Arguing Affirmative Action

                       Can Justice Be Detached From Moral Desert ? 

   The renunciation of moral desert as the basis of distributive justice is morally attractive but also disquieting. It's attractive because it undermines the smug assumption, familiar in meritocratic societies, that success is the crown of virtue, that the rich are rich because they are more deserving than the poor. As Rawls reminds us, "no one deserves his greater natural capacity nor merits a more favorable starting place in society." Nor is it our doing that we live in a society that happens to prize our particular strengths. That is a measure of our good fortune, not our virtue. 
   What's disquieting about severing justice from moral desert is less easy to describe. The belief that jobs and opportunities are rewards for those who deserve them runs deep, perhaps more so in the United States than in other societies. Politicians constantly proclaim that those who "work hard and play by the rules" deserve to get ahead, and encourage people who realize the American dream to view their success as a reflection of their virtue. This conviction is at best a mixed blessing. Its persistence is an obstacle to social solidarity ; the more we regard our success as our own doing, the less responsibility we feel for those who fall behind.
   It may be that this persisting belief --- that success should be seen as a reward for virtue --- - is simply a mistake, a myth whose hold we should try to dissolve. Rawls's point about the moral arbitrariness of fortune puts it powerfully in doubt. And yet it may not be possible, politically or philosophically, to detach arguments about justice from debates about desert as decisively as Rawls and Dworkin suggest. Let's try to explain why.
   First, justice often has an honorific aspect. Debates about honorific justice are about not only who gets what but also about what qualities are worthy of honor and reward. Second, the idea that merit arises only once social institutions define their mission is subject to a complication : the social institutions that figure most prominently in debates about justice --- schools, universities, occupations, professions, public offices --- are not free to define their mission just any way they please. These institutions are defined, at least in part, by the distinctive goods they promote. While there is room for argument about what, at any moment, the mission of a law school or an army or an orchestra should be, it's not the case that just anything goes. Certain goods are appropriate to certain social institutions, and to ignore these goods in allocating roles can be a kind of corruption. 
   We can see the way justice is entangled with honor by recalling Hopwood's case. Suppose Dworkin is right that moral desert has nothing to do with who should be admitted. Here is a the letter of rejection the law school should have sent Hopwood : 

 Dear Ms. Hopwood :
   
   We regret to inform you that your application for admission has been rejected. Please understand that we intend no offense by our decision. We do not hold you in contempt. In fact, we don't even regard you as less deserving than those who were admitted. 
   It is not your fault that when you came along society happened not to need the qualities you had to offer. Those admitted instead of you are not deserving of a place, nor worthy of praise for the factors that led to their admission. We are only using them---and you---as instruments of a wider social purpose. 
   We realize you will find this news disappointing. But your disappointment should not be exaggerated by the thought that this rejection in any way on your intrinsic moral worth. You have our sympathy in the sense that it is too bad you did not happen to have the traits society happened to want when you applied. Better luck next time. 

         Sincerely yours,


And here is the letter of acceptance, shorn of honorific implications, that a philosophically frank law school should send those it admits : 


Dear successful applicant :

   We are pleased to inform you that your application for admission has been accepted. It turns out that you happen to have the traits that society needs at the moment, so we propose to exploit your assets for society's advantage by admitting you to the study of law.
   You are congratulated, not in the sense that you deserve credit for having the qualities that led to your admission --- you do not --- but only in the sense that the winner of the lottery is to be congratulated. You are lucky to have come along with the right traits at the right moment. If you choose to accept our offer, you will ultimately be entitled to the benefits that attach to being used in this way. For this, you may properly celebrate.
   You, or more likely your parents, may be tempted to celebrate in the further sense that you take this admission to reflect favorably, if not on your native endowments, then at least on the conscientious effort you have made to cultivate your abilities. But the notion that you deserve even the superior character necessary to your effort is equally problematic, for your character depends on fortunate circumstances of various kinds for which you can claim no credit. The notion of desert does not apply here.
   We look forward nonetheless to seeing you in the fall.

                Sincerely yours, 


   Such letters might lessen the sting for those who are rejected, and dampen the hubris of those who are accepted. So why do colleges continue to send (and applicants to expect) letters replete with congratulatory, honorific rhetoric ? Perhaps because colleges can't entirely dispense with the idea that their role is not only to advance certain ends but also to honor and reward certain virtues. 

                  WHY NOT AUCTION COLLEGE ADMISSION ?

   This leads us to the second question, about whether colleges and universities may define their mission however they please. Put ethnic and racial preferences aside for the moment and consider another affirmative action controversy --- the debate over "legacy preferences," Many colleges give children of alumni an edge in admission. One rationale for doing so is to build community and school spirit over time. Another is the hope that grateful alumni  parents will provide their alma mater with generous financial support.
   In order to isolate the financial rationale, consider what universities call "development admits"---applicants who are not children of alumni but who have wealthy parents able to make a sizable financial contribution to the school. Many universities admit such students even if their grades and test scores are not as high as would otherwise be required, To take this idea to the extreme, imagine that a university decided to auction 10 percent of the seats in the freshman class to the highest bidders. 
   Would this system be fair? If you believe that merit simply means the ability to contribute, in one way or another, to the mission of the university, the answer may be yes. Whatever their mission, all universities need money to achieve it. 
   By Dworkin's expansive definition of merit, a student admitted to a school for the sake of a $10 million gift for the new campus library is meritorious ; her admission serves the good of the university as a whole. Students rejected in favor of the philanthropist's child might complain they've been treated unfairly. But Dworkin's reply to Hopwood applies equally to them. All fairness requires is that no one be rejected out of prejudice or contempt, and that applicants be judged by criteria related to the mission the university sets for itself. In this case, those conditions are met. The students who lose out aren't the victims of prejudice ; it's just their bad luck to lack parents willing and able to donate to a new library.
   But this standard is too weak. It still seems unfair for wealthy parents to be able to buy their child a ticket to the Ivy League. Bt what does the injustice consist in ? It can't be the fact that applicants from poor or middle-class families are put at a disadvantage beyond their control. As Dworkin points out, many factors beyond our control are legitimate factors in admission.
   Perhaps what's troubling about the auction has less to do with the opportunity of the  applicants than the integrity of the university. Selling seats to the highest bidder is more appropriate for a rock concert or a sporting event than for an educational institution. The just way of allocating access to a good may have something to do with the nature of that good, with its purpose. The affirmative action debate reflects competing notions of what colleges are for : To what extent should they pursue scholarly excellence, to what extent civic goods, and how should those purposes be balanced ? Though a college education also serves the good of preparing students for successful careers, its primary purpose is not commercial. So selling education as if it were merely a consumer good is a kind of corruption. 
   What, then, is the university's purpose ? Harvard is not Wal-Mart --- or even Bloomingdales. Its purpose is not to maximize revenue but to serve the common good through teaching and research. It is true that teaching and research are expensive, and universities devote much effort to fund-raising. But when the goal of money-making predominates to the point of governing admission, the university has strayed far from the scholarly and civic goods that are its primary reason for being. 
   The idea that justice in allocating access to a university has something to do with the goods that universities properly pursue explains why selling admission is unjust. It also explains why it;s hard to separate questions of justice and rights from questions of honor and virtue. Universities give honorary degrees to celebrate throw who display the virtues universities exist to promote. But in a way, every degree a university confers is an honorary degree.