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  • JUSTICE with Michael Sandel

  • Arguing Affirmative Action

  • Last time, we were discussing the distinction,

  • that Rawls draws between two different types of claims.

  • Claims of moral desert on the one hand,

  • and of entitlement to legitimate expectations on the other.

  • Rawls argued that it's a mistake to think that

  • distributive justice is a matter of moral desert.

  • A matter of rewarding people according to their virtue.

  • Today we're going to explore that question

  • of moral desert and its relation to distributive justice.

  • Not in connection with incoming 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 Hopwood.

  • She applied for admission to the University of Texas Law School.

  • Cheryl Hopwood 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 percent 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 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 had 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 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.

  • Alright, now I want to hear from a defender of Cheryl Hopwood. Yes?

  • You're basing something 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, that she had no control over her race.

  • Good. And what're your name? - Bree.

  • Okay. Bree, stay right there.

  • Now let's find someone who has an answer for Bree.

  • Yes? - There are discrepancies in the educational system.

  • And the 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 the worst school systems.

  • Let me just interrupt you to, tell me your name?

  • Aneesha. - Aneesha. Aneesha, 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, alright. Aneesha 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, Aneesha's argument.

  • Correcting for the effects of unequal preparation.

  • Educational disadvantage.

  • Now, there are other arguments.

  • Suppose, just to identify whether there 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 test scores of educational disadvantage."

  • What about in that case, Bree?

  • If it's that's 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 to 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 them.

  • But before you were suggesting, Bree, 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.

  • Alright. 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, I'm for affirmative action temporarily,

  • but, for two reasons.

  • First of all, you have to look at the university's purpose.

  • It is to educate their students.

  • And I feel that different races, people coming from different races have

  • different backgrounds and they contribute differently to the education.

  • And second of all, when you say that they have equal backgrounds,

  • that's not true when you look at the broader picture,

  • and you look at slavery and this is kind of a reparation.

  • I think affirmative action is a temporary solution to alleviate history,

  • and 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.

  • 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.

  • Alright, good. I'm sorry, your name is? - Kate.

  • Kate. Alright, who has an answer for Kate?

  • Yes. - I just wanted to comment

  • and say that, - Tell us your name.

  • My name is Mansur. Because of slavery, because of past injustices today,

  • we have a higher proportion of African Americans who are in poverty,

  • who face less opportunities than white people.

  • So because of slavery 200 years ago,

  • and because of Jim Crow, and because of segregation,

  • today we have injustice based on race.

  • Kate? - 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 upbringing with programs like Head Start,

  • and giving more funding to lower income schools

  • rather than just trying to fix the result,

  • so it makes it look like it's equal when it's really it isn't.

  • Yes.

  • Well, with regard to affirmative action based on race,

  • 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 pro quo'.

  • So there's nothing wrong with correcting the injustice and discrimination

  • that's been done to black people for 400 years.

  • Good. Tell us your name. - Hannah.

  • Hannah. Alright who has an answer for Hannah?

  • And just to add to Hannah's point,

  • because 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 privilege of their parent having attended the university

  • to which they're applying.

  • Alright, 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 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 predominately 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 are 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 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 socio-economic 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 leaders themselves,

  • when Martin Luther King said he wanted to be judged not on the color of skin,

  • but by the content of his character, his merit, his achievements.

  • And I just think that, to decide solely based on someone's race

  • is just inherently unfair.

  • I mean, 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 or black. - 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?

  • No. There is more to it than that.

  • Universities need to promote diversity.

  • So you agree with the goal of promoting diversity?

  • There's ways to promote diversity besides discriminating against people solely

  • based on a factor they cannot control.

  • Alright, 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 heart of the unfairness to her.

  • Bree 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 don't for it based on merit,