Mourning Affirmative Action? Advocate for Individual Rights in Higher Education
Higher Ed Institutions Should Have the Right to Set Admission Policies as They See Fit, But Not on The Taxpayer’s Dime
SCOTUS ruled last week in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and v. University of North Carolina that
…the Harvard and UNC admissions programs cannot be reconciled with the guarantees of the [14th Amendment] Equal Protection Clause. Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points. (p39) (bracketed info and links mine)
This effectively ends affirmative action as we know it. In his concurrence, Justice Gorsuch (Justice Thomas joining) emphasizes that Harvard’s and UNC’s admission policies also violate Title VI of the Civil Rights Act of 1964 which states
No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. (p2)
Does the ruling mean that educational institutions such as Harvard and UNC would be at liberty to discriminate in their admissions, that is, continue with affirmative action policies, if they didn’t accept federal funds for student aid, research, etc? State or local laws may still apply and influence affirmative action practices, even if federal funding is not involved. And other areas of federal law, such as Title VII of the Civil Rights Act of 1964 may come into play. But assuming no other laws were in place, a university could hypothetically continue with affirmative action if they refused federal funds. In fact, a few smaller private colleges and universities don’t accept government student aid or research grants for different reasons to maintain their independence, for example Hillsdale College, Grove City College, and College of The Ozarks.
Harvard and UNC (and most other private and public universities) are not likely to stop feeding from the government funding manger anytime soon. This is serious money. According to its 2022 fiscal year financial report, Harvard received $642.1 million in federally funded research (p41, note 13). In addition, 6% of the $806 million in student aid (p41, note 12) came from “the federal government aid initiatives and other outside sponsors.” (p9) Harvard doesn’t specify how much of the latter is federal funding and other outside sponsors respectively, but the tax funded portion is likely in the tens of millions. UNC’s 2022 financial report lists $949.452 million in federal and $814.942 million in state contributions. (p120) (State funding is covered by Title VI to the extent some or all of the funds are contributed to the state by the federal government.)
But as a thought experiment, let’s put on our “think morally right or wrong, not politically left or right” hat and consider what higher education would look like in a society without a government higher education funding bonanza. A society where the rights of both individuals and higher education institutions were consistently respected and protected, that is, in a capitalist social system. What would be the status of federal, state and local government funded student aid? And would racially selective admission policies exist? (I’m leaving the question of government funded and regulated science/research question aside for now; I’m planning to include a new chapter about it in the 3rd edition of the book out in 2024).
What would be the status of government funded student aid in a capitalist social system?
In short, government funded student aid wouldn’t exist. In a capitalist social system, state and higher education are separated, just as state and church are today. As I wrote in an earlier article:
Government student loans violate individual rights on multiple levels. For example, taxpayers are forced to pick up the tab for defaulted loans (forgiveness would further aggravate this). And the fact that student loans are subsidized—the lower interest rates don’t reflect the real risk—means that private financial institutions are either marginalized or forced out of the market as they have to factor in the true risk. Finally, by offering student loans, the government is skewing demand towards attending college. This places employers in professions that don’t require a college degree at a disadvantage, as they are forced to compete for labor on unequal terms.
However, student aid doesn’t magically disappear under capitalism. It just shifts to being provided by private financial institutions after a transition period. From the same article:
A ten-year transition also allows private financial institutions to fill the void left by the government. Because the market for student loans will not go away, only shift to focusing more on financing degrees with a good return on investment. For some degrees with less tangible value, college endowments and charitable organizations may provide financial assistance, while others will most likely disappear.
The only valid role of government in higher education in a capitalist social system is to protect the actors—institutions, students, professors, etc.—from individual rights violations, such as fraud, breach of contract, etc., and to prosecute offenders. A far cry indeed from today’s highly government financed and regulated environment. (See here for additional thoughts on higher education under capitalism)
Would racially selective admission policies exist?
Perhaps. In a capitalist social system, higher education institutions adopt admission policies that are in line with their mission and values without government interference. Such policies may be racially or otherwise discriminatory, and therefore potentially morally reprehensible. For example, an individual or group may start a college to support a racial minority they perceive being disadvantaged in the marketplace, disqualifying applicants with other ethnic backgrounds. Whether this would be an immoral practice depends on the context, but capitalism doesn’t prevent such a scenario. Respecting and protecting individual rights means respecting and protecting the right to be wrong, and the right to be immoral—as long as it doesn’t violate the individual rights of others. In the free marketplace of ideas under capitalism, people voluntarily organize to put pressure on institutions they perceive are using immoral discriminatory policies, but without retorting to government force by advocating for new laws and regulations. In general, irrational and immoral racially discriminatory admission policies won’t survive for long. Just like the free marketplace rewards the best products and services, it rewards the best policies, which gradually push the inferior and irrational to the fringes of society. (See here for more details on racism in a capitalist society)
Where does this leave us? Our welfare statist social system with its maze of individual rights violating laws and regulations in higher education is obviously a long way from the capitalist beacon in the distance. But we have to start somewhere. If affirmative action is important to you—whether you think it’s good or bad—join the moral crusade to respect and protect individual rights in higher education, by getting federal, state and local governments out of the field. This will set higher education institutions free to adopt admission and other policies that align with their mission and values. If the marketplace responds positively, an institution will thrive. If not, it will have to reevaluate its mission and adjust to survive. And you and I will be free to voluntarily support institutions that align with our values, including our views on affirmative action, without our individual rights being violated.