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Michael Sandel on Justice #3

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Having set out the elements of John Rawls’s liberal egalitarianism, Michael Sandel then presents a set of real-life cases involving affirmative action. The intention seems to be to test the Rawlsian approach.

(Not so) affirmative action?

(Not so) affirmative action?

This is the third part of a series on Michael J Sandel’s Justice: What’s the Right Thing to Do? which started with Michael Sandel on Justice #1.

I said at the beginning of the series that as I read more and more into Sandel’s book I had an uneasy feeling that I was missing something. I couldn’t put my finger on where exactly I went from agreement to something closer to disagreement. On second reading I think it might be in Chapter 7, entitled Arguing Affirmative Action.

It’s not that I either agree or disagree with affirmative action. But there seems to be a bit of shaky logic somewhere in the chapter.

In 1992 Cheryl Hopwood applied to the University of Texas Law School and was rejected, despite being better qualified than many successful African American and Mexican American applicants. The Law School had an affirmative action policy which aimed at enrolling about 15% of the class from ethnic minorities. Hopwood filed a federal lawsuit against the university, arguing she was a victim of discrimination.

University of Texas Law School

University of Texas Law School

The university replied that part of its law school’s mission was to increase the representation of ethnic minorities in the legal profession and the legislature. African Americans and Mexican Americans made up 40% of the population of Texas, but were significantly under-represented in the legal profession:

Law in a civil society depends overwhelmingly on the willingness of society to accept its judgement. … It becomes harder to achieve that if we don’t see members of all groups playing roles in the administration of justice. [Michael Sharlot, Dean of the Law School, quoted in Sam Walker, ‘Texas Hunts for Ways to Foster Diversity’, Christian Science Monitor, June 12, 1997.]

Sandel presents three arguments employed by advocates of affirmative action in education:

Correcting for possible bias in standardised tests. This does not challenge the idea that admission should be based on academic promise however, it only applies different ways to measure that promise.

Compensating for historic discrimination. Sandel has a lot to say about this later on, so we shall also postpone it.

Promoting diversity. This is Sandel’s principal focus in the present context.

Ronald Dworkin

Ronald Dworkin

If the school’s explicit policy is to promote diversity, and affirmative action is a means to that end, then someone arguing Cheryl Hopwood’s case would need to show that the use of race in affirmative action violated her rights. Ronald Dworkin, another rights-based legal philosopher, discussing the similar case of Allan Bakke [Ronald Dworkin, ‘Why Bakke Has No Case’, New York Review of Books, November 10, 1977], did not think anyone’s rights had been denied. No one deserves to be considered on academic merit alone. Sandel sums up:

Dworkin argues that no applicant has a right that the university define its mission … and 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. … But no one has a right to be considered according to any particular set of criteria in the first place.

…Dworkin’s point is that justice in admissions is not a matter of rewarding merit or virtue… [which] runs parallel to Rawls’s account of justice in income distribution: It is not a matter of moral desert.

Sandel throws a few more cases into the mix, including anti-Jewish quotas in force at some Ivy League universities in the 1920s and 1930s, and affirmative action in favour of whites to prevent the combined African American and Hispanic population in a Brooklyn housing project from exceeding 40%.

The Rawlsian conclusion is that

if no one is discriminated against based on hatred or contempt [which did apply in the anti-Jewish quotas case], then racial preferences do not violate anyone’s rights. …[This is because] no one deserves to be considered for an apartment or a seat in the freshman class according to his or her merits, independently defined. What counts as merit can be determined only once the housing authority or the college officials define their mission.

As Sandel’s book proceeds we hear more of his discomfort with the idea that justice can be detached from moral desert. In retrospect his discussion of affirmative action seems to be a turning point. But I also think I see what I missed the first time.

Protesters during the Allan Bakke case

Protesters during the Allan Bakke case

I may be being unfair, but I think Sandel has taken the concept of legitimate expectation out of its context. The context is Rawls’s theory of justice itself – ie the presumed agreement on basic rights and the difference principle by a set of people choosing from behind a veil of ignorance. Sandel seems to be saying that Rawls would give institutions like colleges and housing authorities the right to define their mission how they like, and that applicants only have the right to fair treatment in accordance with that mission.

In presenting the Rawlsian model, Sandel seems to have glossed over any obligation the institution might have to behave generally in accordance with justice – ie those basic rights and the difference principle. The institution is therefore not free to define its mission any way it likes. If the institution has an obligation to define a just admission policy, then the applicant has the right to expect the institution to employ a just admission policy. But the applicant does not have the right to define what that just admission policy should be, only the legitimate expectation to be treated in accordance with it.

Rawls’s theory is not a formula for deciding what is right and wrong, but a framework for proposing principles of justice. No one can really know what a specific set of people would actually decide if they didn’t know what sort of people they would be, what sort of lives and what appetite for risk they would have. But that does not mean the thought experiment cannot be used as a test.

Would people who knew they could turn out to be Jewish, in a context of historic embedded anti-Semitism, agree to principles which allowed public bodies to impose anti-Jewish quotas, purportedly as a way to avoiding the possible consequences of anti-Semitism? Unlikely. Would people who knew they could turn out to be members of ethnic minorities under-represented in the legal institutions of their community agree to principles which allowed institutions to devise affirmative action admissions policies designed to redress that under-representation? Not out of the question.

Sandel’s chapter on affirmative action is not where he begins to reject Rawls’s theory of justice, but it does seem to be where he starts trying to undermine it. If so, I’m not sure this initial attempt succeeds.

To be continued

© Chris Lawrence 2011.

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