Justice 09 Arguing Affirmative Action / What's the Purpose? 1
Justice 09 Arguing Affirmative Action / What's the Purpose?
Last time, we were discussing the distinction, that Rawls draws between two different types
of claims.
Claims of moral desert on the one hand, and of entitlement to legitimate expectations on the
other.
Rawls argued that it's a mistake to think that distributive justice is a matter of moral desert.
A matter of rewarding people according to their virtue.
Today we're going to explore that question of moral desert and its relation to distributive
justice.
Not in connection with incoming wealth, but in its connection with opportunities.
With hiring decisions and admission standards.
And so we turn to the case, of affirmative action.
You read about the case of Cheryl Hopwood.
She applied for admission to the University of Texas Law School.
Cheryl Hopwood had worked her way through high school, she didn't come from an affluent
family, she put herself through community college, and California State University at
Sacramento.
She achieved a 3.8 grade point average there, later moved to Texas, became a resident,
took the law school admissions test, did pretty well on that, and she applied to the University
of Texas Law School.
She was turned down.
She was turned down at a time when the University of Texas, was using an affirmative
action admissions policy.
A policy that took into account, race and ethnic background.
The University of Texas said, "40 percent of the population of Texas is made up of African
Americans and Mexican Americans.
It's important that we, as a law school, have a diverse student body.
And so we are going to take into account, not only grades and test scores, but also the
demographic makeup of our class including, its race and ethnic profile." The result, and this
is what Hopwood complained about, the result of that policy, is that some applicants to the
University of Texas Law School, with a lower academic index, which includes grades and
test scores, than hers, were admitted.
And she was turned down.
She said, she argued, "I'm just being turned down because I'm white.
If I weren't, if I were a member of a minority group, with my grades and test scores I would
Justice 09 Arguing Affirmative Action / What's the Purpose? 2
had been admitted." And the statistics, the admissions statistics that came out in the trial,
confirmed that African American and Mexican American applicants that year, who had, her
grades and test scores, were admitted.
It went to Federal Court.
Now, put aside the law, let's consider it from the standpoint of justice and morality.
Is it fair, or it unfair?
Does Cheryl Hopwood have a case?
A legitimate complaint?
Were her rights violated, by the admissions policy of the law school?
How many say, how many would rule for the law school, and say that it was just to consider
race and ethnicity as a factor in admissions?
How many would rule for Cheryl Hopwood and say "her rights were violated?" So here we
have a pretty even split.
Alright, now I want to hear from a defender of Cheryl Hopwood. Yes?
You're basing something that's an arbitrary factor, you know, Cheryl couldn't control the fact
that she was white, or not in a minority.
And therefore, you know, it's not as if it was like a test score that she worked hard to try and
show that she could, you know, put that out there, you know, that she had no control over
her race.
Good. And what're your name?- Bree.
Okay. Bree, stay right there.
Now let's find someone who has an answer for Bree.
Yes? - There are discrepancies in the educational system.
And the majority of the time, I know this in New York City, the schools that minorities go to,
are not as well-funded, are not as well-supplied, as white schools.
And so there is going to be a discrepancy, naturally, between minorities and between whites.
If they go to better schools.
And they will not do as well on exams because they haven't had as much help.
Because of the worst school systems.
Let me just interrupt you to, tell me your name?
Aneesha.- Aneesha. Aneesha, you're pointing out that minority kids may have gone in some
cases to schools that didn't give them the same educational opportunity as kids from affluent
families.- Yes.
And so the test scores they got, may actually not represent their true potential.
Justice 09 Arguing Affirmative Action / What's the Purpose? 3
Because they didn't receive the same kind of help that they might have received had they
gone to a school with better funding.
Good, alright. Aneesha has raised the point that colleges still should choose for the greatest
academic scholarly promise but in reading the test scores and grades, they should take into
account the different meaning those tests and grades have, in the light of educational
disadvantage in the background.
So that's one argument in defense of affirmative action, Aneesha's argument.
Correcting for the effects of unequal preparation.
Educational disadvantage.
Now, there are other arguments.
Suppose, just to identify whether there is a competing principle here.
Suppose there are two candidates, who did equally well on the tests and grades.
Both of whom went to first rate schools.
Two candidates, among those candidates, would it be unfair for the college or university, for
Harvard, to say, "we still want diversity along racial and ethnic dimensions, even where we
are not correcting for the effects on test scores of educational disadvantage." What about in
that case, Bree?
If it's that's one thing that puts, you know someone over the edge, then it's, I guess that
would be, you know, justifiable.
If everything else about the individual first, though, everything to consider about that
person's you know, talents, and where they come from, and who they are without these
arbitrary factors, is the same.
Without these 'arbitrary factors', you call them.
But before you were suggesting, Bree, that race and ethnicity are arbitrary factors outside
the control of the applicants.- True, I would agree with that.
And your general principle is that admissions shouldn't reward arbitrary factors, over which
people have no control.- Right.
Alright. Who else, who else would like to, thank you both.
Who else would like to get into this, what do you say?
Well, first of all, I'm for affirmative action temporarily, but, for two reasons.
First of all, you have to look at the university's purpose.
It is to educate their students.
And I feel that different races, people coming from different races have different
backgrounds and they contribute differently to the education.
And second of all, when you say that they have equal backgrounds, that's not true when you
look at the broader picture, and you look at slavery and this is kind of a reparation.
Justice 09 Arguing Affirmative Action / What's the Purpose? 4
I think affirmative action is a temporary solution to alleviate history, and the wrongs done to
African Americans in particular.
And what's your name?
David.- David. You say that affirmative action is justified at least for now as a way of
compensating for past injustice.
The legacy of slavery and segregation.- Right.
Who wants to take on that argument?
We need now a critic of affirmative action.
Yes, go ahead.
I think that what happened in the past has no bearing on what happens today.
I think that discriminating based on race should always be wrong.
Whether you're discriminating against one group or another.
Just because our ancestors did something, doesn't mean that that should have any effect on
what happens with us today.
Alright, good. I'm sorry, your name is?- Kate.
Kate. Alright, who has an answer for Kate?
Yes.- I just wanted to comment and say that, - Tell us your name.
My name is Mansur. Because of slavery, because of past injustices today, we have a higher
proportion of African Americans who are in poverty, who face less opportunities than white
people.
So because of slavery 200 years ago, and because of Jim Crow, and because of
segregation, today we have injustice based on race.
Kate?- I think that there are differences, obviously, but the way to fix those differences is not
by some artificial fixing of the result.
You need to fix the problem.
So we need to address differences in education, and differences in upbringing with
programs like Head Start, and giving more funding to lower income schools rather than just
trying to fix the result, so it makes it look like it's equal when it's really it isn't.
Yes.
Well, with regard to affirmative action based on race, I just want to say that white people
have had their own affirmative action in this country for more than 400 years.
It's called 'nepotism' and 'quid pro quo'.
So there's nothing wrong with correcting the injustice and discrimination that's been done to
black people for 400 years.
Good. Tell us your name.- Hannah.
Justice 09 Arguing Affirmative Action / What's the Purpose? 5
Hannah. Alright who has an answer for Hannah?
And just to add to Hannah's point, because we need now someone to respond, Hannah, you
could have also mentioned legacy admissions.
Exactly.
I was going to say, if you disagree with affirmative action, you should disagree with legacy
admission because it's obvious from looking around here that there are more white legacies
than black legacies in the history of Harvard University.
And explain what legacy admissions are.
Well, legacy admissions is giving an advantage to someone who has an arbitrary privilege of
their parent having attended the university to which they're applying.
Alright, so a reply for Hannah.
Yes, in the balcony, go ahead.
First of all, if affirmative action is making up for past injustice, how do you explain minorities
that were not historically discriminated against in the United States who get these
advantages?
In addition, you could argue that affirmative action perpetuates divisions between the races
rather than achieve the ultimate goal of race being an irrelevant factor in our society.
And what, tell us your name.
Danielle.- Hannah.
I disagree with that because I think that by promoting diversity in an institution like this, you
further educate all of the students, especially the white students who grew up in
predominately white areas.
It's certainly a form of education to be exposed to people from different backgrounds.
And you put white students at an inherent disadvantage when you surround them only with
their own kind.
Why should race necessarily be equated with diversity?
There are so many other forms, why should we assume that race makes people different?
Again, that's perpetuating the idea of racial division within our universities and our society.-
Hannah?
With regard to African American people being given a special advantage, it's obvious that
they bring something special to the table, because they have a unique perspective just as
someone from a different religion or socio-economic background would, as well.
As you say, there are many different types of diversity.
There's no reason that racial diversity should be eliminated from that criteria.
Yes, go ahead.
Justice 09 Arguing Affirmative Action / What's the Purpose? 6
Racial discrimination is illegal in this country, and I believe that it was African American
leaders themselves, when Martin Luther King said he wanted to be judged not on the color
of skin, but by the content of his character, his merit, his achievements.
And I just think that, to decide solely based on someone's race is just inherently unfair.
I mean, if you want to correct based on disadvantaged backgrounds, that's fine, but there
are also disadvantaged white people as well.
It shouldn't matter if you're white or black.- Tell us your name.
Ted. - Ted, - Yes.- Think of Hopwood.
It's unfair to count race or, I assume you would also say, ethnicity or religion?
Yes. - Do you think she has a right to be considered according to her grades and test scores
alone?
No. There is more to it than that.
Universities need to promote diversity.
So you agree with the goal of promoting diversity?
There's ways to promote diversity besides discriminating against people solely based on a
factor they cannot control.
Alright, so what makes it wrong, is that she can't control her race.
She can't control the fact that she's white.
That's the heart of the unfairness to her.
Bree made a similar point.
That basing admissions on factors that people can't control, is fundamentally unfair.
What do you say?
There's a lot of things you can't control, and if you don't for it based on merit, like just based
on your test scores, a lot of what you can achieve has to do with family background, that you
were raised in.
If both of your parents were scholarly, then you have more of chance of actually of being
more scholarly yourself and getting those grades.
And you can't control what kind of family you were born into.
Alright good, that's a great rejoinder, what's your name?
Da.- Da.
Ted, are you against advantages that come from the family you were born into?
What about legacy admissions?
I do believe that in terms of a legacy admission you shouldn't have a special preference, I
mean there is a legacy admission you could argue is another part, versus you could day it's
Justice 09 Arguing Affirmative Action / What's the Purpose? 7
important to have a small percentage of people that have a several generation family
attendance at a place like Harvard.
However that should not be an advantage factor like race, it should just be another part
promoting diversity.
Should it count at all?
I think that, - Alumni status, should it count at all, Ted?
Yes. It should count.
Alright, I want to step back for a moment from these arguments.
Thank you all for these contributions.
We're going to come back to you.
If you've listened carefully I think you will have noticed three different arguments emerge
from this discussion.
In defense of considering race and ethnicity as a factor in admissions.
One argument has to do with correcting for the effects, for the effects of educational
disadvantage.
That was Aneesha's argument.
This is what we might call the corrective argument.
Correcting for differences in educational background, the kind of school people went to.
The opportunities they had and so on.
That's one argument.
What's worth noticing though, is that argument is consistent in principle with the idea that
only academic promise and scholarly potential should count in admissions.
We just need to go beyond test scores and grades alone, to get a true estimate of academic
promise and scholarly ability.
That's the first argument.
Then we heard a second argument that said affirmative action is justified even where there
may not be the need to correct for educational disadvantage in a particular applicant's case.
It's justified as a way of compensating for past wrongs, for historic injustices.
So that's a compensatory argument.
Compensating for past wrongs.
Then we heard, a third, a different argument, for affirmative action, from Hannah and others,
that argued in the name of diversity.
Now, the diversity argument is different from the compensatory argument, because it makes
a certain appeal to the social purpose or the social mission of the college or university.
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There are really two aspects to the diversity argument.
One says it's important to have a diverse student body for the sake of the educational
experience for everyone.
Hannah made that point.
And the other talks about the wider society.
This was the argument made by the University of Texas in the Hopwood case.
We need to train lawyers and judges and leaders, public officials who will contribute to the
strength, the civic strength of the state of Texas, and the country as a whole.
So there are two different aspects to the diversity argument.
But both are arguments in the name of the social purpose, or the social mission or the
common good, served by the institution.
Well, what about the force of these arguments?
We've also heard objections to these arguments.
The most powerful objection to the compensatory argument is, is it fair to ask Cheryl
Hopwood today, to make the sacrifice, to pay the compensation for an injustice that was
admittedly committed and egregious, in the past, but in which she was not implicated.
Is that fair?
So that's an important objection to the compensatory argument.
And in order to meet that objection, we would have to investigate whether there is such a
thing as group rights or collective responsibility that reaches over time.
So having identified that issue, let's set it aside to turn to the diversity argument.
The diversity argument doesn't have to worry about that question.
About collective responsibility for past wrongs.
Because it says, for reasons Hannah and others pointed out, that the common good is
served, is advanced if there is a racially and ethnically diverse student body.
Everyone benefits.
This indeed was the argument that Harvard made when it filed a friend of the court brief to
the Supreme Court in the 1978 case, the affirmative action case, the Bakke case.
In the Harvard brief, the Harvard rationale, was cited by Justice Powell, who was the swing
vote in the case upholding affirmative action, he cited that as providing the rationale that he
thought was constitutionally acceptable.
Harvard's argument in its brief, was this: "We care about diversity.
Scholarly excellence alone, has never been the criterion of admission, the sole criterion of
admission to Harvard College.
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Fifteen years ago diversity meant students from California and New York, and
Massachusetts.
City dwellers, and farm boys.
Violinists, painters and football players.
Biologists, historians and classicists.
The only difference now, Harvard argued, is that we're adding racial and ethnic status to this
long list of diversity considerations.
When reviewing the large number of candidates able to do well in our classes," Harvard
wrote, "Race may count as a plus, just as coming from Iowa may count or being a good
middle linebacker or pianist.
A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot
offer.
Similarly, a black student can usually bring something a white student cannot offer.
The quality of the educational experience of all students depends in part on these
differences in the background and outlook that students bring with them." That was
Harvard's argument.
Now what about the diversity argument?
Is it persuasive?
If it's to be persuasive, it has to meet one very powerful objection.
That we've heard voiced here.
By Ted, by Bree.
Unless you're a utilitarian, you believe that individual rights can't be violated.
And so the question is, is there an individual right that is violated?
Is Cheryl Hopwood's right violated?
If she is used, so to speak, denied admission, for the sake of the common good and the
social mission that