Lecture 10: Legality and Philosophy of affirmative action

Give three main distinguishments between positive and negative discrimination

1. Affirmative action is an instrument of corrective justice

2. Affirmative action allows to compensate for past discrimination

3. Affirmative action is future-oriented, as an instrument of promoting diversity

Explan the logic behind no individual rights being violated due to positive discrimination argument

There are two potential rights that it could violate that are individual.

1. The right to be treated as an individual(is not violated)

2. The right not to be disadvantaged because of features beyond one’s control(doesn’t exist due to it having been frequently violated)

Explain what corrective justice is, the logic behind it.

Corrective justice is a type of action that aims to correct past wrongs that led to present disadvantages by distributing goods through an approximate distirbutive patern that would’ve taken place in the abscence of the wrongdoing. In this case, it is not whether the status quo was just that matters, but rather that injustice has been undone.

Provide the four main critiques of affirmative actions as an instrument of individual-focused compensation.

1. Those who bear the cost are (generally) not the perpetrators of the evil that was done

   1. Only those who commited the wrongdoing should be responsible for it, however it is not the case with ancestors of who did that.

   2. Moreover, a lot of those held as part of the proxy group of wrongdoers were minorities themselves(Jews)

2. Those who benefit aren’t always the victims of the wrong, often not even their ancestors.

   1. There is no procedure to check that they are, policies just use a proxy

3. Affirmative action cannot be proportional, it targets groups targeted by injustice, rather than the individuals.

4. Race as a proxy for victimhood loses value. Due to the enforcement of anti-discrimination laws, the probability of victimhood is likely to decline

Therefore, affirmative action may only be applied to groups.

Outline the 3 main critiques of affirmative action as an instrument of group-focused compensation

1. Collective entitlement either to costs or benefits is wrong — guilt and desert cannot be transmitted accross groups.

   1. Furthermore, it is not always possible to end up in the group or leave the group(forfeit the benefits). For example, a lot of AA children grow up in a single-parent household. What is a white person supposed to do to eliminate that privilege?

2. The distribution of the benefits and the costs of affirmative action within racial groups is unfair — the costs affect more the younger members, while the older reap the benefits. Symetrically, the benefits of AA are likely to go to the most advantaged group of those whom it targets.

   1. A potential way to get around that could be combining affirmative action with progressive taxation

   2. Some benefits are basically impossible to give up

3. There are large differences in the extent of discrimination across society. There is no way to come up with one good proxy, even if based on past discrimination. Ethnic groups differ from one another with respect to factors other than the degree of discrimination.

   1. Moreover, certain groups who were subject to same degree of oppression in the past are not economically oppressed anymore. Should they still get the AA benefits as part of the corrective justice argument?

Outline the protection clause argument by Powell in Regents of UoC V. Bakke(1978), how it affected the future of affirmative action policies in hiring.

In a Bakke case, the supreme court decided that the rules a certain medical school had implemented(16% of freshmem had to be made up of minority students), were a violation of the equal protection. The quotas henceforth were only acceptable given the university itself had been guilty of race-based discrimination in the past.

However, this didn’t doom affirmative action, but the quotas were acceptable if their form and purpose was right. Therefore, race-based discrimination became a way of bringing in new students with different experiences, outlooks and ideas to enrich the learning process.

Explain the 2003 decision Grutter V. Bollinger

USSC upheld the constitutionality of AA in UMICH Law admissions, saying that it was ok so long it didn’t amount to a quota system.

The court decided that the process that took in the race of the students didn’t violate the equal protection clause so long that it took other factors into account. It argued it through equality of opportunity.

Give 3 advantages(positive) of the diversity argument

• Mitigating the unfairness in the distribution of costs and benefits

• Bracketing the issue of when affirmative action ought to stop(when diversity is achieved)

• Allowing the SC not to openly rely on political and sociological judgements(but rather on a pure objective)

Explain the four biggest caveats of the diversity argument — from the perspective of pure logic, not effects

1. It is in tension with another goal of affirmative action — corrective justice. Each of them have a diferent time horizon, measured by different metrics and hard to reconcile.

2. The justification of it is incomplete — diversity is not necessarily good for all industries. Moreover, arguably, it is bad for some(army) — does it justify discrimination there

   1. Another issue with that is the extent to which discrimination as a means is justifiable — does discriminating against asians good for the sake of diversity even though they were subject to past discrimination themselves

3. Diversity is not always positive enough to justify the scope of affirmative action. Sure, it may work for industries with ideas, but for factory workers it doesn not really matter.

4. The diversity argument doesn’t fully explain why race is tht important vis-a-vis other dimensions of diversity. What is the focal variable of diversity(race/ethnicity, gender, eye color?

   1. If diversity in opinions really mattered for university admissions, why wouldn’t they set up affirmative action programs for evangelists.

5. Often, more diversity actually means less diversity in opinions. For example, increasing the % of blacks in college faculties will inevitably skew the opinion to the left.

6. Viewing race as a proxy for diversity may perpetuate the “alll ___ think alike” argument, explcititly rejected in Shaw V. Reno.

Issues with using race as a proxy in affirmative action? Explain Shaw V. Reno

Obviously, all black people are internally diverse, so why are we using race as a proxy for culture? In Shaw, the USSC rejected the idea that all members of one group think alike, saying that it can’t be estimated that a certain ethnic group is homogenous in thinking. Then, adopting a diversty argument may bring forward such stereotypes.

Describe Batson V. Kentucky. What does this say about the way US law views diversity of opinions?

Powell(and the USSC) held that in a case, the lawyers and the prosecutor were not allowed to reject a juror on the grounds of that increasing partiality. This violates the equal protection clause and kind of goes against bakke, where there was an implicit assumption made that black individuals brought more diversity by having different opinions.

Explain how equality of opportunity may be at tension with cultural diversity

The idea is that maybe some diversity under or over-representations happen because of cultural differences and to strive for equality of opportunity does not mean making everyone forcefully equally represented. Some groups culturally have a higher proneness to do one type of activities. Therefore, trying to neutralize some cultural differences that bring along negative performance requires moving away from the diversity mantra.

Why should race be explicitly used as a proxy to encourage the final diversity of opinons? Why can’t we just serve diverse opinions?

First, it is easier to estimate. Also, if a certain point is made by a member of a racial group, it may be more powerful and have more weight in the conversation. We can’t just present diverse opinions as part of the curriculum because obviously 1-1 interactions matter more and have a stronger effect.