By Guest commentary Friday, August 1st, 2014

By Steve Mintz

Last month, a federal appeals court revived the longstanding debate over affirmative action when it ruled that a race-conscious admissions policy at the University of Texas at Austin was constitutional.

The ruling affirmed an earlier decision by the U.S. Court of Appeals for the 5th Circuit, which was asked to reconsider at the request of the U.S. Supreme Court.

Critics of the ruling believe that race should not be a factor in admissions decisions. Some argue that affirmative-action policies lead to lower standards at universities, since some candidates with lower academic qualifications will be admitted as a result of accepting more minority students. The argument is that by exclusively using general standards such as SAT scores and grades, a colorblind application process is more equitable.

The latest ruling by a panel of appeals-court judges affirms, for a second time, the 2009 summary judgement by a U.S. District Court judge that dismissed a lawsuit brought by Abigail Noel Fisher, a white applicant who had accused the Austin campus of illegal discrimination after being denied admission as a freshman the previous year.

Judge Emilio Garza, the dissenting member of the circuit court panel, appeared to lay some of the groundwork for an appeal with an opinion arguing that the majority had again failed to treat the university’s assertions with sufficient skepticism.

“By holding that the university’s use of racial classifications is narrowly tailored, the majority continues to defer impermissibly to the university’s claims,” he wrote, adding that such deference “is squarely at odds with the central lesson” of last year’s Supreme Court ruling in the case.

In that ruling, the U.S. Supreme Court decided, 6-2, that Michigan voters have a right to amend their state Constitution to ban racial preferences in admissions at public universities. In the case Schuette v. Coalition to Defend Affirmative Action, Justice Sonia Sotomayor wrote a widely acclaimed dissent, in which she challenged Chief Justice John Roberts’ colorblind approach to college admissions as “out of touch with reality.”

Sotomayor wrote that affirmative action policies provide the only realistic path to racial inclusion in higher education, correctly noting that race-neutral alternatives have failed to produce adequate diversity at three high-profile institutions: the University of Michigan at Ann Arbor, UC Berkeley and UCLA.

The ethics of affirmative action policies based on racial differences, whether motivated by a desire to right past wrongs, create a more diverse campus learning environment or by socio-economic considerations, is a complicated matter.

In virtue ethics, motivations are an integral part of the ethical analysis. If we can say the motivation for race-based decisions is the inherent goodness of such policies, the University of Texas ruling is ethically supportable. On the other hand, the argument could be made that candidates such as Fisher have an ethical right to be given preference if their academic achievements surpass those of lesser-qualified candidates.

Each argument has merits. As a college professor, I have seen first-hand how having a diverse population in my ethics class adds value to the learning experience of all students. On the other hand, I can understand the position of a student denied admission because other considerations allowed another student to be given preference for whatever reason.

• Steve Mintz is a professor in the Orfalea College of Business at Cal Poly, San Luis Obispo. He writes an ethics blog at www.ethicssage.com.