Two Approaches to Equality, with Implications for Grutter.

• Author: Hylton, Keith N.

The question "what is equality?", applied to the distribution of resources across races, suggests the following answer: when there appears to be no need for a policy that focuses on improving the welfare of one race relative to another. There is another way to approach the same question: Equality is when traditionally recognized paths to advancement--what I will call career channels--do not give preference to or disadvantage an individual because of his race.

Notice the difference here is between end-state and process-based notions of equality, a distinction Nozick emphasized in his examination of justice in distribution. (1) Nozick rejected end-state theories of justice in distribution. (2) My inclination is to side with Nozick's approach. I will argue below that the only morally justifiable and administratively feasible approach to determining equality in the distribution of resources across races is through a process-based definition. I will explore the implications of this argument for Grutter v. Bollinger, (3) where the Supreme Court held that the University of Michigan's use of race as a plus-factor in the law school admissions process was constitutionally permissible, and for the affirmative action debate generally. (4) In the end, I find a paradox: The seemingly more conservative process-based notion of equality delivers a stronger defense of affirmative action than does the end-state approach. (5)

I will confine the discussion to two races: blacks and whites. (6) Nevertheless, the validity of the argument below does not depend on particular facts drawn from the history of relations between blacks and whites in the United States or anywhere else. The approach taken is equally applicable to questions about distributional justice across races in any setting.

1. REJECTING END-STATE NOTIONS OF EQUALITY

   What would equality in the end-state sense look like? One approach is to say that it is a state of "equal outcomes," however that is defined. (7) Another approach is to say that it is a state in which it appears that there are no advantages based on birth or status. (8) The first approach is consistent with the end-state approach to determining equality. The second is closer to the process-based notion.

   The equal-outcomes approach to determining inequality should be rejected, on administrative and moral grounds. To make this argument, I will set out a simple model of the equal-outcomes approach, in order to examine its necessary components. Although I take "equal outcomes" as the definition of equality in the end state, the argument in this section applies just as well to any other definition of the end state based on some particular distribution of outcomes.

   First, the equal-outcomes approach requires an equality monitor. This person labels certain settings as "unequal," others as "equal," and, perhaps, presents a recommendation to the government to alter the outcomes in the unequal settings. To avoid any impression that I am biasing the argument against the equal-outcomes approach, I should add that an equality monitor is a general requirement of any scheme that attempts to determine whether resources or opportunities are distributed equally. (9) In other words, to the extent that it is costly to have an equality monitor, it is an unavoidable cost. Any regime that attempts to define and address inequality will have to appoint an equality monitor.

   Second, the equal-outcomes approach requires a definition of equality. The equality monitor would have to determine an end-state standard for measuring equality. For example, the monitor could examine the percentages of blacks and whites in certain positions, and label as unequal those cases in which the percentage of either group appears to be below some standard. The standard would have to be one that in the end-state, blacks do just as well as whites. The standard itself would require the monitor to choose a baseline population. The monitor would measure the percentages of blacks and whites in the base-line population and compare those to their respective percentages in the end state. If the percentage of blacks appeared to be below the standard adopted by the monitor, the end state would be labeled unequal.

   Suppose blacks and whites invest in different ways in their careers. Suppose, for example, that 80% of whites go to medical school and 20% study art. Suppose among blacks, 40% go to medical school and 60% study art. In addition, assume the financial return from medical school is greater than that for art school. If the equality monitor demanded that blacks have the same income (or wealth) distribution as whites, he would have to transfer part of the return on the investment in medical school to blacks who went to art school. That would violate the expectations of whites who had invested in medical training, with anticipation of the usual reward, only to discover that they had received a lower return. It would also discourage whites from making investments into medical careers.

   Now suppose the equality monitor says instead that blacks who go to medical school should have the same outcomes as whites who go to medical school, and blacks who go to art school should have the same outcomes as whites who go to art school. This means that if 20% of the whites who go to medical school make $500,000 or more, the same percentage of blacks should have that income level.

   This approach to determining equality is better than the first, but it still leads to transfers that would strike most to be unfair, in the sense of violating expectations, and could harm investment incentives. After all, not everyone invests the same amount in their medical school training, or in their careers. To impose equality on returns based on percentages that either entered or graduated from medical school would rob some medical school graduates of the return that usually accrues to extra effort invested during the years of training.

   One counter to the unfairness argument is to say that it is too dependent upon individual expectations. If the government were to announce in advance that it would expropriate part of the reward from medical school to be redistributed on the basis of race, there would be no reason for white medical school graduates to feel that their expectations had been violated when the transfer occurred. If the moral case against expropriation under the "equal outcomes" approach depends on individual expectations, that case disappears, it would seem, when expectations are modified to incorporate the prospect of expropriation.

   This counter to the unfairness argument, based on an expropriation preannouncement, must be rejected, for undermining the basis for property rights generally. (10) First, the "expropriation announcement" would have to occur on some specific date, and on that date current medical school students would find their expectations violated, and their incentives to continue to invest in their careers correspondingly diminished. In other words, regardless of when the expropriation announcement is made, it would inevitably catch some medical students midstream in their investment period, violating their expectations. Second, for those individuals situated before the application stage to medical school, their expectations would be modified, as the preannouncement critique holds. But those individuals would leam from the example that another announcement could just as easily occur when they are midstream in the investment period, violating their modified (lessened) expectations. The reduction in the expected return, and the heightened risk of a further reduction, would discourage some individuals from going to medical school, and society would suffer to some degree from their discouragement.

   Now, obviously, not all expectations present a moral case for being respected by the state. The expectation of a lobbying firm to get a monopoly, and the resulting windfall profit, through bribing state legislators does not present a moral case for respect--nor does the expectation of a thief with respect to stolen money. The moral case against expropriation or redistribution should not be viewed as resting entirely on expectations, without any regard to how they are formed. The moral case should be viewed as resting on reasonable or legitimate expectations, which incorporate an intuition for just rewards. Reasonable expectations of reward based on productive effort deserve to be respected by the state. Property rights, and quasi-property rights in the form of contractual obligations and market-based returns on investments in human capital, should be made secure in order to solidify the links between investment, expectation, and reward.

   Of course, redistribution does not necessarily violate reasonable or legitimate expectations in every instance. For example, if redistribution corrects a failure in the market by internalizing an externality, it should not be viewed as violating legitimate expectations. Consider the redistribution that occurs when a tort victim is awarded a damage payment from an injurer. If the injurer acted negligently, he failed to properly consider costs that he externalized to others while engaged in his activity. When a court awards a damage judgment, it redistributes resources from the injurer to the victim, but at the same time it internalizes an external cost generated by the injurer. Redistribution through internalization gives potential injurers incentives to take into consideration costs they externalize to others. (11)

   Nevertheless, redistribution or expropriation for its own sake, or to arbitrarily reassign a payoff from A to B, should be viewed as violating legitimate expectations. If the moral case against redistribution across races is viewed as resting on legitimate expectations, then merely introducing a redistribution program and announcing its existence should not be sufficient to destroy the moral objection to the expropriation...