John Rawls and Affirmative Action

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John Rawls and Affirmative Action Thomas Nagel The Journal of Blacks in Higher Education, No. 39. (Spring, 2003), pp. 82-84. Stable URL: http://links.jstor.org/sici?sici=1077-3711%28200321%290%3A39%3C82%3AJRAAA%3E2.0.CO%3B2-X The Journal of Blacks in Higher Education is currently published by CH II Publishers.

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John Rawls and Affirmative Action by Thomas Nagel Editor's Note: One of the nation's most influential contemporary philosophers recalls that although John Rawls never

stated in writing his views owthe propriety of the consideration of race in college admissions, Rawls expressed

in conversation the importance of defending the constitutionality of afJirmative action.

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This oblique reference occurs in Justice as Fairness: a OHN RAWLS, who died last November at the age of Restatement, a book published in 2001 on the basis of notes 81, was the greatest political philosopher of the twenhe distributed for many years to his students at Harvard. tieth century, and he was responsible for the revival of Commenting on A Theory of Justice he there says, "The seserious philosophical thought about concrete social questions rious problems arising from existing discrimination and over the past 40 years. Among the issues that have attracted distinctions based on gender and race are not on its agensustained moral attention and argument is affirmative action, da. . . . This is indeed an omission in Theory;but an omisand in some sense the intellectual climate that Rawls produced sion is not as such a fault. . . . has influenced this debate. But himself never wrote about While John Rawls never wrote on afirmative action as Whether fault there be depends and it is not easy to such, Professor Nagel explains why Rawls' ideas have on how well that conception the articulates the political values tell from his writings what his a bearing on the issue. necessary to deal with these theory of justice would imply questions. Justice as fairness, and other liberal conceptions about it. I want to try to explain why this is so, and to explain like it, would certainly be seriously defective should they how, nevertheless, his ideas have a bearing on the issue. lack the resources to articulate the political values essential The first thing to say is that Rawls concentrated for most of to justify the legal and social institutions needed to secure his life almost exclusively on what he called "ideal theory." the equality of women and minorities." By this he meant the theory of what would constitute a truly What does Rawls' ideal theory of justice tell us, that just society, and why. Ideal theory enables you to say when a might help in deciding what we should do about the injussociety is unjust, because it falls short of the ideal. But it tices of our very nonideal present situation? To begin with, does not tell you what to do if, as is almost always the case, it enables us to identify the ways in which an actual sociyou find yourself in an unjust society, and want to correct ety can be unjust. Rawls' principles for a just society rethat injustice. That is the province of what he called "nonquire three things: ideal theory." A f f i a t i v e action is clearly a policy intended That everyone be guaranteed equal basic personal liberto deal with the unjust consequences of an unjust history. ties and equal political status; Whether affirmative action is itself just or unjust is therefore That there be fair equality of opportunity in the competia central question of nonideal theory for a society like ours. tion for those social and economic advantages that will inIn his magnum opus, A Theory of Justice, published in evitably be unequally distributed in a free society; 1971, Rawls discusses only two examples of nonideal theThat those inequalities of advantage, in the economy, for ory: civil disobedience and conscientious objection to an example, be part of a system that makes the least advanunjust war. Both were important public issues during the taged socioeconomic class as well off as possible, consis1960s, because of the civil rights movement and the Viettent with the first two principles. nam War. But affiiative action only began to be a major It is the first two principles that bear on race. Slavery, segissue in the early 1970s, after the final elimination of legal regation, and racial discrimination obviously violate the segregation, and the Bakke case was not decided until 1978. first principle. But the situation that makes affirmative acI recall that at that time Rawls expressed in conversation his tion an issue emerges after legal segregation has been abolview of the importance of defending the constitutionality of ished and explicit racial discrimination has been much reaffiiative action, but he never referred to it in his writings, duced. Of course, affirmative action can serve to counter so far as I know, except obliquely. ~~~~~~

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John Rawls 1921-2002

In conversation he spoke of the importance of defending the constitutionality of afinnative action.

THEIOURNAL OF BLACKS IN HIGHER EDUCATION

continuing discrimination against minorities, covert or unconscious. But its most important function now in higher education is to increase the representation of traditionally oppressed minorities in institutions where they would be present in far smaller numbers if race were not used as a factor in admissions. -

"I recall that at the time of the Bakke decision, Rawls expressed in conversation the importance of defending the constitutionality of afimzative action." Nowadays, racial preferences are usually defended on the ground of diversity. This is both because that is what the Bakke decision declared acceptable, and because it allows universities to assimilate affmative action to preferences for such groups as athletes, musicians, and people with unusual interests. But that, I believe, is to downplay the main reason for racial preferences, which is to try to overcome the continued social stratification of our society on racial lines by using education to bring more blacks into the mainstream of economic, professional, and political power and influence. In the terms of Rawls' conception, the injustice that affirmative action should seek to combat is a special form of the failure of fair equality of opportunity. In his work, Rawls concentrated mainly on economic inequality as a threat to equality of opportunity. Those born poor cannot compete as effectively as the well-off for desirable positions, because their families can't give them the same level of education, the same network of support, the same cultural advantages, health care, and so forth. They are also likely to have less motivation to succeed. This means that they don't have fair equal opportunity even if they are not formally discriminated against. But race is an independent and even more intractable cause of the failure of fair equality of opportunity in our society. Because of slavery, followed by a century of legally enforced segregation and economic oppression, and because of their physical identifiability and the continuing prejudices of other members of the society that single them out, blacks form a hereditary group whose members inherit a generic social disadvantage. The disadvantage is economic, political, and, very importantly, psychological - due to the psychology of the minority as well as of the majority. So long as the separateness and deprivation of blacks as a group continue, those born black will suffer from a systematic disad84

vantage in the competition for places in our highly competitive society. This is in itself an injustice, and it is the historical product of much worse injustice. Racial preferences in education provide one way to attempt to break the selfreinforcing inertia of the great American caste system. A just society would have no need for racial preferences, and if they were introduced into a just society, they would make it unjust, by Rawls' standards. But Rawls, a white southerner whose historical hero was Abraham Lincoln, regarded slavery and racial segregation as paradigms of injustice. I believe, speaking for myself, that it is a natural consequence of his ideal of justice that exceptional measures such as affirmative action are warranted if they serve in the long run to rectify the distinctly non-ideal situation in which those injustices have left us. Thomas Nagel is Fiorello La Guardia Professor of Law, professor of philosophy, and University Professor at New York University.

Affirmative Action:

The Issue is Equality, Not Diversity

"We should stop using 'diversity' as the primary line of justification for selective admissions. It is a weak argument that has little practical validity. Minorities who make it to a 'white' college already know how to function in a white world. Further, the main value of 'diversity' is for white students to learn from minorities. This uses blacks and Hispanics for white ends. It should hardly be surprising that blacks on our campuses often prefer to associate with other blacks and that, in practical terms, physical proximity fails to foster social and educational diversity. "The opponents of affirmative action have it correct. The issue is equality, not diversity. Inequality is the constitutional issue, and the goal is numerical parity. Sometimes, however, constitutional equality under the Equal Protection Clause of the Fourteenth Amendment is based on recognizing and accepting differences, such as gender differences in height, weight, and strength in the selection criteria for police officers. Applying a standard of 'no difference' to a means of selection often produces inequality. Achieving 'no difference' in the outcome of a process often requires accepting difference in the means of selection." - K. Edward Renner, Academe, JanuaryJFebruary 2003

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