Focussing on two US Supreme Court decisions, Sweatt v. Painter and DeFunis v. Odegaard, Ronald Dworkin examines the constitutionality of reverse discrimination and affirmative action. This analysis is undertaken within the framework of the Fourteenth Amendment, which provides that no state shall deny any man the equal protection of its laws. The issue of the constitutionality of reverse discrimination, thereofore, hinges upon the idea, or the conception, of equality. (Chapter 9, Taking Rights Seriously)
In Sweatt v. Painter, a Texas law providing that only whites coculd attend the University of Texas Law School was struck down as being violative of the Fourteenth Amendment. In DeFunis v. Odegaard, a Jewish student was rejected from the Washington Law School because his test scores and college grades were not high enough to secure admission; however, had he belonged to a designated minority group, for whom lower scores were required for admission, he would have been selected.
Dworkin begins with an examination of the DeFunis case. He points out that the argument against reverse discrimination is simply that distinctions of race violate the right to equality of those of individual members of non-favoured groups. The right to equality itself, however, comprises of two separate rights: the right to equal treatment, i.e., the right to an equal distribution of opportunities, resources or burdens (Dworkin takes the example of one-man-one-vote); and the right to treatment as an equal, i.e., the right to be treates with the same concern and respect as everyone else.
Dworkin argues that DeFunis does not have a right to equal treatment with regard to admission into Law School, i.e., he cannot claim a seat on the ground that other people are getting seats. This is premised upon the idea that a legal education is not as vital as, say, voting, or even a primary education. DeFunis does, however, have the right to treatment as an equal. Here, however, Dworkin points out that admissions policies by their very nature will always result in disadvantage to a certain group of people. If an admissions policy is based on intelligence tests, then can less intelligent people claim that they are not being treated as equals with more intelligent people? The answer is no, because the loss to these less intelligent people is outweighed by the collective gain to the community, that is, of having more intelligent law students. Similarly, the loss to DeFunis is outweighed by the broader gain to the community of having more black students, e.g., a general reduction of inequality, a reduction of social tensions etc.
It seems, however, that this same argument can be applied to the Sweatt case. For if it can be proved that the loss to Sweatt, and others like him, is outweighed by the collective gain to the community in having more white law students, then Sweatt can be denied admission on the basis of his race.
In response to this, Dworkin argues that there are two ways of justifying collective welfare over individual rights: a utilitarian sense, i.e. when the average level of welfare in a community improves, even though the welfare of some individuals is compromised; and an ideal sense, i.e., when the society becomes more just, or moves closer to an ideal society. He points out that whereas in the DeFunis case, Washington Law School's policy can be justified on ideal as well as utilitarian grounds, Sweatt's denial of admission can be justified only on utilitarian grounds. The burden therefore lies on Dworkin to show that utilitarianism is not a good enough justification to override the individual right to equal treatment.
Dworkin shows this by poining out that when utilitarianism speaks of policy-justification on the grounds of satisfying more preferences overall, it ignores a crucial distinction: that between personal preference, i.e. a preference for certain goods and services, and external preferences, i.e. preference for the assignment of goods and services to others in a certain manner. In the instant case, as a white law aspirant, I may have a personal preference for the Texas policy as it makes it easier for me to get into Law School; and I may also have an external preference for the same, as I am racist and believe that Blacks are inferior to Whites. Dworkin argues that the presence of external preferences strikes a fatal blow to utilitarianism. This is because one of the major features of utilitarianism is egalitarianism: the idea that each citizen is treates as the equal of all others, and that the chance of his preference succeeding depends upon how important it is to him, along with how many others share it with him. However, with the undeniable existence of external preferences, the chance of my preference succeeding depends not only on the demands of the personal preferences of others taken in conjunction with mine, but also upon the respect or affection others have for me, and their preference of the manner in which goods should be allocated to me.
Therefore, Dworkin argues that as Texas' utilitarian arguments in favour of segregation are invalid, as in this case personal preferences are inextricably linked with external preferences. This is not true for intelligence-based tests, as the reason for choosing those is that intelligent lawyers are more likely to satisfy their clients' personal preferences of wealth, or winning law suits.
On that ground, Dworkin distinguished between DeFunis and Sweatt, on the ground that admissions programs that discriminate in favour of blacks can be justified both in the ideal as well as the utilitarian senses of collective benefit overriding individual rights, whereas discrimination against blacks is inextricably premised upon external preferences, and therefore must fail.
The following hypothetical, however, may serve to illustrate a possible flaw in the line of argumentation. Suppose that the State passes a law prohibiting admission to Law School for all people below five and a half feet in height. Suppose further that these people are in a minority. Now in this case, it may so happen that the majority of people above five and a half feet in height, will personall prefer this, as it improves their chances of getting into Law School. They may not be prejudiced against short people, or consider them inferior, or in anyway wish for an unequal distribution of goods to them. In such an event, external preferences are wholly absent from the picture, and therefore, the argument for prefering the ideal sense over the utilitarian sense is also no longer valid. Is such a discrimination valid?