Fairness—Why I'm Voting Yes On Prop 16 & You Should Too


California’s Proposition 16, the affirmative action proposition, if successful this November election, will repeal Prop 209, which added Article I, Section 31 to the State Constitution. The most important, and main part, reads:

(a) The State shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.source: California State Constitution

At first glance, such a measure seems like the fair thing to do. After all, we’re all equal, so why should some groups be treated differently than others?

Since the Proposition 16 debate centers around admission to the University of California (UC), this post too will focus upon this. Of concern is what is fair way to admit people to UC system? Of note are the terms underrepresented minority (URM), which refers to Black and Latinx (excluding Asian). With that in mind, a study by Arcidiacono et al (2011) found that though post-Prop 209 enrolment rates for URM declined, the number of URM graduates have increased since Prop 16. At first this seems celebratory, but looking more closely, “the improvements in minority graduation rates tend to be larger at either the less-elective UC campuses (for African Americans) or the CSU [California State University] system (Hispanics)”. The study concludes that Prop 209 led to an efficient sorting of underrepresented minorities (i.e., some institutions are better for some people than others).

On the one hand, there is an argument that people should be selected based upon merit. Tom Campbell, Former Dean of Haas School of Business, UC Berkeley, says, “This proposition will allow California’s public universities to keep students out because of their race, in order to help students of another race get in. That’s currently illegal. Berkeley’s business school was rated among the best for recruiting minority graduates, and we did it without using race. We also gave no favoritism to children of donors, alums, or politicians. We were strictly merit-based. That’s how it should stay. (I’m neither a Democrat nor a Republican.).” [note: keeping students out due to race as well as racial quotas are illegal by federal law] Likewise, No on Proposition 16 has adopted the mottos “Californians for Equal Rights” and “Keep Discrimination Illegal.” Such language strikes fear. As a state, not only do we value equality, but the wold ‘discrimination’ viscerally strikes us as unfair.

Yet on the other hand, relegating certain groups of people (such as URM) to lower-tier institutions is also unfair. What is needed in the Prop 16 debate is a notion of fairness. For example, after I tweeted that I am pro-Prop 16 because it is fair, I received a reply with a dictionary definition:

@NoMoreSilent4: “Here is the Oxfords definition of fairness: ‘impartial and just treatment or behavior without favoritism or discrimination.’ And below is the section of Cal constitution that #Prop16 tries to repeal. #Prop16 is nothing but anti-fairness.

The State shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the public employment, public education, or public contracting. – California Proposition 16″

There isn’t anything wrong with this definition, but it does ignore a lot of reality. For example, here is another reply that I received (and rebutted). @NoMoreSilent4 believes that she is being impartial, but actually her impartiality is biased—it actually favors those who do not experience discrimination at the expense of those who fall outside the norm, in this case those who are not white.

@NoMoreSilent4: “If I adopted 5 kids, 2 black, 1 asian, 1 white and 1 hispanic, I’d give the extra support to the one struggling, regardless of skin color. Supporting the socioeconomically disadvantaged is necessary for a civil society, so as NOT to treat people differently by skin color.”

I reply: “So 4 kids arent white and are living in a majority white country with racist history. All 4 kids struggle from low self esteem & racist bullying + low grades. White kid doesnt have problems. So u only help with their grades but not the self esteem or bullying issue?”

For me, anyway, there seems something completely perverse to treat someone suffering from low self-esteem due to racism as any other form of low self-esteem. To make this example realistic, let’s say that an Asian 13-year-old girl believes herself to be ugly because her classmates tell her everyday that she is ugly for having “slanted” eyes. Or she can be Black and told that she is ugly for having dark skin. You don’t console these children by treating them equally with a racially-blind “You are both beautiful”. You have to go further. You have to teach these girls to love themselves in spite of racism. You have to teach them that being different does not make them less. The only way you can teach them this is to take account of their racial differences.

Likewise, Prop 209’s restriction on race means that the University of California is prohibited from “contracting or in setting aside resources for identity-based groups.” For example, though the African American Initiative Scholarship was started by an initiative at UC Berkeley, it must be administered by the San Francisco Foundation in order to circumvent Prop 209.

From these examples, it is obvious that equality does not equal fairness. Further, notions of impartiality may not, in fact, be free of bias.

Distributive Justice

The United States and racism have a long history. As a result, there are specific minority groups that are worse off than others. Within the group ‘minority’ there exists a subgroups of minorities that are even worse off. In the US, race is a factor that must always be considered due to the country’s history. This post assumes that systematic racial inequality exists (which it does). In regards to education, this leads me to ask a set of questions:

  1. Should we ensure that minority groups have a right to education?
  2. Should we ensure that minority groups are able to exercise their right to education?
  3. Should we ensure that minority groups are able to exercise their right to the highest levels of education?

Our first question, “should we ensure that minority groups have a right to education” is one we all agree one. Everyone, irrespective of who they are, has a right to education.

Our second question,”should we ensure that minority groups are able to exercise their right to education”, is likewise affirmed by society. Not only should everyone have the right to education, everyone should be able to access education, i.e. access to schools and universities. That means not having obstructions, whether lack of basic education (e.g. remedial classes in a community college), lack of nutrition (e.g. free school meals) or even lack of financial resources (e.g. Pell Grants).

Our third question is the tricky one. “Should we ensure that minority groups are able to exercise their right to the highest levels of education?” No decent human will be opposed to this (I hope), but this is exactly what is at stake. For this post, the highest levels of education are top-tier institutions. This means that we are not only concerned with access to universities in general (e.g. CSU and low-ranked UC), but we are specifically concerned with access to California’s most prestigious higher educational institutions: the University of California, Berkeley (Berkeley) and the University of California, Los Angeles (Los Angeles).

“Prop 209 decreased nearly every URM applicant’s likelihood of admission to every UC campus” (Bleemer, 2020a, p1). Further when compared to non-URM, the image is even more drastic. Further, while URM applications increased at the most selective UC’s (Berkeley, Los Angeles and San Diego), their admission and subsequent enrolment decreased (Bleemer 2020b, p11).

AI = Academic Index; Source Bleemer 2020b, p.10-11

It is  clear that Prop 209’s effects are not fair. It is obvious that URM students are being negatively effected. Yet how do rectify this? The only question that can give us an answer is one that concerns a just distribution of resources, or distributive justice. For the University of California, this forces us to ask what is the fairest way to allocate the limited number of admissions spots.

There are various forms of distributive justice. Discussing distributive justice in itself is outside the scope of this post, but in general, arguments supporting merit are claims arguments (e.g. I worked hardest for this, therefore I deserve the spot) and arguments to level the playing field are forms of egalitarianism. For more on this, please read the entries Distributive Justice and Desert in the Stanford Encyclopaedia of Philosophy.

For our debate, this is very important because it is obvious that the amount of underrepresented minority graduations is not enough. Rather, high calibre underrepresented minorities have every right to be able to reach and study at the highest levels in the University of California rather than be relegated to the less-selective UC’s or the lower-tiered CSU system because these lower-tiered institutions significantly impact future earnings (Bleemer 2020b, p19). Thus, it is obvious that an efficient allocation of students to universities does not answer what is the fairest way to allocate students. Such a question cannot be answered solely by consequentialist accounts, especially an efficient allocation, since it seems inherently unfair. Such a question can only be answered by a form of distributive as outline by Rawls.

Rawls: Justice as Fairness

John Rawls (1921-2002) is arguably the greatest moral philosopher to come out of America. His seminal text A Theory of Justice (TJ) challenged utilitarianism (and by extension, consequentialism in general). In TJ, Rawls creates an ideal society. To do so, he has us imagine that we are all blindfolded. We do not know who or where we will be in society, so the only rational thing we can do is decide that we all have equal rights. This leads him to construct two principles of justice. Only when a society fulfils these requirements, can we call it just. Further due to the wording of the two principles, a just society is also a fair society, hence the phrase justice as fairness. The two principles are:

  1. Each person has the same indefeasible claim to a fully adequate scheme of equal basic liberties, which scheme is compatible with the same scheme of liberties for all
  2. Social and economic inequalities are to satisfy two conditions:
  • (a) They are to be attached to offices and positions open to all under conditions of fair equality of opportunity;
  • (b) They are to be to the greatest benefit of the least-advantaged members of society (the difference principle)

The principles are lexically ordered, which means that the first principle takes precedence over the second, and 2a takes precedence over 2b. In other words, Rawls says that you cannot take away liberty in order to maximise material well being or maximise equality. Lastly, something is fair only when it fulfils the conditions set out by the two principles.

Black-and-white portrait photograph of a man wearing glasses
Rawls in 1971 Photo: Wikipedia

The first principle merely states that we are all equal. An example would be the right to vote or hold office. The first principle states that we all have the right (or claim) to vote, run for office, have free speech (and so on). On the whole, this is not controversial and it is something we can all agree upon.

The second principle is where things get interesting. Here Rawls states that if we have social and economic inequalities, then first, everyone must have an equal chance at attaining whatever is limited. For example, admissions spots at UC Berkeley are limited (this is an inequality). Admissions spots should not be given to someone who is legacy or some other virtue of birth, but should be awarded by merit. In short, social class and background shouldn’t be an obstacle. Afterwards he augments this by saying that the distribution of inequality needs to be the benefit of the least advantaged. If we look back at the limited spots at UC Berkeley, 2b means that the distribution of seats awarded needs to benefit the worst off in society, in this case the least well off students.

Both Proposition 16 supporters and detractors agree on 2a (also known as the Fair Equality of Opportunity clause), but disagree about 2b (also known as the Difference Principle). Prop 16 supporters generally seem to agree with the difference principle while detractors seem to stop their support at 2a, i.e. fair equality of opportunity = merit irrespective of how merit is achieved). Prop 16 detractors, however, are misguided. For example, through hard work anyone can score highly on the SAT exam. However this completely ignores the reality that students who are from lower-income backgrounds lack the means to afford SAT prep materials and classes and lack the support those with university-educated parents can provide.

Proposition 16 & Fairness

If we take a look at pre-Prop 209 and compare it to post-Prop 209, we see that Prop 209 has only negatively affected Black and Latinx students yet the effects on Asian and White students are negligible (i.e. there are no discernible advantages or disadvantages) (see Bleemer, 2020b). It is obvious that Proposition 209 is unfair under the Difference Principle. This means that limited admissions spots must be allocated differently.

There are a number of ways to allocate the UC system’s limited spots. Some are legal and others are illegal. Some are fair and some are inherently unfair.

For example, the easiest way to solve any this problem is simply to peg the number of spots available to population of a race. However this raises its own set of problems: do you divide the seats equally per racial group or do you distribute the proportionally? Though it is tempting to make UC Berkeley’s student body proportional to the proportional racial population, such an approach can be considered as setting up a quota (and thus fall foul of federal law). Similarly we shouldn’t simply divide the number of spots available amongst the races as this too could be seen as a quota. Lastly, both divisions fall short of the difference principle as there isn’t any specific safeguard to prevent all admissions spots from going to URM students from the highest income-bracket. Such a scenario would hardly be for the greatest benefit the worst off.

What then can we do to increase fairness? The answer may not lie in a specific allocation of specific seats, but rather what Prop 16 will allow universities to do: to differentiate between candidates of the same race and even of ethnicity. While racial and low income groups are often correlated, within racial groups disparities exist. Indians, Japanese and Sri Lankans have the highest median incomes while Bangladeshi, Hmong and Nepalese are likelier to live in poverty when compared to the general US population.

First, it would be unfair to admit someone solely because of their race, but it would be a great benefit to admit an otherwise high calibre applicant who happens to have a different upbringing than the rest of the student body. Such a different life experience only adds to the diversity of the university and to the difference of thought that promotes the ascertaining of truth. In our country, where systematic racism and other inequalities (such as sex) are the reality, it is discriminative to underrepresented minorities to expect them to “earn” some arbitrary level merit as someone who was born luckier. If by all measures both students are academically capable, but one stands out by either race, gender, an interesting background, hobbies or simply just a later-developed passion, then that should be the student admitted. That student, rather than the student whose parents are able to afford every resume-padding extracurricular, is the better fit for the institution.

Secondly, such a student ought not to face roadblocks to their success. Repealing Prop 209 means that UC can set up funding and invest in resources for various groups. This includes not only URM but also includes all minorities, including women and Asians. As data shows, not all Asians are privileged, and a scholarship set up specifically for low-income Asians would make access to the most selective UC’s financially possible.

Thus it is clear that Proposition 209 is unfair unfair and unjust. Though I have left it unsaid on what a fairer allocation of admissions spots ought to look like (it is outside the scope of this post), what is apparent is that Proposition 16 is the right step in the right direction. Only then can the University of California create a fairer admissions framework that includes funding resources for all minorities but also fostering a diverse environment that is conducive to the university’s mission statement. For these reasons, Vote Yes on Prop 16.

Finally, I would love to hear your thoughts on Prop 16. Do you agree or disagree? Let me know in the comments and please cite sources for your arguments.

Cover Photo – UC Berkeley Campus by K.Oliver/Flickr licensed under Creative Commons