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Affirmative Action and the Long Road to Justice: Are We There Yet?

photograph of paths converging on college quad

The Supreme Court will soon decide the fate of affirmative action. On October 31, 2022, the Court heard oral arguments for cases that Students for Fair Admissions (SFFA) has brought against Harvard and the University of North Carolina arguing that their race-conscious admissions policies are unconstitutional. The Court’s decision is expected to be announced by the end of June, and many expect that the ruling will forbid race-conscious admissions altogether, limiting colleges and universities to recruiting diverse student bodies through race-neutral means.

While it was always clear that this day would come eventually, on the eve of the Court’s decision a central question looms large: Are we ready for the end of affirmative action?

When the Supreme Court ruled on Grutter v. Bollinger (2003), its most recent affirmative action case, the Court made it clear that the practice of race-conscious admissions should not continue indefinitely. While upholding a race-conscious admissions program at the University of Michigan’s Law School, Sandra Day O’Connor wrote for the majority that “race-conscious admissions policies must be limited in time,” speculating that “25 years from now, the use of racial preferences will no longer be necessary.” Jeffrey Lehman, the Dean of Michigan’s Law School, agreed, saying that “The question is no longer whether affirmative action is legal; it is how to hasten the day when affirmative action is no longer needed.”

Justice O’Connor’s thought that affirmative action should have a limited lifespan is far from novel, as many defenders of affirmative action have supported its eventual dissolution. Supreme Court Justice Harry Blackmun, in his Regents of the University of California v. Bakke (1978) opinion allowing for certain forms of race-conscious admissions, anticipated a day that affirmative action programs would be a “relic of the past,” hoping that day might come “within a decade at the most.”

And the idea that affirmative action should come with an expiration date is still the clear opinion of the Court. In October’s oral arguments, Justice Elena Kagan said that “everybody would rather achieve all our racial diversity goals through race-neutral means,” adding that all the Court’s affirmative action cases “indicate that race-neutral means are better.” Even though affirmative action is currently legal, the consensus is that such policies are merely temporary.

This, of course, raises the important question why a ruling about what is just and fair would only be temporary. If everyone agrees that race-neutral policies are what is ultimately fair, then why allow preferential treatment for some in the short term?

One way to think about this question is through the lens of what the political theorist John Rawls calls “transitional justice.” Rawls observed that, even after we identify what an ideal society would look like, there is still the remaining issue of how we should transition from our current society to one that is completely just. For this reason, questions of transitional justice ask what steps we can take to create a society that more closely mirrors the ideal.

Just like it can be difficult to decide what is ideally just, it can also be very challenging to identify what sorts of policies help us most effectively transition to that ideal. Suppose, for example, that there is a society where hate crimes against religious minorities are particularly widespread and rarely prosecuted. In order to create a more just society, it is obvious that the court system needs to punish such wrongdoing. However, if a new leader comes to power and cracks down on these crimes, the political backlash may well make the society even more unjust than it was before. How should the society respond? By prosecuting only some of the most egregious crimes? By punishing all offenders, but only with a lenient sentence?

Along with showing the difficulty of crafting transitional justice policies, this example also reveals that the demands of ideal justice and transitional justice can easily come into conflict. In the ideal case, justice might ultimately demand that all religious hate crimes be met with a harsh sentence, but perhaps the best transitional policy for a given society is to only punish the worst of those crimes. And if a society adopts this latter policy in hopes of one day reaching the ideal, the question will always remain of when the society should move from this transitional policy to one that more closely embodies the ideal.

With the contrast between transitional and ideal justice in hand, we can make sense of the fact that, while the Supreme Court has historically endorsed affirmative action, such policies have always been thought to come with an expiration date. The practice of race-conscious admissions was never meant to be the ideal, but rather a way to move from a world of overt racial discrimination and exclusion to one where all students can be considered on their individual merits.

Adopting race-conscious admissions policies, though, does raise the difficult issue of when to end them. We have not yet reached O’Connor’s 2028 cutoff, but we are far past Blackmun’s 1988 deadline. Is eliminating affirmative action the next step in making the United States more just?

Some defenders of affirmative action think that race-neutral policies cannot yet ensure diverse student bodies. In October’s oral arguments, Justice Sonia Sotomayor observed that, of the nine states that have eliminated affirmative action altogether, “the numbers for underrepresented groups have fallen dramatically.” After the passage of Proposition 209 in 1996, outlawing affirmative action in California’s public institutions, the percentage of Black students at Berkeley fell from 6.4% to 3.6%, and the percentage of Hispanic students was reduced from 16.3% to 9.4%. Other defenders of affirmative action have argued that race-conscious admissions should not be just about creating diverse student bodies, but righting historical injustices.

On the other side of the debate, those who think that affirmative action has run its course hold that the supposed benefits of race-conscious admissions no longer justify departing from the ideal. Affirmative action policies can increase racial tension, raising the odds of a backlash against racial minorities instead of reversing racial discrimination. There is also evidence to suggest that affirmative action can actually hurt the students that it is intended to help, as students who enter college with less competitive academic credentials have markedly higher rates of attrition than if they attend institutions where their qualifications are more comparable to their peers.

According to these affirmative action critics, we have reached a point where race-conscious admissions policies make our society less rather than more just. In their minds, the next step in our journey towards creating a just society is to no longer employ racial preferences in college admissions. In the words of Chief Justice John Roberts, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

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Corporate Activism and Non-Ideal Democracy

photograph of Disney and Mickey with castle in the background

This piece is part of an Under Discussion series. To read more about this week’s topic and see more pieces from this series visit Under Discussion: “Woke Capitalism.”

In March, Florida Governor Ron DeSantis signed the Parental Rights in Education Act (PREA). The “Don’t Say Gay” law restricts classroom instruction about sexual orientation or gender identity and empowers parents to sue school districts over teachings they don’t like.

Many are critical of the PREA, including, controversially, the Walt Disney Company. On the day it was signed, Disney released a statement saying that the PREA “should never have been signed into law” and declared that its “goal as a company is for this law to be repealed” or “struck down.” DeSantis and the state legislature retaliated by canceling some important privileges afforded to Disney. DeSantis described this as a wakeup call, declaring that Disney needs “to get back to the mission” and “back on track.”

The quarrel between DeSantis and Disney is representative of a broader ongoing controversy about the proper role of corporations in politics and public discourse.

Recent developments have propelled this issue into the spotlight. In 2010, the Supreme Court ruled that the First Amendment prohibits the government from restricting corporations from independently advocating for or against political candidates, opening the door to unlimited corporate spending. Moreover, corporations have recently become increasingly active in signaling support for progressive social causes, a trend which has been described as “woke capitalism.”

There are many reasons to be critical of corporate involvement in politics and public discourse. In most cases it’s probably motivated mainly by a cynical desire to curry favor with lawmakers, distract from corporate exploitation, or otherwise advance profits; corporate activism can exacerbate cultural divides and grievances; it’s unclear whether corporations have a moral right to free speech. And, most importantly, a democracy should be governed by the people, not by businesses or the economic elite.

Let’s suppose (as seems plausible) that there are many good objections against corporate activism and that in a well-functioning liberal democracy, corporations have no place in politics or public discourse. It does not follow that corporations should not participate in politics or public discourse in our society. The significance of this supposition for the Disney-PREA case (and the general controversy) depends largely on whether we live in a just and well-functioning liberal democracy. I’d like to suggest that we don’t.

If we live in a society that is only partially democratic and only partially liberal, a society that is characterized by serious systemic injustices, then perhaps we should welcome the efforts of the powerful, including corporations, when they act to redress injustices.

Perhaps corporate activism is less than ideal but nevertheless all-things-considered justified in our non-ideal situation.

To explore this line of thinking, I need to paint an ugly picture. We are told in school that the United States is a beacon of freedom and hope for the world. We are told that the U.S. is a liberal democracy, a state committed to protecting the basic freedom and equality of all its citizens, governed by the will of the people.

There are good reasons for thinking this is a convenient bit of propaganda that is only partially true.

We can look outwards first. The U.S. is an empire of sorts. Old-style empires exerted power over territories by conquering and directly ruling them. Contemporary empires like the U.S. exert imperial power less directly. The U.S. furthers its international interests through soft-power and diplomacy, like when it leverages its considerable power in the UN to influence foreign governments. It also wields unprecedented hard power. For example, the U.S. has about 800 foreign military bases in 80 countries. It uses its economic and military might to overthrow foreign governments, influence foreign political and revolutionary movements, and generally meddle in the affairs of other countries.

Although those who have a grip on the levers of U.S. imperial power are ostensibly accountable to voters, we voters have virtually no de facto control over U.S. foreign affairs.

Consider the presidency. The president has a lot of say over how U.S. military power is deployed in the world. But voters only have two real options in presidential elections. And despite the standard rhetoric to the contrary, presidents from both parties tend to wield military power in more or less continuous ways. The War in Afghanistan is a representative example. This war was started by a Republican (Bush) and expanded by a Democrat (Obama). A Republican (Trump) initiated withdrawal from the region, which was completed by a Democrat (Biden).

Things look about the same looking inwards. The Declaration of Independence states that governments derive their just powers from the consent of the governed. Yet our laws routinely fail to conform to the will of the people. For example, U.S. federal laws currently fail to reflect that a majority of voters support changing the electoral college (55%), protecting access to abortion (61%), greater action on climate change (65%), decriminalizing marijuana (68%), health insurance public options (68%), universal background checks on gun purchasers (84%), and price limits on lifesaving drugs (89%). Many entrenched factors contribute to this, from the fact that some voters have far more power than others, to the influence of industries and economic elites (especially super-rich private donors) on public policy, the disproportionate wealth of lawmakers, the various demagogues clogging public discourse with inane conspiracy theories, and so on. The undemocratic elements in our society are coupled with illiberal systemic injustices like extreme economic inequality and laws that protect freedoms selectively. For example, in 2021, the top 1% of households held 32.3% of all household wealth, while the bottom 50% held only 2.6%. And at the time of this writing, federal law does not protect LGBTQ people from discrimination in employment and housing (although 70% of people support such protections).

The picture that is emerging is one of an empire that, despite having democratic and liberal elements, is largely run by elites and routinely fails to protect the basic freedom and equality of its citizens.

Suppose this picture is roughly accurate. Also suppose for the sake of argument that the PREA is seriously unjust. Since it is seriously unjust, we citizens should work to see it repealed. But we do not have as much power to affect legislation as we are encouraged to believe. Wealthy corporations have power, however, and we can solicit assistance from them. Now if the U.S. had legitimate democratic institutions, then corporate meddling in democratic processes would threaten the legitimacy of those institutions. But by supposition that legitimacy is already seriously compromised by entrenched factors. So, arguably we should solicit and welcome assistance from powerful entities like Disney insofar as this increases the likelihood that the PREA will be repealed and the expected side effects are acceptable. And arguably this is compatible with maintaining that corporate activism is ultimately a bad thing.

Here’s an imperfect but suggestive analogy. Imagine we live under a dictatorship. Many people are oppressed by harmful laws. But the dictator’s counselor is sympathetic to the oppressed. It seems to me that we could, without logical inconsistency or hypocrisy, both beseech the counselor to convince the dictator to change the harmful laws and also maintain that neither the dictator nor his counselor should have any power over us.

This suggests that corporate activism can be justified in our non-ideal situation, but only to the extent that it is efficaciously directed at making our society more just.

This marks a difference between corporations and citizens. Citizens have an autonomy-based moral right to participate in collective governance and public discourse, which entitles them to sincerely advocate for positions that are in fact unjust. Corporations have no such right. Their entitlement to advocacy is derived exclusively from the special power they have to improve our society.

It’s sensible to reject this argument if you are less pessimistic than I am about the state of our union. But I don’t think the argument should be rejected because of cynicism about corporate motivations. True, corporations are out to make a profit. Mickey is a rapacious mouse. Nevertheless, from time to time the motive of profit partially aligns with the cause of justice. We should do what we can to remind corporations of this.

Left unaddressed is the difficult practical problem of how we can effectively make use of corporate activism while also advocating for a society that is truly governed by the people, not corporations or elites. I don’t know how this problem can be solved. But I am hopeful that it can be.

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The Ethics of Animal Dis-Enhancement

photograph of chickens packed into pens at poultry farm

This article has a set of discussion questions tailored for classroom use. Click here to download them. To see a full list of articles with discussion questions and other resources, visit our “Educational Resources” page.

Human beings have long treated animals not as sentient beings, but as objects or products to be used and consumed. We do this in spite of the fact that animals demonstrate every sign of having mental lives. We have the same reasons to believe that animals have mental lives that we do to believe that other human beings have mental lives; the best evidence we have is behavior. Humans report having affection for animals. Nevertheless, we intensively farm them for food and use them for medical experiments, activities which are quite painful and lead to suffering, permanent disability, and/or death. Engaging in these activities requires compartmentalization and moral disengagement.

The tension arises because humans want to use animals for all of the purposes that they typically use them for, but they also don’t want the animals to feel pain or to suffer if it can be prevented. Under ordinary conditions, when faced with this choice, humans use animals rather than exhibit care for their suffering. Recently, some scientists and philosophers have suggested an alternative solution: genetically engineering farm and research animals to experience little to no suffering. Recent research on pain suggests that it is registered in the brain in two places. The first is in the primary or somatosensory cortex, which establishes the nature of the pain (burning, throbbing, etc.). The second involves the affective dimension which happens in the anterior cingulate cortex. This area controls not the pain itself, but how much the sentient creature minds the pain. Either area could be genetically engineered to reduce the discomfort experienced by the animal.

Advocates of this approach care about animal pain and suffering; if they didn’t, they would remain satisfied with the status quo. They are advocating what philosophers frequently refer to as an approach in line with non-ideal theory. The distinction between ideal and non-ideal theory is a meta-ethical distinction, that is, it is a distinction between different theories of what ethics is and how we ought to approach it. Ideal theorists argue that ethics should be concerned with identifying the correct moral theory and then directing behavior so that it conforms to that standard. The non-ideal theorist, on the other hand, acknowledges that everyone would follow the ideal theory in a perfect world, but emphasizes that we don’t live in such a world. As such, our ethical theorizing should situate itself in the world that we actually inhabit, with all of its flaws and imperfections — a world where we perhaps can’t or shouldn’t expect everyone’s compliance or agreement on all things at all times.

When it comes to dis-enhancement, these non-ideal theorists often acknowledge that it would be best if we simply stopped exploiting animals and using them as objects for human purposes. They also recognize, however, that animal advocates have been shouting their messages from the rooftops for decades, even centuries in some parts of the world. To the extent that these messages are being heard, they are also largely being dismissed. If we are going to continue to use animals for food and research, at least we could do so in a way that minimizes pain. This may not realize what true justice demands, but it may represent incremental change toward that ideal state of affairs.

Opponents of dis-enhancement make several different kinds of arguments. First, they argue that dis-enhancement leaves animals vulnerable. The ability to experience and to care about pain is an evolutionary mechanism that helps creatures to avoid danger. If there is no longer any fear of pain because dis-enhanced animals do not feel it, then animals could die from otherwise avoidable risk. In response to these claims, the non-ideal theorist might argue that the unfortunate truth is that these animals aren’t going to be venturing out into the wide world in which they might make bad decisions. Their fate is certain — they are destined to live lives during which they are imprisoned and used and then discarded. If this is the case, why not do what we can to make their existences less unpleasant?

Opponents argue further that our willingness to do this to non-human animals highlights the extent of our speciesism — our tendency to direct our moral concern only to members of certain species on the basis of species membership alone. Imagine that a scientist wanted to create a group of people to enslave and abuse. The scientist doesn’t want to cause the resultant humans any pain, so he creates them without the ability to experience it. It is reasonable to suppose that many people would object to this experiment. Would their objections be justified? How is this different from creating a horde of robotic slaves? If we react negatively to this thought experiment, but not to dis-enhancing animals, what could explain our reaction other than speciesism?

Margaret Atwood’s novel Oryx and Crake takes place in a futuristic universe that is increasingly bioengineered. At one point, Crake, who is working in the “Neo-agricultural Department” at a research university takes the main character, Jimmy, to observe a new method of food production. They are growing parts of chickens — only the breasts — for the purposes of food. Crake says,

“You get chicken breasts in two weeks – that’s a three-week improvement on the most efficient low-light, high-density chicken farming operation so far devised. And the animal-welfare freaks won’t be able to say a word, because this thing feels no pain.”

Crake’s laboratory is experimenting with animal parts, but, at least at this point in the story, they are not creating sentient beings. They are just chicken breasts, they aren’t having lived experiences of the world, they don’t have preferences or a dignity to contend with. (Consider in vitro meat, which allows scientists to create meat and organs to eat or to test on without changing the genetic structure of future sentient animals.)

When it comes to farm and research animals who have been “dis-enhanced,” we are still dealing with sentient creatures that have experiences of their world. They may lack the ability to feel or to care about feeling their own pain, but they still have a set of dispositions to behave in certain ways and have the ability to develop preferences. This makes them different from robots or disembodied chicken breasts. They are aware of their own experiences. Some opponents argue that respect for the lived experiences of sentient creatures demands that researchers refrain from playing Frankenstein with their bodies in ways that have serious consequences.

In response, advocates of dis-enhancement might appeal again to the non-ideal nature of the theory under which they are operating. They might agree that it would be wonderful if everyone respected the dignity of sentient creatures. Unfortunately, that isn’t going to happen. Given this, dis-enhancement might be our best chance at reducing or eliminating the massive amounts of suffering that these processes entail.

Another objection to dis-enhancement comes from the perspective of environmental virtue ethics. Are we oriented virtuously toward the natural world and the living creatures on it if we respond to the crises that we face with dis-enhancement? Consider the following parallel case. One way of responding to climate change is to engage in geoengineering. One form that this can take is changing the chemical constitution of our atmosphere in such a way as to roll back or lessen the effects of global warming. Opponents of geoengineering point out that when a child messes up their room, the right thing to do is get them to clean it and teach them how to keep it clean rather than searching for ways to mess it up ever further without consequences. By analogy, we should limit our greenhouse gas emissions and try to clean up the mess we’ve made rather than pursuing geoengineering strategies that threaten to produce ever more mess.

Critics of dis-enhancement argue that we should adopt the same standard of responsibility when it comes to cruelty to animals. Instead of finding ways to engage in cruel behavior without causing pain, we should simply stop engaging in cruel behavior. Treating animals in the way that we do is an exhibition of vicious character. Even if it has little effect on the animals because they have been dis-enhanced and don’t feel pain, the philosopher Immanuel Kant’s observations may be useful here. He says that we “must practice kindness towards animals, for he who is cruel to animals becomes hard also in his dealings with men. We can judge the heart of a man by his treatment of animals.” If we behave callously toward dis-enhanced sentient animals because they don’t experience pain, the consequence may be that we are increasingly callous and cruel toward the beings that do.

The question of dis-enhancement is ultimately a question of how we should view the relationship between human beings and the natural world. Should it be a conqueror’s relationship to the conquered? Are we so depraved as a species that it would be naïve for us ever to expect broad scale changes? Or is there hope that we can someday view ourselves as empathetic fellow participants in biotic communities?