Justice_ What's the Right Thing to Do_ - Michael Sandel [82]
Do Racial Preferences Violate Rights?
The principled objection claims that, however worthy the goal of a more diverse classroom or a more equal society, and however successful affirmative action policies may be in achieving it, using race or ethnicity as a factor in admissions is unfair. The reason: doing so violates the rights of applicants such as Cheryl Hopwood, who, through no fault of their own, are put at a competitive disadvantage.
For a utilitarian, this objection would not carry much weight. The case for affirmative action would simply depend on weighing the educational and civic benefits it produces against the disappointment it causes Hopwood and other white applicants at the margin who lose out. But many proponents of affirmative action are not utilitarians; they are Kantian or Rawlsian liberals who believe that even desirable ends must not override individual rights. For them, if using race as a factor in admissions violates Hopwood’s rights, then doing so is unjust.
Ronald Dworkin, a rights-oriented legal philosopher, addresses this objection by arguing that the use of race in affirmative action policies doesn’t violate anybody’s rights.10 What right, he asks, has Hopwood been denied? Perhaps she believes that people have a right not to be judged according to factors, such as race, that are beyond their control. But most traditional criteria for university admission involve factors beyond one’s control. It’s not my fault that I come from Massachusetts rather than Idaho, or that I’m a lousy football player, or that I can’t carry a tune. Nor is it my fault if I lack the aptitude to do well on the SAT.
Perhaps the right at stake is the right to be considered according to academic criteria alone—not being good at football, or coming from Idaho, or having volunteered in a soup kitchen. On this view, if my grades, test scores, and other measures of academic promise land me in the top group of applicants, then I deserve to be admitted. I deserve, in other words, to be considered according to my academic merit alone.
But as Dworkin points out, there is no such right. Some universities may admit students solely on the basis of academic qualifications, but most do not. Universities define their missions in various ways. Dworkin argues that no applicant has a right that the university define its mission and design its admissions policy in a way that prizes above all any particular set of qualities—whether academic skills, athletic abilities, or anything else. Once the university defines its mission and sets its admissions standards, you have a legitimate expectation to admission insofar as you meet those standards better than other applicants. Those who finish in the top group of candidates—counting academic promise, ethnic and geographical diversity, athletic prowess, extracurricular activities, community service, and so on—are entitled to be admitted; it would be unfair to exclude them. But no one has a right to be considered according to any particular set of criteria in the first place.11
Here lies the deep though contested claim at the heart of the diversity argument for affirmative action: Admission is not an honor bestowed to reward superior merit or virtue. Neither the student with high test scores nor the student who comes from a disadvantaged minority group morally deserves to be admitted. Her Admission is justified insofar as it contributes to the social purpose the university serves, not because it rewards the student for her merit or virtue, independently defined. Dworkin’s point is that justice in admissions is not a matter of rewarding merit or virtue; we can know what counts as a fair way of allocating seats in the freshman class only once the university defines its mission. The mission defines the relevant merits, not the other way around. Dworkin’s account of justice in university admissions runs parallel to Rawls’s account of justice in income distribution: It is not a matter of moral desert.
Racial Segregation