0:15 last time we were discussing the
0:21 distinction that walls draws between two
0:24 different types of claims claims of
0:28 moral desert on the one hand and of
0:30 entitlements to legitimate expectations
0:39 on the other walls argued that it's a
0:44 mistake to think that distributive
0:49 justice is a matter of moral desert a
0:53 matter of rewarding people according to
0:56 their virtue today we're going to
1:00 explore that question of moral desert
1:02 and its relation to distributive justice
1:04 not in connection with income and wealth
1:08 but in its connection with opportunities
1:10 with hiring decisions and admission
1:15 standards and so we turn to the case of
1:19 affirmative action you read about the
1:24 case of Cheryl Hopwood she applied for
1:27 admission to the University of Texas law
1:32 school Cheryl Hopwood had worked her way
1:33 through high school
1:34 she didn't come from an affluent family
1:36 she put herself through Community
1:39 College and California State University
1:43 at Sacramento she achieved a 3.8 grade
1:47 point average there later moved to Texas
1:50 became a resident took the law school
1:52 admissions test did pretty well on that
1:55 and she applied to the University of
2:01 Texas law school she was turned down she
2:02 was turned down at a time when the
2:04 University of Texas was using an
2:15 a policy that took into account race and
2:18 ethnic background the University of
2:22 Texas said 40% of the population of
2:26 Texas is made up of african-americans
2:29 and mexican-americans it's important
2:34 that we as a law school have a diverse
2:39 student body and so we are going to take
2:41 into account not only grades and test
2:44 scores but also the demographic makeup
2:47 of our class including its race and
2:51 ethnic profile the result and this is
2:54 what Hopwood complained about the result
2:58 of that policy is that some applicants
3:00 to the University of Texas law school
3:04 with the lower academic index which
3:06 includes grades and test scores than
3:08 hers were admitted and she was turned down
3:10 down
3:13 she said she argued
3:15 I'm just being turned down because I'm
3:18 white if I weren't if I were a member of
3:20 a minority group with my grades and test
3:24 scores I would have been admitted and
3:28 the statistics the admissions statistics
3:30 that came out in the trial confirmed
3:34 that African American and Mexican
3:39 American applicants that year who had
3:43 her grades and test scores were admitted
3:49 it went to federal court now put aside
3:50 the law let's consider it from the
3:53 standpoint of justice and morality is it
3:57 fair or is it unfair does Cheryl Hopwood
4:01 have a case a legitimate complaint where
4:04 her rights violated by the admissions
4:08 policy of the law school how many say
4:10 how many would rule for the law school
4:14 and say that it was just to consider
4:17 race and ethnicity as a factor in admissions
4:23 how many would rule for Cheryl Hopwood
4:24 and say
4:29 her rights were violated so here we have
4:32 a pretty even split all right now I want
4:35 to hear from a defender of Cheryl
4:40 Hopwood yes you're basing something and
4:42 that's an arbitrary factor you know
4:43 Cheryl couldn't control the fact that
4:46 she was white or not in a minority and
4:48 therefore you know it's not as if it was
4:49 like a test score that she worked hard
4:52 to try and show that she could you know
4:54 put that out there you know that she had
4:56 no control over her race good I mean
4:57 what's your name
5:00 breathe okay breathe stay right there
5:03 now let's find someone who's who has an
5:07 answer for breathe yes there are
5:09 discrepancies in educational system and
5:12 majority of the time I know this in New
5:14 York City the schools that minorities go
5:16 to are not as well-funded are not as
5:20 well supplied as white schools and so
5:21 there is going to be a discrepancy
5:24 naturally between minorities and between
5:26 whites if they go to better schools and
5:27 they will not do as well on exams
5:29 because they haven't had as much help
5:32 because of a worse school system it's
5:34 like let me just interrupt you this just
5:37 tell me your name Anisha Anisha Anisha
5:41 you're pointing out that minority kids
5:45 may have gone in some cases to schools
5:46 that didn't give them the same
5:48 educational opportunity as kids from
5:52 affluent families yes and so the test
5:57 scores they got may actually not
6:00 represent their true potential because
6:01 they didn't receive the same kind of
6:03 help that they matter received had they
6:05 gone to a school with better funding all
6:08 right Anisha has raised the point that
6:11 colleges still should choose for the
6:14 greatest academic scholarly promise but
6:15 in reading the test scores and grades
6:18 they should take into account the
6:21 different meaning those tests and grades
6:23 have in the light of educational
6:27 disadvantage in the background so that's
6:31 one argument in defense of affirmative
6:34 action anisha's argument correcting for
6:37 the effects of
6:40 unequal preparation educational
6:45 disadvantage now there are other
6:51 arguments suppose just to identify
6:53 whether there is a as a competing
6:58 principle here suppose there are two
7:04 candidates who did equally well on the
7:08 tests and grades both of whom went to
7:14 first-rate schools two candidates among
7:19 those candidates would it be unfair for
7:22 the college or university for Harvard to
7:26 say we still want diversity along racial
7:30 and ethnic dimensions even where we are
7:33 not correcting for the effects on test
7:37 scores of educational disadvantage what
7:41 about in that case brief if it's that
7:43 one thing that puts you know someone
7:44 over the edge
7:46 then it's I guess that would be you know
7:48 justifiable if everything else about the
7:50 individual first though everything we
7:51 consider about that person's you know
7:54 talents and where they come from and who
7:56 they are without these arbitrary factors
7:59 insisting without these arbitrary
8:02 factors you called but before you were
8:04 suggesting Bree that race and ethnicity
8:06 are arbitrary factors outside the
8:08 control of the applicants sure I agree
8:10 with that and your general principle is
8:12 that admissions shouldn't reward
8:15 arbitrary factors over which people had
8:18 no control all right all right who else
8:20 who else would like to thank you both
8:22 who else would like to get into this
8:25 what do you say well first of all I'm
8:28 for affirmative action temporarily but
8:30 what for two reasons first of all you
8:32 have to look at the university's purpose
8:35 it is to educate their students and I
8:38 feel that different races people coming
8:39 from different races have different
8:40 backgrounds and they contribute
8:43 differently to you know the education
8:45 and second of all when you say they have
8:49 equal backgrounds they that's not true
8:50 when you look at the broader picture and
8:50 you look
8:52 slavery and these are this is kind of a
8:55 preparation I think affirmative action
8:57 is a temporary solution to alleviate
9:01 history and the wrongs done to
9:03 african-americans it's particularly and
9:05 what's your name David David you said
9:07 that affirmative action is justified at
9:09 least for now as a way of compensating
9:13 for past injustice the legacy of slavery
9:16 and segregation right who wants to take
9:19 on that argument we need now a critic of
9:20 affirmative action
9:24 yes go ahead I think that what happened
9:26 in the past has no bearing on what
9:27 happens today and I think that
9:29 discriminating based on race should
9:30 always be wrong
9:32 whether you're discriminating against
9:35 one group or another just because our
9:36 ancestors did something doesn't mean
9:39 that that should have any effect on what
9:44 happens with us today all right good I'm
9:47 sorry your name is Kate Kate all right
9:54 who has an answer for Kate yes I just
9:56 wanted to comment and say that tell us
9:57 your name
9:59 my name is Mansour because of slavery
10:02 because of past and justices today we
10:03 have a higher proportion of African
10:07 Americans who are in poverty who face
10:09 left's less opportunities and white
10:12 people and so because of slavery 200
10:14 years ago because of Jim Crow and
10:16 because of segregation today we have
10:20 injustice based on race okay I think
10:23 that there are differences obviously but
10:26 the way to fix those differences is not
10:28 by some artificial fixing of the result
10:30 you need to fix the problem so we need
10:32 to address differences in education and
10:36 differences in in upbringing with with
10:39 programs like Head Start and giving more
10:41 funding to lower-income schools rather
10:43 than trying to just fix the results so
10:45 it makes it look like it's equal when
10:48 really it isn't yes with regard to
10:50 affirmative action based on race I just
10:52 want to say that white people have had
10:53 their own affirmative action in this
10:55 country for more than 400 years
10:58 it's called nepotism and quid pro quo so
10:59 there's nothing wrong with correcting
11:01 the injustice and discrimination that's
11:11 tell us tell us your name Hana Hana all
11:12 right who has an answer for Hana and
11:15 just to add to Hannah's point because we
11:17 need we need now is someone to respond
11:21 Hana you could have also mentioned
11:24 legacy admission exactly I was gonna say
11:25 if you disagree with affirmative action
11:26 you should disagree with legacy
11:28 admission because it's obvious from
11:30 looking around here that there are more
11:31 white legacies than black legacies in
11:33 the history of Harvard University and
11:35 explain what legacy admissions are well
11:37 legacy admissions is giving an advantage
11:39 to someone who has an arbitrary
11:41 privilege of their parent having
11:43 attended the University to which they're
11:48 applying alright so I replied for Hana
11:53 yes in the balcony go ahead first of all
11:56 if affirmative action is making up for
11:58 past injustice how do you explain
12:00 minorities that were not historically
12:03 discriminated against in the United
12:05 States who get these advantages in
12:07 addition you could argue that
12:09 affirmative action perpetuates divisions
12:11 between the races rather than achieve
12:12 the ultimate goal of race being an
12:14 irrelevant factor in our society and
12:18 what tell us your name Danielle Hannah I
12:20 disagree with that because I think that
12:23 by promoting diversity in an institution
12:25 like this you further educate all of the
12:27 students especially the white students
12:29 who grew up in predominantly white areas
12:31 it's certainly a form of Education to be
12:32 exposed to people from different
12:34 backgrounds and you put white students
12:35 at an inherent disadvantage when you
12:37 surround them only with their own kind
12:39 why should race necessarily be equated
12:41 with diversity there's so many other
12:43 forms why should we assume that race
12:44 makes people different again that's
12:47 perpetuating the idea of racial division
12:49 within our universities and our society
12:53 with regard to african-american people
12:55 being given a special advantage it's
12:58 obvious that they bring something
13:00 special to the table because they have a
13:02 unique perspective just as someone from
13:03 a different religion or socioeconomic
13:05 background would as well as you say
13:07 there are many different types of
13:09 diversity there's no reason that racial
13:11 diversity should be eliminated from that
13:16 criteria yes I had racial discrimination
13:17 is illegal in this country and I believe
13:20 that it was African American leaders
13:22 themselves when Martin Luther King said
13:24 he wanted to be judged not on the color
13:25 of his skin but by the content of his
13:28 character his merit his achievement and
13:31 I just think that to do to decide solely
13:33 based on someone's race is just
13:36 inherently unfair I mean if you want it
13:37 if you want to correct based on
13:39 disadvantaged backgrounds that's fine
13:41 but they're also disadvantaged white
13:43 people as well it shouldn't matter let
13:46 me know white tell us your name Ted Ted
13:49 yes think of hopwood it's unfair to
13:54 count race or I assume you would also
13:57 say ethnicity or religion yes do you
13:59 think she has a right to be considered
14:02 according to her grades and test scores
14:06 alone there no there's there is more to
14:09 it than that you need to universities
14:11 need to promote diversity and I you
14:13 agree with the goal of promoting
14:16 diversity there's ways to promote
14:18 diversity besides discriminating against
14:20 people solely based on a factor that
14:22 they cannot control all right so what
14:25 makes it wrong is that she can't control
14:28 her race she can't control the fact that
14:31 she's white that's the that's the heart
14:33 of the unfairness to her we made a
14:36 similar point that basing admissions on
14:40 factors that people can't control is
14:43 fundamentally unfair what do you say
14:44 there's a lot of things you can't
14:45 control and if you're gonna go it
14:47 through it based on merit like just
14:50 based on your test scores a lot of what
14:51 you can achieve has to do with the
14:53 family background that you raise that if
14:55 both your parents were scholarly then
14:57 you have more of a chances of actually
14:59 being more scholarly yourself and giving
15:01 those grades and you can't control what
15:02 kind of family you were born into so I
15:04 think good well that's that's a great
15:06 rejoinder what's your name
15:12 da-da-dah Ted are you you against
15:14 advantages that come from the family you
15:16 were born into what about legacy
15:19 admission I mean I I do believe that in
15:21 terms of like a legacy admission you
15:23 shouldn't have a special preference Emmy
15:26 if there is a legacy admission you could
15:27 argue as another part verse you could
15:29 say it's important to have a small percentage
15:29 percentage
15:32 people that have a just several
15:35 generation family and family attendance
15:37 at a place like Harvard however that
15:39 should not be a fact an advantaged
15:41 factor like race that should just be
15:43 another part of the promoting diversity
15:44 count at all
15:47 I think the Alumni status should it
15:51 count at all kept yes it should it
15:54 should count all right I want to step
15:56 back for a moment from these arguments
15:58 thank you all for these contributions
16:00 we're going to come back to you if
16:03 you've listened carefully I think you
16:05 will have noticed three different
16:09 arguments emerge from this discussion in
16:12 defense of considering race and
16:20 ethnicity as a factor in admissions one
16:23 argument has to do with correcting for
16:26 the effects for the effects of
16:31 educational disadvantage that was
16:34 anisha's argument this is what we might
16:36 call the the corrective argument
16:39 correcting for differences in
16:41 educational background the kind of
16:43 school people went to the opportunities
16:45 they had and so on that's one argument
16:48 what's worth noticing though is that
16:50 that argument is consistent in principle
16:56 with the idea that only academic promise
16:58 and scholarly potential should count in
17:01 admissions we just need to go beyond
17:04 test scores and grades alone to get a
17:07 true estimate of academic promise and
17:10 scholarly ability that's the first
17:15 argument then we heard a second argument
17:18 that said affirmative action is
17:26 the need to correct for educational
17:28 disadvantage in the in a particular
17:31 applicants case it's justified as a way
17:34 of compensating for past wrongs for
17:37 historic and justices so that's a
17:41 compensatory argument compensating for
17:47 then we heard a third a different
17:54 argument for affirmative action from
17:58 Hanna and others that argued in the name
18:00 of diversity
18:03 now the diversity argument is different
18:08 from the compensatory argument because
18:11 it makes a certain appeal to the social
18:14 purpose or the social mission of the
18:19 there are really two aspects to the
18:23 diversity argument one says it's
18:25 important to have a diverse student body
18:26 for the sake of the educational
18:29 experience for everyone and I made that
18:33 point and the other talks about the
18:35 wider society this was the argument made
18:36 by the University of Texas in the
18:41 Hopwood case we need to train lawyers
18:44 and judges and leaders public officials
18:50 who will contribute to the strength the
18:52 civic strength of the state of Texas and
18:54 the country as a whole so there are two
18:56 different aspects to the diversity
19:00 argument but both are arguments in the
19:02 name of the social purpose or the social
19:05 mission or the common good served by the
19:09 institution well what about the force of
19:10 these arguments we've also heard
19:15 objections to these arguments the most
19:17 powerful objection to the compensatory
19:22 argument is is it fair to ask Cheryl
19:27 Hopwood today to make the sacrifice to
19:29 pay the compensation for an injustice
19:32 that was admittedly committed and was
19:35 egregious in the past but in which she
19:39 was not implicated is that fair so
19:42 that's an important objection to the
19:44 compensatory argument and in order to
19:46 meet that objection
19:49 we would have to investigate whether
19:52 there is such a thing as group rights or
19:54 collective responsibility that reaches
19:56 over time
19:59 so having identified that issue let's
20:01 set it aside to turn to the diversity
20:06 argument the diversity argument doesn't
20:09 have to worry about that question about
20:12 collective responsibility for past
20:15 wrongs because it says for reasons
20:20 Hannah and others pointed out that the
20:27 common good is served is advanced if
20:29 there is a racially and ethnically
20:32 diverse student body everyone benefits
20:35 and this indeed was the argument that
20:39 Harvard made when it filed a friend of
20:41 the court brief to the Supreme Court in
20:45 the 1978 case affirmative action case
20:48 the Bakke case and the Harvard brief the
20:53 Harvard rationale was cited by Justice
20:55 Powell who was the swing vote in the
20:57 case upholding affirmative action he
20:59 cited that is providing the rationale
21:02 that he thought was constitutionally
21:07 acceptable Harvard's argument in its
21:14 brief was this we care about diversity
21:18 scholarly excellence alone has never
21:20 been the criterion of admission the sole
21:22 criterion of admission to Harvard
21:25 College fifteen years ago diversity
21:28 meant students from California and New
21:30 York and Massachusetts city dwellers and
21:33 farm boys violinists painters and
21:36 football players biologists historians
21:38 and classicists the only difference now
21:41 Harvard argued is that we're adding
21:44 racial and ethnic status to this long
21:47 list of diversity considerations when
21:49 reviewing the large number of candidates
21:52 able to do well in our classes Harvard
21:55 wrote race may count as a plus just as
21:58 coming from Iowa may count or being a
22:02 good middle linebacker or pianist a farm
22:04 boy from Idaho can bring something to
22:07 Harvard College that a Bostonian cannot
22:10 offer similarly a black student can you
22:12 we bring something a white student
22:14 cannot offer the quality of the
22:17 educational experience of all students
22:21 depends in part on these differences in
22:23 the background and outlook that students
22:24 bring with them
22:27 that was Harvard's argument now what
22:30 about the diversity argument is it
22:34 persuasive if it's to be persuasive it
22:37 has to meet one very powerful objection
22:43 that we've heard voiced here by Ted by
22:48 Bree unless you're a utilitarian you
22:52 believe that individual rights can't be
22:59 violated and so the question is is there
23:02 an individual right that is violated is
23:04 Cheryl Hopwood 'he's right violated if
23:09 she is used so to speak denied admission
23:12 for the sake of the common good and the
23:14 social mission that the University of
23:17 Texas law school has defined for itself
23:22 does she have a right don't we deserve
23:24 to be considered according to our
23:26 excellences our achievements our
23:30 accomplishments our hard work isn't that
23:34 the right at stake now we've already
23:37 heard an answer to that argument no she
23:41 doesn't have a right nobody deserves to
23:43 be admitted notice how this gets us back
23:45 to the issue of desert versus
23:49 entitlement they're arguing there is no
23:52 individual right that Hopwood has she
23:54 doesn't deserve to be admitted according
23:56 to any particular set of criteria that
23:59 she believes to be important including
24:02 criteria that have only to do with her
24:05 efforts and achievements why not
24:11 I think implicit in this argument is
24:14 something like Rawls's rejection of
24:16 moral desert as the basis of
24:21 distributive justice yes once
24:25 word defines its mission and designs its
24:27 admission policy in the light of its
24:30 mission people are entitled who who fit
24:33 those criteria they are entitled to be
24:37 admitted but according to this argument
24:40 no one deserves that Harvard College
24:43 define its mission and design its
24:45 admission criteria in the first place
24:48 in a way that prizes the qualities they
24:51 happen to have in abundance whether
24:53 those qualities are test scores or
24:55 grades or the ability to play the piano
24:59 or to be a good middle linebacker or to
25:02 come from Iowa or to come from a certain
25:05 minority group so you see how this
25:11 especially the diversity argument takes
25:14 us back to the question of Rights which
25:16 in turn takes us back to the question of
25:22 whether moral desert is or is not the
25:26 basis for distributive justice think
25:28 about that over the weekend and we'll
