Rex Kerr
4 min readJul 12, 2023

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Thank you for the clarification! I think it helps--though more than anything I was offering a critique of a weakness of the original article: that is, it would be stronger if the interview was part of an answer to a question or concern raised in the article. As it is, the link can be discerned, but it's not very strong.

Regarding your characterization of affirmative action, I think you have the historical justification broadly correct, but you keep making statements like the one I've quoted above that are either exactly backwards or at the very least need strong contemporary evidence in support.

The premise is that without affirmative action, applicants would be "dismissed solely based on their race". (Emphasis mine.)

Of course, this would be a gross violation of Title VI of the Civil Rights Act, and if the Equal Protection clause of the 14th Amendment. This kind of thing is almost unheard-of these days: practically everyone agrees its wrong, a lawsuit is overwhelmingly likely, and the chance of winning the lawsuit is negligible. You don't get to dismiss applicants based solely on their race.

The question is whether you get to accept people based "solely" on their race: that is, with no other distinguishing features, you make a positive call for someone on the basis of their race rather than leaving it as random or rejecting them. And because most university acceptances are zero-sum (the university has a fixed number of spots), consequently, other people are dismissed "solely" based on their race.

That is, you have it exactly backwards here: affirmative action causes dismissal based solely on race, where otherwise it would be forbidden by the United States Constitution and well-established civil rights legislation.

Now you may be right that legacy admissions are, for the time being, structurally to the advantage of white students. This requires a more sophisticated argument than merely noting that the legacies are disproportionately white, however. The reason is that the whole legacy scheme is there to foster a sense of "brand loyalty" but not at the expense of quality (legacies on average have the same credentials coming in as non-legacies)...and the consequence of brand loyalty is a dramatic increase in the rate and amount of donations to the school. So legacy admissions, by indirectly increasing the school's revenue are not zero-sum. Those donations are (typically) disproportionately used to help low-income students, who are, in turn disproportionately minorities. Thus, in part, legacy admissions are a mechanism by which the families of white students happily pay for the education of minority students. But that's only in part. The question is: how big of a part is it? In order to argue that legacy admissions keeps out minorities rather than allowing more of them, you have to carefully examine the total impact of the legacy program. It is true that they're not racially equitable, given that they are based off historical admissions which were not racially equitable. But because it's not zero-sum, and because legacy admissions often effectively (indirectly) serve as a form of income redistribution from the privileged who want to share their privilege to those who are less privileged, it's entirely possible that eliminating legacy admissions will hurt minority students. Or maybe it will help them. The point is, it's a complex issue and you can't know the answer unless you dig into it in detail.

Now, it is certainly true that without affirmative action, people are dismissed not solely based on race but based on factors that are impacted by race. If you wanted to argue in favor of affirmative action (not saying you do or that you should--just if you wanted to; I think the interview serves as inspiration regardless), you would need to, as Justice Sotomayor tries to, argue that factors like test scores, extracurriculars, and GPA are impacted by the legacy and/or present reality of racial discrimination (and in ways that cannot be detected if you don't know race). Then there's an argument that although people aren't dismissed solely based on race, they are dismissed as a consequence of race, and to fix that you need to accept them more readily based on race.

That was the original pro-affirmative-action argument--but while it was obvious in the 70s, and plausible in 2003 with the Grutter decision, our relationship to history is constantly changing and so it needs to constantly be re-evaluated (as the Grutter decision itself stated). The defense of affirmative action is at its core a compelling re-evaluation. If we change our values from being more individualistic to being more group-identity-based, then affirmative action is not the thing to reach for as it stands, because it is justified legally and morally through arguments about individual opportunity. One would need new legislation to reflect a different set of values.

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Rex Kerr
Rex Kerr

Written by Rex Kerr

One who rejoices when everything is made as simple as possible, but no simpler. Sayer of things that may be wrong, but not so bad that they're not even wrong.

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