In "Achieved: 25 year History of the IDEA," Allan's story is described. In the late 1940s, an infant named Allan was found on the steps of an institution for persons with mental retardation. By the time he was 35, Allan was totally blind, and his face was heavily callused. While he was in the institution, Allan had been observed quite often sitting in the corner humming, rocking back and forth slapping himself in the face. This is how he spent most of his life.
It wasn't until the late 1970s that Allan was properly assessed. The examiners were quite shocked to learn that the results of their evaluation revealed that not only did Allan have an average level of intelligence, but also, Allan's blindness wasn't the result of a condition or a birth defect, but as a result of self-harming behaviors he had taught himself by observing the behaviors of fellow residents in the institution.
As a result of Allan's assessment, despite intervening with him so late in his life, the institution began teaching him skills through a special program to become more independent. Allan's story was all too common for people with learning and/or other forms of disability due to the lack of appropriate evaluations, assessments and effective interventions of the time.
Before Congress enacted Public Law 94-142, or the Education of All Handicapped Children's Act in 1975, schools were not required to educate children with disabilities whatsoever. Some states even had laws that allowed them to deny access to education of children with disabilities. Families were fortunate to find privatized education for their child's special educational needs. Most children with disabilities were either kept home with family members to care for them, and children with more severe disabilities were institutionalized in facilities among those with learning impairments and mental retardation.
A Brief History
The first to utilize "special needs" classes was in Germany, in 1863. Rhode Island, Chicago and Boston started their own "special needs" classes right after in 1864. The initial intent of these "special needs" classes was to:
Remove feeble-minded children from the regular school system where they were thought to constitute a disruptive influence on the regular pupils; to provide feeble-minded children with special education suitable to their needs and particularly one that would make them self-supporting; to protect them from harassment by children in regular classes; and determine which among them was incapable of education and training and should be sent to custodial institutions -- From Asylum to Welfare, Harvey G. Simmons, National Institute on Mental Retardation, (1982).
Congress passed into law the first of many pieces of legislation to provide students with disabilities legal protection and equal opportunities to learning and education. This law was known as the Education for All Handicapped Act in 1974 and in 1975, Public Law 94-142 or, the Education of All Handicapped Children's Act (E.H.C.A.) had written in the first requirements for the development of the Individualized Education Program, also known as an I.E.P. When it was first enacted, E.H.A. required provisions of special education services for students with disabilities.
The 108th Congress reauthorized the amendment of I.D.E.A. in 2004, Public Law 108-446, changing the name again to the Individuals with Disabilities Education Improvement Act and went further to define it's accountability requirements and introduced an easier I.E.P. process with less paperwork and fewer meetings. Every amendment created and introduced to I.D.E.A. was done so to address new challenges or needs that were identified since the previous re-authorization/amendment in accountability of requirements.
The Individuals with Disabilities Education Act or I.D.E.A. as it is known nowadays has greatly impacted opportunities to learning, allowing for individuals with mental and/or physical disabilities equal access to education in the 40 years that the law was enacted. The intentions of I.D.E.A. has evolved and impacted students with disabilities to achieving equal access to education.
The Individuals With Disabilities Education Act, or I.D.E.A.
Since 1975, I.D.E.A. was created to provide individuals with any learning, mental and/or physical disabilities equal access to education, protection under the law from harassment and discrimination, and self-sufficiency skills for independence in their post-educational lives. Any school receiving federal funding is mandated to provide free and equal access to public education for students with disabilities with a least restrictive and inclusive learning environment and by protecting students with disabilities legally from discrimination and bullying from peers, the intentions of I.D.E.A. is to provide all student of any ability an equal opportunity to learn.
What is an I.E.P.?
As defined by the U.S. Department of Education, special education services and other interventions in schools for students with disabilities are provided to students who have an Individualized Education Plan or I.E.P. Each I.E.P. is individually designed, one per student, to aid a child with disabilities to meet the same state, federal and other academic requirements, standards and testing goals of students with disabilities for achieving a high school diploma and postgraduate life. An in-depth process takes place to accommodate a student appropriately with an I.E.P. All students who are evaluated with having special needs must develop an I.E.P. to access and utilize services.
There is no single standardized form or format when creating and I.E.P. document. However, clear concise language when writing out an I.E.P. is useful for all participating members of an I.E.P. team to understand and when defining all required elements for an I.E.P. document to be effective. Application of I.D.E.A. with the proper use of an I.E.P. for children with disabilities not only intends to provide an avenue towards equal access to education and learning, it is constitutionally protected right under law. One that can benefit children with disabilities gain knowledge and self-sufficiency for their adulthood.
Adara is my daughter. She was born in 2001 at one month premature due to multiple potential health issues. At five months in-utero, she was diagnosed with Hydrocephalus, a condition that causes fluid to improperly drain from the brain. At 18 hours old she had surgery to place a shunt in her brain to drain excess fluid from the brain with a tube under her skin leading into her stomach cavity. At one year of age Adara was confirmed to have FSHD Muscular Dystrophy, a muscle wasting genetic disease, one that she shares with all three previous generations of her maternal family. At two-and-a-half Adara experienced her first of two seizures, prompting her to be medicated for five years with a seizure disorder.
When Adara was seven, she started the first grade with an I.E.P. or Individualized Education Plan to begin her education and integration into a classroom environment with peers closest to her age and ability. Adara's first year was a little rocky. Since Adara wasn't exposed to a lot of other children her age, and because she had never been in a classroom environment before, she didn't understand her fellow classmates or classroom expectations of behavior. She had to learn from the beginning and catch up to her peers skills in reading, writing and math, as well as her social skills and interactions with other students, like sharing, making friends, conflict resolution and problem solving. Adara was placed in a normal classroom setting with intervening sessions where Adara was pulled from her class to work with special ed teachers, counselors, therapists and other specialized educators and trained professionals to provide Adara those skills she is behind in addressed by her I.E.P. supported by her school.
In 2014/15, Adara is 13 years old. She still has an I.E.P., but only to help her continue to adapt socially with her peers and in making friends. Adara now excels in reading, and is doing well in math. She no longer needs extensive specialized education for her reading comprehension, handwriting and spelling or math skills because of the attention to Adara's individual needs from multiple interventions throughout her education provided to her through her I.E.P. Adara was able to catch up to, and now meet the same educational requirements and expectations as her peers.
Other Interpretations of I.D.E.A.
Other interpretations of I.D.E.A. and the use of I.E.P.'s imply that a student's access to free and equal education is impeded by means of segregation, and by allowing for exemptions of students with disabilities from meeting school, district, state, and federal testing standards and requirements, as well as minimalist requirements for education to assist a student with disabilities to graduate. Also, this would allow for schools to still qualify for state, federal, or other funding qualifications by excluding students with special educational needs from meeting testing standards.
Assessed as institutionalizing "ableism" by using I.E.P.'s to discriminate against and segregate students with disabilities away from other "able-bodied" peers. Thomas Hehir defines "ableism" as
the devaluation of disability that results in societal attitudes that uncritically asserts that it is better for a child to walk than roll, speak than sign, read print than braille, spell independently than use spellcheck, and hang out with nondisabled kids as opposed to other disabled kids.
And Ferri and Connor argue that
Special education, despite being designed to meet the needs of diverse groups of learners, has nonetheless been used to both create and perpetuate the marginalization of individuals based on the interconnected discourse of race and ability.
However, for students with disabilities, any discrimination that prevents them from gaining equal access to education is a legally actionable because of I.D.E.A. under the equal protection clause of the 14th Amendment of the U.S. Constitution. This Act protects and ensures all children with disabilities has access to education and services to aid them towards achieving academic success, encouraging self-sufficiency skills and protection from discrimination and bullying from other peers within the education environment, promising children like Allan and Adara a more promising and bright future.
The Individuals with Disabilities Education Act or I.D.E.A. has opened opportunities to learning for any student with a learning impairment, mental and or physical disabilities equal access to education since the law was enacted. When an I.E.P. for a student with disabilities is correctly utilized, I.D.E.A. achieves it's intentions of providing those students with the same educational success in meeting academic criteria for a high school diploma and post educational self-sufficiency.
It has only been 40 years since education was mandated for children who have disabilities. Without I.D.E.A., families had very few options when it came to finding adequate schooling and learning environments that could provide special educational needs to address challenges due to a learning impairment, mental and/or physical disabilities. If I.D.E.A was not enacted today, children with disabilities may not be in schools getting their education, but left home instead. Those families lucky enough found private tutors, and other children with more severe impairments would most likely be institutionalized and placed into facilities with other individuals for mental disorders.
Overall, improved societal acceptance of individuals with disabilities over the last 40 years has contributed to I.D.E.A.'s success. Ongoing efforts of evaluating and addressing issues that may rise to challenge access to equal education, will further I.D.E.A. to achieving academic and postgraduate self-sufficiency success, and will continue to improve and provide a better educational experience and academic achievement for children and individuals with disabilities.
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1. Formal Equality of Opportunity
Formal equality of opportunity requires that positions and posts that confer superior advantages should be open to all applicants. Applications are assessed on their merits, and the applicant deemed most qualified according to appropriate criteria is offered the position. Alternatively, applicants are winnowed by fair competition, and the winner or winners get the superior advantages.
Formal equality of opportunity might obtain in a variety of social settings. As defined here, this ideal does not presuppose that the production and distribution of goods and services are organized through a market economy with private ownership. For example, an autocratic society, in which economic life is organized by the commands of the autocrat, could satisfy equality of opportunity to this extent: the post of autocrat is open to all applicants, and selection is determined by the fitness of applicants for autocratic performance as indicated by the comparative merits of their applications. Moreover, the autocrat might organize economic life and distribute economic rewards by fair competitions. A communist society, in which political, social, and economic privileges accrue to communist party members, might conceivably be run in such a way that communist party membership is determined by competitive examination. If the examination were set so that the person who earns a top score is the best qualified for the post of party membership, and that person is offered party membership, formal equality of opportunity would be satisfied.
The ideal of formal equality of opportunity is associated with the liberation of economic practices and institutions from guild privileges and restrictions and with the development of competitive market economies. The slogan “careers open to talents” expresses the aspiration to establish a world where government posts go to the most qualified and economic opportunities may be seized by anyone independently of whether or not one's parents are of noble blood or cronies of the king. The ideal is opposed to nepotism, the distribution of what should be public offices to one's relatives and friends just because they are near and dear to the distributor and quite independently of their fitness for the post. In this entry for the most part the terms “formal equality of opportunity” and “careers open to talents” are used interchangeably to denote the same ideal.
A market economy conforms to formal equality of opportunity only if jobs offered by business firms are publicized in advance, so that anyone who might want to apply has a reasonable opportunity to do so. In this setting formal equality of opportunity also requires that applications from anyone are accepted, applications are judged on their merits, and the most qualified according to criteria that are relevant to job performance are offered positions. (A variant practice in which only current employees of a firm are eligible to apply to higher-level jobs might be deemed to satisfy equal opportunity provided entry-level jobs in the firm are open to all applicants.) In addition, equal opportunity in a market setting requires that the lending of money for investment purposes by banks should proceed by accepting applications from any interested party and deciding who should get loans according to the expected profit of lending to one rather than another of the various applicants. Equality of opportunity also requires that the access of economic firms to investment and operating capital by borrowing money through sales of bonds and through sales of shares in the ownership of the enterprise (stocks) should occur through processes that give all firms and economic agents the same opportunities for gain.
More generally, equality of opportunity in the market setting requires that firms and individuals deal with one another impartially as opportunities for gain. When formal equality of opportunity is satisfied in a market setting, each participant regards all others as potential partners for interaction and selects partners for a deal or a venture according to the extent to which interaction with those particular individuals or firms promises to further one's morally innocent economic goals. An alternative formulation would have it that when a market economy satisfies formal equality of opportunity, each market agent selects partners for interaction according to the extent to which interaction with those particular individuals or firms would further one's legally permitted goals.
The ideal of formal equality of opportunity has limited scope. Its sphere of application is public life, not private life. Where to draw this line between public and private for this purpose is itself an unsettled and controversial issue. Certainly decisions about whom to invite to be a dinner guest, whom to regard as a potential date or marriage partner, whom to cultivate with a view to forming a personal friendship are not decisions that fall within the sphere of equality of opportunity. This is not to deny that such decisions can be made in a way that reflects wrongful prejudice. This surely happens, and is morally criticizable. But equality of opportunity as normally understood is a norm that regulates a political and civil society, a common life in which all members participate, rather than every aspect of the conduct of individual lives. However, this scope restriction is open to challenge.
The idea of equality of opportunity tends also to be limited in scope along another dimension. Its domains are political societies or nation-states taken one at a time. If all Austrian universities are open to all Austrian youth and all Chinese universities are open to all Chinese youth, it is not ordinarily thought to be objectionable if Austrian universities are not open to Chinese and Chinese universities are not open to the Austrians. Thus limited in scope, formal equality of opportunity would be compatible with far greater educational opportunity being available to Austrian than to Chinese youth. However, nothing prevents broadening the scope of application of equality of opportunity. For example, one might uphold the ideal of a global marketplace in which all transactions conform to formal equality of opportunity applied world-wide.
It should be noted that formal equality of opportunity so understood puts moral constraints on market decisions. Equality of opportunity is violated if investors decline to invest in a company just because its CEO is a black, or a woman, and they are prejudiced against blacks and women. If one operates a business and provides a product or service to the public for sale, formal equality of opportunity is violated if one refuses to sell to some class of potential customers on grounds that are whimsical (no sales to people with brown hair, or wearing black shoes) or prejudiced (no sales to people of some disfavored race, religion, or skin color). By the same token, the ideal of formal equal opportunity puts constraints on the behavior of customers of firms and purchasers of goods and services as well as constraints on would-be providers. If a Jewish individual starts a business and people decline to purchase goods from her in virtue of the fact that she is Jewish, formal equality of opportunity is violated. In the same way, to refuse to purchase a product on the ground that its manufacture employed the labor of women in skilled jobs violates formal equality of opportunity.
Suppose the owner of a small business hires her family members or friends instead of advertising job openings and picking among the applicants according to the merits of their applications. This might be deemed a private matter and, for this reason, not a violation of formal equality of opportunity. However, if this same small business, a restaurant, serves whites only and refuses to accept blacks, Hispanics, and others as customers, this decision might well be deemed to lie in the public sphere and to constitute a violation of formal equality of opportunity. A perhaps controversial case of a type of decision that might be thought to lie in the public or in the private sphere with respect to the application of equality of opportunity would be decisions of business-oriented social clubs that are traditionally exclusively male or white in their membership to continue to deny membership to nonwhites and nonmales who might seek admission. Since valuable business contacts are made at these private social clubs, and business deals are sometimes made on the premises, the exclusion of women and minorities from membership in them might be deemed wrongfully discriminatory and a violation of equality of opportunity.
Notice that selection among applicants for a job by a random procedure that gives all applicants an identical chance of getting the job actually violates formal equality of opportunity as here interpreted (on equal opportunity as a lottery procedure, see Rae et al. 1981). At least, if there are relevant standards of merit that could be applied to the applicants and that would predict successful job performance, a lottery to select who gets the job would not qualify as selection according to merit. Only if all applicants are equally qualified or there is no feasible and cost-effective way to distinguish among the applicants according to their merit would a lottery satisfy the ideal of equality of opportunity.
1.1 Being qualified for a competitive position.
The idea of being most qualified for a post is not transparently clear. One might hold that being qualified is meeting perfectionist criteria of excellence that are internal to roles and crafts. A good carpenter has the skills and other traits that render one competent at using wood to build things. The position or post is associated with a goal, and excellence is what enables nonaccidental successful pursuit of the goal.
If a post is associated with several goals, there may be no definitive ranking of their relative importance, hence no definitive precise notion of being more qualified than another candidate for the post. A good psychotherapist may help patients in several distinct ways, so there may be only partial commensurability in rankings of psychotherapists.
A post may be associated with quite different conflicting goals, some problematic. Suppose a mediocre professional hockey player tends to become embroiled in brawls during games. His thuggish conduct pleases fans, and raises ticket sale revenues. If the purpose of professional hockey is to create profits for hockey team owners, the mediocre hockey player may be more qualified for a position on the team than better players. The carpenter with excellent skills and an unwillingness to do shoddy work may not be qualified for a job with the construction firm whose profit-maximizing business strategy is to build cheap affordable houses. Similar issues can arise in the nonprofit sector. An international aid agency may do better to hire photogenic young aid workers, who will attract favorable press coverage, rather than workers more able to do the work that will help the agency's intended beneficiaries.
If airline business travelers prefer to be served by physically attractive women rather than attractive men or unattractive individuals of either sex, a profit-seeking firm will regard being female and attractive as job qualifications (Yuracko 2004a). If white workers rebel at being bossed around by a supervisor who is not white-skinned, being white-skinned may be a job qualification for the supervisor post. One response to these examples is to identify the most qualified applicant for a post as the one whose hiring will do most to advance the morally legitimate purposes of the enterprise. This formulation allows the construction firm to consider the excellent carpenter who insists on working to the highest standards as unqualified and likely guides us to regard hiring the airline stewards and stewardesses as a difficult borderline case. These verdicts are plausible. But notice that the firm that caters to the racist prejudices of its workers has the morally innocent aim of making profits. One problem here is that the firm pursues its aim by catering to wrongful desires, and indeed wrongful desires of just the type that equal opportunity aims to overcome. In contrast, selecting a black actor to play the lead role in Othello seems unproblematic, and so does selecting a female medical doctor to serve as a gynecologist for a clientele of women who feel more comfortable being treated by a woman rather than a man. However, the latter example is not beyond challenge. The judgment of the case may depend on the underlying motivation of the customers, as seems probable if we introduce variations of the example. We might imagine that the women who prefer a female gynecologist simply dislike men as such. In an alternative scenario, imagine that the women clients feel more comfortable being treated by a male gynecologist because they view the doctor's role as involving a social authority that properly belongs to males. Here there seem to be violations of formal equality of opportunity.
A society could satisfy the careers open to talents ideal even though the economy is overwhelmingly oriented to satisfying wrongful consumer desires for unhealthy food and cruel sports spectacles, just so long as the desires being satisfied are not wrongful by virtue of offending against an element of the formal equality of opportunity ideal. How to draw the line between desires that are offensive in this way and those that are not is a tricky matter. The desire of consumers not to purchase products in which the labor of those deemed lower-caste individuals is embedded in any except menial roles is clearly on the wrong side of the line. The desire of elderly women to be attended by female nurses is clearly not. Several factors may be in play. One is that desires that express hostile attitudes against people in virtue of their group membership are inherently inimical to careers open to talents. Another is that desires that reflect accurate statistical judgments are not inherently offensive to equal opportunity. Perhaps elderly women believe correctly that they are more apt to receive sensitive, caring treatment from members of their own sex. Desires that arise in group-hierarchical culture and would not have arisen in an equal opportunity society are arguably not just on this basis reasonably deemed offensive to careers open. Another factor that perhaps ought to guide classificatory judgments in this area is disparate impact (on which, see section 6.1).
The formulation toward which this discussion points is that for purposes of determining whether formal equality of opportunity is satisfied in given circumstances, any member of society must be allowed to apply for positions that confer advantage, applications must be judged on their merits, and selection of applicants for the position must proceed by selecting the top-ranked applicant first, then successively lesser-ranked applicants, in order of their fitness for the post as revealed by their applications. An application is meritorious to the degree that it shows that selecting this individual would better advance the morally legitimate aims of the enterprise by means that are not morally forbidden and specifically not wrongfully discriminatory than would selecting any other applicants. If an applicant would do better in a post by satisfying desires and choices of customers that are in violation of equality of opportunity, then hiring the applicant on that basis would also violate equality of opportunity (Wertheimer 1983).
This formulation does not rule out some selection decisions that some might want to classify as violations of formal equality of opportunity. Consider this example: Two lawyers apply for a job in a law firm. One is better at lawyering work but comes from a nonwealthy family background; the other is worse at lawyering work but comes from a wealthy family, has many wealthy friends, and can be expected to draw more wealthy clients and thus more revenue to the firm than her less connected fellow applicant. The wealthy applicant is chosen, because hiring her would do more for the firm's expected profits than hiring the other. The example illustrates that even if the ideal of formal equality of opportunity is uncontroversial if abstractly and vaguely stated, any detailed specification of the norm will be controversial.
Another controversial selection criterion is age. Suppose that state-funded openings for qualifying education for medical doctors are restricted to applicants whose age does not exceed some stated maximum. Or suppose there is a compulsory retirement age set by law for certain occupations, or set by some individual business firms. Are such public or private policies wrongfully discriminatory so as to render them violations of formal equality of opportunity? (On age discrimination, see also the discussion in section 2.3 of this entry.)
Another controversial selection criterion is physical appearance (see Post 2000). In January 1992, the City Council of Santa Cruz, California, considered a proposed city ordinance that would have prohibited discrimination against individuals on the basis of physical appearance. In the context of employment, such an ordinance would rule out disfavoring an application for hiring or promotion on the ground that the candidate is physically attractive or unattractive, and also on the grounds that the candidate fails to conform to conventional standards of dress or appearance. The proposed ordinance would have allowed an exception when physical appearance is a bona fide occupational qualification (BFOQ), when a certain appearance is required in order to carry out essential functions of the job. Would passage of such an ordinance represent an advance or a setback for the cause of formal equality of opportunity or careers open to talents?
The candidate ordinance clearly overreaches by casting its net of prohibition too widely. A business might aim to attract customers by presenting a dressed-up or dressed-down tone, and refusing to follow the appearance code for staff that is intended to achieve the desired tone should not be protected behavior under an antidiscrimination norm, even if appearance does not qualify as an essential job function. On the other hand, an appearance code can reinforce conventional beliefs that hinder disfavored groups from genuine equal access to the workplace. Suppose an appearance code requires women to use cosmetics and maintain their hair in expected styles while no comparable requirements are imposed on men in the same job role. How to draw boundary lines here is not easy to discern (see Yuracko 2004a,b).
Deborah Hellman proposes that wrongful discriminatory treatment occurs if and only if the discrimination demeans some of those who are being treated. In turn, to “demean is to treat someone in a way that denies her equal moral worth.” Hellman elaborates: “To demean is not merely to insult but also to put down, to diminish and denigrate” (Hellman 2008, at 29).
Hellman's proposal offers a principled way of resolving disputed boundary lines between acceptable and unacceptable discrimination, which set the standard of formal equality of opportunity. In this tangled area of thought, the success of the proposal is hard to judge. One worry is that even if the proposal gives a sufficient condition for wrongful discrimination, the proposal may fail as a necessary condition. Suppose a society's employment practices are set by a religion that reveres women but dictates that their proper role is that of traditional homemaker, and that the only public sphere employment suitable for women is temple prostitute (a highly regarded, indeed sacred calling). These practices of discrimination do not demean women, but their this-worldly consequences are seriously harmful to women and arguably, in virtue of this fact, wrongly discriminatory. Another concern is that the proposal may fail as a sufficient condition as well. Suppose a society countenances giving lesser weight, in public and private decision making, to the interests of severely cognitively disabled individuals than to the nondisabled, on the ground that these human individuals fail to have the rational agency capacities that qualify sentient beings as full persons. The practices of the society may demean the severely cognitively disabled without being wrongfully discriminatory. (On Hellman, and on wrongful discrimination generally, see Lippert-Rasmussen 2014, and on discrimination against the severely cognitively impaired, see McMahan 1996).
1.2 Formal Equality of Opportunity and Market Freedom
Formal equality of opportunity (careers open to talents) as characterized so far could be satisfied in a society with guild restrictions that are legally enforced, so long as the restricted economic positions and roles are open to all applicants and applications are assessed on their merits. This feature of the characterization is open to objection. Consider a society in which no one is allowed to practice law, medicine, college teaching, haircutting and manicure provision, real estate, carpentry, plumbing, taxicab driving, and so on without special schooling and a special state-supplied license, few of which are available for distribution. Even if the procedures for certifying schools and selecting recipients for licenses are impeccably fair and fairly administered, the system is subject to criticism on grounds of unfairness, and in particular, criticizable for denying equal opportunity as between the officially licensed provider of goods and services and the individual unlicensed to provide goods or services of that type who wants to sell them to willing customers.
It is possible that the restrictions on free trade just described amount to state-established cartels. If so, there is a case for maintaining that these restrictions constitute a denial of equality of opportunity in an intuitive sense and the definition of the term should be revised to accommodate this judgment.
It is also possible that the restrictions on free trade just described are justifiable on the ground that consumers lack the knowledge and judgment appropriately to determine whether the complicated services being provided are worth their price and best satisfy their preferences all things considered. If this is so, and if the restrictions qualify as justifiable paternalism—restriction of people's liberty against their will for their own good—then the restrictions would not plausibly be regarded as violating equality of opportunity rightly construed.
Given that the restrictions could conceivably be sustaining cartels, one might hold that the notion of formal equality of opportunity should be reinterpreted to accommodate this possibility. An opposed view would urge that the examples of restraint of trade are objectionable, but not an offense against the ideal of equality of opportunity, rather an offense against the different ideal of free trade. In favor of holding cartel-establishing restraints on free trade to be a violation of equality of opportunity is this consideration. It is plausible to judge that if the king imposes unjustified restrictions on people's opportunities to interact with each other on mutually agreeable terms, that in itself counts as violation of the ideal of careers open to talents or equal opportunity in the formal sense. Here is an alternative formulation of formal equality of opportunity that accommodates this judgment: Careers open to talents requires that individuals be free, under justified regulation, to buy and sell goods and services on mutually agreeable terms and that enterprises that confer positions of advantage select individuals to fill these posts through competitions open to all, with applications assessed by relevant criteria of merit. Promotions and advancement of individuals in positions of advantage should be conducted in a similar meritocratic way.
1.3 Discrimination and Formal Equality of Opportunity
Although whimsical hiring violates formal equality of opportunity just as much as discrimination against some applicants done because the applicant is a member of a socially disfavored group, the latter is evidently a more serious violation of formal equality of opportunity. Whereas being the object of discrimination because one belongs to a group that has been targeted for oppressive treatment in the past is likely to be a wound to one's sense of dignity and self-respect, being the victim of whimsical or idiosyncratic hiring practices is less likely to inflict a significant psychic wound over and above the loss of the job itself. Also, since whimsical discrimination is idiosyncratic, it will not lead to cumulative harm by causing anyone to be the object of economic discrimination time after time (unless whimsical hiring were common and one were extremely unlucky). Also, in the context of a competitive market, there is the pressure of market competition that punishes whimsical economic decisions that lead to subpar economic performance, so one expects whimsy to be a marginal economic phenomenon.
Discrimination on the basis of group membership might under certain conditions be rational behavior on the part of economic agents and might lead to efficient outcomes. Market competition would not tend to drive out such discrimination. Consider stereotypes, rough generalizations about traits of groups. If a stereotype is “sufficiently” accurate, it can make sense to treat all group members the same for some purpose without investing resources in determining the actual traits possessed by individual group members. For example, if an employer seeking factory workers values steady attendance at work, and absenteeism is known to be somewhat higher among African-American youths than other youth, the employer might simply set aside all applications from African-American youth and choose workers among the remainder of the applicant pool. Discrimination that is cost-effective in this way and does not involve any misuse of available information is sometimes called statistical discrimination. The results for people who become the objects of statistical discrimination can obviously be bad. But this does not mean that statistical discrimination violates formal equality of opportunity. Does it?
As so far specified, formal equality of opportunity requires that applicants be assessed by appropriate criteria relevant to performance on the post and that the most qualified candidate be offered the post. But it would be excessively demanding to require that no expense be spared to discover, so far as is possible, which candidate is really most qualified. If the general idea of formal equality of opportunity in a market setting is that all agents must be treated equally as potential means of gain, then those means of selecting candidates should be required that maximize the hiring firm's prospects for gain (unless the firm's prospects register wrongfully discriminating behavior by its customers or suppliers). Seen this way, statistical discrimination would not violate formal equality of opportunity.
In some societies, the law of equal opportunity forbids statistical discrimination when the basis of the discrimination is race or sex. The employer must base hiring and promotion decisions on facts about the individual applicants other than their being black or white, male or female, or the like (even if basing decisions on accurate stereotypes is the most cost-effective way to proceed). The rationale for this legal policy might be to ensure that historically invidious forms of discrimination are not continued by prohibiting forms of discrimination that are superficially similar and reminiscent of past evils. Formal equality of opportunity as characterized in this entry would not rationalize this legal policy.
Discrimination against members of a group might be based on aversion to the group, which might exist quite independently of the actual characteristics of actual group members. For example, an employer might simply dislike Catholics or Jews or women, and be averse to hiring them, or to hiring them for other than unskilled low-paid jobs. One might suppose that if one has a taste for discrimination of this sort, one must incur costs if one acts on it (Becker 1971). If one refuses to hire Catholics or Jews or women even when they are most qualified, the product one offers for sale will be more costly to produce as a result, and if the market for this product is competitive, one cannot raise the price at which one sells it but must accept lesser profit than one would have obtained had one's hiring decisions been unprejudiced. On this basis one might speculate that competitive markets will tend to drive out such discrimination. However, if large numbers of people share a discriminatory social norm, one can see that the market will reward compliance with the norm and punish noncompliance, so there will in that case be no tendency for the market to squeeze out discriminatory behavior. For example, if consumers will not purchase widgets that are manufactured with the skilled labor of Catholics, Jews, or women, and if skilled Protestant male workers employed in the widget industry will not cooperate with Catholics, Jews, or women if they are hired as skilled co-workers, the widget manufacturer who simply wishes to maximize her profits will be led to comply with the social norm against the employment of the targeted groups in skilled jobs (Akerlof 1976, 1980).
1.4 Discrimination and Derogation
Discrimination against people on the basis of their observable group traits is an enemy of equality of opportunity. This is a common-sense observation. If all discrimination were statistical discrimination, the common-sense observation would be true only to a very limited degree. If observable group traits such as skin color or sex are correlated with traits that employers reasonably value, hiring on the basis of the observable group traits can be rational from the standpoint of the employer seeking both to hire qualified workers and minimize hiring search costs.
Discrimination can also express and reinforce group status hierarchies. If possession of white skin confers status and attracts the esteem of others, derogating nonwhite individuals can help to build and sustain a top position for whites in the skin color hierarchy. Discrimination can take the form of favoring whites in hiring and promotion decisions, but can also take the form of participating in caste rituals and practices that proclaim the superiority of whites over others. Discrimination of this sort aims to preserve caste subordination. A successful discriminatory regime produces economic advantages for the dominant caste members, and also sweeping social advantages, so that sheer possession of white skin will predict that one will enjoy better life prospects than those who lack white skin. Group status hierarchies are entrenched and sustained by social norms that dictate costly individual behaviors directed at favoring fellow group members if one belongs to the superior group and at exhibiting deferential and submissive behavior if one belongs to a disfavored group. Conformity to the norms is rewarded and deviations punished (McAdams 1995).
The stability of group status hierarchy regimes raises the question, what motivates individuals to follow the norms that sustain the regime and to punish those who deviate even though following and punishing incur costs and often run against the individual's self-interest. Part of the answer appears to be that in an ongoing status hierarchy, people internalize the norms and esteem those who follow the norms, and the desire for this esteem motivates one to conform. Expressing admiration of those who adhere to social norms one accepts is often not costly behavior for an individual, but rather a pleasant activity. Moreover, we humans evidently have a native disposition to be rule-following punishers, who tend to accept current dominant social norms and to desire to punish those who violate them even when doing so is disadvantageous for us (Bicchieri 2006: chapter 3 and Henrich and Henrich 2006: chapters 7–8). The same generic trait that leads us to be disposed to punish those who steal and lie and neglect their children can also lead us to be disposed to punish those who challenge established group status hierarchy norms such as white supremacy. State-enforced laws can help create and sustain such a regime, as with Jim Crow segregation laws in the U.S. South in the twentieth century, but discriminatory social norms can arise and thrive and confer benefits on dominant caste members in the absence of legal enforcement.
Group status hierarchy can form on the basis of any arbitrary observable trait—skin color, supposed race, ethnicity, sex, heterosexual or nonheterosexual sexual behavior, age, and so on—but a trait that is exploited for this purpose will not be regarded as arbitrary by those who uphold the hierarchy. If the basis of the status hierarchy is white skin color, white skin will be prized as inherently attractive and as a marker for other valuable qualities such as intelligence and virtue. Those who uphold the status hierarchy can then see themselves not simply as advancing group self-interest but as defending a desirable moral order. A status hierarchy then will be ideological, based on false beliefs that serve some people's interests.
This thumbnail sketch of derogatory discrimination and group status hierarchy helps explain how and why public policy measures to enhance equality of opportunity tend to be controversial in complicated ways. When a group status hierarchy is officially dismantled, people may disagree widely on such questions as whether the underlying prejudiced attitudes have disappeared or have persisted in subtler and less overt forms.
2. Substantive Equality of Opportunity
The problem with formal equality of opportunity is that it is merely formal. Imagine a society ruled by a hereditary warrior class (as in B. Williams 1962). Reformers bring about a change. From now on, membership in the warrior class will not be drawn exclusively from the wealthy stratum of the society. Warriors will instead be selected on the basis of a competitive examination in military prowess administered to any young adult member of society who seeks admission into this elite class. However, it turns out that only scions of the wealthy stratum pass the exam and become warriors. Everyone in society except the wealthy is poorly nourished, and being well nourished is a prerequisite for developing the military skills needed to succeed on the competitive examination. In this setting, advocates for the nonwealthy strata of society might object that none but members of the traditional wealthy elite have a chance to satisfy the eligibility requirements for admission to the warrior class.
Even if all are eligible to apply for a superior position and applications are judged fairly on their merits, one might hold that genuine or substantive equality of opportunity requires that all have a genuine opportunity to become qualified. In the example just sketched, this would mean that all members of society have the opportunity to develop the needed military skills. One can imagine the society taking a variety of steps to provide opportunities to all. Nutrition supplements are made available to those whose diet is inadequate. Scholarships to military academies can be won by poor children. Warrior skills coaches are dispatched to every village. As more is done to provide opportunities that enable ambitious and talented youth from any social group to acquire proficiency at warrior skills, at some point the complaint that none but the wealthy have a chance to enter the warrior class begins to sound hollow. At some point it might be held that sufficient or good enough opportunities to become qualified have been provided to all. The idea would be that substantive equality of opportunity prevails with respect to some desirable position or ranked order of positions just in case all members of society are eligible to apply for the position, applications are fairly judged on their merits and the most meritorious are selected, and sufficient opportunity to develop the qualifications needed for successful application is available to all.
Further development of this proposal would give an account of what level of opportunity provision is “good enough.” Evidently the level would be set by balancing the costs and benefits of greater provision of opportunities versus the costs and benefits measured in terms of other values with which opportunity provision conflicts. But wherever the “good enough” level of provision is set, it could be that members of society still have unequal opportunities to become qualified for formal equality of opportunity contests. Scholarships are provided for some poor children, but wealthy parents can hire private fencing and jousting tutors. Some families own horses and can impart horse riding skills to their children, which gives them a competitive advantage over others. And so on.
Pursuing to the limit the idea of reducing the competitive advantages that favorable circumstances confer on some individuals, one arrives at the ideal that John Rawls has called “fair equality of opportunity” (Rawls 1999: section 12 and Rawls 2001: section 13). Fair equality of opportunity (FEO) is satisfied in a society just in case any individuals who have the same native talent and the same ambition will have the same prospects of success in competitions that determine who gets positions that generate superior benefits for their occupants. In other words, if Smith and Jones have the same native talent, and Smith is born of wealthy, educated parents of a socially favored ethnicity and Jones is born of poor, uneducated parents of a socially disfavored ethnicity, then if they develop the same ambition to become scientists or Wall Street lawyers, they will have the same prospects of becoming scientists or Wall Street lawyers if FEO prevails. Rawls writes that
assuming there is a distribution of natural assets, those who are at the same level of talent and ability, and have the same willingness to use them, should have the same prospects of success regardless of their initial place in the social system. (Rawls 1999: 63)
It should be noted that the specification of FEO just given departs from the specification in Rawls 2001. There Rawls defines FEO so it requires only that the socio-economic status into which one is born has no impact on one's competitive prospects. There is also the issue to be discussed below, whether the rights of parents to raise their children as they choose take priority over FEO and constrain its fulfillment. The eminent Rawls interpreter Samuel Freeman roundly declares that even setting aside the family freedom issue, we should see that all in all “Rawls does not understand FEO as requiring equal chances for the equally endowed” (Freeman 2007: 98). He sees FEO as instead demanding that all individuals especially including the disadvantaged should have opportunities to develop their talents. What extent of opportunities? This formulation looks like weak tea. Rawls exegesis aside, the formulation that sees FEO as requiring equal chances for the equally well endowed, a perfect meritocracy if you will, is interesting, controversial, and resonates with concerns about chances for mobility in the context of modern market economies. In the remainder of this entry, FEO refers to this broader ideal.
FEO articulates the ideal of a classless society of a sort. If the mark of a class society is that positions in the social hierarchy are passed along from generation to generation, then the society that satisfies the FEO ideal is classless in so far as parents can pass along advantages to their children only by genetic inheritance and by socialization that instills ambition. (Notice that FEO so understood is violated if some individuals gain significant advantages by gift or inheritance. One could amend FEO so that it permits gift and inheritance, deemed private transactions, and imposes constraints only on public sphere competitions.) Otherwise the advantages that well-off parents can confer on their children by providing better education and socialization than others receive or by providing access to a social network of well-off individuals are entirely eliminated or offset in the FEO society. If wealthy parents provide high-quality day care and nursery school and private tutoring for their children, society arranges public education practices so that children of nonwealthy parents get the same or equivalent advantages. In the same spirit, if some parents, rich or poor, are more strongly motivated than others to help their children get ahead in life, these efforts are somehow exactly offset, so having the good luck to have especially concerned parents does not affect one's comparative life prospects. The end result is that one can try to give one's own children a leg up in social competition, but whatever boost one provides will be met by a similar boost provided for other children whose native talent is the same as that of one's own children. (In passing it should be noted that when better-off parents provide various amounts of special boost for their children, FEO taken strictly and literally requires that whatever is the maximal special aid provided for individuals with a certain genetic talent endowment and ambition, the equivalent of that aid must also be provided to all other individuals, including individuals of better-off parents who are getting less than the maximal aid.)
FEO as characterized here is a demanding ideal. What if FEO becomes impossible to satisfy if inequalities in outcome become too extreme? In that case FEO requires extinguishing any inequalities in outcome among members of one generation that would bring it about that FEO cannot be satisfied among members of subsequent generations. In the Rawlsian system of nested and hierarchically ordered principles, FEO has less priority than the basic equal liberties principle. If FEO could be satisfied only by encroaching on free speech or the right to vote or other basic liberties, then according to Rawls it should give way. Up to conflict with equal basic liberties, FEO rules the roost.
FEO might be adopted in conjunction with formal equality of opportunity or by itself as a freestanding moral requirement. The difference between FEO alone and FEO paired with formal equality of opportunity emerges when one pictures a society that satisfies FEO but not formal equality of opportunity. A society might be composed equally of members of two hostile groups, who discriminate against each other at every opportunity. If the groups command the same amount of economic resources, it could happen that formal equality of opportunity is always violated, because in every context of interaction people favor members of their own group regardless of their qualifications. If men discriminate against women, and women against men, these effects might counterbalance so that freestanding FEO is still satisfied. The following discussion of FEO for the most part interprets it as an inclusive doctrine containing formal equality of opportunity.
Fair equality of opportunity can seem an inspiring ideal or a nightmarish vision reminiscent of George Orwell's 1984. The ideal of a classless society that has shed all trace of caste hierarchy is inspiring to many. But any scheme to implement FEO would apparently require extensive meddling by government or some other agent of society in family life, and such meddling can appear nightmarish (Fishkin 1983). The negative response to the prospect of implementation of FEO might not reflect rejection of the principle itself but merely a sense that this ideal should not be pursued wholeheartedly whatever the cost to other values. Equality of opportunity is typically advanced as a justice value, and the mark of justice norms is that they take priority over others. Even so, equality of opportunity might be one among several justice norms, and not the top-rated.
One might also question the assumption that the pursuit of FEO could not proceed to a significant extent without invasive interference in family life. For example, society could resolve to devote far greater resources to the education of children of poor and uneducated parents than to the education of other children. This would be done knowing that educated and wealthy parents will be inclined by affection for their children to give them special socialization and education advantages and that these will roughly counterbalance the special state expenditures on disadvantaged children. Policies of this sort could be pursued without sending out state inspectors to monitor the degree to which middle-class parents provide extra educational resources or informal props to self-efficacy and self-esteem that other children are not getting. Also, if the members of a society were committed to the ideal of FEO, they would not find reasonable and cost-effective measures to achieve it to be onerous. The issue becomes, how great a value is FEO, and to what extent does its pursuit warrant sacrifices in other values.
FEO might be thought to conflict with the freedom of individuals to raise their own children as they choose. A parent (or someone else entrusted with the guardian role over a child) might want to impart his culture and values to his children, and the result of parents with different culture and values acting with that goal will predictably bring it about that children who have the same native talent and ambition but are raised in different ways will have unequal chances of competitive success. Parents might want to encourage the development of their children's potential talents. If parents vary in how strongly they are moved to act on this desire and in how effective they are at boosting their children's personal development, the result again will be that individuals with the same native talent and the same ambition will come to have unequal chances of competitive success, in violation of FEO. An alternative view on the conflict between family life and fulfillment of FEO is that the freedom to mate with anyone on mutually agreeable terms and raise children as one sees fit within broad limits is a basic liberty that takes priority over FEO. But a large question is now open: to what extent exactly is the fulfillment of FEO limited by the basic liberty of family freedom?
Harry Brighouse and Adam Swift propose that it would be morally wrong to insist on complete fulfillment of FEO, because parents have legitimate interests in helping their children to have good life prospects. There is a legitimate interest in acting for their children's sake, and also a legitimate interest, an important constituent of the parent's good, in creatively expressing themselves in how they fulfill the parent role and in developing and sustaining special asymmetrical friendship bonds with their children that are unique to parent-child relations. As they put it, parents have a “nonfiduciary interest in being able to play a fiduciary role” with respect to their children” (Brighouse and Swift 2009: 54.). They work to distinguish inequality-promoting parental behaviors such as reading bedtime stories to children that are essential to achieving the special values of parent-child relations and other inequality-promoting behaviors such as sending children to expensive private schools that do not make essential contributions to parental relations and that might be discouraged or taxed or even prohibited without inflicting damage on parent-child relations.
The assumption that achieving FEO would require limiting parents' freedom to raise their children as they choose, so that if either parents have moral rights to this freedom or it is morally desirable on other grounds to sustain it, we must accept less than complete fulfillment of FEO, has some plausibility but does not survive reflection. In principle, society could allow parents to act pretty much as they please and simultaneously maintain in place flexible policies that adjust the social provision of aid to children so that whatever parents do that would result in nonfulfillment of FEO if its impact were left standing is entirely offset, so the end result is that FEO is completely fulfilled. If wealthy parents give their children special tennis lessons and fancy tutorial assistance, social agencies increase aid to children whose parents do not or cannot lavish such resources on their upbringing, so the inequality-boosting tendency of the special parental provision is entirely nullified. In principle no limits on parental freedom would be needed to achieve FEO completely (though limits on secret parental helps might need to be curbed, and what might strike us as privacy-violating intrusions on family life to monitor effects of special parental provision would be needed). This possible public policy stance sounds bizarre only because its costs would clearly be enormous, and arguably not worth the moral gain in extra fulfillment of FEO they would achieve.
The question then is raised, to what degree the fulfillment of FEO should take priority, or rather take a back seat, when this moral aim conflicts with others that might be regarded as justice aims or on other grounds morally mandatory aims.
Although FEO carries the idea of offsetting the advantages of being well-born to its logical limit, it should be noted that by allowing differential ambition legitimately to affect individuals' life chances, FEO may not go far enough toward defining an ideal of genuine equal opportunity. The simple elimination of ambition from the FEO formula would be implausible. Let us stipulate that two individuals are equally ambitious with respect to some goal when they desire it with equal fervor and are disposed to work equally hard to achieve it. If Sally desires to go to a selective college and works hard at her high school classes whereas equally talented Samantha does not have the same strong desire and avoids doing her high school classwork, no reasonable conception of substantive equality of opportunity is violated when Sally gains admission to an elite college and Samantha does not. The FEO ideal embodies a division of responsibility between individual and society, with ambition falling on the side of individual not social responsibility.
But other cases are different and call in question this division of responsibility. Suppose that FEO obtains in a society but overwhelmingly boys develop the ambition to pursue challenging and lucrative careers and girls overwhelmingly do not. The explanation is that boys and girls alike are subjected to a rigid form of socialization which instills ambition in boys and quashes it in girls. In this case one might say that even though FEO is not violated when Sam and Ben become lawyers and doctors and Sally and Samantha, equally talented as Sam and Ben but far less ambitious, become homemakers and check-out clerks in convenience stores, genuine substantive equality of opportunity has not yet been achieved. In the society with rigid sex-stereotyped socialization, Sally and Samantha have not had a fair opportunity to develop the ambition that Ben and Sam have developed because only the latter benefited from the good luck of receiving favorable socialization. One might modify FEO so that if two people have the same native talent, but one ends up with lesser prospects of success in competitions for positions of advantage because her ambition has been reduced by prejudicial or discriminatory socialization, then FEO is violated (on this issue, see Okin 1991). (Again, to satisfy modified FEO one must either effectively prevent parents and other guardian figures from rearing their children in ways that distort ambition formation or effectively institute social policies that entirely offset this untoward influence on children's upbringing. Also, to fully implement modified FEO one would be required either to eliminate diffuse social distortions operating on ambition formation or effectively counteract them.)
The idea of one person having the same native talent as another, invoked in the statement of FEO, is unclear. Consider a simple example. Suppose we could install just one of two educational programs in a two-person society consisting of Smith and Jones. One provides more intensive education, the other a more relaxed schooling. Under the intensive regime, Jones ends up with higher earnings prospects, and under the relaxed regime, Smith ends up with higher earnings prospects. Which to choose? Equality of fair opportunity does not say. Or taken strictly, with the construal that the capacity to respond to schooling is a talent, FEO requires only that persons with identical dispositions to develop exactly the same skill level in any schooling and socialization regime qualify as having the same talent, and the proposal is silent about choices that would produce different results for different individuals with different talents in this strict sense. Since in practice we only discover what talents people have by subjecting them to one or another schooling regime, FEO, which had looked severely strict, now looks to be lax and undemanding. What must be added to FEO to respond to this difficulty is some sensible continuity requirement, so that if two individuals' capacities to develop skills through schooling are “close”, the developed skills they acquire (and ultimately their competitive success) should not be “too dissimilar.”
2.1 Discrimination and Fair Equality of Opportunity
Equal opportunity norms are linked to the ideal of a society in which wrongful discrimination does not occur. Regarding fair equality of opportunity, the linkage is not tight.
What look to be wrongful discrimination and fulfillment of FEO could coexist, if FEO is not construed as incorporating formal equality of opportunity but as a freestanding requirement. Suppose society is divided into mutually hostile racial and ethnic groups, each of which has roughly the same wealth, population, and social power. Members of each group favor their own in economic decision making. The result is that the economy is divided into racial and ethnic spheres of influence. People of Scandinavian ancestry dominate the winter resort industry; people of Asian ancestry dominate the financial services industry, and so on. Formal equality of opportunity is routinely violated, because applicants of Scandinavian background are favored in winter resort hirings, applicants of Asian background are favored in competition for financial service posts, and so on. But overall, it happens to turn out that those with equal talent and equal ambition have overall equal prospects for success in competitions for positions that confer advantages, so FEO is satisfied. (Either members from each group form only ambitions for success in the types of enterprises in which members of their particular group are dominant, or for each person with given talents, lack of opportunity in one range of competitions for advantage is exactly offset by above-average opportunity is some other range of competitions for advantage, so each person with the same talent and same ambition has the same prospects for competitive success.) The situation just described might seem unlikely to persist, but we might imagine government policy operating to sustain the conditions in which non-inclusive FEO is fulfilled even though formal equality of opportunity is not.
We might also imagine a more benign version of a society in which members of each separate and distinct group in society cluster together and favor each other in economic and social interactions. We would then see industrial and occupational clumping: Those of Korean descent might dominate the hotel industry, while those of Hispanic descent might dominate construction; women might be more likely to be lawyers and doctors, men more likely to be business entrepreneurs, and so on. We might imagine that group members are not moved by prejudice or animus against members of other groups. Rather people find it more comfortable to work with fellow group members rather than outsiders; trust is easier to build and sustain within groups than across them. We would expect opportunities to be vastly unequal across group lines when this situation obtains, but it is conceivable that this is not so: suppose non-inclusive FEO is satisfied. The situation might be one in which reasonable statistical discrimination is rampant: the fact that one is a woman is a good indicator one will prove to be a good team member in a law firm consisting of women lawyers, and so on. If this is so, the society exhibiting social group clustering in economic cooperation might satisfy formal equality of opportunity as well as non-inclusive FEO. Another possibility is that formal equality of opportunity is massively violated in this society, yet non-inclusive FEO is satisfied. The example presses on our attention the issue, which norm should take priority, have greater weight, formal equality of opportunity or non-inclusive FEO, when they come in conflict.
2.2 Democratic Equality of Fair Opportunity
Equality of opportunity ideals apply to the process that selects political rulers and political decisions. Consider two conceptions of democratic equality. Formal democratic equality requires that all long-term residents of a political society be eligible to become citizens and that all citizens are eligible to vote and stand for office in free and fair elections that pick law-makers for the society. In addition, formal democratic equality requires that influential officials charged with executing the law should either be (1) elected in fair and free elections or (2) appointed by the law-makers or (3) appointed through some process that selects applicants according to their qualifications. As sketched, formal democratic equality could be satisfied in a society in which only wealthy individuals are in practice able to run for political office and only graduates of certain elite schools are able to have any influence at all on the policy decisions and laws enacted by the government. One might then espouse a substantive ideal of democratic equality, which would be satisfied in a formally democratic society just in case any individuals with the same political talent and the same ambition to influence public policy have the same prospect of influencing public policy choice (Rawls 1999, 2001; Christiano 1996).
Substantive democratic equality is akin to Rawlsian fair equality of opportunity in the sphere of politics. (Only “akin to”, because the former requires that those with equal developed political talent and political ambition have the same prospects of political influence, whereas the latter requires equal prospects for those with equal native talent and equal ambition.) One can view recent political controversies regarding initiatives to limit the impact of lobbyists and wealthy political donors on the democratic political process through the lens of this ideal. A society might institute public funding of political campaigns and restrictions on private donations to political campaigns in order to make progress toward approximating the democratic equality ideal.
Implementing the substantive ideal of democratic equality might conflict with other justice norms (Estlund 2000). Suppose that restrictions on campaign financing and lobbying by interest groups reduce the influence of the wealthy on political policy choices, so that democratic equality is more nearly fulfilled. It might be the case that the now prohibited extra contributions of the wealthy would have enhanced the quality of political deliberation and produced better informed and substantively more just political decisions and hence more just laws and public policies. If it was discovered that a trade-off of this sort exists, one might believe that the pursuit of substantive democratic equality should be curtailed and that an optimal balance among the conflicting justice values should be defined. Some might hold that the point of democratic politics is to produce just laws and policies and substantively just outcomes generally and that substantive democratic equality should have no weight against this fundamental aim and should be pursued just to the extent it is a means to substantive justice.
2.3 Other Conceptions of Substantive Equality of Opportunity
Fair equality of fair opportunity is a severe doctrine. Its requirements extend far beyond the injunction to eschew public-sphere discrimination. How stringent the policy implications of FEO become depends on the relative priority assigned to this principle as against other fundamental moral requirements.
The question arises whether there is some plausible intermediate position that renders equality of opportunity more demanding than formal equality of opportunity but less demanding than FEO. One such intermediate position already described combines formal equality of opportunity with the additional requirement that society provide good enough opportunities for all its members to develop their native talents so as to become qualified for competitive positions. The idea here would be that there is some threshold level of opportunity to develop one's native talents into skills to which all are entitled. The challenge for one attracted to this position would be to develop a theory of the “good enough.”
Another possible intermediate position combines formal equality of opportunity with the requirement that present effects of past wrongful violations of formal equality of opportunity should be fully offset. According to this conception of equal opportunity, if Catholics suffered violations of formal equality of opportunity for many years in a nation in which Protestantism was the officially privileged state-established religion, and these wrongful violations reduced the wealth of Catholics and their descendants, ceasing now to impose any further violations of formal equality of opportunity on Catholics does not establish a regime of genuine equality of opportunity, since some continue to benefit, others to suffer, from past wrongs. But once recompense is made for past wrongful discrimination, formal equality of opportunity suffices. An extension of this view would hold that the effects of all unjust policies and practices insofar as they affect people's present opportunities to become qualified for competitions regulated by formal equality of opportunity should be undone (Buchanan et al. 2000: chapter 3).
A third possible intermediate position combines formal equality of opportunity with the requirement that state action should treat all citizens equally and not confer arbitrary advantages on some along with arbitrary disadvantages on others. On this view, even the substantive aspect of equality of opportunity is a deontological requirement, a moral constraint on permissible action, not a specification of a goal that morally ought to be achieved. Call this position the deontological requirement interpretation of equality of opportunity. Unlike FEO, the deontological requirement does not hold that substantive equality of opportunity is violated if some parents provide better educational opportunities for their children than other parents. The deontological requirement does not specify that a society must establish a system of state-funded education. But if the state does operate schools or provides funds to defray the costs of some children's education, the state violates the deontological requirement if its schools or disbursements of funds to parents earmarked for children do not operate in an evenhanded manner but instead arbitrarily confer advantages on some over others. Operating schools for Roman Catholics only or paying for the school tuition only of children who attend Roman Catholic schools would be clear cases of violation of the deontological interpretation. A perhaps more controversial example would be the operation by the state of public schools funded by general tax revenues that are formally open to all resident children but are physically accessible only to children who can walk normally or set at a level such that some severely retarded or otherwise cognitively impaired children can gain no benefit from the instruction that is provided. According to the deontological requirement of equal treatment, these policies would be violations of equality of opportunity if and only if they arbitrarily advantage some children and disadvantage others.
The equal treatment norm, strictly interpreted, is a significant constraint on policy choice. Suppose equal treatment is interpreted as requiring that a government service that is provided to some citizens shall be provided to all without discrimination against any group of citizens. Next imagine that the government proposes to provide health care coverage to all citizens and to ration coverage so as to maximize the number of quality-adjusted years of life (QALYs) secured by health care. Any scheme of this sort will recommend discrimination against disabled citizens, in the sense that the scheme will tend to recommend provision of treatment to an otherwise able person afflicted with some illness while recommending against treatment of a disabled person afflicted with a comparable case of the same illness (this recommendation occurs whenever this course of action is QALY-maximizing) (Brock 2000). Virtually any distributive norm that recommends raising or lowering the level of benefits to be provided for individuals depending on a comparison of costs of provision to well-being gains achieved for the recipient will conflict with equal treatment interpreted as requiring no discrimination among citizens on such a basis.
A problematic but illuminating case is age discrimination (Daniels 1988, McKerlie 1989, 1999, 2013; Temkin 1993: chapter 8). A society might establish a state policy that mandates transfers of resources from older to younger citizens, by using public funds to operate schools for the education of children. A society might also follow a health care policy that rations life-preserving care made available to the very old in order to reduce the extent to which expensive medical technology extends the lifespans of very old people with reduced quality of life. In the same spirit, the society might tilt health care policies toward saving the lives of very young people threatened with premature death. In short, the society enacts coercive state policies that favor the young over the old. Such a policy counts as denial of equal treatment if the units to be treated equally are persons (of any age) at a given time. The policy is arguably consistent with equal treatment if the units to be treated equally are individuals over their whole lives. At least, this would be so if all individuals lived through youth to the same old age. In the world in which everyone lived to old age, discrimination against the old would be unlike discrimination in favor of Catholics and against Protestants, or in favor of men and against women, or in favor of whites and against Hispanics. The exception to all these cases, discrimination against the old would be consistent with equal treatment of each individual over the course of her life. If the unrealistic assumption that all live to the same old age is dropped, then equal treatment with the units to be treated equally being individuals over the course of their lives would seem to forbid any expenditure at all on the health care of the old who have already received more than those who died at a young age.
The example of age discrimination either discredits the equal treatment norm or indicates that it cries out for further interpretation. Surely some denials of literal equal treatment do not violate any plausible equal opportunity norm. If the state provides health care coverage to all citizens, the sick will get treatment and the well will get no treatment, but this is not an invidious inequality. One might say all equally are eligible for health care if they need it. But in general, many seemingly morally acceptable state policies will have different effects on different groups of citizens. If a law is passed instituting policies to preserve the environment for future generations, some present citizens will benefit, and some, such as loggers who have been working on old-growth redwoods, will lose. One might interpret the equal treatment norm as requiring that in the aggregate over the long haul, coercive state policies should benefit roughly all citizens to an equal extent. (But why must benefits in the long run be equal for all?) On this view, society acting through the state is not required to do anything to offset inequalities it has not caused (included in this set of inequalities are many that would be eliminated under a Rawlsian FEO policy). But if the state acts in a way that affects people's life prospects, it should act in an evenhanded way that boosts everyone's life prospects to roughly the same extent. Notice that the equal treatment norm would be unproblematically satisfied by a state that did nothing for its citizens. Also, if children of wealthy parents will receive excellent education whatever the state does and will have fine life prospects that can be boosted only by a little bit by state provision of education, then equal treatment would seem to require the state to provide only small amounts of state-provided or state-funded education with benefits spread so none get a significantly bigger boost than the children of the wealthy get from state aid. (But see Pogge 1989: 44–46.)
2.4 Affirmative Action
The variety of conceptions of equality of opportunity suggests the complexity of the task of assessing what are called “affirmative action” programs in societies that are marred by a history of caste hierarchy and systematic discrimination that excludes some groups in the population from any significant access to the fruits of social cooperation.
Consider a stylized example. Suppose that in the U.S., whites have enjoyed superior social status, enforced by law and social custom, for decades, going back to times in which blacks were enslaved. Now whites on the average have greater wealth and education and blacks have less. Suppose that formal equality of opportunity is now proclaimed as the law of the land and embraced by popular morality. Still, most superior positions in society continue to go to whites. In this context a variety of measures might be adopted with the aim of increasing the effective opportunities enjoyed by blacks. Special educational resources might be channeled to them. For a time, to unsettle the status quo in which whites enjoy the lion's share of social privileges, quotas might be imposed by law or social custom. The quota requires that special preference be given to blacks when employment decisions are made until blacks and whites share in the superior positions and posts of society in proportion to their numbers.
Affirmative action programs of this sort might be justified on the ground that in a world where discrimination persists, coercive imposition of quotas helps here and now to bring about greater fulfillment of formal equality of opportunity. The quota might exert an effect that roughly counter-balances the opposite effect of continuing unacknowledged discrimination. Here is a stylized example that illustrates how this could occur. Suppose that those responsible for making hires are prejudiced, and this takes the form of (in effect) assigning extra points to white applicants. A white applicant who merits 60 points on a 100 point scale gets assigned 70 points. If we respond by legally requiring the assignment of 10 extra points to all nonwhite applicants, to offset the bias, the hiring officials might unconsciously respond by boosting the scores of white applicants still further, so that the tilt in favor of hiring whites remains intact. In these circumstances, if (a big if) the social planner can estimate what proportion of nonwhite applicants will be more qualified than whites, a rigid quota that requires the hiring of a specified proportion of nonwhite to white applicants can bring about hiring results that do better at achieving formal equality of opportunity than either the policy of letting firms hire as they please or the policy of requiring firms to favor nonwhite applicants by boosting the merit ratings of their applications.
Another, more likely scenario is that the two components of the Rawlsian FEO might come into conflict in situations of persistent disadvantage imposed on people on the basis of their supposed race or skin color. Suppose that educational opportunities for nonwhites, compared to those provided for whites, are subpar. The result is that individuals of different races with the same native talent and the same ambition face very unequal prospects of competitive success—greater if they are white, lesser if they are nonwhite. Now imagine that an affirmative action plan of reverse discrimination is put into effect. In violation of formal equality of opportunity, nonwhite applicants are favored over equally qualified whites. Depending on the details of the affirmative action plan, especially the extent to which the plan favors nonwhites over whites, the result might be that while formal equality of opportunity is violated, substantive equality of opportunity (those with the same native talent and the same ambition have the same prospects of competitive success) is more nearly achieved than it would have been had formal equality of opportunity been sustained.
One might doubt that any good would come of attempts to achieve the substantive equality of opportunity component of FEO by violating formal equality of opportunity. Hiring the unqualified will bring it about that they flounder in their posts, the jobs are less well done, social conflict increases, and society suffers. So one might speculate. This dismal outcome might or might not come about. Violating formal equality of opportunity to fulfill substantive equality need not dictate hiring the unqualified, just the less qualified. The affirmative action plan might be constrained by a rule that forbids stretching the preference given to nonwhites to the point that basic competence to perform the tasks associated with the post that is being filled is lacking in those selected. In some cases, those denied educational advantages but natively talented may if hired respond with alacrity to the demands of the position in which they find themselves, and learn on the job faster than might have been expected. But whether the expected consequences generated by an affirmative action plan that violates formal equality of opportunity are bad, good, or neutral, there remains the violation of formal equality of opportunity, which some will view as in itself a grave injustice.
Defenders of affirmative action programs that violate the careers open to talents norm might respond in either of two ways to the concern that "Don't discriminate against applicants on the basis of race, sex, creed, or color" is a strict deontological requirement, a constraint on just public policy.
One response would be to uphold the substantive equality of opportunity component of Rawlsian FEO as itself a strict deontological requirement and one that trumps careers open to talents. Another response would be to defend affirmative action on the ground that its judicious deployment would be likely to increase the extent to which FEO is fulfilled in the long run. Here the idea presumably would be that the existence of quotas would unsettle expectations and lead to changes in socialization and belief formation. The factual claims on which this type of justification rests might be disputed. But disputes might also pit the two components of FEO, formal and substantive equality of opportunity, against each other. To settle such disputes would require a definitive assessment of the conceptions of equality of opportunity and an authoritative determination of the weight that equality of opportunity on its various construals should have against other justice values.
3. Social Mobility and Equality of Opportunity
Does a society that embraces and fulfills equality of opportunity (rightly interpreted) necessarily provide social mobility? In a word, No. To illustrate the point, consider a society whose population is divided into deciles by household income (the income of adult partners combined and of each adult living alone and as sole head of household). Identify social mobility in this society with the chance that any given individual will as an adult live in a household that places in a higher decile of household income than the one in which he was placed as a child, along with the chance that he will end up in a lower decile. Social mobility in the society is high to the degree that knowing an individual's decile of family origin is not predictive of his own decile and low to the degree that this information is predictive.
A low degree of social mobility may be an indicator that the idea of careers open to talents is significantly violated. Children of poor families are not eligible to apply for plummy positions, or if they are eligible and do apply, their applications are discounted, not fairly assessed on their merits with a guide to choosing who gets offered the positions. A low degree of social mobility might also be an indicator the society fails by a very wide margin to satisfy FEO. Of course learning that society fails to satisfy FEO would hardly be a surprise: surely no modern society has ever done so. But a society might be closer or further from satisfying FEO, and low social mobility might indicate that the society's divergence from FEO is very large indeed.
But what might be so here is not necessarily so. A society could in theory perfectly satisfy careers open to talents while the position in the social hierarchy into which an individual is born entirely determines the prospects for becoming qualified for desirable competitive posts and being selected to fill them. A perhaps more interesting possibility is that a society could perfectly satisfy FEO or some other version of substantive equality of opportunity and also exhibit a very low degree of social mobility or even none at all. In the illustrative example, this scenario unfolds if the family of origin income decile of every member of society perfectly predicts that person's own family income.
There are two ways, both of them disturbing and unsettling, by which a society of zero social mobility could simultaneously satisfy FEO. One is that the rank order of each person's genetically given native talent endowment mirrors the rank order of each person's family of origin income. If there are 100 persons in the current generation of individuals and your native talent endowment is overall 40th-best, your family of origin income is also 40th-best, and the same holds for every other member of the current generation. If any two people in society have the same native talent endowment and the same ambition, they have the same prospects for competitive success, and their family of origin incomes will also be the same. Another possible mechanism is that ambition formation tracks family of origin income position (via some process that does not itself violate FEO), so that no persons with the same native talent endowment and different family of origin incomes have the same ambition, so their having different prospects of competitive success does not violate FEO. There could also be social dynamics that involve mixes of the two ways to produce satisfaction of FEO along with zero social mobility.
Many contemporary societies have made undeniable progress toward satisfying careers open to talents, and some have at least moved forward by inches toward the distant goal of satisfaction of FEO. In these societies one can detect seeds that could blossom into a highly meritocratic society with no social mobility.
Here is a stylized description of the recent history of affluent industrialized societies. Social barriers to women's participation in the labor market and in the full range of economic roles are gradually dismantled, and women do come to participate on more equal terms with men. These developments increase the degree to which careers open to talents and FEO are fulfilled. There is real progress. The twist is that one might speculate that via assortative mating, over time those with more native talent than others are more successful and have children who have more native talent than others and in turn are more successful. In the long run, native talent endowment and family of origin social class position run together for all members of society. Even now, “The winners in the new economy are marrying each other and consolidating their gains”, a sociologist describing U.S. marriage trends comments (Cherlin 2010: 179; see also Esping-Anderson 2009: 59–70).
Of course the couples described in this statement are consolidating their gains not simply by passing on their genes to their offspring but also by investing resources in their children to give them a special boost over others in the social competitions they will face as adults. So the trend involves behavior that if unopposed produces continuous large violations of FEO. But notice that in theory a sorting of people with more favorable genetic endowment into higher income classes could yield a situation in which the favorably endowed rich lavish resources on their children to enhance their competitive skills, so rich kids get far better education and socialization than poor kids, yet those with the same native talent potential and the same ambition still end up with the same chances of competitive success, so FEO is satisfied. In theory a perfect meritocracy (satisfying both careers open and non-inclusive FEO) can be a rigidly stratified class hierarchy with no movement of individuals from the social class of their birth.
Even if the scenario just described in empirically far-fetched, its conceptual possibility raises questions about equal opportunity norms. Should we view the envisaged triumph of meritocracy with equanimity or moral alarm? One response is that this line of thought just reinforces the point that these two equal opportunity norms do not add up to a full theory of social justice. Maybe satisfaction of equal opportunity norms is necessary but not sufficient for social justice. Another response is that reflection on the idea of a meritocracy drives home the point that the various norms of equal opportunity can in practice come into conflict with each other and with other social justice ideals. To some extent our wholehearted embrace of equal opportunity may be supported by a tendency to imagine that increasing fulfillment of equal opportunity goes hand in hand with increasing fulfillment of several social justice desiderata. A halo effect influences our judgment. A recognition of this bias in judgment prompts the question, how much if at all we ought to care about equal opportunity norms for their own sakes, when their greater fulfillment comes at the cost of lesser fulfillment of other values.
The relationships among the various values and norms jostling for position here are complex. Notice that if our foremost concern were to establish and sustain a society in which careers open to talents along with the substantive equality component of FEO is satisfied and there is also a high level of social mobility, one strategy would be to ban assortative mating or enact policies that discourage it. “Assortative mating” simply refers to people choosing to cohabit with those who are like themselves along some favored dimensions of similarity. These dimensions might include race, religion, national origin, level of education, inherited wealth, physical attractiveness, charm, or marketable talent. The assortative mating that reduces social mobility involves sorting by factors that give rise to unequal income, wealth, and status. Although many might dislike the outcomes of such assortative mating, few would countenance restrictions on individual liberty to date and marry in whatever way people happen to come together by mutual consent. However, social policies could alter people's incentives without directly restricting their liberty to date and mate as they choose. For example, highly progressive taxation rates on income and wealth would reduce the financial gains that two well-off persons could achieve by getting married.
The question also arises whether we should care about maintaining a high level of social mobility for its own sake, as opposed to caring about other features of society with which social mobility might be contingently associated and causally linked. For example, it might be the case that establishing and sustaining a society of democratic equality in which all members share a fundamental equal status and relate as equals might be incompatible with a skewed distribution of income and wealth beyond some threshold level and with lack of social mobility below some threshold level. If so, then if we have good reason to care about democratic equality either for its own sake or instrumentally we also have good reasons to care about increasing social mobility as its prerequisite.
4. The Scope of Equality of Opportunity
There is a dimension of equality of opportunity not yet mentioned. Imagine a warrior society in which only martial prowess and accomplishment confer status and reward. The society might perfectly conform both to formal and substantive equality of opportunity. Any adult member of society is encouraged to apply for any warrior post that becomes open and all applications are assessed fairly on their merits. The most qualified candidate is offered the post and, if she turns down the offer, the second-most-qualified receives an offer, and so on. Moreover, educational arrangements bring it about that any two persons in the society with the same ambition and native abilities will have the same prospects of success in competition for warrior posts. Despite fulfilling formal and substantive equality of opportunity, the society just sketched is deficient from the standard of equality of opportunity. To see this, consider that no talents and accomplishments except those of warriors are encouraged, developed, and rewarded. Those who have the ability to be artists, farmers, singers, story-tellers, rock musicians, or anything else, are just out of luck. These people have a complaint that their abilities have no scope for expression.
The example suggests that equality of opportunity prevails in a society only when all worthy human capacities are encouraged, developed, and rewarded. The wider the range of worthy capacities and abilities that a society fosters, other things being equal, the greater the extent to which it achieves equality of opportunity. The more this condition is met in a society, the wider the scope it provides for equality of opportunity (see Schaar 1967 and Galston 1986). Feminists have raised this concern with emphasis on its application to the condition of women. A society could satisfy even stringent equal opportunity norms even though dominant males control resources and set the goals of institutions so that opportunities to develop capacities that men tend to favor are plentiful and opportunities to develop capacities that suit women are scarce.
The wide-scope condition on an equality of opportunity ideal admits of stronger and weaker versions. On the strong version, all worthy human capacities must be equally encouraged, developed, and rewarded. On the weakest version, each of these worthy human capacities must be encouraged, developed, and rewarded to some extent. One could concoct requirements of intermediate strength. The strong version seems demanding to a bizarre extreme, and illustrates the point that an equality of opportunity ideal only seems uncontroversial when left vague and unspecified. An alternative view of scope requirements would hold that certain social processes that restrict the scope of opportunity are unacceptable, but no particular extent of scope is mandatory for a society.
5. Widening the Equal Opportunity Ideals
The equality of opportunity ideals canvassed to this point have been designed mainly for application to the economic sphere of life broadly construed. When opportunities are equal, people have equal opportunities to get ahead. However, it is not obviously the case that when people advance equal opportunity claims, the background ideal to which they are appealing is limited to any one sphere of social life. Historic struggles have been waged to secure equal voting rights and equal rights to participate in the political process for disenfranchised groups including women, those disfavored on racial grounds, and members of lower-ranked castes. The vote can be used to advance one's economic interests but its significance is not limited to that. Having the freedom to participate in political affairs on the same terms as other members of society is an element in being a full member of society equal in fundamental status to all others.
At least two possible generalizations of equal opportunity norms are worth consideration. One generalization is to all public sphere interactions. Another is to all interactions across the board, private as well as public.
Public sphere formal equality of opportunity obtains in a society if and only if all public sphere institutions and practices and associations are open to all members of society, with selection for especially favorable treatment or appointment to any position in any sphere being made on a meritocratic basis. Anyone is eligible to apply for favorable treatment or special appointment, applications are judged on their merits, according to relevant criteria of merit for that particular institution, practice, or association, and selection proceeds in order of merit. Public sphere substantive equality of opportunity obtains if and only if formal public sphere equal opportunity obtains and in addition all members of society have some substantial opportunity to develop traits that would render them qualified for any public sphere positions they might seek. Public sphere fair equality of opportunity (FEO) obtains if and only if any two individuals with the same native talent potential for becoming qualified for any type of public sphere position and the same ambition to become qualified have identical prospects of success in the competition for such positions.
What these wide equal opportunity norms require depends on how one should draw the line between public and private spheres. Institutions established and run by the state are in the public sphere, as are business firms that seek to sell products and services to individuals or to other businesses. A club devoted to playing a sport or promoting a hobby is in the public sphere, as is a league of such clubs. Friendships are in the private sphere. Dating and mating are in the private sphere. Many aspects of family relations involving socializing among family members are in the private sphere. Several friends cooperating together on a project or activity are engaged in private sphere association, but establishing a club or association to promote a general purpose is engaging in the public sphere. The line between public and private for purposes of applying the public sphere equal opportunity norms will no doubt be blurry and indefinite, but that does not per se drain the norms of content or significance.