17. Discutindo as ações afirmativas

har [Music] univers Justice for Michael sandle last time we were discussing the distinction that RS draws between two different types of claims claims of moral desert on the one hand and of entitlements to legitimate expectations on the other RS argued that it's a mistake to think that distributive justice is a matter of moral dessert a matter of rewarding people according to their virtue today we're going to explore that question of moral dessert and its relation to distributive justice not in connection with income and 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 h wood she applied for admission to the University of Texas law school Cheryl hward 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% 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 res 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 have 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 is 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 all right now I want to

hear from a defender of Cheryl Hopwood yes you're basing something on 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 she had no control over her race good and what's your name Bri okay Brie stay right there now let's find someone who's uh who has an answer for Brie yes there are discrepancies in

the educational system and 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 a worse school system so let me just interrupt you just just tell me your name Anisha Anisha Anisha 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 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 all right Anisha 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 Anisha argument correcting for the effects of unequal preparation educational disadvantage now there are other arguments suppose just to identify whether there is a 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 TES scores of educational disadvantage what about in that case Bri if it's that 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 they 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 but before you were suggesting bre 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 all right uh 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 uh I'm for affirmative action temporarily but uh what for two reasons first of all you have to look at the University's purpose it is to educate their students and um I feel that different races people coming from different races have different backgrounds and they contribute differently to you know the

education and second of all um when you say they have equal backgrounds they that's not true when you look at the broader picture and you look at slavery and these are this is kind of a reparation I think uh affirmative action is a temporary solution to alleviate um history and uh 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 and 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 all right good I'm sorry your name is Kate Kate all right who has an answer for Kate yes um I just wanted to comment and say that tell us your name uh my name

is Monsour because of slavery because of past injustices today we have a higher proportion of African-Americans who are in poverty who face left less opportunities than white people and so because of slavery 200 years ago and because of Jim Crow and because of segregation today we have Injustice based on race okay um 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 um in upbringing with with

programs like Head Start and giving more funding to lower income schools rather than trying to just fix the result so it makes it look like it's equal when really it isn't yes well with regard to affirmative action based on 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 proquo so there's nothing wrong with correcting the Injustice and discrimination that's been done to black people for 400 years good tell us wait tell us your name Hannah Hannah all right

who has an answer for Hannah and just to add to Hannah's point because we need 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 um privilege of their parent having attended the university to which

they're applying all right 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 discri 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 predominantly 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's 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 um 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 socioeconomic 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 racial discrimination is illegal in this country and I believe that it was African-American americ leaders themselves when Martin Luther King said he wanted to be judged not on the color of his skin but by the content of his character his Merit his achievements and I just think

that to do to decide solely based on someone's race is just inherently unfair I mean if you want to 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 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 there no there's there is more to it than that

you need to universities need to promote diversity and I so you agree with the goal of promoting diversity there's ways to promote diversity besides discriminating against people solely based on a fact that they cannot control all right 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 that's the heart of the unfairness to her Bri 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're going to go it through it based on Merit like just based on your test scores a lot of what what you can achieve has to do with like the family background that you rais it if both your parents were um scholarly then you have more of a chances of actually being more scholarly yourself and getting those grades and you can't control what kind of family you born into so I me I could what tell that's that's a great rejoiner what's your name uh da da Ted are you you against um advantages that come from

the family you were born into what about legacy admissions I mean I I 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 as another part of ver you could say it's important to have a small percentage of people that have a a several generation family in family attendance at a place like Harvard however that should not be a fact an advantaged Factor like race that should just be another part of promoting diversity count it all I think that alumni

status should it count at all Ted yes it should it should count all right 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 emerg 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 anisha's argument this is what we might call the 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 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 the

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 there are really two aspects to the 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 was 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 and 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 affirmative action case the baky case and the Harvard brief the Harvard rationale now 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 criter of admission the sole Criterion of admission to Harvard College 15 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 Harford 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 Bri 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 the University of Texas law school has defined for itself does she have a right don't we deserve to

be considered according to our excellences our achievements our accomplishments our hard work isn't that the right at stake now we've already heard an answer to that argument no she doesn't have a right nobody deserves to be admitted notice how this gets us back to the issue of Dessert versus entitlement they're arguing there is no individual right that Hopwood has she doesn't deserve to be admitted according to any particular set of criteria that she believes to be important including criteria that have only to do with her efforts and achievements why not I think implicit in this

argument is something like rs's rejection of moral desert as the basis of distributive justice yes once Harvard defines its Mission and Designs its admission policy in the light of its Mission people are entitled who who fit those criteria they are entitled to be admitted but according to this argument no one deserves that Harvard College Define its Mission and design its admission criteria in the first place in a way that prizes the qualities they happen to have in abundance whether those qualities are test scores or grades or the ability to play the piano or to be

a good middle linebacker or to come from Iowa or to come from a certain minority group so you see how this debate about affirmative action especially the diversity argument takes us back to the question of rights which in turn takes us back to the question of whether moral dessert is or is not the basis for distributive justice think about that over the weekend and we'll continue this discussion next [Music] time suppose we're Distributing flutes who should get the best ones what's Aristotle's answer anyone his answer is the best flutes should go to the best flute

players because that's what flutes are for [Music] [Music] [Music] [Music]