Reconciling Concern for Fair Equality of Opportunity and Strong Affirmative Action

Aloka Wijesundara

I argue that strong affirmative action aligns with the fair equality of opportunity principle by addressing two popular criticisms that suggest otherwise: affirmative action’s devaluing of merit and desert, and its granting of group rights that contradict the liberal notion of individual rights and rewards undeserving members of racialized groups. This article argues that strong affirmative action policies are necessary to level a highly uneven playing field for racialized people through ensuring procedural justice. Furthermore, a group-based response to systemic racism is warranted due to the group-based nature of discrimination, a claim which I further justify through the constitutive justice approach.


1. Introduction

Affirmative action has been a lightning rod for debates surrounding fairness, especially as institutions are putting a greater emphasis on equity, diversity, and inclusion. Just recently, the Supreme Court of the United States rejected affirmative action programs in the country’s colleges and universities, turning its back on decades of acceptance of such policies.[1] [2] Often, affirmative action is critiqued for its supposed violation of fair equality of opportunity. One way critics believe that this violation occurs is through affirmative action’s devaluing of merit and desert, which some argue should be the sole determinant of someone’s achievement of a social position. A second objection that concerns fair equality of opportunity is that affirmative action grants group rights, which is unfair to the individual who is at the center of the liberal conceptions of rights and justice.

In response to these objections, I argue that the concern for fair equality of opportunity can, and does, align with strong affirmative action policies. First, contrary to the claim that affirmative action privileges irrelevant factors such as race over merit and desert in the competition for positions, I argue that systemic racism has heavily skewed notions of merit and desert, warranting exceptional measures such as strong affirmative action policies to ensure procedural justice. To make this claim I draw heavily from Nagel’s (2003) interpretation of Rawlsian fair equality of opportunity, Dieterle’s (2005) distinction between institutional and pre-institutional desert, and Meshelski’s (2016) work on procedural justice.

Second, the criticism that affirmative action unfairly grants group rights can be addressed through constitutive justice as outlined by Wagner (1990). Furthermore, I view the granting of group rights as justified because only a group-based response such as affirmative action can adequately address the harms committed to individuals based on their membership in a group. I primarily draw from the works of Boxill (1972), Appiah (2011), and Delgado (2012) to formulate this response.

Before developing my response to the critics of affirmative action, I begin in Section 2 with a conceptual overview of affirmative action and fair equality of opportunity. In Section 3, I explore the merit-based objections and respond to them. In Section 4, I examine and respond to the group rights-based objections. In Section 5, I conclude.


2. Conceptual Overview

2.1 Exploring Affirmative Action

Affirmative action can be loosely defined as a policy scheme in which people with dominant access to social resources make those resources accessible to select groups who are deserving of preferential treatment (Schuck 2002, 5). Preferential treatment is awarded to members of historically disadvantaged groups to help them access competitive social positions in efforts to level a playing field that was uneven to begin with (Pojman 1992, 183). Affirmative action holds both backward and forward-looking orientations. The idea of looking at the past to correct, or at least to compensate for, historic injustice is deontological in nature since it alludes to a moral duty to right a past wrong.

The backward-looking view of affirmative action regards such policies as an overdue fulfillment of an obligation to groups that have been subject to historical injustice. Its forward-looking feature is both deontological and utilitarian, as it also imagines what a just society without discrimination may look like, and the benefits it ought to bring to the people in such a community (Pojman 1992, 182). Research demonstrates that lack of diversity and inclusion in society comes with large economic costs, such as labor market shortages, higher income disparity, and lost productivity, thereby reinforcing the need for diversity and equal opportunity achieved by way of affirmative action policies (OECD 2020).

Affirmative action can either be weak or strong (Pojman 1998). Examples of weak affirmative action include increased advertising of positions to oppressed groups, targeted recruitment, and more passive, uncontroversial policies that are generally accepted and practiced today to encourage more equality of opportunity. On the other hand, strong affirmative action is highly controversial as it involves taking more positive steps, garnering itself the term “reverse discrimination” from critics. Examples of strong preferential treatment include quotas and race-based hiring schemes (Pojman 1998, 98). This article specifically looks at strong affirmative action schemes attempting to redress racial harm.


2.2 Exploring Fair Equality of Opportunity

Much of the contentious nature of affirmative action has to do with the concern for fair equality of opportunity, which is the egalitarian belief that one’s aptitude alone should determine which social position they end up in, and not factors such as gender, race, and other identities (Pojman 1992, 183). The most famous conception of the principle is presented by Rawls in Theory of Justice where he defines equality of opportunity as fairness. Rawls’s (1971, 53) second principle of justice states:

Social and economic inequalities are to be arranged so that they are both: to the greatest benefit of the least advantaged, consistent with the just savings principles, and attached to offices and positions open to all under conditions of fair equality of opportunity.

Rawls’s conception of equality of opportunity is twofold. It requires that positions be open to and accessible by all and that everyone has a fair chance to obtain them (Mason 2018, 30).

While the Rawlsian notion of equality of opportunity is highly influential, there are other conceptions of it that offer some useful insight into the debate explored in this article. Joseph (1980) makes the distinction between formal and compensatory equality of opportunity. He defines formal equality of opportunity as emphasizing merit–a non-controversial means of countering discrimination that believes whoever deserves a position must be able to receive it. This is a form of equality of opportunity that critics of affirmative action may be keener to adopt.

By contrast, compensatory equality of opportunity acknowledges that while merit is important, compensation must be made out to those whose ability has been interfered with by circumstances out of their control (Joseph 1980, 394). The compensatory conception has more radical distributive effects that align with strong affirmative action. Supporters of formal equality of opportunity oppose the compensatory conception as it devalues the possibility of an individual developing their own capacity to attain a position against their competitors (Joseph 1980, 394).

Joseph (1980) also asks the question, “equal opportunity to do what?” (398). Here, he distinguishes between competitive and developmental equality of opportunity. The competitive conception involves ensuring equal opportunity in the competition for scarce social positions, whereas developmental equality of opportunity refers to leveling the playing field so that one can develop their talents to the fullest extent. The latter developmental conception of equality of opportunity seeks to mend the division between concern for equal opportunity and equal outcome (Joseph 1980, 398).

Sypnowich (2020) posits that concern with equal opportunity does not necessarily ensure human flourishing which enables people to live under conditions of equality. She argues that what matters is equalizing outcomes. Joseph (1980, 399) concedes to this point that competitive equality of opportunity does not necessarily lead to just outcomes. However, understanding equality of opportunity in the developmental sense may be the key to ensuring human flourishing enabled by equality in outcomes.

The criticisms surrounding fair equality of opportunity and affirmative action are occupied by those who adhere to the more formal and competitive conceptions of equality of opportunity. Affirmative action grants preferential treatment to members of groups based on their identity, and many believe this violates desert and merit, putting different under-represented groups on an unfair pedestal in the competition for scarce positions. Critics interpret Rawls’s notion of fair equality of opportunity to arrive at the conclusion that affirmative action prevents positions from being “open to all” (Rawls 1971, 53). This is evident in the following case studies that brought instances of strong affirmative action to the United States Supreme Court.


2.3 Case Studies Demonstrating the Perceived Tension Between Strong Affirmative Action and Fair Equality of Opportunity

Some of the most controversial cases that embody the tension between strong affirmative action and fair equality of opportunity have occurred in the United States. In 1978, the United States Supreme Court issued the infamous Bakke ruling that brought the affirmative action and fairness debate to the judicial forefront for the first time. Allan Bakke, a 35-year-old white man, accused the University of California Medical School at Davis of violating the Fourteenth Amendment’s equal protection clause. The school at the time reserved 16 out of its 100 admission spots for qualified students belonging to under-represented groups. While Bakke’s scores were higher than those of the minority student applicants in his cohort, he was twice rejected in the admissions process, leading him to conclude that his rejection was due to his race.

The case sparked protests across the country between those who held the view that preferential treatment unfairly excludes deserving white people from obtaining different positions and those who supported the University’s preferential admission scheme to address the under-representation of diverse racial groups in the medical field.[3] The divided Court ultimately decided that strict quotas undertaken by the University which exclude certain individuals based on race are unconstitutional. However, the Court also declared that the use of race in the admissions process as one of many other criteria, as opposed to the sole criterion, is permissible, effectively deeming affirmative action as constitutional.[4]

Another controversial case occurred in 1997, where the Centre for Individual Rights filed two cases on behalf of Jennifer Gratz and Barbara Grutter against the University of Michigan’s undergraduate admissions system and Law School, respectively, for violating the Fourteenth Amendment’s equal protection clause. Gratz and Grutter, both white women, were qualified but denied admission to their respective faculties, leading them to claim that the school’s race-based admissions policies disadvantaged them.

In Gratz’s case, the Supreme Court struck down the University’s undergraduate admissions process which operated on a points system that was deemed to unfairly assign points based on factors such as identity over achievements, hence violating the Constitution.[5] Echoing the Bakke ruling, the University of Michigan’s Undergraduate Admissions system was found to be placing an exclusive emphasis on race, rather than adopting a more holistic approach for its assessment.

In Grutter’s case, however, the Supreme Court upheld the decision of the University of Michigan’s Law School which argued that its race-based admissions policies aimed at increasing diversity in higher education align with its institutional goals and government interests. Interestingly, while the Court agreed with the Law School that diversity is in the interest of the government, Justice Sandra Day O’Connor declared that it shall not be an interest in 25 years, when affirmative action shall be deemed unconstitutional.[6]

This decision alludes to the forward-looking nature of affirmative action, which implements race-sensitive policies in the hopes that one day sensitivity to race will be irrelevant in the competition for scarce positions in a truly just society. One might say that if affirmative action shall not be constitutional in 25 years, it should not be constitutional now. However, this rhetoric misses the mark on the state of race relations in many local and global contexts today.

Starting from the 1978 Bakke ruling, the Supreme Court imposed more and more limits to what affirmative action can look like, including pushing for a more limited form of affirmative action that mandates the consideration of race as one among many other factors. Therefore, it was a surprise when in 2013, the Supreme Court sided with the University of Texas against Abigail Fisher, a prospective undergraduate student who was denied admission to the school and claimed it was due to their race-sensitive admissions policies.[7] Overall, in controversial cases of strong affirmative action, the Supreme Court historically approved a policy so long as it aligns with institutional goals informed by the instrumental value of diversity and does not essentialize race in the admissions or hiring process.

That is, until now. In July 2023, the United States Supreme Court made a historic ruling to reject affirmative action in the country’s higher education institutions.[8] [9] The Court sided in favor of the plaintiffs, Students for Fair Admissions, a non-profit organization that accused Harvard University of discriminating against white and Asian applicants by using subjective standards to assess personality traits such as likability. The group also accused the University of North Carolina of discriminating against Asian and white applicants by providing preferential treatment to Black, Hispanic, and Native American candidates.

Members of the Conservative majority of the American Supreme Court cited promoting equality as a reason for voting against affirmative action in American universities and colleges. The Supreme Court sided with the plaintiffs’ view that affirmative action in university admissions violates the Fourteenth Amendment. Overall, these case studies culminating in the 2023 court cases highlight the fairness-related criticisms surrounding strong affirmative action that attempts to redress racial harms. It is this tension between the different conceptions of fair equality of opportunity and affirmative action that I seek to resolve in the remainder of this article, to demonstrate that adherents of fair equality of opportunity ought to support strong affirmative action rather than oppose it.


3. Addressing Criticisms that Affirmative Action Violates Principles of Merit and Desert

3.1 Criticisms           

One of the principal ways that critics believe affirmative action violates fair equality of opportunity is by granting positions to some based on their identity, thereby dismissing the merit and desert of the broader candidate pool. This, in the critics’ view, is inherently unfair and a violation of the fair equality of opportunity principle. Pojman (1998, 99), who argues that strong affirmative action is synonymous with reverse discrimination and therefore has no moral weight, condemns the supposedly anti-meritocratic roots of affirmative action on two grounds.

First, Pojman posits that meritocracy should have a place in society as “we ought to treat people as ends and not merely means” (1998, 113). In his view, affirmative action fails this deontological argument by treating people as a means through the focus on their identity and how it aligns with institutional goals of diversity, rather than personal talents. He believes this is disrespecting their intrinsic worth as human beings. Pojman (1992, 198) also holds that affirmative action negates the value of moral responsibility which holds that one deserves, and is therefore responsible for, the results of their labor and talents.

Second, he makes a utilitarian argument for meritocracy that appeals to many fairness critics of affirmative action. He posits that society is better off if we have the most qualified people in social positions. This is only possible by ensuring equal opportunity which grants positions according to merit (Pojman 1992, 201). These deontological and utilitarian arguments for meritocracy point to the view that affirmative action violates fair equality of opportunity.


3.2 Addressing Merit and Desert Based Criticisms

In response to Pojman, I argue that the meritocratic concern for affirmative action’s supposed violation of fair equality of opportunity is misplaced. An alternative conception of equality of opportunity that focuses on procedural justice demonstrates that those interested in upholding meritocratic ideals for the sake of fairness may in fact be violating the very principle they are so keen to uphold. Nagel (2003), for example, defends strong affirmative action on the basis that Rawlsian equality of opportunity supports strong affirmative action policies. He supports the view that a just society as envisioned by Rawls would condemn preferential treatment based on race as it violates fair equality of opportunity (Nagel 2003, 84).

However, it is undoubtedly evident that today’s society is not just, and Rawls’s theories are ideal in their nature. It is flawed to apply ideal theory to a society that has operated on the basis of slavery, Jim Crow Laws, and countless microaggressions that discriminate against members of racialized groups leading to their under-representation in many facets of our society (Nagel 2003, 84). Given the far from ideal circumstances in which we find ourselves today, a commitment to fair equality of opportunity means supporting strong affirmative action as it is an exceptional measure that aims to realize a truly just society in the future.

One might still concede that today’s society is far from ideal, but still disagree with Nagel on how preferential treatment works to achieve a just society if it discriminates against deserving members of dominant groups. Institutional theories of desert posit that the rules and goals of an institution determine what desert looks like in candidates vying for their positions (Dieterle 2005, 84). This line of argument was successfully used by the University of Chicago Law School which defended their race-sensitive admissions policies by arguing that increasing diversity in the legal field was of instrumental value to the University and the broader legal field.[10]

Therefore, while their admissions policy led to qualified candidates such as Grutter and Gratz being rejected, it still aided the institution in reaching its goal of diversity by admitting other qualified candidates who were from under-represented groups. In other words, the institutional theory of desert posits that the admission of racialized students, albeit some possessing lower but still minimum qualifications, is fair because it is what the institution ought to do to realize its goals.

Critics of affirmative action concerned with merit and desert also appeal to pre-institutional theories of desert to strengthen their arguments. The pre-institutional theory of desert states that “if A deserves X in virtue of Y, then Y must be some quality, characteristic, action, or activity of A” (Dieterle 2005, 86) that does not need to be deemed as desirable by an institution.

This reasoning is what motivated the petitioners of the earlier-mentioned cases. The petitioners believed they deserved admission to their respective universities because of their high GPA and other academic test scores. This was a more salient argument given that in many of the cases, some of the admitted applicants from underrepresented groups had lower academic scores than the rejected white applicants, albeit still passing the threshold for minimum qualification. In this sense pre-institutional theories of desert hold far more weight in criticisms of affirmative action based on desert and merit.

However, an alternative conception of pre-institutional desert can also further justify affirmative action on the grounds of fair equality of opportunity. For the petitioners in the mentioned cases and other critics of strong affirmative action, the relevant qualification or characteristic (the Y in the previous definition of pre-institutional desert theory) is high academic performance.

Dieterle explains that high academic performance is the most relevant factor in a candidate because academic success is something one works to achieve, unlike one’s race. He terms this relationship the “responsibility thesis”: you are responsible for cultivating the relevant characteristics which makes you a worthy candidate for an educational institution (Dieterle 2005, 87). However, in reality, one’s academic performance does not lie solely in the realm of personal responsibility.

Supporters of strong affirmative action do not argue that one deserves to be granted preferential access to a social position solely due to their race; candidates from under-represented groups must still possess the necessary minimum qualifications for the positions they apply to. However, what is important to acknowledge is the reality that more members of under-represented groups have a difficult time meeting the minimum qualifications, let alone going above and beyond them, due to limited resources and cultivation of abilities as a result of systemic discrimination.

A 2019 Report by the United States Department of Education found that the status high school or General Educational Development (GED) equivalent drop-out rates are highest among Hispanic and Black youth, both groups that have been historically discriminated against in the United States (United States Department of Education 2019, 102). Trends are similarly worrying in the post-secondary context, where undergraduate enrollment from 2000 to 2016 has been highest among white students, and lowest among Black, Hispanic, and Indigenous students as demonstrated in figures A and B (United States Department of Education 2019, 126).

Proponents of competitive, formal equality of opportunity seem to dismiss the fact that these gaps in education, and subsequently wealth and other socioeconomic indicators, are not indicative of an intrinsic inferiority or lack of ability among members of under-represented groups. Lower levels of achievements do not signify that youth from under-represented groups deserve admittance to desirable social positions such as university any less than their white counterparts.

Those who support a purely meritocratic society fail to recognize the fact that discrepancies in representation occur vastly due to systemic barriers that interfere with one’s development of their ability and talents. Those who are concerned with maintaining their utilitarian values must therefore be concerned by the violation of procedural justice which warrants a response such as strong affirmative action

The State of Funding Equity Data Tool developed by The Education Trust found that districts in the United States with schools serving more racialized students, in other words, non-white students whose identity subjects them to socially constructed race-based discrimination, receive 16 percent less funding than schools with predominantly white students. The discrepancy in funding leads to a myriad of negative outcomes in schools with more racialized students such as higher teacher turnover rates, poorly qualified teachers, larger classroom sizes that interfere with learning, less specialized courses, and other factors that play a significant role in determining a student’s academic outcome (Dieterle 2005, 89).

There is no question that the uneven playing field created by systemic discrimination has had a large imprint on racialized students’ life outcomes in ways that are beyond their control. Bakke, Gratz, Grutter, and Fisher were not all simply more deserving of admittance to university; they faced far better chances in life just by virtue of their unearned race. When combined with natural or earned abilities and talents, that is an advantage one cannot dismiss.

I have so far argued against the claim that affirmative action violates fair equality of opportunity by dismissing merit and desert, by appealing to institutional and pre-institutional theories of desert (Dieterle 2005). Overall, my response distills to the fact that desert and merit are not achieved in a vacuum; it takes a village for a success story. Therefore, it is mistaken to cite merit or desert-based arguments and say that qualified white people are losing out on opportunities unfairly due to strong affirmative action when racialized people have been presented with significantly less opportunities to develop competitive qualifications.

In addition, I further posit that admissions and hiring processes for desirable social positions should reward resiliency, which is displayed by most racialized candidates who are in consideration for competitive positions despite the barriers they face. Underlying the critics’ merit and desert-based objection is a skewed understanding of what just procedure looks like.

Many argue that Rawlsian fair opportunity in hiring and admissions processes is best maintained through color-blind policies that purely reward merit. This view is exemplary of the popular understanding of Rawlsian just procedure. Following this view, hiring and admissions outcomes that may result in disproportionately white schools or workplaces are fair as long as just procedure is followed and only merit is considered.

This is problematic, and Meshelski (2016) provides a more nuanced interpretation of Rawlsian just procedures that accepts strong affirmative action. She posits that for Rawlsian fair equality of opportunity to be realized, background circumstances must be just as well. An admission or hiring procedure cannot violate equality of opportunity if it works to equalize life chances for individuals across the board. Affirmative action therefore ensures just procedure which leads to the desirable outcome of at least somewhat equalizing life chances where racism has altered them.

Overall, critics maintain that strong affirmative action violates the notions of merit and desert which is unfair to qualified white candidates vying for desirable social positions. However, desert and merit are to a certain extent byproducts of the social landscape one belongs to. Systemic discrimination interferes with one’s development of talents and abilities, thereby violating procedural justice. Therefore, strong affirmative action is an exceptional measure that is needed in a discrimination-ridden, non-ideal society, in order to ensure fair equality of opportunity rather than hinder it. Merit-based hiring and admissions processes will only be just if they account for white privilege which comes at the expense of racialized groups subject to historic and ongoing injustice.


4. Examining and Responding to Group Rights-Based Objections to Affirmative Action

4.1 Criticisms

While I have so far demonstrated how Rawlsian fair equality of opportunity supports affirmative action if re-interpreted in a way that emphasizes procedural justice, some take issue with the idea that affirmative action grants rights and preferences to groups. Group rights are held collectively by members of a group, as opposed to individual rights which are held by each autonomous individual regardless of their membership in any group.

Critics of affirmative action regard fair equality of opportunity to mean that every individual should possess the same chances to obtain social positions. Therefore, by granting preferential treatment to individuals in response to wrongs that were not committed to them on an individual basis, but due to the groups they belong to, critics view affirmative action as a violation of fair equality of opportunity (Appiah 2011, 275). They posit that the locus of liberalism rests on individual rights, not group ones. Therefore, critics cannot justify affirmative action through liberal principles of rationalism and individualism (Bell 2023, 58).

Criticisms of affirmative action’s granting of group rights and its implications for fairness span beyond this ideological concern as well. Granting rights to groups, rather than individuals, is problematized in two more ways.

First, some claim that racialized people today do not suffer race-based discrimination to the same extent as their ancestors, and white people today are not responsible for the harm perpetrated by their ancestors (Sowell 1989). Therefore, affirmative action unfairly benefits members of groups that are not disadvantaged today at the expense of unfairly limiting the opportunities available to members of the dominant group.

Second, some critics argue that not all members of a racialized group experience the same harm, and not all will benefit the same from affirmative action. By granting rights on the basis of group membership, we run the risk of granting preference to already privileged members of racialized groups, leaving behind members of those groups who need the most help and white people coming from low socioeconomic backgrounds (Abram 1986, 1322).


4.2 Responding to Group Rights-Based Criticisms

There are several responses available to the criticisms that affirmative action violates fair equality of opportunity by granting rights to groups. In his defense of affirmative action, Wagner (1990) challenges the primacy of individual rights within the liberal framework by adopting the concept of constitutive justice. He maintains that in today’s society, we derive the notion of justice from pre-established rights. Given that the pre-designed system of liberalism emphasizes individualism, only rights that are entitled to individuals are deemed as just. However, Wagner (1990, 96) proposes the constitutive justice lens which demands the derivation of rights from a pre-defined notion of justice. He posits that redressing the effects of racism demands such a constitutive view.

Searching for answers within the institutional framework that created the grand disparities we see today will not get us to a position from which we can meaningfully combat racism. Therefore, while modern liberal society emphasizes the individual and their rights, this does not allow us to realize justice towards under-represented groups that have been discriminated against. Wagner (1990, 97) proposes adopting a notion of justice that embraces the fact that no one has an entitlement to advantages in a social system that never distributes opportunities and chances to individuals in an equal or just manner. From this conception of justice, we can derive and justify group rights that attempt to remedy institutional harms committed to racialized groups.

While some may be convinced by Wagner’s alternative conceptualization of justice which defends group rights, others might still take issue with the actual granting of such rights to members of under-represented groups under affirmative action. This is due to two reasons: the belief that today’s recipients of affirmative action were not subject to historical racism (and that it was not perpetuated by today’s white people), and that there are in-group discrepancies within under-represented groups and their deservingness of preferential treatment. However, I believe that these criticisms fail to appreciate the true functioning of institutional racism. While not all white people today may have directly contributed to historical legacies of racism such as slavery, they are beneficiaries or “passive recipients of group benefits” (Boxill 1972, 120) deriving from institutional racism.

In The Souls of Black Folk, Du Bois (1903, 15) claimed that “the problem of the twentieth century is the problem of the color line,” referring to the hierarchical, racial, and capitalist division that segregates white and Black folks in America. Even in the twenty-first century, while formal segregation has been abolished in the law, gaps in socioeconomic conditions demonstrate that the color line is still very much in effect. This result is partly attributable to the inheritance of wealth accrued by generations of white people through the exploitative slave trade. Even if not all descendants of white people today owned slaves in the past, the systemic discrimination from that time has transcended to affect how racialized people are viewed and treated today. It is following this line of reasoning that Boxill (1972, 121) replies to critics by positing that racialized folks hold partial rights to the benefits enjoyed by white people today.

Next, in response to the argument that affirmative action unfairly benefits well-off members of under-represented groups while limiting opportunities to worse-off members of the dominant group, Appiah (2011) contends that unique identitarian and probabilistic harms faced by racialized people outweigh this concern. He defines identitarian harms as those faced by Black people due to their race (Appiah 2011, 277). No matter how high up in the echelons of society a racialized person may find themselves, they will often be subject to various stigmas and stereotypes reserved for members of their group. Even if members of racialized groups overcome socioeconomic barriers (that intersect with racism), race-based discrimination alone permeates the experience of racialized people in a myriad of other ways, some that are subconscious such as implicit biases. Money cannot buy one’s way out of systemic oppression.

Appiah also argues that probabilistic harms work to disadvantage almost all Black people in the United States, especially in the competition for scarce resources and positions. He writes, “… on average, a black person enters most public contexts with a serious risk of paying higher psychic and material costs than otherwise identical white people” (Appiah 2001, 276). Even if one might argue that some racialized people may not face any discrimination, the fact is that racialized people face a higher probability of experiencing such harm on any given day by virtue of their identity. Therefore, to claim that affirmative action unfairly improves the chances of a racialized individual in the competition for scarce positions due to their group membership, is to dismiss their everyday lived experiences and constant exposure to harm.

The oppression faced by individuals due to their group membership demands a response that addresses the group. Even if “the proverbial son or daughter of the black neurosurgeon who got into Stanford or Harvard under an affirmative action program” (Delgado 2012, 4) may benefit over a less well-off white student, the landscape of wealth differs drastically among racial groups. Research demonstrates that a Black middle-class family may face more financial insecurity than a white middle-class family (Delgado 2012, 4). Furthermore, Black people in the United States are more susceptible to falling into generational poverty than poor white people (Delgado 2012, 4).

Even in the circumstances where affirmative action occasionally may benefit a well-off-racialized person (which happens rarely as strong affirmative action should, as deemed by the United States Supreme Court, consider race as one among many other factors in a candidate), I do not view significant harm in this as our society routinely benefits well-off members of the dominant group regardless of affirmative action’s appeal to historic justice. This criticism is a weak objection to affirmative action considering that many strong affirmative action schemes adopt an intersectional perspective which considers the different ways that oppression tied to a myriad of identities held by a person can interfere with their life chances.[11]

Overall, because critics perceive equality of opportunity to be the equalization of life chances among individuals, they take issue with affirmative action as it grants rights and preferential treatment to groups rather than individuals. This is problematized by those who uphold individualism as the pinnacle of liberalism and posit that racialized people today do not face the same harm that their ancestors did. Furthermore, critics believe that affirmative action unfairly limits the chances of innocent white people while also running the risk of unnecessarily rewarding well-off members of racialized groups.

However, Wagner’s account of constitutive justice offers a fresh perspective that still uses liberal principles to conceive a version of justice that defends group rights given the institutional nature of racism. Furthermore, drawing from Appiah’s work on studying racism faced by African Americans, racialized people suffer identitarian and probabilistic harms that can only be addressed by group-based responses. Even in the rare cases in which a rich racialized person obtains a position thanks to affirmative action, this is not a significant harm in a system where white people routinely have more avenues for socioeconomic progression available to them, compared to the overall standing of racialized groups in society due to systemic prejudice against them.


5. Conclusion

In conclusion, I have argued that strong affirmative action can be reconciled with the goals of fair equality of opportunity. This article has focused on strong affirmative action that attempts to redress the effects of systemic racism. I have presented this argument by responding to critics of strong affirmative action who are concerned about its supposed violation of fairness through the neglect of merit and desert in candidates vying for competitive social positions, and through its granting of rights to groups as opposed to individuals.

I have responded to these criticisms by emphasizing theories of institutional and pre-institutional desert presented by Dieterle, and procedural justice as illustrated by Meshelski which demands strong affirmative action to rectify racial harms committed over generations. Leveling an uneven playing field is, as Nagel shows, consistent with Rawlsian thinking on justice and equality of opportunity. I have also presented several responses to critics of strong affirmative action that problematize its granting of group rights.

First, Wagner presents an innovative approach to justifying the granting of group rights with constitutive justice, which states that we ought to first define justice in a manner that attempts to rectify racist harm that has occurred under the status quo, and then derive rights from that conception of justice. Furthermore, to the point that strong affirmative action may privilege racialized people unfairly in the competition for scarce positions, I demonstrate that only a group-based response such as affirmative action can adequately address the harms committed to individuals based on their membership in a group, primarily using the works of Appiah, Boxill, and Delgado.

Overall, while the concern for ensuring fair equality of opportunity is important, the concern is at best misguided in the context of opposing strong affirmative action. Different policies that fall under the umbrella of strong affirmative action aim to do the very thing that fairness critics feel so strongly about: level a highly uneven playing field. Fairness critics of strong affirmative action misunderstand the nuances and depths of systemic injustice and how it alters the life chances of racialized groups for generations. While weak affirmative action is helpful, only a stronger form of the policy can help to redress the depths of racial harm if we aspire to build a truly just society one day.



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Wagner, Joseph. (1990). Groups, Individuals & Constitutive Rules: The Conceptual Dilemma in Justifying Affirmative Action. Polity, 23(1), 77–103.

  1. Students for Fair Admissions v. President and Fellows of Harvard College, 600 U.S. 181 (2023).
  2. Students for Fair Admissions v. University of North Carolina, pending citation (2023).
  3. Regents of the University of California v. Bakke, 438 U.S. 265 (1978).
  4. Regents of the University of California v. Bakke, 438 U.S. 265 (1978).
  5. Gratz v. Bollinger, 539 U.S. 244 (2003).
  6. Grutter v. Bollinger, 539 U.S. 306 (2003).
  7. Fisher v. University of Texas, 579 U.S. 365 (2016).
  8. Students for Fair Admissions v. President and Fellows of Harvard College, 600 U.S. 181 (2023).
  9. Students for Fair Admissions v. University of North Carolina, pending citation (2023).
  10. Grutter v. Bollinger, 539 U.S. 306 (2003).
  11. The phrase “intersectionality” was coined by Kimberlé Crenshaw in On Intersectionality.


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