In light of the U.S. Supreme Court decision, it is time to reconsider Canada’s affirmative action policies 

Matthew LauOn June 29, the United States Supreme Court, in a 6-3 decision, struck down affirmative action in university and college admissions, ruling it unconstitutional to use racial preferences in their admissions decisions. “The student must be treated based on his or her experiences as an individual – not on the basis of race,” wrote Chief Justice John Roberts. “Many universities have for too long done just the opposite. And in doing so, they have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the colour of their skin. Our constitutional history does not tolerate that choice.”

One of the offending universities was Harvard. In 2018 The Economist published a chart in its story on Harvard’s discrimination which made clear its discriminatory approach. The graphic split applicants, excluding legacy admissions and recruiting athletes, into 10 academic deciles (with the first decile representing students in the bottom 10 percent and the 10th decile representing students in the top 10 percent).

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It showed students in the top decile had a nearly 60 percent rate of admission if they were black but less than 40 percent if Hispanic, less than 20 percent if White, and less than 15 percent if Asian. In fact, an Asian in the 10th decile was less likely to be accepted to Harvard than a black student in the fourth decile. Clearly, Harvard’s approach was biased against some people and favoured others based on skin colour.

While the Supreme Court in the United States ruled it intolerable to discriminate in university admissions against individuals based on their skin colour, in Canada, the use of racial preferences carries on unabated. The Canadian Charter of Rights and Freedoms allows such discrimination if the stated intention is “the amelioration of conditions of disadvantaged individuals or groups.”

A recent column by Jamie Sarkonak provided examples of racial preferences or quotas in certain programs at Dalhousie University, the University of Calgary, Queen’s, and even Toronto’s K-12 public schools. But discriminating against people based on their skin colour is illiberal and wrong, and when public money is involved (as in the case of public universities or government-run schools), it should not be allowed.

One notable thing about public policy debates, including on affirmative action, is the focus on the stated intentions instead of actual results. Proponents of affirmative action say it helps disadvantaged groups of people; opponents say it unfairly disadvantages individuals based on their skin colour. Such points about affirmative action are welcome, but it is also important to look at the results. Thomas Sowell, the famed 93-year-old American economist and author who spent much of his career studying and writing about race and discrimination, lamented that the “factual question of what actually happens as a result of affirmative action policies receives remarkably little attention.”

Sowell’s scholarly work paints a devastating picture of the actual results of affirmative action. In an 18,000+ word essay in Commentary in 1989, Sowell identified four patterns of affirmative action programs worldwide:

  1. Even when introduced as temporary, they tend to persist and, in fact, expand over time;
  2. Within groups receiving preferential treatment, the benefits go disproportionately to the most fortunate members;
  3. Group polarization tends to increase as the groups discriminated against or that do not receive preferential treatment react negatively; and
  4. There is widespread fraud as people falsely claim to belong to the designated groups receiving preferential treatment.

The second point is particularly important in the current Canadian context, where we have government programs that give exclusive funding, preference in government procurement, or other favourable treatment to people from groups (racial or otherwise) said to be disadvantaged. The reality is that people who are able to get large sums of public money by demonstrating to government officials or university administrators that they are disadvantaged are unlikely to actually be disadvantaged.

Sowell concluded over three decades ago that “the starting point for rethinking and reform must be a recognition that ‘affirmative action’ has been a failure in the United States and a disaster in other countries that have had such policies longer.” His Commentary essay, along with his book Affirmative Action Around the World: An Empirical Study, published by Yale University Press in 2004, is full of evidence to support that conclusion.

The recent U.S. Supreme Court decision is a good start in reversing the disaster. But in Canada, where the Charter of Rights and Freedoms tolerates affirmative action, political willpower will be needed to end this unfair and disastrous discrimination.

Matthew Lau, a Toronto writer, is a senior fellow with the Aristotle Foundation for Public Policy, and authored a chapter in The 1867 Project: Why Canada Should Be Cherished – Not Cancelled.

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