“He who has less in life should have more in law.” 

This Magsaysay Credo has driven many Magna Carta laws intended to protect and promote the rights of presumably disadvantaged sectors. These laws do not always fulfil their goals. Politicians often proclaim this principle, the basis for affirmative action (AA), also as the core of their political philosophy and their reason for seeking public office. The history of our electoral politics, with additional evidence in the last administration, show how generally hollow and bankrupt this claim is.

We need the help of our universities and policy centers to illumine, first, the logic justifying AA legislation and, second, the consequences of the policy as actually implemented by government. The subject is complex and contentious. The current deliberations in the US Supreme Court over a suit filed by Students for Fair Admissions (SFAA) bear watching. They cast light on issues pertinent to our own struggle to achieve the inclusive and equitable development AA seeks in education and in other fields.

AA in the US aimed at easing the admission into elite private schools of minority students by expanding the criteria for access beyond academic or extra-curricular factors in which, as victims of historical racial discrimination, they tended to score low. As a matter of conscience, AA recognized the need to provide a measure of reparation for the injustice inflicted on the Black people brought as slaves into America and the generational damage suffered by their descendants. The American Constitution provided the basis for sanctioning race discrimination: “There is in this country no superior, ruling class of citizens. There is no caste here. Our Constitution is colorblind, and neither knows nor tolerates classes among citizens.” 

Educational institutions eventually welcomed the initiative, as academics worldwide became convinced that diversity in the classroom contributed to a more effective educational process. Students benefit from exposure to people with different life experiences, a critical element in their preparation for civic life after school in a representative, liberal democracy. Schools then began to pursue initiatives towards achieving greater diversity in the campus, with commendable success.  

In 2019, about 14% of the American population self-identified as Black. They represented some 12.7% of total undergraduate enrolment. Black enrolment reached 13% in private non-profit and 29% in private, for-profit collegiate institutions. In “highly selective institutions,” Black students represented 15% of the population. Black people are still underrepresented in certain areas; only 8% of Black students attend elite research institutions. Meanwhile, only 29% of the Black population aged 25 to 29 held a bachelor’s degree or higher, compared to 45% of the white population in the same age range. But how closely should the campus population duplicate the country’s demography and is AA legislation the right approach?  

Comes now the complication provoked by the SFAA suit, alleging that Harvard and Carolina in their AA implementation illegally discriminated against Asian-American applicants. Asian-Americans, like the Jewish people, also suffered, historically, discrimination in gaining access to elite White Anglo-Saxon Protestant (WASP) institutions. Both groups have overcome their racial liability to break through the WASP ceiling in numbers exceeding their share in the population. In 2022, the 20.6 million Asian-Americans constituted about 6.2% the national population. The class of 2026 will be 27.6% Asian-American, up from the 21.7% share in 2021.

That said, an Asian-American, with a 1590 SAT score, who is denied admission and sees another applicant accepted with a SAT 1350 score, would find difficult to dismiss the thought that race played a role in the decision. Admission administrators would have to deny any such allegation or admit their violation of the constitution.  

What has apparently become a focal point in the case against Harvard is the reliance on “personal rating,” partly because of the strength of the applicant pool; virtually all the applicants already bring the top scores in the SAT scores and class standing metrics that can no longer serve to distinguish those deserving admission. These personal ratings evaluate the applicants on qualities, such as integrity, helpfulness, courage, kindness, effervescence. It turns out that among all racial groups, Asian students get the lowest ratings on these personality factors.

At the SC oral deliberations on the suit, Justice Samuel Alito asked the obvious question: do Asian applicants really “lack integrity, courage, kindness, and empathy to the same degree as students of other races?” These scores must be quite low to overcome the generally high scores given by the alumni representatives who interview the applicants. The reported Harvard response defended the low ratings as deserved, or, if bias indeed operated, must have happened, not at Harvard but at the high schools from which the applicants graduated, whose officials do not participate in interviewing the students for the Harvard admissions process.

The SFFA suit contends that the AA implementation at Harvard and Carolina removed the color blinders prescribed by the Supreme Court and imposed barriers to admission based on racial identity,  constitutionally impermissible even for the laudable goal of preventing racial discrimination. The formerly compelling constitutional case for AA has become a contested argument. 

We do not have a history in the Philippines of institutional slavery, although a parallel case arguably exists for the historical injustice inflicted on the indigenous, Lumad population and calls for redress. Canada and Australia-New Zealand have acknowledged the debt owed to the original owners of the land; in the Philippines Lumads continue to be marginalized and exploited.  

The principles that buttress the American Constitution and provided the basis for sanctioning racial bias also suffuse our own. We still need the careful, deliberate application of AA when discrimination is based, not on ethnic identity, but on economic, social, and religious factors and even family bloodlines. 

We should be able to claim that our political system recognizes “no superior, ruling class of citizens,” and that our laws are colorblind, neither privileging nor condemning “yellow,” “red,” or “pink” sectors.  Can our politicians make this assertion without provoking incredulous laughter? – Rappler.com

Edilberto de Jesus is a senior research fellow at the Ateneo School of Government.