The Injustice of Affirmative Action: A. Dworkian Perspective

Similar documents
BOOK REVIEWS. Dr. Dragica Vujadinović * Ronald Dworkin, Justice for Hedgehogs, Cambridge, London: Harvard University Press, 2011, 506.

RECONCILING LIBERTY AND EQUALITY: JUSTICE AS FAIRNESS. John Rawls s A Theory of Justice presents a theory called justice as fairness.

Is Rawls s Difference Principle Preferable to Luck Egalitarianism?

AN EGALITARIAN THEORY OF JUSTICE 1

Comments on Justin Weinberg s Is Government Supererogation Possible? Public Reason Political Philosophy Symposium Friday October 17, 2008

Definition: Institution public system of rules which defines offices and positions with their rights and duties, powers and immunities p.

The Value of Equality and Egalitarianism. Lecture 3 Why not luck egalitarianism?

Phil 115, June 20, 2007 Justice as fairness as a political conception: the fact of reasonable pluralism and recasting the ideas of Theory

John Rawls THEORY OF JUSTICE

Rawls versus the Anarchist: Justice and Legitimacy

UNITED NATIONS GENERAL ASSEMBLY RESOLUTION 3201 (S-VI): DECLARATION

Though several factors contributed to the eventual conclusion of the

Questionnaire 2. HCCH Judgments Project

Effective Mechanisms for Challenging the Validity of Patents

DIVISION 3. COMMUNITY SERVICES DISTRICTS

Reconciling Educational Adequacy and Equity Arguments Through a Rawlsian Lens

DEMOCRACY AND EQUALITY

RESTITUTION BY EXPROPRIATION OF LAND RIGHTS WHAT ABOUT MARKET VALUE?

Justice and collective responsibility. Zoltan Miklosi. regardless of the institutional or other relations that may obtain among them.

THE CONCEPT OF DUE DILIGENCE IN THE UN GUIDING PRINCIPLES ON BUSINESS AND HUMAN RIGHTS: REPLY TO PROFESSORS BONNITCHA AND McCORQUODALE*

At a time when political philosophy seemed nearly stagnant, John Rawls

SUPREME COURT OF THE UNITED STATES

Referring to Article 110 of the Constitution of the Republic of Kosovo and the Law on Kosovo Prosecutorial Council (Nr.03/L-244)

Chapter Two: Normative Theories of Ethics

Considering Dahir Number of 25 Rabii I 1432 (1 March 2011) establishing the National Council for Human Rights, in particular Article 16;

OPINION OF MR ADVOCATE GENERAL CAPOTORTI DELIVERED ON 25 MARCH 1980 '

Executive summary Malta Country report on measures to combat discrimination by Tonio Ellul

IS IT TIME TO REWRITE THE CONSTITUTION? FIDELITY TO OUR IMPERFECT CONSTITUTION

RESPONSE TO JAMES GORDLEY'S "GOOD FAITH IN CONTRACT LAW: The Problem of Profit Maximization"

Chapter 1 Introduction and Goals

Balancing Procedures and Outcomes Within Democratic Theory: Core Values and Judicial Review

E-LOGOS. Rawls two principles of justice: their adoption by rational self-interested individuals. University of Economics Prague

Strengthening the Foundation for World Peace - A Case for Democratizing the United Nations

Agricultural Policy Analysis: Discussion

Why Does Inequality Matter? T. M. Scanlon. Chapter 8: Unequal Outcomes. It is well known that there has been an enormous increase in inequality in the

IMMIGRATION POLICY AND IDENTIFICATION ACROSS BORDERS. Matthew Lindauer

A Commentary on David Hammack s Policy for Nonprofit Organizations: The Values Dilemma

What Is Unfair about Unequal Brute Luck? An Intergenerational Puzzle

S.L. Hurley, Justice, Luck and Knowledge, (Cambridge, MA: Harvard University Press, 2003), 341 pages. ISBN: (hbk.).

Introduction. Cambridge University Press Rawls's Egalitarianism Alexander Kaufman Excerpt More Information

Is the Ideal of a Deliberative Democracy Coherent?

Educational Adequacy, Educational Equality, and Ideal Theory. Jaime Ahlberg. University of Wisconsin Madison

H 6178 S T A T E O F R H O D E I S L A N D

CONSTITUTIONAL LAW: LOWERING THE STANDARD OF STRICT SCRUTINY. Grutter v. Bollinger, 539 U.S. 306 (2003) Marisa Lopez *

VOLKSTAAT COUNCIL THE NATURE AND APPLICATION OF A BILL OF RIGHTS

Equality of Resources. In discussing libertarianism, I distinguished two kinds of criticisms of

Procedure for Pretrial Conferences in the Federal Courts

Two Models of Equality and Responsibility

2018 Visiting Day. Law School 101 Room 1E, 1 st Floor Gambrell Hall. Robert A. Schapiro Asa Griggs Candler Professor of Law

Conduct of Arbitral Proceedings:

By-Laws National Association of State Offices of Minority Health

Senate Bill No. 135 CHAPTER 249

Tradeoffs in implementation of SDGs: how to integrate perspectives of different stakeholders?

Between Equality and Freedom of Choice: Educational Policy for the Least Advantaged

Facts and Principles in Political Constructivism Michael Buckley Lehman College, CUNY

On Equality versus Adequacy: Principles and Normative Frameworks

(A) A magisterial district judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice.

Content downloaded/printed from HeinOnline. Tue Sep 12 12:11:

DISCRIMINATION (JERSEY) LAW Revised Edition Showing the law as at 1 January 2017 This is a revised edition of the law

Setting User Charges for Public Services: Policies and Practice at the Asian Development Bank

BERMUDA PARLIAMENT ACT : 19

John Rawls's Difference Principle and The Strains of Commitment: A Diagrammatic Exposition

Penalty Clauses: What is left? Jonathan Owen

Last time we discussed a stylized version of the realist view of global society.

32000R1346 OJ L 160, , p (ES, DA, DE, EL, EN, FR, 1. Council regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings

Re: CSC review Panel Consultation

In Unions New South Wales v New South Wales,1 the High Court of Australia

Amendment to the Convention on the Physical Protection of Nuclear Material

STANDARDS OF PROFESSIONALISM

IN THE SUPREME COURT, STATE OF WYOMING

CODES OF GOOD PRACTICE Pursuant to section 15(1)(a) of the Public Service Act , I, PAKALITHA BETHUEL MOSISILI

RESPONSE DO WE CARE ENOUGH ABOUT RACIAL INEQUALITY? REFLECTIONS ON THE RIVER RUNS DRY

JAMS International Arbitration Rules & Procedures

UNIFORM ACT ON THE CONTRACT FOR THE CARRIAGE OF GOODS BY ROAD

THE COMPANIES ACT 2006 PRIVATE COMPANY LIMITED BY GUARANTEE ARTICLES OF ASSOCIATION BUCHANAN CASTLE GOLF CLUB LIMITED

Massachusetts Democratic Party Charter. Updated: November 22, 2017

GENERAL CONDITIONS OF THE CONTRACT (Applicable to purchase orders)

ABA Formal Op. 334 Page 1 ABA Comm. on Ethics and Professional Responsibility, Formal Op American Bar Association

Philosophy 285 Fall, 2007 Dick Arneson Overview of John Rawls, A Theory of Justice. Views of Rawls s achievement:

INTERNATIONAL CONVENTION ON THE SAFETY AND INDEPENDENCE OF JOURNALISTS AND OTHER MEDIA PROFESSIONALS PREAMBLE

Committee Opinion February 17, 2004

IC Chapter 17. Claims for Benefits

Qatarization: Success Depends on How it is Interpreted

Establishing and Enforcing Qualifications for Directors of Delaware Corporations

Financial Dispute Resolution Centre Financial Dispute Resolution Scheme. Mediation and Arbitration Rules. February 2014

KENTUCKY BAR ASSOCIATION RULES OF THE SUPREME COURT OF KENTUCKY PRACTICE OF LAW

THE SUPREME COURT. - and -

In his account of justice as fairness, Rawls argues that treating the members of a

In his theory of justice, Rawls argues that treating the members of a society as. free and equal achieving fair cooperation among persons thus

Doctrinal Dilemma. GEORGETOWN LAW. Georgetown University Law Center. Georgetown Public Law and Legal Theory Research Paper No.

Justice as fairness The social contract

J É R Ô M E G R A N D U N I V E R S I T Y O F G E N E V A. T e a c h i n g a s s i s t a n t a n d p h d s t u d e n t

SETTLEMENT AGREEMENT

Global Justice and Two Kinds of Liberalism

Getting a Handle on the Super PAC Problem. Bob Bauer. Stanford Law Symposium. February 5, 2016

Official Journal of the European Union. (Legislative acts) DIRECTIVES

ADR in P.R. China. Zheng Rungao

Law and Philosophy (2015) 34: Springer Science+Business Media Dordrecht 2015 DOI /s ARIE ROSEN BOOK REVIEW

Rawls on International Justice

Shalala v. Illinois Council on Long Term Care, Inc.

Transcription:

The Injustice of Affirmative Action: A Dworkian Perspective Prepared for 17.01J: Justice Submitted for the Review of Mr. Adam Hosein First Draft: May 10, 2006 This Draft: May 17, 2006 Ali S. Wyne

1 In this paper, I employ Ronald Dworkin s framework of egalitarian liberalism to evaluate affirmative action for racial minorities at American institutions of higher learning. While affirmative action initially endeavored to eliminate brute luck while preserving option luck, it currently seeks to mitigate both, in clear opposition to Dworkin s premises. To establish this contention, I begin by discussing the two principles that anchor his philosophy: equal importance and special responsibility. I proceed to argue that these principles are plausible in the abstract, but untenable in the case of affirmative action. In formulating this latter argument, I invoke Dworkin s conception of a hypothetical insurance market. I conclude by engaging some common counterarguments, and thereafter by offering some summary remarks. A Brief Treatment of Dworkin s Two Principles Dworkin argues that a satisfactory framework of justice must embody two principles: equal importance and special responsibility. The first of these principles states that, objectively, the success of each individual s life is equally important. The second of them states that each individual is uniquely accountable for the success of his or her own life. If a system of justice is to uphold these two tenets, therefore, it must reflect the choices that individuals make, not their initial endowments of, say, income or talent; it must also be weighed when state institutions are established, as I will presently illustrate in the case of affirmative action. To demonstrate the aforementioned principles abstract feasibility, I resolve one seeming point of tension between them. Namely, why is it that one must be uniquely responsible for one s welfare? If we grant that the success of each individual s life is equally important, is it not reasonable to propose that other individuals who are sufficiently enabled work to ensure this outcome? After all, it is possible and, indeed, highly probable, that societies in which individuals

2 are expected to fend for themselves will witness great socioeconomic disparities. This line of objection, however, overlooks three aspects of Dworkin s reasoning. First, affirming the principle of equal importance does not equate to arguing for the achievement of parity among society s members. 1 Second, an individual s sovereignty is compromised when others interfere in, or attempt to guide, that individual s life. Third, an individual can only achieve success by practicing values that he or she endorses. Implicit in this argument is the assumption that, were others to interfere in that individual s life, they would advocate that that individual adopt a certain set of values that he or she might independently reject. Conceptually, then, if we take into consideration these subtleties, we see that there is no inherent tension between equal importance and special responsibility. It is my contention, however, that these principles cannot be reconciled to the policy of affirmative action as it is currently practiced. To establish this claim, I describe the mandatory-interventionist insurance policy that Dworkin advocates, and thereafter illustrate that affirmative action represents an improper implementation of this scheme. The Incompatibility of Affirmative Action and Dworkin s Principles Affirmative action operates when students, by virtue of belonging to racial minorities, receive preferential treatment in admissions processes. It should be noted that, as originally conceived, it largely embodied Dworkian philosophy. For at the time of its inception, there were clear discriminatory barriers that prevented minorities from gaining admission to colleges and universities. Affirmative action was legitimate, therefore, because it attempted to ensure that minority students had as great an opportunity to gain admission into postsecondary institutions as 1 It is for this reason that Dworkin distinguishes his posture from the rescue approach. Indeed, while he seeks to place individuals in an equal position with respect to risk, he does not seek to eliminate risk itself.

3 white students did. It thus upheld the principle of equal importance by denying white students the racial endowment that they had once possessed. Furthermore, because it did not privilege minority students over white students, as it does now, affirmative action as originally conceived upheld the principle of special responsibility. Each student, minority or not, was uniquely responsible for ensuring that he or she was maximally competitive, since admissions committees were expected to evaluate the merits of each application by uniform standards. To understand why Dworkin would reject affirmative action as currently practiced, it is necessary to understand his preferred system of justice. To redress disparities in individuals unemployment statuses and, accordingly, in their socioeconomic positions, Dworkin proposes a hypothetical insurance market in which individuals are allowed to select an unemployment welfare scheme. This scheme, importantly, places them in conditions that they would have preferred had they been able to select it on equal terms. He delineates four possible insurance policies, and ultimately endorses a mandatory-interventionist posture, which comprises three distinct positions: (1) the insurer must provide the claimant with job training, and fully commit itself to securing employment for him or her; (2) the claimant must accept employment if the insurer either offers or locates it; and (3) the claimant forfeits compensation if he or she refuses a given number of the employment opportunities that the insurer provides. More importantly, as concerns this paper, Dworkin s proposed scheme internalizes three assumptions: (1) compensation is conditional on the claimant s good-faith endeavor to find employment ; (2) although insurance companies would initially incur high costs by practicing mandatory interventionism, they would gradually profit, as their expected savings from reduced payments began to exceed their expenditures on job training and employment location; and (3) the aforementioned profit would best be invested so as to eliminate the conditions that compel

4 individuals to seek insurance. Dworkin recommends that the government finance improved public education [and] education and training loans for would-be professionals. An analogous policy of affirmative action would make three parallel assumptions: (1) minority students would receive preferential treatment contingent on their working as diligently as possible to be competitive in the admissions process; (2) although affirmative action would initially complicate admissions processes, it would figure less prominently in them with the passage of time; and (3) institutions of higher learning would endeavor to eliminate the conditions that compel minority students to rely on affirmative action. A general appraisal of affirmative action as currently practiced suggests that it violates each of these presumptions. First, intuition suggests that, if minority students were indeed working to the greatest of their abilities, they would, on average, have become much more competitive with whites in recent decades, as judged by their academic record. One might object that academic performance is intimately related to one s starting endowment and that, on average, minorities starting endowments are lower than those of whites. This objection is plausible only if we assume that racial minorities socioeconomic position in the United States has stagnated or regressed since the time of affirmative action s institution. Most available data suggest otherwise. 2 One must conclude, then, that minorities have come to expect continued compensation that is not conditioned on their industry and application. 3 If minority students consciously chose not to work as assiduously as their counterparts, by assuming that admissions committees will nonetheless reward them for belonging to underrepresented groups, and will not penalize them 2 Even if the data supported this objection, however, one could respond with a simple question: how are we, with any measure of confidence, to judge the extent to which circumstance, rather than choice, accounts for these lamentable outcomes, especially when the two are invariably intertwined? Dworkin, understandably, devotes much thought to resolving this strategic dilemma. 3 Dworkin makes a similar argument in the case of unemployment. Namely, while he rejects the conservative contention that diligence can lift individuals out of unemployment, regardless of their circumstances, he insists that it is equally obvious that hard work and dedication can help many who would be unemployable without it.

5 for their indolence, Dworkin would quite vigorously argue that affirmative action violates the principle of special responsibility. Individuals should not be permitted and, in some sense, encouraged, to make imprudent choices without facing due consequences. Neither should they come to expect that they should or will always be recipients of outside assistance. Second, judging by the growing number of institutions that employ affirmative action, and the increasingly common belief that racial diversity may legitimately trump other, more traditional considerations in admissions processes, it has become more entrenched since its inception. That is to say, far from nurturing a society in which racial strata are rendered irrelevant, it highlights and accentuates these differences. 4 Indeed, some schools appear willing to compromise the academic caliber of their student bodies if doing so will improve their diversity. In Grutter v. Bollinger (2003), for example, the Supreme Court affirmed the University of Michigan Law School s decision to employ race as a criterion in its admissions process, citing a compelling interest in obtaining the educational benefits that flow from a diverse student body. Two scholars at Princeton University performed a study in which they attempted to calculate the impact of race on admissions decisions. Using the same scale that is used to score the SAT Reasoning Test (with 2,400 being a perfect score), the authors concluded that a student applying to college, on average, received 230 additional points if he or she was black, and 185 additional points if he or she was Hispanic. 5 Admissions committees that accord preferential treatment to students of certain minority groups in this manner violate the principle of equal importance. In particular, they ignore the principle of endowment-insensitivity. A students minority status, or lack thereof, derives not 4 Recall Dworkin s argument that the principle of equal importance requires government to adopt laws and policies that insure that its citizens fates are, so far as government can achieve this, insensitive to who they otherwise are their economic backgrounds, gender, race, or particular sets of skills and handicaps. Emphasis my own. 5 Thomas J. Espenshade and Chang Y. Chung, The Opportunity Cost of Admission Preferences at Elite Universities, Social Science Quarterly, 86:2 (June 2005) 293.

6 from independent choices, but rather, from genetic factors that are entirely independent of that student s control. Thus, students who, by some contingency, belong to racial minorities possess an endowment that unfairly advantages them over white students. Third, the aforementioned point rubric does not substantively correct for antecedent brute luck, because it does not attempt to address the deeply rooted socioeconomic disparities that cripple generation after generation of minority students. If affirmative action were working in the manner that Dworkin would endorse, we would see, at the very least, a steady calibration in minorities and whites scholastic achievement at primary and secondary levels of schooling. Available studies do not suggest any tendency towards such parity. Appraising Some Counterarguments Two objections are commonly raised in response to the type of reasoning that I have presented above. First, proponents of affirmative action argue that the socioeconomic effects of historic prejudice pass down from generation to generation and, accordingly, require continued compensation. In effect, then, they condemn the minority students whom they claim to support to a condition of perpetual dependency. While I have no intention of discounting the historic plight of certain minority groups, there is no logical limit to their claim to special entitlement. Indeed, what is to prevent members of every minority group racial, ethnic, or other from arguing for unique dispensation on the basis that, at some point in its history, it was aggrieved in some irreversible way? Native American students, for example, could argue that their predecessors extermination precluded the possibility of their achieving economic success. How is it possible to objectively designate certain grievances as worthy of compensation, and others as not? The infeasibility of such moral arbitration invalidates affirmative action as it is currently practiced.

7 The second counterargument that is often cited is that affirmative action confers not only direct benefits upon minority students, but also indirect benefits upon white students. A more racially diverse campus, it is argued, exposes students to those whose backgrounds and experiences differ from their own, thereby increasing the value of their education. Although I do not dispute this argument, in principle, I object to its asymmetric application. Affirmative action presumes that white students stand to benefit far more from exposure to minority students than minority students do from exposure to white students. The fallacy of such reasoning is clear, especially since substantial numbers of minority students live in urban enclaves in which they are exposed only to other members of their minority group. Could one not argue that such individuals stand to benefit at least to some extent from greater exposure to whites? Concluding Remarks Dworkin would support affirmative action as it was originally conceived, not as it is currently practiced. In particular, he would argue that a policy of according minority students preferential treatment is legitimate only to the extent that they work to eliminate their dependence on it. Affirmative action was introduced to make minority students the architects of their destinies, unencumbered by legal restrictions or discriminatory barriers. It was not intended to reward minority students for exploiting others beneficence and making poor choices. Surely, then, a system that rewards certain groups sloth and fails to reward others diligence runs wholly counter to the principle of special responsibility. One must hope that affirmative action passes into obsolescence, not only so that white students may regain their former competitiveness, but also, perhaps more importantly, as concerns this paper, so that minority students are maximally empowered to realize their potential.