Affirmative Action and Liberal Rights

ABSTRACT At the heart of liberalism lie two seemingly conflicting ideals: a commitment to robust individual rights and an ideal of equal opportunity. The former offers rights‐holders discretion in terms of with whom to cooperate, who to hire, admit, and so forth. The latter is often understood to require policies of affirmative action. This conflict is visible in the recent US Supreme Court Decision Students for Fair Admissions v. Harvard University , which firmly decided the matter on behalf of liberal rights. However, such a resolution shifts the burden of injustice on those who are negatively affected by it. And this seems unfair. At the same time, affirmative action threatens to shift these burdens entirely to employers and other applicants. And liberal rights are meant to protect us from being made to bear such burdens. This essay offers a solution to this problem by formulating a rights‐based defense of affirmative action policies. According to this argument, affirmative action policies are fair when they realign the actual (injustice‐tainted) distribution of opportunities with the distribution to which people are entitled as a matter of their social positions. This solution is fair since rights‐holders have no just claims against lacking opportunities they had no right to enjoy in the first place, and victims of injustice have no more claim to redress than what their rights were supposed to yield. The argument justifies significant policies of affirmative action with respect to hiring, admissions, and so forth, in ways that remain fully consistent with even the strongest form of liberal rights.