The term “affirmative action” was originally created by John F. Kennedy in 1961, in the context of the employment of government contractors. But affirmative action has been very unpopular in the US, and was backed into a corner until it came to only refer to university admissions. Prior to the recent Supreme Court decision against affirmative action, the idea was already only hanging by a thread.

Now that the thread has been cut, I encourage people to imagine other possibilities. Previously, we could only ever talk about affirmative action in elite universities, because that was the only politically viable option. Now, none of the options are politically viable, so we might as well talk about the possibilities we forgot.

What if we had affirmative action… in hiring? Salaries? Political representation? Affirmative action tax breaks! If you’re outside the US, help me out here, what sort of affirmative action do they have in your country?

Not saying these are good ideas, but I want people to imagine them. Because, frankly, there are way more radical ideas than optional affirmative action only in the context of university admissions, and only for universities that are selective enough for it to matter, only to increase diversity, not to address racial injustice, and only as part of a “holistic” evaluation without quotas.

And it’s the “optional” part that I want to focus on here.  Even without affirmative action, if Harvard really wanted it, they could increase diversity by getting rid of the 43% of White students admitted on non-merit-based grounds (athletes, donors, legacies, etc.). But obviously they won’t do that, because relying on the good will of universities is and always has been weak policy.

In the spirit of imagining new possibilities, I would like to contrast with US fair lending policy, a subject I introduced in a recent post.  I distinguished between two kinds of discrimination: disparate treatment and disparate impact. Disparate treatment is the kind of discrimination we usually imagine, where people are treated differently because of their race/gender/etc. Disparate impact is the kind of discrimination where a policy that looks neutral on the surface has a different impact on different groups.

One way to describe affirmative action is: a policy where disparate treatment is used as a tool to offset disparate impact. For example, because Black people are systematically disadvantaged in their earlier education, they may perform worse in merit-based admissions. Or, in the case of Harvard, their non-merit-based admissions favor people who are wealthy enough to donate, or to learn sports like skiing or water polo–and those people are systematically White. So to partially offset the disparate impact, universities were applying disparate treatment to people of different ethnicities.

In fair lending, disparate treatment is illegal, which implies that affirmative action is illegal. As for disparate impact, lenders are legally required to minimize disparate impact to that justified by business necessity.  Similar policies are also in place with regard to employment discrimination.

As applied to university admissions, affirmative action was optional, merely a permitted practice (until recently). In contrast, fair lending is mandatory–not merely an option to be exercised by progressively-minded lenders, but a requirement among all lenders.

While I don’t think fair lending is necessarily a model policy, I think people’s (warranted) suspicion of finance has pushed us to create relatively strong regulations in the space, with relatively strong enforcement.  I think similar policies should be implemented in university admissions.  And there should be more work done to more precisely define and restrict disparate impact so that the policies are easier to enforce, in universities, in lending, and in employment.

While I think disparate treatment could be used to limit disparate impact, clearly that’s an approach that many US voters find difficult to stomach, and I think there’s a lot more low-hanging fruit focusing on directly restricting disparate impact.