MICHAEL SANDEL: I wonder if I could begin with a provocative quotation from a lecture you’ve given. You’ve said that affirmative action is not about equality, it’s about “covering ass.” What did you mean by that and what do you think generally about the ethics of affirmative action?

GLENN LOURY: I was drawing the listener’s attention to the difference between the institutional interest in having a diverse profile of participants and the interests, as I understand them, of the population which may be the beneficiary of this largesse. My point was: if you want genuine equality, this is distinct from titular equality. If you want substantive equality, this is distinct from optics equality. If you want equality of respect, of honor, of standing, of dignity, of achievement, of mastery, then you may want to think carefully about implementing systems of selection that prefer a population on a racial basis. Such a system may be inconsistent over the longer term in achieving what I call genuine equality; real equality; substantive equality; equality of standing, dignity, achievement, honor, and respect.

I set this within a historical context in which African Americans—beginning from exclusion, slavery, Jim Crow segregation, widespread discrimination—are actually diminished in terms of the development of our competitive and productive capacities. Education was not equal in 1930 for blacks and whites, nor in 1950, nor in 1970 for that matter. There are all kinds of negative consequences of discrimination in employment, residential location, segregation, and so on that impede development within the African American population of the latent potential capacities to perform. Given such a history, one can’t expect at day one that there’s going to be equality of, say, test scores because the background condition is one of unequal opportunity to develop human skills. So that’s the status quo ante. That’s the baseline from which we are attempting to move towards something that’s more equal.

I see this as a difficult problem, not a simple one. I don’t object to affirmative action in principle saying that it’s racial discrimination in reverse, or that it’s unfair to white people. That’s not my argument. If I’m transitioning from a status quo ante of black exclusion, I may want to rely upon some preferential methods as a temporary, stop-gap mechanism. But, at the end of the day, I must address myself to the underlying fundamental developmental deficits that impede the ability of African Americans to compete. If, instead of doing so, I use preferential selection criteria to cover for the consequences of the historical failure to develop African American performance fully, then I will have fake equality. I will have headcount equality. I will have my-ass-is-covered-if-I’m-the-institution equality. But I won’t have real equality.

I’m not here concerned with any particular mechanism of selection—you may not like the SAT score and prefer to rely on letters of recommendation or high school Grade Point Averages for college admissions. But whatever the mechanism of selection, it should eventually be applied in the same way for selecting African Americans as others. Otherwise the consequence is going to fall short of what I’m calling genuine equality. That’s a statistical argument, not an ethical argument. Are those criteria—SAT scores, ACT scores, high school grades, advanced placement classes, and so forth—correlated with the performance of the selected person in the competitive venue after selection or are they not? If they are not correlated, we shouldn’t be using them. At all. Why would you use them if they’re not predictive of how people are going to perform after they’re selected? But if they are correlated, then if we use them differently for African Americans than for others, there will be on average different performance post-admission for African Americans than for others.

Now, if I’m getting on average different performance by race, that’s not equality. We can pretend it doesn’t exist, we can look the other way, we can grade inflate, we can formulate various institutional responses to the objective fact of racially differentiated average performances in our competitive venue. We can live with it, but it’s not equality. That’s what I’m trying to get at—the quality of equality. It’s the difference between counting people by race while saying we’re open and inclusive and adopting an objective means of promoting and measuring performance which allows people to achieve genuine equality of honor, standing, and respect.

MS: Your argument against affirmative action is not that it’s unfair to white students. But some people do make that argument. Cheryl Hopwood, for example, brought a suit in Texas in which she argued that affirmative action is unfair because she had higher test scores than many black students and Latino students who were admitted while she was not. But your objection is that affirmative action produces a kind of “fake equality” for African Americans. Would you say that affirmative action as practiced today in Brown and Harvard where you and I teach amounts to “fake equality”?

GL: That’s hard, Michael. Let me preface this by saying I’m talking about selection at the right tail here when I make this argument about ass-covering versus substantive equality. I’m not talking about hiring or selection at the fat part of the distribution of the population. So part of the honor being conveyed comes from the distinction of having been identified as one of the persons in society who excel; who are extraordinary in their achievement; who are in the top five or 10 percent or whatever it may be. Brown admits about 1,800 students from over 30,000 applications. I imagine something similar is true at Harvard. The very fact of having been selected is meant to convey that we have vetted you, we have compared you to others, we have found you to be extraordinarily outstanding and we have selected you. So that is honor. That is a certification of merit. I’m not saying that the fact of your outstanding performance means that you have some right or entitlement, but I’m saying that the mechanisms of selection are in part stamping people and certifying them as being extraordinary among their peers.

Peter Arcidiacono, the economist who was the expert witness for the plaintiffs in the Harvard affirmative action case, is studying students at Duke who elect to pursue science and engineering and mathematics-type curricula. He wants to know how likely it is that a student will elect to leave the technical curriculum and switch over to a softer, less quantitative line of study, as a function of race and their pre-admissions characteristics, their test scores and grades and so on. He finds that more than half of the African American students at Duke who matriculate with an intent to pursue STEM area studies end up switching out before they graduate. I don’t remember the number exactly but something like 10 or 15 percent of white students in the same situation switch out. But he also finds that when he controls for the test scores and grades, there’s no racial disparity in the likelihood of leaving STEM. His data from Duke indicate that the African American students with an interest in STEM but lower quantitative qualification in their pre-admissions profile simply are unable to persist in the study of the technical curriculum. That’s the kind of thing I say is inconsistent with “genuine” equality as I’m defining it.

Let me give another example: I’ve been told—sotto voce—by partners at big law firms in New York and Chicago that they are hiring associates of color who they don’t think are really that good. But they know that they’re going to have to make some of them partners because the firm can’t stand the reputational hit of having a class of partners with an inadequate number of people of color. And, without wanting to be quoted by name, they say, “I shudder at the prospect in some cases because I know that the people that we’re dealing with here are really not as good as I would like to see them be in order for me to make this promotion decision. But the logic of affirmative action in a way compels this and now I’m confronted at the firm with an ex post facto situation in which everybody knows that there are these disparities by race and the performance of people within the firm, but nobody is willing to say it because it’s politically incorrect to do so.” That’s the kind of situation that I would hope to avoid.

Affirmative action in 1980 is one thing—thinking of that as a year marking the transition from the era of discrimination to an era of aggressive effort to achieve diversity and inclusion. But affirmative action as a permanent, institutionalized practice of racially differentiated standards of selection is problematic.

MS: Harvard’s argument has long been, “We’ve always sought a diverse class. Putting race aside for the moment, that has sometimes meant giving preference to people from under-represented parts of the country like Idaho because we don’t want everyone to come from Massachusetts and New York. That is geographical diversity.” It also emerged in the lawsuit, and in the brief prepared by the Duke economist you mentioned, that in the six years leading up to the trial, the admittance rate at Harvard for legacy applicants—the children of alumni—was about one in three while the general admittance rate was about one in 20. You say that fake equality confers a certification of honor and excellence according to different standards of merit. Does that objection also apply to geographical diversity? And what do you think of legacy preferences?

GL: I’d have to consider the background conditions of dignity and respect against which the various groups that you’re identifying—legacies, athletes, people of color, blacks—are operating. Sure, the rich kid who has three generations of Harvard alumni in the family and gets selected to be admitted ought to have an asterisk next to their name. You’re at Harvard, but you’re at Harvard because your father bought your way in. That is a blemish. It should be a blemish. Rational inference based on everything that we know means that the fact of selection should not convey the same information if we know that the person got an advantage. But those people are not operating against the headwind of racial stigma. You can’t identify the beneficiary of the legacy preference at a glance. So it may be that they can live with that asterisk in a way that I—and this is my personal assertion, every African American might not affirm it—would not be prepared to live with. Unfortunately, African Americans have something to prove. The shadow of doubt that covers us means people don’t think we’re good enough. We have to show that we’re good enough. They know that we’re coming in with all of these disadvantages. We have to demonstrate that we’ve overcome them.

That’s the context in which the burden of the reputational hit the group might take from being preferred in selection is more onerous on a subpopulation which labors in this environment of stigma and doubt. Now, that’s not an argument for legacy preferences. Frankly, I think the question of legacy preferences is a question for the institution itself. It’s not something that I would advocate, but I can see the argument for building loyalty over generations within these family lines. The university is a private charity that depends to some degree on the beneficence of its alumni. And so this is a device to cultivate a kind of connection to the university within a set of people in the population whose generosity may benefit future generations allowing the financial aid budget to be more generous et cetera. I can see that kind of an argument.

And a person can argue that gatekeepers to elite institutions like Harvard or Princeton or Brown might want to have some people of color coming through its winnowing process. This is Bowen and Bok’s argument in The Shape of the River—that society as a whole has a profound interest in having within its stratified elites a representative number of people of color so as to sustain the legitimacy of institutions and to facilitate the smooth operation of society. So I’m not a colorblind person. I would actually subscribe to the argument Randall Kennedy makes in his book For Discrimination: “Look, I acknowledge that this is racial discrimination we’re engaging in here when we do affirmative action, but it’s not racial discrimination that should be precluded by the 14th amendment to the constitution.” He then gives the functional arguments about why you might want to do something like this in the interests of society. So my concerns about affirmative action don’t go all the way down. They’re not fundamental ethical objections. They are: What kind of world do we want to live in in 2050? Do we still want to be in the business of giving racial preferences for the selection at the right-hand tail of the distribution of human performance to African Americans then?

The alternative is to direct societal attention at the underlying structures that are generating the differences in performance. That is to say, if I want there to be more black physicists or more black literary critics, I’ve got to do something about the background educational dynamic that is producing such huge disparities in the performance of the black population on the criteria used to select students at a place like Harvard. I looked at the data that Arcidiacono and company released in the Harvard case. Stratify the applicant pool by academic index and look down the columns for black and Asian and white and you see very, very large differences in the relative performance of these groups. And then if you look at the rate of selection—your likelihood of being admitted if you’re in the sixth decile or the seventh decile of the population distribution of academic performance—the number is much, much higher for African Americans than it is for white Americans and the number for white Americans is higher—considerably higher—than it is for Asian Americans. So that regime necessitates the kind of difference in pre-admissions criteria by race which will be mirrored by differences in post-admissions performance by race, which is the thing that I’m concerned about.

MS: A striking feature of the argument you’ve laid out, Glenn, is that your objection is not that affirmative action is unfair. You added that yours is not an ethical argument. I think it is an ethical argument, but of a different kind. We might distinguish between the argument that affirmative action is objectionable because it’s unfair to the Cheryl Hopwoods of the world—those who are not admitted—and the argument you’ve made, which is that it’s objectionable because it’s patronizing, because it casts a shadow of doubt, it places an asterisk or what you call a blemish over the certification of merit for a group that is, especially for historic reasons, vulnerable to having shadows of doubt cast over their merit. Is that a fair account of your view?

GL: I’m an economist. I’ve been teaching at Ivy League institutions for the last quarter century and I’m pretty good at what I do. My papers appear in the top journals. Some of them have been cited thousands of times. I wouldn’t mind winning the Nobel Prize in economics one day but it’s very unlikely to happen. No African American has ever won the Nobel Prize in economics. Suppose Black Lives Matter were to go to Stockholm and picket the committee that decides who gets the Nobel Prize. The honor that I would like to be able to bask in would become unattainable were there even a hint of political influence. Now, you may say that’s you, Glenn Loury, you’re one-tenth of one percent of scholars with respect to this particular measure of virtuosity in economics research, so we can live with you not getting that honor if we can move the median of the population in a given direction. And I can understand why a person might make that argument. But my concern is that there are some kinds of goods which can’t be redistributed. The very act of intervening in order to effect a redistribution destroys the quality of the good that is being redistributed. And I think human distinction is one of those goods.

MS: Paradoxically, the argument that worries about patronizing and the argument that worries about unfairness cut in opposite directions when we consider the legacy case. You might consider that it’s unfair to give an advantage to applicants simply because their parents attended Harvard, but that it’s not objectionable on the patronizing grounds because they’re not vulnerable to this shadow of doubt. Whereas when we’re talking about African American applicants, you’re suggesting that the patronizing argument is more relevant and more important to consider whereas the unfairness argument has less weight. In the past, you’ve given an eloquent cri de coeur that addresses the gatekeepers of elite institutions: “Don’t patronize my people. Don’t judge us by a different standard.” Can you elaborate on that argument, and the ethical and moral passion behind it?

GL: You’re right, it is a cry from the heart. I don’t know that it’s even an argument as much as it is the expression of a sentiment, though there is a certain logic behind it. I see the consequences of American history as leaving a huge project of the development of the human potential of African American people in this society. I see the legacy of our ignoble past as partly reflected in deficiencies or inadequacies of human development so that the relative number of African Americans performing in certain kinds of rarified intellectual pursuits is low. Taking the long view of history, the only viable solution to that historical inheritance is a focus on the development of the capacities of African American people to perform. That is a huge multi-dimensional decades-long project. Institutional dependence on racial preferences merely diverts us from that necessary task.

Now, I understand that the administration of an elite university, for example, doesn’t have control over all of the venues of human interaction in which development should take place. They actually govern only a very small sliver at the end of the process of development. They don’t control primary and secondary education. They don’t control preschool education. They don’t control the federal budget for support for families with low income, et cetera. So there’s only so much that those decision-makers can do. But from a societal point of view, the challenge before us is to bring this segment of our population to a point where it’s able to fully realize its human potential which has, to some degree, been stifled by history.

But there are gatekeepers prepared to say, “We can understand why African Americans who would like to enter into our selective venue are on average not as distinguished, but that’s okay. We understand and we appreciate the fact that they’ve been disadvantaged. Not to worry. That’s okay. We will look the other way. We will establish a kind of soft bigotry of low expectations, a kind of deference. A double-standard.” And that’s what I’m against because I think the motivation for it, while perhaps noble, is nevertheless inconsistent with the dignity of the African American population. We are being treated to a certain degree like children. We’re being excused from the burdens of performing at a very high level. You can see in some venues where African Americans do exceed at extraordinary rates, like competitive athletics, what it would mean to institute criteria of selection which attempted to redress the under-representation of others in those venues. It would mean in effect an asterisk next to the name of anybody who was preferred in that way. “Yes, he’s in the NBA, but they have to have a certain number of whites in the NBA.” That kind of thing.

So the reflex of people is to say, “We’re going to make a faculty appointment and we don’t have any African Americans. We’re looking at the letters and they’re just okay, but we need to make this hire because we’re a top 10 department and we can’t go on without any African Americans and so forth.” That is what I’m asking gatekeepers not to do. I’m saying wait. I’m saying it doesn’t have to happen overnight. I’m saying lowering the standard in order to assuage your guilt or your pity, or to cover your asses, is not exactly an equalitarian move. And I’m saying you don’t treat us seriously, you don’t treat us as equals, if you’re not prepared to insist that we perform to the same level as anybody else.

In your students’ questions, I have heard two themes. First, it may be that above a certain threshold the differences amongst individuals are not that important. So, you might want to say that people are “qualified” and have that be some kind of categorical and not a continuously differentiated judgment, if they exceed that threshold. Therefore, you might not want to use the test score to discriminate amongst the people who have already exhibited that they are “qualified” or minimally qualified. Second, what are we rewarding when we say we’re rewarding merit? Are we rewarding effort or are we rewarding ability or are we rewarding privilege? To respond, let me just keep it simple by having a model in which there are these three things. People can work harder or less hard, people can have certain endowments like their aptitude over which they don’t have any control, and then people can benefit from social conditioning and upbringing because they come from this or that kind of community so they have this privilege. How to weigh these factors is a bedrock question—a very basic issue that an institution would have to decide.

The view I had taken was that, in the selection process, we’re mainly rewarding capacity to perform post-admission. A person who exerted a lot of effort might be expected to do especially well given that we’ve identified them as someone whose preferences or orientations are such that they’re a “hard worker.” A person who experienced the privilege of being born into an upper part of society might well be objectively better placed to perform. Now, the fairness of that is another issue, but if the institution is only concerned about performance, then the fact that the high performer is a high performer in part because they’ve benefitted from privilege should not count against them.

But I can see a more subtle argument, one I associate with John Roemer’s book Equality of Opportunity, that says let’s classify people based on their background conditions—you came from an inner-city high school, your parents had relatively low income, your peer group had relatively few people who were going on to college and so forth. You had certain test scores and certain grades and they may not be especially distinguished given those background conditions, but when I compare you to other people with similar background conditions you’re way in the right-hand tail of that comparison. That tells me something about you, about your resilience, about your determination, about your fortitude, perhaps about your aptitude because I’m comparing you to other people who have similar background conditions in an effort to tease out what individually distinguishes you. For you to come in the middle of the distribution of Harvard applicants from a background where almost nobody goes to college tells me that you are an extraordinary person and that’s the bet that I’m going to make. I’m going to bet on that extraordinariness. Still, my objective is I’m trying to forecast who’s going to perform well, but I’m thinking you’re going to perform well, notwithstanding the relatively modest profile that you present in conventional academic criteria because when I compare you to other people of similar exigency, of similar circumstance and opportunity, you look pretty good. Notice that, in doing this, I haven’t really changed the fundamental premise of my selection model, which is that I’m trying to find the people who are going to perform best after admission; I’ve just enriched my prediction model by using your relative performance among peers. (The question remains as to the role of race per se in making such relative assessments.)

MS: That’s an important point. A truer, more accurate estimation of merit that is more predictive could take account of these factors, but affirmative action understood in that way would not reach these broader ethical questions about fairness, about honor, about what does or does not promote equal respect. One last question about racial injustice in this country generally: At a time when the national focus has been on police brutality and mass incarceration as they bear disproportionately on African Americans, do you think we should focus less on access to elite institutions? Or is the emphasis on elite institutions receiving its proper and proportionate focus?

GL: No, I think it’s over-emphasized. I think we should focus more on some of these other things that you were alluding to. For instance, there’s honor and there’s dishonor. The over-representation of African Americans amongst the incarcerated population is in the realm of dishonor. So, we have a war on drugs where the social malady is the use of these substances which, for whatever reason, we decide are debilitating—they are soul destroying, they rip families apart, addiction is a terrible thing, and so on. And we want to stop the trafficking in these substances so we make them illegal and punish people who traffic in them. But we don’t take into account the demography of the market for these illicit substances, which is inevitably going to attract disproportionate participation from people who don’t have other opportunities—people from disadvantaged communities and communities of color in urban areas. So, even if we enforce the law without preference or without discrimination, the consequence of enforcing the law is going to be an outsize number of African Americans who are punished. And yet the malady is a problem for society as a whole. In effect, we’re balancing our cultural budget on the backs of the most marginal people in the population when we fill our jails with drug traffickers serving a market that wouldn’t exist but for middle-class and upper-class people engaged in the consumption of these substances. This is a fundamental issue of social justice. (I develop this argument at greater length in my book, Race, Incarceration, and American Values.)

Alternatively, consider that primary and secondary education—whatever your view about school choice and charter schools and whatnot—objectively is not serving the least advantaged people in our society well. And yet it is a fundamental engine for these people to be able to improve their social position. It could be that you think the schools are underfunded. We can have a debate or a discussion about what to do about primary and secondary education. But the huge disparities in the quality of the educational services available by class and by race and by social location are a fundamental issue of fairness. So, in my view, racial justice and equity understood in the largest sense would be 95 percent talking about things like that and five percent talking about who got admitted to the most selective higher education venues. They’re not unimportant, but it’s the tail wagging the dog if that’s the main thing we’re talking about.

Michael Sandel teaches political philosophy at Harvard University and is the author, most recently, of The Tyranny of Merit: What’s Become of the Common Good?

Glenn Loury is a professor of economics and faculty fellow at the Watson Institute at Brown University and a Senior Fellow at the Manhattan Institute. You can follow him on Twitter @GlennLoury.