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BW Businessworld

Majority Rule And Fairness

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Once they go to school, children have to get used to the rule of merit. The examiner gives them marks which are entirely impersonal, and strictly proportional to the student’s knowledge, on how well they know the answers to his questions. This is the idea of justice we learn at a very early age.
But rules are made by grown-ups; they do not have to follow their own rules. When it comes to admission to educational institutions, grown-ups make different rules. They brazenly admit students who fail entry examinations. Their argument is that those students were unlucky in the grown-ups they had for parents. Thus, out-of-turn admissions for incapable students from castes listed at the end of the Constitution are part of Indian justice. Even high-born Hindu twits accept them without a whimper.
We did not invent the idea; it was the Americans. Race prejudice there goes back centuries, to the time when Europeans used to catch Africans, take them to America and make them live and work like cattle. This practice went out of fashion, first in Britain and eventually, after a bloody civil war, in the US. Slavery as well as discrimination on the basis of race were proscribed by its constitution. 
Slaves were freed; but they had no skills that they could use to do anything but slaving. Giving them access to those skills required discrimination in their favour. The Americans did not go in for reservation, which is relatively simple to implement and monitor. Instead, they legislated reverse discrimination; and legislation brought in the judiciary to decide whether it was consistent with the US constitution. 
The US Supreme Court has just given a verdict which is a model of indecision and obscurity. The case was filed by Abigail Fisher, a white student, who alleged that the University of Texas rejected her though she got better marks than some who were admitted. The university claimed that race was a minor factor in its selection process. It assigned every applicant two numbers — one representing his academic merit and the other based on his “personal achievement” — a jumble in which race was one factor. The two numbers defined a point for the student in a two-axis graph. Then a line was drawn on the graph; all applicants above the line were admitted, and the rest rejected. (There are many lines it could have drawn; I do not know how it chose the line.) Abigail sued the university in a district court and lost; she appealed and lost again. Then she appealed to the Supreme Court.
The Supreme Court went back to a judgment in the case of Bakke vs the University of California Medical School. There it had rejected straightforward racial discrimination, but said that the university could pursue other desirable goals besides merit; one of them was “diversity” of students. Texas university’s second, mishmash variable is a proxy for diversity. A university may end up choosing someone on the basis of race, but it must articulate a chain of “complex” reasoning that would not give this impression. It must consider applicants as many-sided individuals, and not just people of a certain race.
The Supreme Court imposed this duty of complex judgment not only on universities, but also on courts. It told off the district court because it concluded that the university had acted in good faith and thought that sufficient. It told off the appeals court because it said it was ill-equipped to second-guess the merits of the university’s process. It sent back the case to the court of appeal.
Why has the US Supreme Court given such a vague judgment? I think it is stuck with complexity because the US constitution guarantees equality of treatment while the state of the US society makes colour-blindness impossible. So the rulers in the US have to practice reverse discrimination without being seen to do so. Every time they do so, they can be taken to court; every time the courts will rule in favour of the complex logic that appeals to them. So the US is in for a lot of convolution on matters of race — and I daresay, sex. 

The author is Consultant Editor of Businessworld.


(This story was published in BW | Businessworld Issue Dated 12-08-2013)