Arguing Affirmative Action: Lesson 1

Arguing Affirmative Action

“In order to achieve this goal [having minorities reach at least 15 percent of the class], the university set lower admissions standards for minority applicants than for nonminority applicants” (168).

Translate this: True or False. Most of the minority students who were admitted due to affirmative action ended up graduating from law school and passing the bar exam
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“The question for the courts is whether affirmative action hiring and admission policies violate the U.S. Constitution’s guarantee of the equal protection of the laws”(168).

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“To answer this question, let’s consider three reasons that proponents of affirmative action offer for taking race and ethnicity into account: correcting for bias in standardized tests, compensating for past wrongs, and promoting diversity” (169).

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Correcting for the Testing Gap

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“Whatever the cause of the testing gap, using standardized tests to predict academic success requires interpreting the scores in light of student’s family, social, cultural, and educational backgrounds”(169).

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Translate this: True or False. A score of 700 in the backwaters of Mississippi is worth more than a score of 700 from an elite east coast private school
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“But assessing test scores in light of student’s racial, ethnic, and economic backgrounds does not challenge the notion that colleges and universities should admit those students with the greatest academic promise; it is simply an attempt to find the most accurate measure of each individual’s academic promise” (169).

“The real affirmative action debate is about two other rationales – the compensatory argument and the diversity argument” (170).

Compensating for Past Wrongs

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“This argument compensating for past wrongs treats admission primarily as a benefit to the recipient and seeks to distribute the benefit in a way that compensates for past injustices and its lingering effects”(170).

Translate this: The compensatory argument runs into a tough challenge: critics point out that those who benefit are not necessarily those who have __________ , and those who pay the compensation are seldom those ___________ for the wrongs being ___________
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“Do we incur obligations only as individuals, or do some obligations claim us as members of communities with historic identities? Since we will come to this question later in the book, let’s set it aside for the moment and turn to the diversity argument” (171).

Promoting Diversity

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“Nor does it depend on showing that the minority student given preference in admission has personally suffered discrimination or disadvantage. It treats admission less as a reward to the recipient than as a means of advancing a socially worthy aim” (171).

Translate this: Does the rationale of promoting diversity care if the minority student has personally suffered discrimination or disadvantage?
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“The diversity argument is the one most frequently advanced by colleges and universities. When faced with Hopwood’s challenge, the dean of the University of Texas Law School cited the civic purpose served by his school’s affirmative action policy” (171).

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“Part of the law school’s mission was to help increase the diversity of the Texas legal profession and to enable African Americans and Hispanics to assume leadership roles in government and law” (171).

“Critics of the diversity argument offer two kinds of objection – one practical, the other principled. The practical objection questions the effectiveness of affirmative action polices” (172).

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“The practical objection does not claim that affirmative action is unjust, but rather it is unlikely to achieve its aims, and do more harm than good” (173).

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 polices 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” (173).

Translate this: True or False, People who are put at a competitive disadvantage by the admissions board is a violation of one’s rights, according to the rights theorists who hold the principled objection
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“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 factors in admissions violates Hopwood’s rights, then doing so is unjust” (173).

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“Ronald Dworkin, a rights-oriented legal philosopher, addresses this objection by arguing that the use of race in affirmative action polices doesn’t violate anybody’s rights. 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” (173).

Translate this: Dworkin believes that Hopwood hasn’t been denied a right because admission factors deal with criteria that are beyond the applicant’s control all the time – factors such as geographical accident of birth or the ability to play football well. Is this true?
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“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” (174).

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“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 admission standards, you have a legitimate expectation to admission insofar as you meet those standards better than other applicants” (174).

Translate this: According to Dworkin, a person with high academic skills has no right to demand that a university design it’s admission policy around academic skills alone. Is this true?
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“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” (174).

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“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”(174).

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“The mission [purpose of a university] 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” (174).

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Racial Segregation and Anti-Jewish Quotas

In the past, blacks and Jews were denied admission due in part to not meeting the mission criteria of a university.

“If, as the diversity rationale for affirmative action assumes, universities may set any admissions criteria that advance their mission as they define it, is it possible to condemn racist exclusion and anti-Semitic restrictions?” (176).

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Translate this: ”Given the importance of promoting diversity in key professions, being black or Hispanic ‘may be a ________ trait”(176).
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“The law school is not saying that Hopwood is inferior or that the minority students admitted instead of her deserve an advantage that she does not. It is simply saying that racial and ethnic diversity in the classroom and the courtroom serves the law school’s educational purposes. And unless the pursuit of those purposes somehow violates the rights of those who lose out, disappointed applicants can’t legitimately claim that they’ve been treated unfairly” (177).

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Translate this: If a minority student is admitted in thanks to affirmative action, is the student more deserving of admission than Hopwood?
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In the next lesson will more examples of affirmative action. Additionally, there will be a question on whether or not justice can be detached from moral desert.

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