Justice_ What's the Right Thing to Do_ - Michael Sandel [79]
In A Theory of Justice, Rawls rejects the counsel of complacence that Friedman’s view reflects. In a stirring passage, Rawls states a familiar truth that we often forget: The way things are does not determine the way they ought to be.
We should reject the contention that the ordering of institutions is always defective because the distribution of natural talents and the contingencies of social circumstance are unjust, and this injustice must inevitably carry over to human arrangements. Occasionally this reflection is offered as an excuse for ignoring injustice, as if the refusal to acquiesce in injustice is on a par with being unable to accept death. The natural distribution is neither just nor unjust; nor is it unjust that persons are born into society at some particular position. These are simply natural facts. What is just and unjust is the way that institutions deal with these facts.25
Rawls proposes that we deal with these facts by agreeing “to share one another’s fate,” and “to avail [ourselves] of the accidents of nature and social circumstance only when doing so is for the common benefit.”26 Whether or not his theory of justice ultimately succeeds, it represents the most compelling case for a more equal society that American political philosophy has yet produced.
7. ARGUING AFFIRMATIVE ACTION
Cheryl Hopwood did not come from an affluent family. Raised by a single mother, she worked her way through high school, community college, and California State University at Sacramento. She then moved to Texas and applied to the University of Texas Law School, the best law school in the state and one of the leading law schools in the country. Although Hopwood had compiled a grade point average of 3.8 and did reasonably well on the law school admissions test (scoring in the 83rd percentile), she was not admitted.1
Hopwood, who is white, thought her rejection was unfair. Some of the applicants admitted instead of her were African American and Mexican American students who had lower college grades and test scores than she did. The school had an affirmative action policy that gave preference to minority applicants. In fact, all of the minority students with grades and test scores comparable to Hopwood’s had been admitted.
Hopwood took her case to federal court, arguing that she was a victim of discrimination. The university replied that part of the law school’s mission was to increase the racial and ethnic diversity of the Texas legal profession, including not only law firms, but also the state legislature and the courts. “Law in a civil society depends overwhelmingly on the willingness of society to accept its judgment,” said Michael Sharlot, dean of the law school. “It becomes harder to achieve that if we don’t see members of all groups playing roles in the administration of justice.”2 In Texas, African Americans and Mexican Americans comprise 40 percent of the population, but a far smaller proportion of the legal profession. When Hopwood applied, the University of Texas law school used an affirmative action admissions policy that aimed at enrolling about 15 percent of the class from among minority applicants.3
In order to achieve this goal, the university set lower admissions standards for minority applicants than for nonminority applicants. University officials argued, however, that all of the minority students who were admitted were qualified to do the work, and almost all succeed in graduating from law school and passing the bar exam. But that was small comfort to Hopwood, who believed she’d been treated unfairly, and should have been admitted.
Hopwood’s challenge to affirmative action was not the first to find its way to court, nor would it be the last. For over three decades, the courts have wrestled with the hard moral and legal questions posed by affirmative action. In 1978, in the Bakke case, the U.S. Supreme Court narrowly upheld an affirmative action