By Nathaniel Counts
In our legal system, colleges may not make admissions decisions in order to ameliorate historical (or presumably other) inequalities, but may make decisions that take into account the particular situation of the applicant or that strive to create a diverse student body. Justice Powell rejected the former two goals in Part IV of his Bakke opinion, which went uncontradicted in the Grutter opinion that followed it and, most recently, the Fisher opinion almost exclusively focused on the diversity justification. Whether or not it appears in court opinions however, the issue of transformative justice is very much at stake – colleges, as the gatekeeper to many of the high honors and offices of our society, can control the distribution of a set of goods to the rising generation and decide how equally they are distributed among certain groups. Here we will imagine that transformative justice is indeed the goal of affirmative action.
Colleges have two tools by which they can currently select among students based on disadvantage (historical or otherwise). First, there is the demographic and socioeconomic information disclosed in the application. Although these questions are optional, for those students who answer the questions, schools may use these answers as signals for disadvantage and take this into account. Second, there is the essay questions, which frequently ask about an instance in which the applicant overcame adversity. Here the applicant can demonstrate the degree of disadvantage experienced or explain some more nuanced disadvantage not revealed in the first part.
These two tools are far from perfect, but let us take our imagining further and envision a world in which colleges could accurately determine disadvantage. If it decides to take on the latter, mental health may pose an insurmountable problem – individuals with intellectual disabilities may not be able to thrive in the setting offered by the institutions that select them.
The answer may be that not all individuals need to go to college and that the honors and offices that colleges control to are only incentives so that someone will do those jobs deemed necessary for the continued functioning of society but are too taxing to believe that individuals would do them out of the goodness of their hearts. Fair enough, but this still imposes a brutal inequality where individuals with intellectual disabilities (and other mental health issues that inhibit academic flourishing under the current regime) end up at the bottom of a social hierarchy, at least with regard to educational/economic status as a determinate of social status, through no fault of their own. This is especially troubling given the notion of social determinants of health – being at the bottom of a social hierarchy may actually decrease these individuals’ life expectancies. The system is actively hurting them.
All of this is to say that affirmative action is a sub-ideal method for transformative justice that would, even in its perfect form, still discriminate against individuals experiencing mental health issues and it would be more ideal for social status to be decoupled from educational attainment as conceived in our present regime in achieving equality.