Undocumented Students and Affirmative Action

DACA (Deferred Action for Childhood Arrivals) is on everyone’s short list as a primary building block of any possible compromise between President Trump and the Democrats on immigration. Thus, it is surprising how little attention has been paid to the striking similarities between the debate over that issue and the equally contentious debate over affirmative action.

There are 3.6 million “DREAMers” in the US, according to the non-partisan Migration Policy Institute, but only 800,000 of those undocumented children brought to the US before their 18^th birthday are accounted for in DACA.

Advocates of DACA and preferential admissions offer virtually identical justifications for both policies. For example, Dr. Ann Reed, Chair of the Duke Department of Pediatrics and Dr. Richard Chung, Director of Adolescent Medicine at Duke, ground their support for DACA in their “unwavering commitment to diversity and inclusion.”

Like the good doctors, DACA defenders argue that its support is demanded by any reasonable conception of individual fairness, that ending DACA would deprive DREAMers of rewards they were promised and had earned.

[The Cult of Diversity Shows Its True Face]

“Dissolving DACA goes against American values of fairness and opportunity,” claims the Institute For Educational Leadership. “Thousands of people chose to courageously to step forward and enroll in this program so they could work, go to school, and contribute to our society. Dissolving DACA is unfair and robs people of the opportunities they worked hard to create.”

The mayor of Beaverton, Oregon, was singing from the same script when he insisted that ending DACA would be “simply unfair. Unfair to the young people who followed a directive from the federal government and did everything asked of them yet are now feeling the rug being pulled out from under them.”

The issue of fairness, of what has been promised and earned and is thus deserved, is also at the center of the affirmative action controversy, but progressives reverse their DACA argument when it comes to racial preferences and college admissions. There, they maintain that any remaining residual right to be free from racial discrimination that courts have left to individuals must be subordinated to the social imperative of “diversity.”

By contrast, critics of race preferences in admission make the same arguments about fundamental fairness, trust, and deserved opportunity offered by DACA supporters. For example, “Asian-Americans deserve fairness from Harvard and other universities,” argues a University of Texas business professor in USA Today. “That means rewarding their hard work, not penalizing them in the name of diversity…. These elite universities have broken the trust of hard-working Asian-American aspirants.”

[Can a University Be Found Liable for Telling the Truth About Racial Preference?]

In short, DACA defenders believe that fundamental fairness to individuals who have “worked hard and played by the rules,” as Bill Clinton used to say, demands that they be “rewarded” with a right to stay in the country, but they do not believe that similarly rule-abiding, hard-working Asian Americans and others have any right not to be denied college admission because of their race or ethnicity.

They are quite explicit about this absence of rights. “Here lies the far-reaching assumption underlying the diversity argument for affirmative action,” according to the eminent “communitarian” Harvard philosopher Michael Sandel:

“Admission is not an honor bestowed to reward superior virtue. Neither the student with high test scores nor the student who comes from a disadvantaged minority group morally deserves to be admitted. Provided the criteria of admission are reasonably related to a worthy social purpose, and provided applicants are admitted accordingly, no one has a right to complain. [Sandel, “Picking Winners,” The New Republic].

Gary Orfield, co-director of the Civil Rights Project/Proyecto Derechos Civiles at UCLA and former director of the Harvard Project on School Desegregation, said much the same thing in discussing the refusal of the Montgomery County (Maryland) Board of Education to allow the transfer of two Asian-American elementary school students (actually, they were only half Asian) because doing so would reduce the number of Asians at their current school too much.

Orfield said, “It’s not unusual for families to be handcuffed by such controls,” but no assignment policy “allows everybody to do what they want.” He added, uttering what I consider one of the most obnoxious comments I have seen about diversity treating individual students as instrumental pawns, that he thought the half-Asian girls should have been allowed to transfer because “they are an asset for integration purposes wherever they go.”

[Reminding Us Why Racial Preferences are a Bad Idea]

Orfield, Sandel and all diversiphiles confuse the absence of a right to attend the institution of one’s choice (which is true) with the absence of a right not to be excluded because of race (which should not be true). They argue that denying admission to some Asian Americans and whites who would have been admitted but for their race or ethnicity is not depriving them of anything they have earned because their individual desire to be treated without regard to race is trumped by the national necessity to produce “diversity.”

In the case of DACA, however, the DACAphiles argue that the obligation to treat individual DREAMers fairly prohibits the president or Congress from concluding that giving undocumented individuals privileges afforded to citizens undermines the national interest in multiple ways. For example, it would predictably encourage more illegal immigrants to come anticipating more DACAs in the future. Moreover, because of chain migration, DREAMers given secure legal status and especially citizenship would in many circumstances have the ability to bring in their relatives. Finally, adding insult to injury DACA college applicants are also given preferential treatment.

In short, supporters of race preferences subordinate any right or interest individuals have in their race not being used against them to the compelling (to them) national interest in promoting “diversity.” But when they regard the DREAMers, the national interest is relegated to the back of the bus and the individual right to fairness and enjoying the rewards of working hard and playing by the rules trumps all other concerns.

This inconsistency should not be surprising, however, since no one ever accused progressives or even “communitarian” liberals of choosing principle over their preferred policies.