Are racial classifications Are racial classifications narrowly tailored?narrowly tailored? Powell’s goal: diversity in ideas and Powell’s goal: diversity in ideas and

mores.mores. It would be insulting to insinuate that a It would be insulting to insinuate that a

person’s race determines his/her ideas person’s race determines his/her ideas or behavior.or behavior.

Is a rough correlation good enough? Is a rough correlation good enough? Isn’t reliance on such stereotypes Isn’t reliance on such stereotypes exactly what Title VI was meant to end?exactly what Title VI was meant to end?

Race, Justice and UtilityRace, Justice and Utility Is preferential treatment by race Is preferential treatment by race

required by natural justice?required by natural justice? Is it opposed to natural justice?Is it opposed to natural justice? Are there compelling state interests that Are there compelling state interests that

override considerations of justice?override considerations of justice? What are the benefits and costs of What are the benefits and costs of

preferential treatment?preferential treatment?

Preferences required by Preferences required by justice?justice? Equalizing present competition?Equalizing present competition? Compensation for past wrongs?Compensation for past wrongs? Can groups owe restitution to other Can groups owe restitution to other

groups? If so, when do groups exist?groups? If so, when do groups exist?

Equalizing Present Equalizing Present Competition?Competition? The factors that determine merit -- The factors that determine merit --

seniority, job experience, skills, quality seniority, job experience, skills, quality of education -- have in the past been of education -- have in the past been unjustly distributed by race.unjustly distributed by race.

To continue using these factors, while To continue using these factors, while ending all overt racial discrimination, is ending all overt racial discrimination, is to perpetuate “institutional racism”.to perpetuate “institutional racism”.

Justice of equalizing Justice of equalizing competitioncompetition Without preferential treatment for Without preferential treatment for

blacks, whites will receive unfair blacks, whites will receive unfair advantages, due to the absence of advantages, due to the absence of competition from qualified blacks.competition from qualified blacks.

Those who lose out from such programs Those who lose out from such programs are precisely those who would not have are precisely those who would not have secured those jobs under ideal secured those jobs under ideal conditions: marginally qualified whites. conditions: marginally qualified whites.

Some objectionsSome objections Changing the rules in midstream: whites Changing the rules in midstream: whites

pursued certain qualifications, with the pursued certain qualifications, with the common understanding that these common understanding that these would be sufficient.would be sufficient.

How can we tell how many blacks How can we tell how many blacks would have secured these would have secured these qualifications, under ideal qualifications, under ideal circumstances? circumstances?

Compensation for past Compensation for past wrongs?wrongs? Blacks as a group have suffered racial Blacks as a group have suffered racial

discrimination, and the effects of this discrimination, and the effects of this past injustice persist.past injustice persist.

So, preferential treatment now is So, preferential treatment now is needed to provide just restitution.needed to provide just restitution.

Objections to preferences as Objections to preferences as restitutionrestitution Not all blacks benefit -- only the more Not all blacks benefit -- only the more

qualified, better educated.qualified, better educated. The burden is not fairly distributed: The burden is not fairly distributed:

young, poor whites bear a young, poor whites bear a disproportionate burden.disproportionate burden.

Impossible to determine which Impossible to determine which individuals owe how much to whom.individuals owe how much to whom.

Can groups owe a debt to Can groups owe a debt to other groups?other groups? Even if we cannot identify individual Even if we cannot identify individual

victims and beneficiaries of past victims and beneficiaries of past discrimination, we know that whites as a discrimination, we know that whites as a group have benefitted at the expense of group have benefitted at the expense of blacks as a group.blacks as a group.

Does justice require group-to-group Does justice require group-to-group restitution?restitution?

When do people constitute a When do people constitute a group?group? Must there be strong geneological links Must there be strong geneological links

from one generation of the group to the from one generation of the group to the next?next?

Must there be a strong sense of Must there be a strong sense of identification by individuals with the identification by individuals with the group?group?

Are both necessary? Is either sufficient?Are both necessary? Is either sufficient?

Are preferences opposed to Are preferences opposed to justice?justice? Does the candidate with the greatest Does the candidate with the greatest

merit always deserve the job, slot?merit always deserve the job, slot? What about preferences for veterans?What about preferences for veterans? What if the merit itself is not really What if the merit itself is not really

deserved, but due to past racism?deserved, but due to past racism? Can race itself be a qualification? Adding Can race itself be a qualification? Adding

to diversity, providing role models?to diversity, providing role models?

More on unfairness of More on unfairness of preferencespreferences Changing the rules in midstream: if Changing the rules in midstream: if

certain qualifications have customarily certain qualifications have customarily merited certain positions, those who merited certain positions, those who acquire these qualifications have some acquire these qualifications have some natural claim to the positions.natural claim to the positions.

Is the use of a racial classification Is the use of a racial classification inherently offensive to individual inherently offensive to individual dignity? If not, why is racism wrong?dignity? If not, why is racism wrong?

Racism and StigmaRacism and Stigma Is racism wrong only when one race Is racism wrong only when one race

places a stigma of inferiority on another places a stigma of inferiority on another race?race?

Alternatively, is the wrongness of Alternatively, is the wrongness of racism essentially that of treating the racism essentially that of treating the skin color or ancestry of a person as skin color or ancestry of a person as more important than their character or more important than their character or aptitude?aptitude?

Can utility override justice?Can utility override justice? If the social benefits of preferential If the social benefits of preferential

treatment are great enough, does that treatment are great enough, does that override considerations of justice, override considerations of justice, fairness?fairness?

What are the benefits and costs of the What are the benefits and costs of the policy?policy?

Benefits of preferencesBenefits of preferences Diversity in the university classroom.Diversity in the university classroom. Meeting needs for black professionals to Meeting needs for black professionals to

serve the black community.serve the black community. Eliminating prejudice.Eliminating prejudice. Fostering social peace by narrowing Fostering social peace by narrowing

disparities between the races.disparities between the races. Providing role models for minority youth.Providing role models for minority youth. Protecting politically vulnerable minorities.Protecting politically vulnerable minorities.

Costs of PreferencesCosts of Preferences Perpetuating prejudice, myths of Perpetuating prejudice, myths of

inferiority.inferiority. Damage to self-esteem of beneficiaries.Damage to self-esteem of beneficiaries. Devaluing achievements of Devaluing achievements of

beneficiaries.beneficiaries. Backlash and resentment.Backlash and resentment. Encouraging race-consciousness.Encouraging race-consciousness.

The First Amendment:The First Amendment: "Congress shall make no law...abridging "Congress shall make no law...abridging

the freedom of speech, or of the press." the freedom of speech, or of the press." Incorporated by the 14th amendment Incorporated by the 14th amendment

(and thus applied to the states): "nor (and thus applied to the states): "nor shall any State deprive any person of shall any State deprive any person of life, liberty, or property, without due life, liberty, or property, without due process of law."process of law."

"Speech" cannot mean "Speech" cannot mean speech.speech.

Fraud, conspiracy, false advertising, Fraud, conspiracy, false advertising, advertising illegal or regulated items advertising illegal or regulated items (tobacco, alcohol), negotiating with (tobacco, alcohol), negotiating with workers other than union officials (in a workers other than union officials (in a union shop), practicing law or medicine union shop), practicing law or medicine without a license (even if only giving without a license (even if only giving advice), libel, slander and defamation of advice), libel, slander and defamation of character, blackmail, extortion,character, blackmail, extortion,

More exceptionsMore exceptions

Fighting words, inciting a riot, revealing Fighting words, inciting a riot, revealing secret information to unauthorized secret information to unauthorized persons, revealing trade secrets to persons, revealing trade secrets to competitors, counterfeiting, copyright competitors, counterfeiting, copyright infringement,...infringement,...

Is the First Amendment a merely Is the First Amendment a merely decorative addition?decorative addition?

What is the underlying What is the underlying rationale, value or theory?rationale, value or theory? Neutrality theory: the state must be Neutrality theory: the state must be

neutral on all disputed questions.neutral on all disputed questions. Self-government (Alexander Meiklejohn): Self-government (Alexander Meiklejohn):

the people are sovereign, so they must the people are sovereign, so they must have access to all information, and be have access to all information, and be free to communicate instructions.free to communicate instructions.

Free speech is merely one part of a Free speech is merely one part of a general freedom to express oneself.general freedom to express oneself.

Arguments for NeutralityArguments for Neutrality Epistemological optimism: the Epistemological optimism: the

“marketplace of ideas”.“marketplace of ideas”. J. S. Mill’s fallibility argument.J. S. Mill’s fallibility argument. The state must treat each individual with The state must treat each individual with

equal respect as autonomous.equal respect as autonomous.

Epistemological OptimismEpistemological Optimism In a fair fight, the truth will always In a fair fight, the truth will always

(usually?) win out.(usually?) win out. Why think so?Why think so?

““Truth” just means whatever wins out in the Truth” just means whatever wins out in the end. This has some strange consequences.end. This has some strange consequences.

The human mind is so well-attuned to reality The human mind is so well-attuned to reality (by the “light of reason”) that, when (by the “light of reason”) that, when unhindered, it will always succeed.unhindered, it will always succeed.

ObjectionsObjections It is difficult to maintain the extreme It is difficult to maintain the extreme

view that truth always wins out.view that truth always wins out. If it is only a general tendency, with If it is only a general tendency, with

many exceptions, then an absolute right many exceptions, then an absolute right to free speech is not justified. Why not to free speech is not justified. Why not restrict speech in those exceptional restrict speech in those exceptional cases where discussion does not tend cases where discussion does not tend to reach the truth?to reach the truth?

Mill’s fallibility argumentMill’s fallibility argument (1) No one has rational assurance of the (1) No one has rational assurance of the

truth of any opinion whatsoever, unless truth of any opinion whatsoever, unless he is infallible, or unless all persons are he is infallible, or unless all persons are absolutely free to contradict it.absolutely free to contradict it.

(2) Whoever prevents the expression of (2) Whoever prevents the expression of any opinion asserts by that act that he any opinion asserts by that act that he has rational assurance of the contrary has rational assurance of the contrary opinion.opinion.

Mill’s argument, continuedMill’s argument, continued Therefore, whenever someone prevents the Therefore, whenever someone prevents the

expression of any opinion, he thereby expression of any opinion, he thereby asserts that he is infallible in his judgment asserts that he is infallible in his judgment on that question.on that question.

But, (3) no one is infallible on any question.But, (3) no one is infallible on any question. Therefore, to prevent the expression of any Therefore, to prevent the expression of any

opinion is to commit an intellectual error.opinion is to commit an intellectual error.

Stephen’s critique of MillStephen’s critique of Mill Premise (1) is false, since many facts Premise (1) is false, since many facts

are provable beyond a reasonable are provable beyond a reasonable doubt, even in the absence of freedom doubt, even in the absence of freedom of discussion.of discussion.

Limiting freedom of discussion weakens Limiting freedom of discussion weakens our evidence for an opinion only when our evidence for an opinion only when the evidence for the opinion consists the evidence for the opinion consists largely of reliance on public opinion.largely of reliance on public opinion.

Stephen’s Critique, continuedStephen’s Critique, continued Premise (2) is also false, since one may Premise (2) is also false, since one may

suppress the discussion of an opinion, not suppress the discussion of an opinion, not because one believes the opinion to be because one believes the opinion to be false, but simply because one thinks that false, but simply because one thinks that the discussion itself harms the public good.the discussion itself harms the public good.

For example, we might make it illegal to For example, we might make it illegal to blacken someone’s reputation, even with blacken someone’s reputation, even with true allegations.true allegations.

Treating all with equal respectTreating all with equal respect To interfere with the communication of To interfere with the communication of

information and ideas is to interfere with information and ideas is to interfere with the rational autonomy of the individual. the rational autonomy of the individual. (Scanlon)(Scanlon)

To suppress certain viewpoints about To suppress certain viewpoints about life, values and meaning, is to treat life, values and meaning, is to treat some citizens as less worthy of respect some citizens as less worthy of respect than others. (Dworkin, John Rawls)than others. (Dworkin, John Rawls)

Is neutrality really possible?Is neutrality really possible?

James Fitzjames Stephen:James Fitzjames Stephen:

““The difference between paying a single The difference between paying a single shilling of public money to a single shilling of public money to a single school in which any opinion is taught of school in which any opinion is taught of which any single taxpayer disapproves, which any single taxpayer disapproves, and the maintenance of the Spanish and the maintenance of the Spanish Inquisition, is merely a question of Inquisition, is merely a question of degree.”degree.”

How the state seeks to How the state seeks to “control thought”“control thought” By establishing public schools and By establishing public schools and

universities, selecting only certain kinds universities, selecting only certain kinds of people to teach there, and dictating of people to teach there, and dictating the shape of the curriculum.the shape of the curriculum.

By financing public libraries and other By financing public libraries and other depositories of information, and depositories of information, and deciding which books and journals to deciding which books and journals to include.include.

By establishing public holidays, and By establishing public holidays, and

financing public demonstrations and financing public demonstrations and festivities, on behalf of certain ideas.festivities, on behalf of certain ideas.

By distributing broadcast licenses to By distributing broadcast licenses to organizations deemed to be serving the organizations deemed to be serving the public interest, and subsidizing PBS.public interest, and subsidizing PBS.

By building museums, and subsidizing By building museums, and subsidizing certain works of arts, by particular certain works of arts, by particular schools of thought and expression.schools of thought and expression.

Self-governmentSelf-government Alexander Meiklejohn took the New Alexander Meiklejohn took the New

England town meeting as the model for England town meeting as the model for every democracy.every democracy.

The people are sovereign.The people are sovereign. As sovereign, they must have access to all As sovereign, they must have access to all

information, ideas, since only they can decide information, ideas, since only they can decide what is relevant.what is relevant.

They must be free to communicate their They must be free to communicate their instructions to their agents, the state officials.instructions to their agents, the state officials.

The Paradox of Self-The Paradox of Self-GovernmentGovernment If the people are absolute sovereign, If the people are absolute sovereign,

what is to prevent them from doing what is to prevent them from doing anything, including limiting free speech, anything, including limiting free speech, by majority rule?by majority rule?

If the people are sovereign, what is to If the people are sovereign, what is to prevent them from delegating any prevent them from delegating any power to the state, including the power power to the state, including the power to regulate speech?to regulate speech?

A possible responseA possible response Meiklejohn’s theory might be Meiklejohn’s theory might be

salvageable, if we see the people’s salvageable, if we see the people’s sovereignty as derived and limited.sovereignty as derived and limited.

The ultimate sovereign: Nature, and The ultimate sovereign: Nature, and Nature’s God (John Locke)Nature’s God (John Locke)

Nature delegates limited authority to the Nature delegates limited authority to the people.people.

This delegated authority is inalienable.This delegated authority is inalienable.

Free speech as part of a Free speech as part of a general libertygeneral liberty There is nothing special about speech There is nothing special about speech

or the press.or the press. Everyone should have maximum Everyone should have maximum

freedom of every kind to express freedom of every kind to express themselves, and their own conception of themselves, and their own conception of the good.the good.

Problem: one man’s freedom is another Problem: one man’s freedom is another man’s restraint.man’s restraint.