Beneath the Veil: Corollaries on Diversity and Critical Mass Scholarships from Rawls' Original Position on Justice
Christine Chambers Goodman
Pepperdine University School of Law
Washington and Lee Journal of Civil Rights and Social Justice, Vol. 13, No. 2, 2007
In his influential work A Theory of Justice, John Rawls identifies the "original position," in which all actors are behind a "veil of ignorance," such that no one knows what qualities, attributes, privileges, and abilities each person might hold. There is a nascent debate on the fairness of race conscious financial aid, scholarships and other targeted financial resources available to students of color in institutions of higher learning. Goodman examines the inherent fairness of race conscious financial aid and scholarship programs within the analytical framework set forth by John Rawls. She considers the extent to which these policies would be considered fair by rational actors in the "original position," which John Rawls used as a launching point for a discussion of justice and fairness. In section II of this article, Goodman provides an overview of Rawls' theories of justice and fairness and identifies two corollaries on financial aid in higher education that would emerge from the original position behind the veil of ignorance. The first corollary relies upon the equality of opportunity notion of the traditional "need-based" financial aid rule and posits that it would be "just" to give those who need financial assistance to enroll in higher education whatever financial assistance they need. The second corollary contemplates that regardless of financial need, those groups underrepresented in higher education are entitled to additional assistance as well and further proposes that the additional assistance can take many forms, not the least of which is financial. In section III, Goodman examines how the two corollaries meet the standards of existing civil rights laws, including the Department of Education's guidelines on financial assistance; the Podberesky decision of the Fourth Circuit, which provided a test for analyzing race based scholarship programs in 1994; and the Grutter and Gratz cases on diversity as a compelling interest in higher education. She also considers the extent to which discrimination currently exists in some financial aid and scholarship policies and practices and examines how any such current discrimination can be remedied using race conscious measures. The section concludes with a discussion of the acceptable parameters and the limitations of the diversity rationale in this context. Section IV recommends a specific Diversity Scholarship Program with a Critical Mass Scholarship component, which would provide a stronger mechanism for achieving and maintaining racial and ethnic diversity in higher education. Goodman also examines the narrow tailoring factors from Grutter, Podberesky and other authorities, to demonstrate how this particular scholarship program not only would satisfy the Grutter version of strict scrutiny but also could survive a challenge presented to the current Supreme Court roster. Goodman concludes by summarizing how the Diversity Scholarship Program complies with Rawls' theories of justice and fairness.
Number of Pages in PDF File: 63
Keywords: John Rawls, diversity, affirmative action
JEL Classification: K49Accepted Paper Series
Date posted: October 22, 2008
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