This Essay analyzes a particular kind of justification for affirmative action in higher education. Ronald Dworkin, in Taking Rights Seriously, 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 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. 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, to the formulaic application of a fixed numerical advantage to university applicants of preferred races, to the use of quotas that require a certain percentage distribution of characteristics among a selected population. Most share the feature of using remedial discrimination, discriminating on the basis of characteristics which it would normally be wrong to weigh, and doing so to remedy other wrongs.
Affirmative Action in Higher Education: Insults, Preferences, and the Dworkin Defense,
85 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol85/iss2/6