an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Viewers of the Winter Olympics on NBC over the past two weeks have been regaled with many ads that feature cute home videos of current Olympians as small children, making early forays on the ice or the snowy slopes with close parental support (and enormous parental patience). These parents, frankly, deserve quite a lot of credit for their children’s accomplishments. Being the best in the world at any sport requires great talent and great effort—thousands of hours of practice—and the latter almost always entails a lot of effort and sacrifice on the part of parents and families too.
My new book, Bottlenecks, is about equal opportunity. In this first post in a series, I want to raise some simple questions, starting with: What is equal opportunity? And why do we value it in the first place?
Imagine that, basking in the glow of this year’s Olympics, we wanted to give everyone in the U.S. an equal opportunity to compete in Winter Olympic sports. On one simple conception of equal opportunity, what we’d need is straightforward: procedurally fair tryouts, with unbiased judges, to select the best athletes in each discipline. On this view, equal opportunity means a fair contest.
Even at first blush, this seems like a rather limited conception of equal opportunity. Surely it is also important what opportunities people have to train and prepare before the big day. Those opportunities are extremely unequally distributed. In the United States there are exactly two tracks for the “sliding sports” (bobsled, luge, and skeleton)—one in Lake Placid, New York, the other in Park City, Utah. To be a world-class athlete in any of the sliding sports, you need to train a fair amount on one of those tracks. Long before that, or to achieve excellence even in a less exotic sport, like skiing, you’re going to need a lot of training, equipment, and snow.
Imagine a child with the potential to be a future gold-medalist in the Giant Slalom, if she had the luck to grow up in Utah with winter-sports-minded parents with the money and time to help her train. Instead, she grows up in sunny Florida, where nobody she knows has any interest in winter sports, including her parents. I want to be clear here: her story is not one of thwarted ambition. The ambition was never formed. A glance at the nation-by-nation medal count at the Winter Olympics (in some contrast to the Summer Olympics) suggests that indeed, much of the world is in this same situation: a fundamental lack of snow, nevermind the lack of a world-class sliding track, means very stark inequalities of opportunity in this domain. And those differences also shape people’s ambitions.
Against this backdrop, what would it take to equalize opportunity? It’s a challenge—and indeed if we really think about it, the solutions begin to look not utopian but dystopian. Even supposing that we could redistribute luge tracks, mountains, and snow in a more even way around the nation (!), would we really want to flatten out the distribution of parental resources—the ones that are on such prominent display in those heartwarming ads? If every child is to have an equal opportunity, we can’t have parents devoting hundreds or thousands of hours to suiting up their child and giving them time on the slopes. But what’s the solution to that? It seems both dystopian and impossible to prohibit parents from pursuing these activities with their children that both enjoy. So, somehow, it seems that we’re barking up the wrong tree. But how exactly? There are several responses to this problem, and they help set up some of the building blocks of my argument in Bottlenecks: A New Theory of Equal Opportunity. So let’s consider them.
A first response is a retreat. We might view the last few paragraphs as a straightforward reductio ad absurdum, showing that our mistake was defining equal opportunity as anything beyond the fair contest.
But that’s profoundly unsatisfying—and for reasons that become a bit starker, and higher-stakes, if we move beyond the Winter Olympics. In the book, I make a lot of use of an example from Bernard Williams of what he calls the warrior society. In the warrior society,
there are two hereditary castes: warriors and non-warriors. The warriors defend the society, a job requiring great athletic skill, and they are rewarded for this important work with all the prestige and all the good things the society has to offer. Egalitarian reformers argue that this situation is unfair, and they succeed in changing the rules; the hereditary caste system is replaced with a fair athletic contest in which sixteen-year-olds of any background can try to earn one of the coveted warrior slots, of which there are, as before, a fixed number. As it turns out, the children of the warriors have effectively been training their whole lives for the contest. They are better nourished, healthier, stronger, and more confident. They win. Although a certain formal kind of equality of opportunity has been achieved, identical substantive inequalities of opportunity persist, in that everyone remains in the role family background would predict. Williams argues that this “supposed equality of opportunity is quite empty—indeed, one may say that it does not really exist—unless it is made more effective than this.” Formal equality of opportunity at the moment of decision cannot by itself do the work that one would expect a principle of equal opportunity to do. (Bottlenecks, p. 11-12).
The warrior society example leads to some very difficult conceptual problems. How, exactly, is a society supposed to give all children an equal opportunity to compete in the warrior contest, when everyone’s incentives are so clear, and some parents have more resources than others to give their children advantages in the years leading up to the contest? Of course, egalitarians can and do propose some mitigating steps; free public warrior-academies, starting in pre-K, for instance, would help a lot. But parents have some legitimate degree of liberty in regard to how to raise their children that the state ought not to violate—and that alone, especially in the context of unequal parental resources, will create large inequalities of opportunity.
Moreover, even if a society took the extreme, dystopian approach of Plato’s Republic, taking away all the children from their parents and raising them in some sort of collective orphanage, it’s not even clear that opportunities would be equal in any case, in part because different people need different opportunities. If one child in our Platonic orphanage-academy needs glasses, or an aide to help them stay on task, does “equal” opportunity mean giving them resources and opportunities that others do not have?
At this point let’s take a step back and return to the original problem that I framed in terms of the Winter Olympics. A different response to that problem—to the absurdity and seeming wrongheadedness of actually equalizing opportunities to compete in winter sports—is to say, cool it. Unlike in the warrior society, winter sports in our society are just one path of many. This means the stakes are not nearly so high. There are many fields of endeavor in life, and while of course we should try to expand access to opportunities to participate in even an obscure one like the skeleton, the sheer diversity of different possible paths means that perhaps the unequal opportunities to pursue any one path are less of a worry.
But less of a worry in terms of what? This leads to my second question: why do we value equal opportunity in the first place? There are many reasons to value equal opportunity. I open the book with a litany of major social changes that have advanced the project of equal opportunity: “the elimination of privileges of hereditary aristocracy; the destruction of state systems of racial apartheid; the gradual widening of access to primary, secondary, and higher education; and the entry of women into jobs, public offices, and educational settings formerly reserved for men.” These changes can be framed in terms of equality, but they can also be framed in terms of freedom: equal opportunity gives people more freedom to do or become what they want in life, to form ambitions and pursue them, rather than having their life path dictated by limited opportunities.
If that is at the center of why we value equal opportunity, then it starts to become clear what's wrong with the warrior society. The warrior society is a useful philosophical example, but it would be a terrible society to live in, because there is only one profession, only one path that leads to anything of value. This society is missing the pluralism of the contemporary world, in which there are many valuable things to pursue and we have the freedom to pursue them.
But—not all of us, and not always. Sometimes the paths ahead are constrained by what I call “bottlenecks”: narrow places through which one has to pass in order to reach many opportunities that open out on the other side. If many or most jobs require college degrees, then a college degree is a bottleneck; if most jobs or other roles in life require speaking English, then speaking English is a bottleneck. I’ll have more to say in later posts about how we should think about the project of helping people through or around such bottlenecks. But for now, the point is this. Every society has an “opportunity structure,” a lattice of forking and intersecting paths that lead to different jobs and roles in life. If the only paths to success and happiness in our opportunity structure were through tournament-style competitions like those of Winter Olympic sports, then we could certainly have a conversation about equal opportunity in those competitions. It won’t be an easy conversation. Parental advantages, not to mention the stubborn maldistribution of snow, are going to mean a complicated conversation analogous to some modern debates about affirmative action (should we give bonus points to those who manage to be pretty good lugers despite growing up in Miami?). That is the direction conversations about equal opportunity usually go. We focus on topics like elite college admissions, where the whole question is who should get the scarce and coveted spots.
And fair enough—those are important questions. But the point of my book is to move the conversation about equal opportunity to a different place. The question of who should get scarce and coveted slots—who should get to pass through the key bottlenecks in our opportunity structure—is unavoidable. But we also ought to ask a different set of questions, about why we’ve set things up in such a way that those bottlenecks are so constraining in the first place. In other words, in addition to trying to make the warrior test fairer, we should think about how to make our society less like the warrior society. This is a different starting point for thinking about what equal opportunity is about. But it’s one that can bear real fruit, or so I hope to convince you in future posts. Posted
by Joseph Fishkin [link]