefore, you might not want to use the test score to discriminate amongst the people who have already exhibited that they are âqualifiedâ or minimally qualified. Second, what are we rewarding when we say weâre rewarding merit? Are we rewarding effort or are we rewarding ability or are we rewarding privilege? To respond, let me just keep it simple by having a model in which there are these three things. People can work harder or less hard, people can have certain endowments like their aptitude over which they donât have any control, and then people can benefit from social conditioning and upbringing because they come from this or that kind of community so they have this privilege. How to weigh these factors is a bedrock questionâa very basic issue that an institution would have to decide.
The view I had taken was that, in the selection process, weâre mainly rewarding capacity to perform post-admission. A person who exerted a lot of effort might be expected to do especially well given that weâve identified them as someone whose preferences or orientations are such that theyâre a âhard worker.â A person who experienced the privilege of being born into an upper part of society might well be objectively better placed to perform. Now, the fairness of that is another issue, but if the institution is only concerned about performance, then the fact that the high performer is a high performer in part because theyâve benefitted from privilege should not count against them.
But I can see a more subtle argument, one I associate with John Roemerâs book Equality of Opportunity, that says letâs classify people based on their background conditionsâyou came from an inner-city high school, your parents had relatively low income, your peer group had relatively few people who were going on to college and so forth. You had certain test scores and certain grades and they may not be especially distinguished given those background conditions, but when I compare you to other people with similar background conditions youâre way in the right-hand tail of that comparison. That tells me something about you, about your resilience, about your determination, about your fortitude, perhaps about your aptitude because Iâm comparing you to other people who have similar background conditions in an effort to tease out what individually distinguishes you. For you to come in the middle of the distribution of Harvard applicants from a background where almost nobody goes to college tells me that you are an extraordinary person and thatâs the bet that Iâm going to make. Iâm going to bet on that extraordinariness. Still, my objective is Iâm trying to forecast whoâs going to perform well, but Iâm thinking youâre going to perform well, notwithstanding the relatively modest profile that you present in conventional academic criteria because when I compare you to other people of similar exigency, of similar circumstance and opportunity, you look pretty good. Notice that, in doing this, I havenât really changed the fundamental premise of my selection model, which is that Iâm trying to find the people who are going to perform best after admission; Iâve just enriched my prediction model by using your relative performance among peers. (The question remains as to the role of race per se in making such relative assessments.)
MS: Thatâs an important point. A truer, more accurate estimation of merit that is more predictive could take account of these factors, but affirmative action understood in that way would not reach these broader ethical questions about fairness, about honor, about what does or does not promote equal respect. One last question about racial injustice in this country generally: At a time when the national focus has been on police brutality and mass incarceration as they bear disproportionately on African Americans, do you think we should focus less on access to elite institutions? Or is the emphasis on elite institutions receiving its proper and proportionate focus?
GL: No, I think itâs over-emphasized. I think we should focus more on some of these other things that you were alluding to. For instance, thereâs honor and thereâs dishonor. The over-representation of African Americans amongst the incarcerated population is in the realm of dishonor. So, we have a war on drugs where the social malady is the use of these substances which, for whatever reason, we decide are debilitatingâthey are soul destroying, they rip families apart, addiction is a terrible thing, and so on. And we want to stop the trafficking in these substances so we make them illegal and punish people who traffic in them. But we donât take into account the demography of the market for these illicit substances, which is inevitably going to attract disproportionate participation from people who donât have other opportunitiesâpeople from disadvantaged communities and communities of color in urban areas. So, even if we enforce the law without preference or without discrimination, the consequence of enforcing the law is going to be an outsize number of African Americans who are punished. And yet the malady is a problem for society as a whole. In effect, weâre balancing our cultural budget on the backs of the most marginal people in the population when we fill our jails with drug traffickers serving a market that wouldnât exist but for middle-class and upper-class people engaged in the consumption of these substances. This is a fundamental issue of social justice. (I develop this argument at greater length in my book, Race, Incarceration, and American Values.)
Alternatively, consider that primary and secondary educationâwhatever your view about school choice and charter schools and whatnotâobjectively is not serving the least advantaged people in our society well. And yet it is a fundamental engine for these people to be able to improve their social position. It could be that you think the schools are underfunded. We can have a debate or a discussion about what to do about primary and secondary education. But the huge disparities in the quality of the educational services available by class and by race and by social location are a fundamental issue of fairness. So, in my view, racial justice and equity understood in the largest sense would be 95 percent talking about things like that and five percent talking about who got admitted to the most selective higher education venues. Theyâre not unimportant, but itâs the tail wagging the dog if thatâs the main thing weâre talking about.