Bottlenecks: A New Theory of Equal Opportunity.

• Author: Areheart, Bradley Allan
• Position: Book review

BOTTLENECKS: A NEW THEORY OF EQUAL OPPORTUNITY. By Joseph Fishkin. Oxford and New York: Oxford University Press. 2014. Pp. 1, 257. $35.

INTRODUCTION

Equal opportunity might appear to comprise a relatively simple question: Do similarly situated persons have an equal chance to attain a particular goal, or do obstacles irrelevant to their qualifications or to the desired goal preclude achievement? But equal opportunity is complicated. (1) There are descriptive and prescriptive dimensions to this question. Nuances exist when determining who is similarly situated, whether those individuals have the same opportunity, what goals we care about equalizing, and whether the ultimate aspiration is equality of opportunity or equality of outcome. Moreover, what means should we employ to remove obstacles, are these means likely to be successful, and do the cultural means justify the societal ends? And some readily apparent factors leading to inequalities of opportunity seem inexorable, including our individual genetic makeup, the environments in which we are raised, and our overall social circumstances. These considerations have prompted some scholars to argue that equality of opportunity is possible only if both law and government are committed to achieving it. (2)

To discuss equal opportunity in a coherent way often requires focusing on specific domains. (3) One field in which equal opportunity has special resonance is employment. Societal support exists both for the descriptive idea that racial discrimination poses an obstacle to equal opportunity and for the prescriptive idea that such an obstacle ought to be overcome. Accordingly, a law like Title VII of the Civil Rights Act of 1964 conveys something specific about what opportunities are important (work), what obstacles are inappropriate (discrimination), and what type of equality of opportunity is desired (race, color, sex, religion, and national origin). Such antidiscrimination laws generally enjoy strong support in the United States. (4)

Joseph Fishkin's new book, Bottlenecks: A New Theory of Equal Opportunity, (5) reinvigorates the concept of equal opportunity by simultaneously engaging with its complications and attempting to simplify its ambitions. Fishkin describes bottlenecks as narrow spaces in the opportunity structure through which people must pass if they hope to reach a range of opportunities on the other side (p. 13). A significant component of the American opportunity structure that Bottlenecks leaves largely unexplored, however, relates to people with disabilities. (6) This Review applies Fishkin's theory to explore how disability law creates and perpetuates bottlenecks that keep people with disabilities from achieving a greater degree of human flourishing. In particular, disability policy's opportunity structure features a conceptual disability-employability divide that ultimately prevents people with disabilities from reaching a wider array of opportunities. Fishkin's book, in concert with this Review, introduces new and inventive ways of reimagining and implementing structural solutions to these bottlenecks.

Part I provides an overview of Fishkin's arguments, including his theory of opportunity pluralism, which he advances as a theoretical framework for broadening the opportunity structure. Part II then applies Fishkin's theory to administrative disability policy to address and evaluate the disability-employability divide as a bottleneck. In particular, this Part explores how people with disabilities are frequently unable to pass through certain bottleneck policies to reach productive employment on the other side. Part III then proffers several policy solutions that could enable people with disabilities to move through or around the bottlenecks that keep them from accessing productive work opportunities.

1. BOTTLENECKS: A NEW THEORY OF EQUAL OPPORTUNITY

   Bottlenecks endeavors to demystify the concept of equal opportunity through the relatively simple metaphor of a bottleneck. Fishkin defines "bottlenecks" as narrow spaces through which people must pass to reach greater opportunities (p. 13). He characterizes bottlenecks as inevitable obstacles (p. 156) that ought to be addressed if they become pervasive or severe (pp. 21-22). To illustrate, Bottlenecks relates how some state legislatures have enacted laws in recent years to ban credit checks in hiring, bar employers from indicating "no unemployed need apply," or prevent employers from inquiring into previous criminal convictions (pp. 21, 231-35). Fishkin argues that extending these innovative and seemingly unconventional protections is actually a part of our conventional antidiscrimination heritage. In other words, antidiscrimination law is, and should be, fundamentally about ameliorating severe bottlenecks in the structure of opportunity--and these recent statutes and doctrines are designed to do just that (pp. 20-22, 235).

   Fishkin labels his proposal "opportunity pluralism," which "requires us to look in a more structural way at how the opportunities in our society are created, distributed, and controlled" (pp. 1, 16-18). He wants to transcend a "big test society" (p. 15) in which there are strikingly similar preferences for jobs, social roles, or instrumental goods--and in which successes snowball, as "each outcome is another opportunity." (7) To do so, we need a pluralistic model of opportunities in which no bottleneck is too severe and many different processes and paths enable one to pursue success (pp. 15-17, 76). If there is a highway of opportunities, Fishkin desires as many on-ramps as possible (p. 17). That way, if you fail to clear a big test hurdle at age sixteen, there remain other chances to pursue valuable opportunities. (8) Expanding the means for achievement may, over time, turn the conventional opportunity structure, which currently resembles a pyramid, into something that looks "more like a city, with many different structures and various roads and paths" to success. (9) But expanding the number of on-ramps or paths to opportunities requires, among other things, first minimizing or undoing the effects created by certain bottlenecks (pp. 18-20).

   Importantly, some bottlenecks are warranted (pp. 160-63, 169). In certain circumstances, we perhaps want a fairly unitary and rigid structure for specific opportunities. For example, we might decide that the route to becoming a pediatric anesthesiologist ought to be a very narrow one, given the specific set of skills required for and the stakes associated with that line of work. Hence, we might favor retaining the current bottleneck (which depends largely on the standardized United States Medical Licensing Examination) to ensure that only extremely qualified people can hold such jobs. The efficiency costs in designing alternative routes to such a specialized position may likewise counsel in favor of retaining the test and its consequent bottleneck. (10)

   Fishkin advises us to ask two questions to determine whether we ought to retain a particular bottleneck. First, we must decide whether the policy creating the bottleneck is legitimate or arbitrary (p. 160). Here, we are concerned with the strength of the justification for imposing a bottleneck. Fishkin illustrates this idea with the credential of credit scores (p. 162). Conditioning a person's ability to get a loan on that person's credit score might seem a legitimate practice, given the lender's natural and logical interest in ensuring that the person has the capacity to pay back loans in a timely manner (p. 162). Conditioning a person's ability to get a job on that person's credit score seems arbitrary, however, given that credit scores are poor predictors of whether a person will be a good employee (p. 162). Even if using a credential or requirement is legitimate, we may decide that other values warrant limiting its use as a prerequisite. For example, even assuming that a four-year college degree was legitimate for every job as an indicator of a given individual's capabilities, we might oppose requiring such a degree for every job given the countervailing value of opportunity pluralism. (11)

   The second question is whether the bottlenecking effect of a policy or requirement is severe. Even if a policy is arbitrary or unjustified, it still may not present much of a problem for making certain opportunities widely available (p. 163). Here, we are concerned with both the pervasiveness and strictness of any particular bottleneck (pp. 164-70). For pervasiveness, we want to know how many paths to opportunity are actually constrained by this requirement (p. 164). For strictness, we want to know whether the policy is "an absolute bar, a strong preference, or just a mild preference" (p. 164). Applying these concepts to the example of credit scores, we want to know how many employers actually require credit scores as a component of their application (pervasiveness) and whether this information is being applied strictly or just as part of an overall query into an applicant's reliability (strictness). Some bottlenecks may be pervasive but not especially strict, such as employers' valuing attractiveness (p. 164). Alternatively, some bottlenecks might be strict but not especially pervasive, such as employers' refusing to hire employees with children.

   If a requirement is both arbitrary and severe, the case for ameliorating that bottleneck is "particularly compelling" (p. 167). In these instances, Fishkin contends that the bottleneck should be addressed by helping people get through--or around--it (pp. 19, 171-72). This way of examining opportunities provides a novel filter through which to reexamine antidiscrimination law. American antidiscrimination law tends to focus on wrongdoing by asking questions like the following: Why did the employer make a particular decision, that is, was there "disparate treatment" under the relevant statute? Is an employer-imposed requirement a business...