A Taxonomy of Methods for Discriminating

Not all procedures for engaging in racial discrimination are equal. They differ in their legal standing, their social meaning, and their “economic” efficiency. The Supreme Court in distinguishing Grutter and Graatz, and the admissions regimes of the various state universities suggest a useful taxonomy.

There are three generic forms of racial discrimination not merely in admissions decisions but in other practices and policies as well: (1) express and objective (i.e., points and quotas); (2) facially neutral and objective (e.g., the top 10% of graduates from each high school); and (3) implied and subjective (“we look at the whole person”). From an efficiency perspective the first form of discrimination is the least harmful. It does not corrupt the measure of merit, it only sets a different standard for “minorities.” Its shortcomings are twofold. First, as the Supreme Court decisions in Grutter and Grattz makes abundantly clear it is the one method most likely to be found illegal. This is implicitly related to its second shortcoming, it is so barefaced. It makes clear to both those favored and those harmed that the favored are otherwise inferior in their qualifications.

The second method, using a facially neutral operational measure to achieve a suspect theoretical goal, now favored by the state universities of California, Texas and Florida, in granting admission to those who finish in the top X% of their high school class and by the United Network for Organ Sharing in granting more “points” in the organ allocation scheme for time on the waiting list, has the virtue of being an objective measure, and the virtue (?) of a disguise that reduces shame. Its shortcoming is that its effectiveness in bringing about the preferred ethnic distribution is tied to its inefficiency. It employs an objective measure of merit that substantially distorts. Thus, the rankings of both the favored and the unfavored groups are mis-aligned.

The third measure, a subjective, ad-hoc eclectic judgment, can in practice be a mimic of the first, the second, or anything else. The process becomes a beclouded mystery. This is both its virtue and its vice. There is no clear trail, evidence or standards that mark the favored as inferior–feelings are spared. On the other hand the absence of an objective measure means that the decisionmakers are effectively unanswerable and may indulge in any form of corruption.

Method (1) is clearly falling by the wayside. Is there likely to be a clear political winner between (2) and (3)?


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