Affirmative Action in Higher Education: Insults, Preferences, and the Dworkin Defense

• Publication year: 2021
• Citation: Vol. 85

85 Nebraska L. Rev. 508. Affirmative Action in Higher Education: Insults, Preferences, and the Dworkin Defense

508

Matthew DeBell(fn*)

Affirmative Action in Higher Education: Insults, Preferences, and the Dworkin Defense

TABLE OF CONTENTS

I. Affirmative Action ................................................ 508
II. Utilitarian Framework ............................................ 511
III. Internal and External Preferences ............................... 513
IV. Utility and Democracy ............................................ 517
V. Dworkin's Empirical Argument ...................................... 519
VI. Weakness of Empiricism and the Ecological Fallacy
................ 522
VII. Conclusion ...................................................... 525

I. AFFIRMATIVE ACTION

This Essay analyzes a particular kind of justification for affirmative action in higher education. Ronald Dworkin, in Taking Rights Seriously,(fn1) advances the position that the insult felt by victims of discrimination has a pivotal effect on the meaning of the act of discrimination, thus rendering the targets of such discrimination victims, and making the discriminatory act unethical and illegal. Conversely, the absence of such insult to those merely denied benefits by policies of affirmative action renders their objections impotent and makes affirmative action an ethical and lawful policy. In this Essay, I assess the confluence of ethical, legal, and psychological issues in Dworkin's arguments about affirmative action. I argue that Dworkin's defense of affirmative action, using ascriptive characteristics as a consideration in admissions or other awards procedures, is inadequate to demonstrate the justice or constitutionality of the policy, even when used as a remedy for past or continuing discrimination. In assessing Dworkin's psychology and the empirical component of his argument centered on the notion of "insult," I attend particularly to the legitimacy

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of different kinds of preferences and to the question of psychological harm done to the victims of discrimination.

Affirmative action is characterized by two features. First, it is a remedial policy, designed to help overcome the legacy of past discrimination and to counter the effects of continuing discrimination on the basis of race or other ascriptive characteristics.(fn2) Second, it is a discriminatory policy in the sense that, as a means of offering a remedy for wrongful discrimination, it differentially weighs ascriptive characteristics that would otherwise be impermissible to consider in admissions or other award decisions. Affirmative action has taken many forms, from individualized attention to the diversity that an applicant is likely to contribute to a school class because of his or her characteristics,(fn3) to the formulaic application of a fixed numerical advantage to university applicants of preferred races,(fn4) to the use of quotas that require a certain percentage distribution of characteristics among a selected population.(fn5) Most share the feature of using remedial discrimination, discriminating on the basis of characteristics which it would normally be wrong to weigh,(fn6) and doing so to remedy other wrongs.

As a policy that treats people unequally on the basis of race, affirmative action has been criticized for violating the principles of racial equality and equal protection of the laws. These objections typically hold that laws instituting policies of affirmative action violate the right to equal protection because they allow individuals' immutable characteristics to be held against them when they have a right to demand that such characteristics be treated as making them no more or less entitled to anything than anyone else.(fn7) In reply to these objections, defenders of affirmative action have long contended that the enduring legacy of discrimination and the existing forms of prejudice in the United States demand a remedy, and that affirmative

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action serves to diminish the unfair advantages that historically and currently advantaged groups (particularly whites and males) enjoy.(fn8) Affirmative action thus, in this view, advances the cause of equality by treating people unequally to a degree inversely related to their status in society, helping those who have been wrongly disadvantaged to attain their rightful social station. A second line of defense, recently upheld by the Supreme Court, is that a form of affirmative action is necessary to obtain the educational benefits that result from having a diverse student body.(fn9) In this view, affirmative action improves the quality of each student's education by increasing the diversity of experiences and characteristics within each class, thereby exposing students to an educationally valuable breadth of perspectives.

Ronald Dworkin has presented another argument in favor of affirmative action in Taking Rights Seriously.(fn10) Dworkin's argument emphasizes three issues: the characterization of remedial discrimination as a social policy intended to make the community more equal overall, the insult felt by victims of wrongful discrimination, and the illegitimacy of the preferences of those who favor such discrimination. His discussion of these themes is presented in an analysis of the cases of DeFunis v. Odegaard(fn11) and Sweatt v. Painter.(fn12) Sweatt was a black applicant who was denied admission to the law school at the University of Texas in 1945 because, under a policy of segregation, blacks were barred from admission. DeFunis was a white applicant who was denied admission to the University of Washington's law school under an affirmative action policy that applied different admissions standards to white and black applicants,(fn13) while "[t]he school conceded that any minority applicant with his average would certainly have been accepted."(fn14) Dworkin's discussion of affirmative action is still regularly cited,(fn15) and the Supreme Court recently echoed Dworkin's concern for making the community more equal overall when it discussed the importance of diversity in public life for the realization of

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American ideals,(fn16) the competitiveness of American businesses,(fn17) and the legitimacy of political leaders.(fn18) Thus, the issue and the argument remain timely.

II. UTILITARIAN FRAMEWORK

Dworkin distinguishes between DeFunis and Sweatt, arguing that DeFunis's experience is substantially different from Sweatt's and that the difference makes discrimination against DeFunis benign. Part of the difference lies in the different kinds of purposes behind the discriminatory acts to which DeFunis and Sweatt are subjected. Dworkin analyzes these differences in terms of a utilitarian calculus, distinguishing two forms of utilitarianism: "psychological utilitarianism" and "preference utilitarianism." Psychological utilitarianism is consistent with classical "rule utilitarianism" in that it identifies the maximization of aggregate utility (which may be variously relabeled as happiness, satisfaction, or pleasure in the community as a whole) as morally right. Preference utilitarianism distinguishes between kinds of utility, and in so doing departs from utilitarian tradition by branding some forms of utility more right than others.

The distinction allows Dworkin to introduce an important issue into his analysis, namely the nature or origin of particular utilities, and how different kinds of utility relate to public policy and justice in their own particular ways. In terms of a traditional (e.g., Benthamite or Millian)(fn19) utilitarian view, there is no conceptual difference between the psychological and preference forms: utilitarians recognize only utility as a justification for action, so pleasure and preference are analytically identical in that they both indicate choices which are finally agreeable or on the whole better than the alternatives. However, Dworkin's approach is ultimately liberal rather than utilitarian. Distinguishing preference utilitarianism from psychological utilitarianism helps Dworkin to show that in a nonutilitarian political and moral system like ours, only certain kinds of popular wants can legitimately be pursued by the public authority. Some public policies that might pass a utilitarian test must, nonetheless, be overruled on grounds of injustice.

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The "preference" view of utilitarianism helps Dworkin develop his argument against a solely utilitarian view of the legitimacy of public policy. Some kinds of utility are illegitimate because of liberal concerns with justice, and issues of right tell us the forms of utility to which we can and cannot pay attention when forming public policy. I suggest above that the distinction, within the preference view of utilitarianism, hinges on the differences between what are called personal and external preferences. Personal preferences apply to oneself, while external preferences apply to other people. In Dworkin's example, "[a] white law school candidate might have a personal preference for the consequences of segregation . . . because the policy improves his own chances of success, or an external preference for those consequences because he has contempt for blacks and disapproves social situations in which the races mix."(fn20) As Dworkin notes, external preferences corrupt egalitarian principle by allowing individual personal preferences to be overwhelmed by the external preferences of others. For example, if a majority feels that the members of a minority religious group should not be allowed to build themselves a place of worship, then the members of the minority group could be denied their personal preferences. This would clearly deny the members of the minority group their right to equal concern and respect, which is a fundamental principle that Dworkin desires to use to gauge wants.(fn21) By the personal preferences principle...