On Widening Participation in Higher Education Through Positive Discrimination

On Widening Participation in HigherEducation Through PositiveDiscrimination

MATTHEW CLAYTON

Notwithstanding an ongoing concern about the lowrepresentation of certain groups in higher education, there isreluctance on the part of politicians and policy makers toadopt positive discrimination as an appropriate means ofwidening participation. This article offers an account of thedifferent objections to positive discrimination and, thereafter,clarifies and criticises the view that universities ought toselect those applicants who are expected to be mostsuccessful as students. It distinguishes arguments frommeritocracy, desert, respect, and productivity and shows howthese arguments are compatible with the use of positivediscrimination in higher education.

I THE WIDENING PARTICIPATION AGENDA IN ENGLAND

Soon after its creation in 2010 the Coalition Government of the UK startedradically to change the funding structure for higher education teaching inEngland.1 In 2012 a considerable amount of direct public funding foruniversity teaching was withdrawn and replaced by an increase in studentfees of up to £9000.2 The right of a university to charge more than £6000,however, is conditional upon it setting and fulfilling appropriate targetswith respect to attracting and retaining currently underrepresented groupswithin higher education.

The Government’s proposals for widening participation in higher edu-cation were set out in a letter to the Director of the Office for Fair Access(OFFA) and its White Paper of June 2011 (Cable and Willetts, 2011;Department for Business, Innovation and Skills, 2011). These documentsset out what the Government expects of universities, particularly moreselective universities, with respect to improving social mobility and boost-ing the participation of underrepresented groups within higher education.3

The policy increases the incentives for universities to improve their variousinitiatives to encourage mature students and individuals from state schoolsand colleges, lower social classes, and low-participation neighbourhoodsor ethnicities, to pursue a university education. Such initiatives typically

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Journal of Philosophy of Education, Vol. ••, No. ••, 2012

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include outreach activities in partnership with schools serving underrepre-sented groups, the provision of alternative routes to admission via founda-tion courses for students from low-participation groups who do not attainthe required entry grades, the offer of fee waivers and other financialincentives, the creation of part-time programmes of study, and the provi-sion of additional support to enhance the retention of students from low-participation groups.

One mechanism for widening participation that is not currently used inthe UK, though it is in other countries, is positive discrimination, whichinvolves the admission of individuals from underrepresented groups evenwhen they have less potential than others to succeed on the degree coursein question.4 To clarify this instrument further, positive discriminationshould not be confused with selecting those with most potential by offeringplaces to students from underrepresented groups who have worse qualifi-cations on paper. Cable and Willetts recognise this:

[I]f selective institutions are to make progress in admitting morestudents with high potential from disadvantaged backgrounds, theymay want to admit some such students on the basis of lower entryqualifications than they would normally apply. To help them identifyindividuals with the greatest potential, institutions may sometimeswant to use contextual data, for example about levels of averageattainment in an applicant’s school. The Government believes thatthis is a valid and appropriate way for institutions to broaden accesswhile maintaining excellence, so long as individuals are consideredon their merits, and institutions’ procedures are fair, transparent andevidence-based (Cable and Willetts, 2011, § 5.3; Department forBusiness, Innovation and Skills, 2011, §§ 5.17–5.18).

Applying lower entry requirements to disadvantaged students is compatiblewith selecting students with the most academic potential to the extent thatstudents’ qualifications reflect their school’s ability to get them through anexam rather than their own ability to study at university. In other words, thebest-qualified applicant could be an individual whose qualifications onpaper are inferior. If this phenomenon exists, and there is some evidence tosuggest that it does (Smith and Naylor, 2001), then the Government’sacceptance that applying lower entry requirements is ‘appropriate’ is notsufficiently demanding. Selection on the basis of merit does not merelypermit but requires universities to apply lower entry requirements to stu-dents whose paper qualifications underreport their academic potential.

But why should we select for higher education those who are expected tobe most successful as university students? If there are good reasons towiden participation or improve social mobility, why not go further andreject the principle that the best-qualified candidate ought to be preferredwhen it conflicts with these goals?

In this article I try to rebut certain popular arguments in support of theprinciple that the best qualified ought to be preferred. After characterisingdifferent kinds of objection to the use of positive discrimination in higher

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education, I consider four different defences of the best-qualified candidateprinciple, which appeal to, respectively, meritocracy, desert, respect foragency, and productive efficiency, and show how these moral ideals mightbe compatible with the use of positive discrimination.

II POSITIVE DISCRIMINATION AND ITS CRITICS

As I shall use the term, positive discrimination in higher education admis-sions involves a permission to select individuals from underrepresentedgroups who are less well equipped than other applicants to succeed on thedegree programmes they follow. I shall not offer an account of how tocharacterise the target groups that positive discrimination aims to help.Often-cited criteria that have been proposed or used include sex, race,ethnicity and social class. In addition, I assume that social mobility andincreasing the participation of currently underrepresented groups withinhigher education are important justice-promoting goals. A number of argu-ments have been offered for this view. For example, some see opportunityfor social mobility as a constitutive feature of a just society (Brighouse andSwift, 2008; Department for Business, Innovation and Skills, 2011, p. 54).Others point to the injustice of ongoing discrimination against individualson the basis of, say, sex, race, or ethnicity and argue that increasing theinvolvement of individuals with these characteristics in higher education isan important means of challenging these injustices (Anderson, 2010).

The goal of widening participation is accepted by both those whopropose and many who reject positive discrimination. Those who rejectpositive discrimination claim that we ought to widen participation throughvarious activities, such as those promoted by OFFA—outreach activitiesthat encourage individuals from underrepresented groups to apply to uni-versities, selection with greater awareness of contextual data that aims toidentify individuals whose paper qualifications underreport their academicpotential, and financial measures that reduce the costs of a universityeducation for such individuals, and so on. However, they reject the use ofpositive discrimination. Universities should, they claim, select on the basisof merit; it is unjust to admit an individual from an underrepresented groupwhen other applicants would be more successful on the degree course inquestion.

Critics of positive discrimination appeal to three kinds of argument,which can, following Hirschman’s (1991) taxonomy that was developedfor a different purpose, be classified as objections from futility, perversityand jeopardy. Futility-based objections claim that positive discriminationwould make no difference with respect to realising the aims it purports toserve. These objections would be sound if the causes of injustice or socialimmobility were unaffected by the use of positive discrimination in highereducation. It is, however, unlikely that arguments of this kind are sound,particularly if other measures to boost the representation of low-participation groups within higher education are successful. The obviousquestion this criticism faces is: if widening participation through outreach

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activity or by offering financial subsidies to those from low-participationgroups would contribute to the goal of promoting justice, why could anexpansion of the instruments to include positive discrimination never alsoserve that goal?

Perversity arguments share with those that emphasise futility the viewthat positive discrimination would fail to realise the ends it serves.However, they make the additional claim that the fulfilment of these aimswill be set back by positive discrimination. For example, some haveclaimed that a policy permitting positive discrimination would precipitatea political backlash among groups whose members are denied the placesthey would secure in the absence of the policy, which would, in turn, tendto lead to a more general political reluctance to seek to boost the numbersfrom low-participation groups attending university. Alternatively, somehave argued that positive discrimination worsens the prospects of gettingindividuals from low-participation groups to apply for, and succeed in,higher education, because it leads to a diminution of these individuals’self-esteem. This is the case, it is argued, because offering places to indi-viduals in virtue of their group membership, rather than on the basis ofmerit, encourages them to believe that they are inferior, or in need ofhelp, or unable to achieve by their own efforts (Steele, 1997; Mason,2006).

Like futility arguments, perversity objections stand or fall on the basis ofthe empirical evidence, and the case for positive discrimination is bolsteredby studies that show that it has had a positive impact with respect to a rangeof measures that are important for justice and that worries about backlashand self-esteem are misplaced (Bowen and Bok, 2000).

Jeopardy arguments assert that although positive discrimination might besuccessful with respect to widening participation in higher education its useis inconsistent with other moral desiderata or prevents us from fulfillingother valid aims. In other words, although it might be successful in pro-moting certain ends, positive discrimination jeopardises the fulfilment orhonouring of other values or norms of justice.

The most prominent jeopardy objection claims that, even if it improvessocial mobility or widens participation, positive discrimination violatesthe principle of selection on the basis of merit or fails to respect the rightof individuals to be free from discrimination. Jeopardy arguments mightseem rhetorically attractive to critics of positive discrimination because,unlike perversity and futility arguments, their soundness does notnecessarily turn on the truth or falsity of empirical facts. The downside isthat it is open to defenders of positive discrimination to reply that,although selection by merit is indeed jeopardised, this is a price worthpaying for the greater goods delivered by widening participation inhigher education. Consequently, if it is to provide a decisive case againstpositive discrimination, the argument must establish that our reasons notto jeopardise a particular good or principle defeat our reasons to widenparticipation.

Although the issue of whether jeopardy arguments against positive dis-crimination are decisive is important, I shall not pursue it further. It is at

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least troubling from the point of view of political morality if, notwithstand-ing its beneficial consequences, positive discrimination violates an impor-tant principle or prevents us from realising other moral goals. Accordingly,in this article, I offer some arguments that, if sound, show that the princi-ples or norms that are commonly thought to be jeopardised by positivediscrimination are either not, in fact, so threatened or are norms we oughtto reject. In particular, I consider several defences of the best-qualifiedcandidate principle, which asserts that it wrongs the better qualified (and,in some defences, the less qualified) if places of higher education areoffered to less qualified applicants. This principle has been defended by anappeal to the ideal of meritocracy, the thought that the best qualifieddeserve first refusal of scarce opportunities for higher education, and theargument that it is implied by respect for individuals’ agency. I explain whyappeals to meritocracy, desert and respect fail to support the best-qualifiedcandidate principle.

III THE BEST-QUALIFIED CANDIDATE PRINCIPLE

According to a widely shared understanding, the best-qualified candidate isthe candidate whose performance in the position on offer is expected to bebetter than that of any other applicant. Consider this principle in the contextof employing workers. A job is defined as requiring the performance of aparticular set of tasks. As a first approximation, we can say that the best-qualified candidate is the individual who is expected to execute those tasksbetter than any other applicant.

Because the principle relies on the notion of an expected performanceand is, thereby, sensitive to probabilistic considerations, it is possible that,once she has secured the position, the best qualified executes the requiredtasks less well than another applicant would have done. To illustrate,suppose that Ailsa and Ben apply for a job in a human resources office thatinvolves various tasks including employee management and financialadministration. Ailsa is better with finances; Ben has better interpersonalskills that make him better at employee management. Given that it is likelythat employee management issues in the organisation will not, for theforeseeable future, throw up significant difficulties, the performance weexpect from Ailsa will be superior. Accordingly, she is the best-qualifiedcandidate even if, once in the job, issues concerning employees unpredict-ably become more significant in a way that makes it the case that Benwould have performed the job more effectively. In this case Ben has novalid complaint against the hiring of Ailsa, because, ex ante, taking intoaccount the probability of different scenarios and their respective abilitiesto deal with the associated problems, his expected performance is worsethan Ailsa’s.

In elaborating the best-qualified candidate principle it is also common todistinguish between different causes of good and bad performance and toemphasise that certain predictable causes of poor performance should bedisregarded or discounted in selection decisions (Miller, 1999, p. 169;



Mason, 2006, pp. 32–35). For example, suppose that the unjust sexismexhibited by a predominantly male workforce will mean that Connie’sperformance as a manager is expected to be less effective than David’s.Even so, to the extent that that expectation is explained by a cause thatshould not obtain, it ought not guide a selector’s deliberations. If it did, andDavid was hired because of this fact, Connie would have a legitimatecomplaint that she has been treated unjustly, because David’s performancewould not be generated cleanly.

Understood in this way, the focus of the best-qualified candidate princi-ple is cleanly generated expected performance in the position on offer.Moreover, the principle is applicable to the university sector and appears tobe incompatible with positive discrimination. In higher education, theposition of ‘student’ involves acquiring and displaying knowledge andunderstanding of a particular set of subjects. Since this is the case, the useof positive discrimination in higher education clearly infringes or violatesthe principle, for it permits the admission of underrepresented students whoin a cleanly-generated manner are expected to perform less well than somewho are refused entry.

For the sake of argument, I shall grant this interpretation of the best-qualified candidate principle and its incompatibility with positive dis-crimination. Notice, however, that the interpretation is not universallyaccepted. Some claim that in certain circumstances there may be goodreasons to adopt sex, race or ethnicity as partly constitutive of the posi-tion on offer. If it is part of a university’s mission to produce doctors whowill attend to the medical needs of black and minority ethnic (BME)groups and it is reasonable to expect that these groups will be servedbetter by the availability of BME doctors, then membership of suchgroups is a characteristic that is related to the aims of the institution and,therefore, one that is a qualification to be weighed in the balance withpurely academic qualifications for the place on offer. On this view, thereneed be no incompatibility with measures that admit academically less-qualified applicants and selection on the basis of qualification or merit.Indeed, some have argued that admissions policies that attach directimportance to racial or ethnic status have the advantage that they are lessdemeaning, because they treat BME candidates as meritorious, asco-participants in the pursuit of justice, rather than as passive recipientsof educational opportunity.5

Although I do not gainsay this alternative interpretation of the best-qualified candidate principle, I do not follow it here. True, there may becertain advantages with respect to the avoidance of damaging messages ifqualifications are defined in a way that makes reference to sex, race andethnicity. However, because my aim is to take on critics of positive dis-crimination by rebutting their arguments for the best-qualified candidateprinciple, it is clearer to have a characterisation of the principle that accordswith that which they defend.6 Accordingly, I interpret ‘qualification’ inpurely performance-related terms. With these clarifications and caveats inmind, I now turn to examine some prominent arguments for the best-qualified candidate principle.

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IV THE APPEAL TO MERITOCRACY

One way to defend the principle is to appeal to the ideal of meritocracy,which asserts that those with similar talents and who exert similar effortshould enjoy equal access to advantageous social positions and to therewards that go with them. For present purposes, we can leave unresolvedinternal disputes about how to characterise talent and whether, instead of‘effort’, ‘ambition’ or ‘appropriately formed ambition’ should be adoptedas normatively relevant for the meritocratic ideal. These disputes are notwithout interest, but they do not affect the central case for the best-qualifiedcandidate principle. Accordingly, I shall discuss meritocracy as formulatedin terms of opportunities for the development and exercise of talent andeffort.

The meritocratic conception has two parts (Miller, 1999, p. 181). First, itprovides a normative account of the development of ability. Meritocratshold that the development of different individuals’ ability should depend ontheir respective talent and effort; developmental inequalities that are causedby social inequalities are unjust. On this view, the proper role of educa-tional institutions is, among other things, to compensate individuals forthe developmental social disadvantages they face. Additional educationalresources should be devoted to children whose family or social environ-ment prevents them from developing their talents at the same rate as thoseborn into more advantaged social circumstances.

Second, meritocracy offers an account of how selectors ought to choosebetween candidates who compete for social positions. This part of the idealclaims that once talent has been developed through the education system,we should treat ability as given and then assess fair selection (fair oppor-tunity to exercise one’s talent) on the basis of the best-qualified candidateprinciple—where ‘qualification’ is a function of who would perform best inthe position under consideration.

It might be thought that because meritocracy is, in part, constituted bythe best-qualified candidate principle it cannot provide any justificatorysupport for that principle. This is not the case. Sometimes a principle canbe supported by being embedded in a larger ideal of which it is a consti-tutive part. For example, some believe that social relations ought to exhibitfraternity specified by reference to a number of necessary and jointly-sufficient attributes, including concern, respect, and equality. Even if theegalitarian demand that no one be treated as inferior is constitutive offraternity, the fact that it is nested in that larger ideal, which also requiresinterpersonal concern and respect, enables us to see that our egalitarianreasons are conditional upon, or strengthened by, their service to the moreencompassing ideal (Scanlon, 2000). Similarly, the best-qualified candi-date principle might be understood by meritocrats as part of the larger aimof distributing unequally valuable social positions according to talent andeffort.

Nevertheless, the relationship between meritocracy and the best-qualified candidate principle is an uneasy one for two reasons. In the firstplace, there is an ambiguity in the ideal of meritocracy when it comes to



allocating university places. Should higher education be seen as part of thesector that develops ability or the sector that takes ability as given and isresponsible for providing fair access to exercise ability? It is not obvious.Many meritocrats simply assume that university admissions fall into thesector that offers opportunities to exercise ability. However, it is at leastopen for meritocrats to regard universities as part of the educational sectorthat develops ability, rather than an institution that ought to take it as given.If so, this should affect our judgement about fair admission to universities.It might be judged reasonable to offer places to keen but socially deprivedcandidates who are not of the highest calibre as a means of promoting theideal that opportunity should be equal for those with similar natural talentand who put in similar amounts of effort.7 So, although meritocratic selec-tion is typically associated with the view that the best-qualified candidateshould be preferred in university admissions decisions, it is in fact a moreencompassing ideal and one that may not exhibit a preference for the bestqualified in higher education. The aim of meritocracy is to ensure thatindividuals of equal natural talent and similar effort have equal access todesirable social positions. That aim might permit universities to select anddevelop the talents of less qualified candidates who have been deprived bysocial circumstance of developmental opportunities in the past.

A second reason to resist the best-qualified candidate principle trades onthe observation that the principle is nested in the larger ideal of meritocracy.Pace Miller (1999, p. 181), it is not obvious that conferring opportunitiesto develop talent in a way that compensates for unequal social backgroundsand conferring opportunities to exercise ability by preferring the best quali-fied should be treated as independent normative principles. An alternativemeritocratic view is that we should select the best-qualified candidate onlyif there has been equal opportunity for those who are similarly talented andput in similar effort to develop their talents at school (or some closeapproximation to this ideal). If we apply meritocracy in this way and regardthe best-qualified candidate principle as merely conditionally valid, then inthe absence of social conditions that provide equal chances for similarlytalented children, our reason to hire the best qualified is cancelled orweakened by the presence of those background injustices. On this view, inour world, which violates meritocratic norms with respect to the acquisitionof skills by allowing significant inequalities to arise due to differences ofsocial class, university selectors are not under a duty of meritocracy toselect the best-qualified candidate.

V THE APPEAL TO DESERT

Many claim that selecting less-qualified candidates denies the more quali-fied what they deserve: first pick of university places. Indeed, the best-qualified candidate principle seems to be paradigmatic of an appropriateappeal to a desert: it wrongs the best qualified to offer the place to someonewho is less qualified, as it wrongs the winner of a race to give the prize tosomeone who was slower. Just as the winner is entitled to the prize because

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she deserves it—she has put in the best performance and it is, therefore,fitting that we give her the prize—so too does the best-qualified candidatedeserve the job or university place.

Considerations of desert call for an appropriate response to a particularperformance. However, because it typically involves responding in a fittingmanner to past performance, it is not immediately clear how desert hasrelevance for university selection, the common view of which asserts that itis predicted future performance, rather than past performance, that oughtto guide selection decisions (Miller, 1999, pp. 158–163). For example,suppose that a candidate achieved outstanding academic achievementsprior to suffering an accident that has left her seriously cognitively disabledand unable to study. We might say that she deserves the certificate thatrecords her previous achievements, but few would accept that a universitywould wrong her if it cancelled the offer of a place it made prior to theaccident.

In response to this puzzle about deserving jobs and places of highereducation, Miller has offered the suggestion that desert with respect tohiring is ‘secondary’. The primary instance of deservingness is one inwhich a reward (or punishment) is an appropriate response to a good (orbad) performance. In the case of jobs or university places the desert-basedclaim operates on the basis of ‘anticipated performance’. Offering posi-tions to the best qualified maximizes the likelihood of individuals deservingthe intrinsic and extrinsic rewards attached to these positions on the basisof their performance within them. In Miller’s view, the best-qualifiedcandidate has the greatest claim to the position under consideration,because, of all the candidates, she has the qualities which it is reasonable tobelieve will enable her to perform at a level that will make her deserving ofthe rewards of the position. She ‘deserves the chance to become deserving’.Consider selecting an employee. If we hire the best qualified, the fitbetween her predictable performance in the job and the rewards she wouldreceive from it would be the closest: less-qualified candidates wouldreceive more than they deserve on the basis of their expected productivity.Miller accepts that if the task-fulfilment that is sought in offering a par-ticular job could be performed by a number of different candidates, thenevery candidate who would predictably perform to the required level has anequal claim to be hired and the best-qualified candidate principle does notselect between them. However, in many jobs, he rightly observes, nocandidate has all the attributes that are valuable for the job under consid-erations. In these cases, selecting the best qualified will minimise the gapbetween performance and reward (Miller, 1999, pp. 163–167).

Despite its ingenuity, this argument works only in a quite specific kind ofjob market, one in which a fixed salary or reward is offered in return for aparticular number of hours worked. Accordingly, it is difficult to see how itgeneralises to justify the best-qualified candidate principle for alternativekinds of market and, indeed, university admissions. For example, consideran alternative job market that is characterised by piece-rate remuneration.In a piece-rate market, such as strawberry picking in which workers arepaid by the number of punnets they fill, individuals are remunerated on the



basis of output regardless of hours worked. However, if piece-rate remu-neration effectively rewards individuals for their different levels of per-formance, it is not clear that the employer is under a duty to hire morerather than less able candidates. If a strawberry farmer who wants 100punnets filled on a particular day has to choose between a fast picker whowill fill 100 and two slower pickers who will each fill 50, it seems that,other things equal, because each will paid in accordance with her respec-tive contribution, the farmer is under no duty of desert to hire the fasterpicker.8

For this reason, Miller’s secondary desert argument for hiring the best-qualified candidate does not generalise to cover all the different kinds ofmarket interaction that take place. Notice, in addition, that universities are,in some respects, analogous to the piece-rate market. Universities rewardperformance by recognising student achievement on a scale that recordsgrade-point averages or according to a schedule of degree classifications. Ifthese ways of recognising student achievement are accurate, then everystudent receives the rewards she deserves, and this remains the casewhether or not universities admit more or less able students to study for thedegrees they offer. Accordingly, to the extent that students of differentability receive the rewards they are due from universities, Miller’s argu-ment for selecting the best-qualified candidate is inapplicable to highereducation admissions decisions.9

Let us now consider other possible desert-based arguments. Perhapssome will fall back on the less refined thought that in cases in which thereis a competition for the particular scarce benefit offered by higher educa-tion, it is fitting for the benefit to go to the best-qualified candidate. Beforelooking at two ways of cashing out this unrefined conception of desert, it isworth noticing that, intuitively, we reject it when thinking about the allo-cation of various goods. For instance, suppose there are insufficient publiccourts to enable several people to learn and play tennis whenever they want.Common intuition suggests that the fairest way of rationing the benefit thecourts provide is not to give priority to the most able tennis players, but toration on a first-come-first-served basis or through a fair lottery.10

In response to this intuition, desert theorists might bite the bullet andsuggest that we ought to allocate benefits such as tennis courts or universityplaces to the more able for reasons of desert. One way to understand thatdesert-based claim is as the mirror of retributivism—that punishmentshould fit the crime. In the case of higher education the thought is thatbenefits or rewards should be allocated according to proven academicachievement. But there is a relevant dissimilarity between ‘the opposite ofcrime’ and ‘achievement’. The flip side of vice is virtue, and when we arethinking about distributive justice (in which we distribute goods such aseducation, health, wealth), we assume that no one is more virtuous thananyone else. In particular, it would be outrageous to claim that those whoachieve less because they are born into less favourable genetic or socialcircumstances display less virtue than others (Rawls, 1999, § 48).11 If thisis the case, whilst the straightforward appeal to some primitive notion ofdesert as a fitting response to virtue and vice might bear some weight in

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justifying punishment, it is the wrong kind of argument to justify thebest-qualified candidate principle.

A second way of elaborating the brute intuition of desert in support of thebest-qualified candidate principle is to view distribution according to desertas tracking our judgements about what is admirable as these are embodiedin social conventions. Just as our admiration of athleticism leads us toestablish competitions to identify and reward athletic excellence, somemight think that the prize of a university education is a suitable way ofexpressing our admiration of academic prowess. However, the use of uni-versity places to express our admiration of academic excellence is doublyproblematic. First, as others have observed, it is not clear that we really doadmire, or ought to admire, academic excellence or potential to the exclu-sion of other traits. Other features of people’s actions might elicit ourpositive appraisal, such as hard work. That alternative effort-based form ofdesert is at least open to us (Mason, 2006, pp. 45–51). For example, in thesporting context there are different kinds of tournament. Some seek toidentify and reward a particular performance simpliciter, like a golf tour-nament that rewards the player who completes the course in the fewestshots. Other tournaments, such as golf competitions with handicaps, areestablished to reveal and reward those who perform best relative to theirstatistically normal level of ability. It seems open for us to choose whichtype of competition we want to run.

Second, even if academic ability is a quality we have a weighty reason toadmire, there are several ways in which that admiration might be expressedthat do not involve the offer of a university place.12 We might record andexpress our admiration of academic success with a congratulatory certifi-cate or by a hearty round of applause in a school ceremony. It is not clearwhy these expressions of our esteem are not a sufficient response. Forinstance, it is implausible to suggest that rugby union players received lessthan they deserved in the days of amateurism when they attracted theadulation of the crowd than they do now in the era of professionalism, inwhich they receive a salary as well.

There are, then, two strategies for rebutting the suggestion that first pickof university places is a fitting expression of our admiration of academicprowess. First, it is not clear that academic excellence is the only appro-priate basis of deservingness. And, second, offering university places to thebest qualified is not the only way to express our admiration of academictalent. If we have reasons of justice to offer places of higher education toless than the best qualified, there would be no loss with respect to indi-viduals getting what they deserve if we revised our conventional ways ofexpressing our admiration of talent such that the academically able receiveour applause but not the offer of a place at university.

To conclude, the desert-based arguments reviewed above do not seemadequate support for the best-qualified candidate principle. Unrefined con-ceptions that appeal to desert as a basic moral principle, or as a summaryof our conventional expressions of admiration, are too indeterminate tosupport the selection of the best qualified. Moreover, the more sophisti-cated secondary desert argument offered by Miller is, I argue, inapplicable



to the case of higher education. However, before we conclude that the ideaof desert is consistent with the rejection of the best-qualified candidateprinciple, we must consider an alternative argument within the family ofdesert-based conceptions that rests on the idea of respecting everyone’sagency. It is to that argument that I now turn.

VI THE APPEAL TO RESPECT FOR AGENCY

George Sher’s argument for the selecting the best-qualified candidatebegins with the thought that there is a ‘close internal connection’ betweenjobs (or higher education) and job-related skills (or the ability to learn).Furthermore, he asserts that the aims pursued by hiring employees orselecting students will be most effectively realised by taking on candidateswho will perform best in the position in question. Sher concedes that theseobservations alone do not justify the best-qualified candidate principle ongrounds of desert, because, if sound, all they establish is that a rationalemployer or university selector would adopt the principle to guide herselections. That would not establish that the best-qualified candidate iswronged by not being hired, which is what the desert-based claim requires.However, the additional individualised wrong can be established, heargues, by the principle that we should respect, or take seriously, every-one’s agency:

When we hire by merit, we abstract from all facts about the applicantsexcept their ability to perform well at the relevant tasks. By thusconcentrating on the ability to perform, we treat them as agents whosepurposeful acts can make a difference in the world . . . [S]electing bymerit is a way of taking seriously the potential agency of both thesuccessful and the unsuccessful applicants (Sher, 1987, p. 121).

Later, Sher presents the argument as an objection to hiring an applicantwho is less qualified than the best-qualified candidate:

[W]hen we select among applicants for reasons other than their abilityto perform the tasks that define positions, we treat them as passiverecipients of largesse or links in causal chains rather than as activecontributors to anyone’s ends. By thus disengaging their practicalwills from the aims that have generated the positions, we violatethe requirement that they be treated as rational agents (Sher, 1987,p. 126).

For these reasons, Sher concludes that there is a strong presumption infavour of selecting the best-qualified candidate.13

The pivotal move in Sher’s argument is his claim that, having created aplace of employment to ensure that a certain task is performed, the organi-sation fails to respect the candidates if it does not select the individual whowould execute that task best. Sher seems to be committed to saying that a

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selector treats a candidate unjustly—fails to treat her seriously as anagent—if he selects her when there is someone else who would performbetter in the position. However, it is puzzling why this should be the case,particularly if the candidate in question can perform the tasks rather well.It is not clear, then, why the sound injunction to take individuals’ agencyseriously must take the form of selecting the best-qualified candidate.

In response to this kind of objection, Sher remarks that ‘purposiveactivity aims not merely at achieving satisfactory results, but at achievingthe best results that prevailing conditions allow’ (1987, pp. 122–123).However, notwithstanding the rejoinder that purposive activity is notalways maximising in this sense, it is a mystery why Sher’s observationsupports the conclusion that selecting less than the best qualified would failto respect everyone’s productive agency. True, to the extent that we areconcerned about the productivity of the firm this might most effectively berealised by hiring the best-qualified candidate.14 To the extent that we areconcerned to respect individuals as agents who create value, however, it isnot obvious why we should not treat all applicants who would fill theposition competently as having an equal claim.

To support this rejection of Sher’s argument, let me sketch an alternativeaccount of respect for agency. As Raz has observed, because we are agents,many of the reasons that apply to us are ‘action reasons’, that is, reasonsgenerated by the value of us performing the action in question, rather thansimply the value of the state of affairs the action would bring about (Raz,1986, pp. 145–146). For example, it not the case that I should care for mymother merely because it is good that she receives care and attention. I havea reason to care for her myself, rather than to have her cared for by someoneelse. Action reasons are generated by our interest in deploying our agencyin various activities: we have an interest in having a go at various sports andhobbies, and in discharging the duties of various offices or positions—as acharity worker, youth club leader, or parent. Since this is the case, respectfor agency and the action reasons we have in virtue of our agency gener-alize to justify a claim on the part of any interested individual to have a goat a job or university place that is on offer. If this is right, it would seem thatthe claims of those with less potential are as weighty as those with morepotential. Of course, there might be certain positions that agents have nointerest in occupying, such as positions they could not discharge with asufficient level of success. But that merely implies that individuals have aninterest in occupying positions that is conditional on their satisfaction ofsome competence requirement, which is consistent with the claim thatrespect for agency does not discriminate between more or less able candi-dates above the competence threshold.

For these reasons the respect for agency argument appears unsuccessful.We need not think that selecting less qualified candidates fails to give duerespect to the productive potential of the best qualified, or wrongs lessqualified candidates by selecting them on grounds that do not make refer-ence to their agency.15

Perhaps those who agree with Sher might agree that I have shown thatevery competent applicant has an equal claim to a university place on offer.



Respect for agency, they might concede, is compatible with a lottery todecide who is admitted when places are scarce, because every competentapplicant has an agency-based claim to the available places. But it does notsupport the use of positive discrimination in favour of members of under-represented groups, they might argue, because evaluating them on the basisof criteria other than their competence would display disrespect for theagency of both more and less qualified candidates.16

However, this reply is too strong. If respect for agency is incapable ofselecting between competent applicants, this simply clears the decks,leaving us free to appeal to other reasons to differentiate between them; inthis case, our reasons to improve the representation of BME students inhigher education. To resist this, the requirement to respect agency must beconstrued in an implausibly extreme way, which either takes respect foragency to be the only reason we have in selection decisions, or a reason thatought to exclude other considerations from being deployed.17 We should,however, reject such renditions of the argument in favour of a more plau-sible version, which asserts that respect for agency is not the only relevantreason. Unfortunately for defenders of Sher’s view, this more plausibleversion of the argument is incapable of resisting widening participationthrough positive discrimination. On this more plausible interpretation, weaccept that using admissions decisions to widen participation is a reason. Itis consistent with this concession to claim that in cases of conflictingreasons, our reasons to admit individuals from low-participation groups isalways defeated by our duty to respect people’s agency—I shall not addressthat interesting issue here. However, my rebuttal of Sher’s argument sup-ports the view that there is no conflict between our reasons in this case. Ifrespect for agency is compatible with the admission of any competentapplicant, our reason to widen participation may operate as a tiebreakerand, thereby, permit us to depart from admission by lot in favour of positivediscrimination.

VII PRODUCTIVITY CONSIDERATIONS

If the arguments set out above are sound, positive discrimination does notwrong the best qualified (or a less qualified candidate) in virtue of failingto recognise her merit, deservingness, or agency. The jeopardy argumentmight, nevertheless, be resurrected by appeal to our collective interest inthe positive effects of productive agency. According to this argument,because positive discrimination interferes with the project of enhancing theproductivity of society by selecting those who are expected to be lessproductive, it jeopardises the pursuit of a valuable goal.

Whatever the merits of this argument as a critique of positive discrimi-nation in employment, its applicability to higher education is open toquestion. In the first place, even if we accept that productivity considera-tions apply to universities, admissions tutors must attend to two ways inwhich their decisions might reflect these considerations. One way ofenhancing social productivity is through the improvement of human

14 M. Clayton


capital. Another way is by universities generating valuable signals aboutthe potential of different individuals on the basis of which future employerscan make rational decisions about whom to employ. However, it is notobvious that both considerations favour universities selecting the best-qualified candidate.

On the signalling interpretation, universities offer a valuable service byranking different individuals according to different degree classes orgrades. This ranking provides useful information about the skills and abili-ties different individuals might offer in employment. University assess-ments can be viewed as good indicators of future performance: they actas a kind of filter, with able candidates going to the best universities andbetter students achieving higher degree classifications. To the extent thatuniversities play this valuable signalling role the best-qualified candidateprinciple gains some support.

If the role of universities is to improve human capital, however, this maybe better realised by selecting less than the most able. The improvement ofhuman capital supports preferring candidates whose skills and ability weexpect to be enhanced more rather than less. The candidates selectedaccording to this criterion might well be different from those it is reason-able to believe will perform best at the end of the degree programme. Thisis explained by the phenomenon of able coasters in higher education,individuals who will graduate with a good degree with little effort, withoutbeing stretched and without having their skills enhanced to any significantdegree. If a university is interested in taking the student who it is reasonableto believe will improve the most from taking the programme of study, thenit might prefer less able candidates who are more highly motivated andhave more to gain over more able students who on average will not developas much.

One worry about admitting less bright students whose human capital willbe improved more by the programme on offer is that doing so mightdiminish the value of the signals the university sector delivers to employers.Whether or not this is the case is an empirical matter, which I lack to thespace or expertise to discuss. However, it should be acknowledged that, ifsound, this worry delivers the right kind of argument to support the viewthat positive discrimination jeopardises productivity. If, all things consid-ered, selecting the best qualified always optimally advances the pursuit ofsocial goals then there would be a reason not to widen participation throughpositive discrimination.

The appeal to productivity appears particularly threatening because ittrades on the view shared by many advocates of positive discrimination thatselection procedures in higher education should be evaluated by referenceto the value of the consequences they deliver. However, because it focuseson only the goods of identifying and developing performance-related skills,it offers an implausibly narrow account of what counts as a good conse-quence. True, offering accurate signals of productive potential and devel-oping skills is valuable. But there are other goods that are advanced bywidening participation. Moreover, to the extent that we care about the goodconsequences that follow from our decisions, we should attend to the



beneficial indirect effects of our choices as well as their direct effects. Evenif a particular applicant from a BME group is expected to be less successfulas a student than another applicant her presence within higher educationmight nonetheless have desirable side effects. To support this claim, somepoint to the value of having role-models that inspire others from underrep-resented groups to raise their expectations and pursue university study; orperhaps her presence in universities, or the organisations she is more likelyto work in as a result, will serve to weaken the grip of discriminatoryattitudes among more advantaged students and workers and, thereby, servethe ends of justice.

These matters require empirical investigation. Nevertheless, it is suffi-cient for my purposes to observe that valuable goals of this kind might bepromoted by the adoption of admissions policies that depart from narrowperformance-related criteria. Our interest in using higher education toenhance productivity is part of the wider concern to use education policy topromote valuable outcomes for society, and that more general aim might beadvanced by positive discrimination. Accordingly, even if it is establishedthat certain kinds of economic efficiency are jeopardised by positive dis-crimination, the narrow conception of what is valuable offered by produc-tivity considerations ought to be rejected in favour of an account thatconsiders the wider side effects of the policy from the point of view ofjustice. The good of productive efficiency must be nested within a moreencompassing view that permits the use of higher education to promoteother desirable social outcomes. Once this is done, the objection thatpositive discrimination jeopardises the pursuit of valuable social goods isless secure.18

VIII CONCLUSION

I have not presented in any detail the positive case for widening participa-tion in higher education or explored the question of the limits of selectingless than the best qualified.19 My aim has been to defend positive discrimi-nation as a just instrument in the pursuit of that objective. No doubt, furtherempirical work must be done to show that positive discrimination is not toocostly with respect to allocating resources efficiently. However, the mainburden of my argument has been to question the popular view that positivediscrimination wrongs the best qualified because it denies her what shedeserves, or fails to acknowledge her merit or agency in the right way. Therejection of these arguments gives us a reason to refocus the debate. Oncepolicy makers free themselves of the implausible belief that the use ofpositive discrimination in higher education is unjust or morally problematicfor reasons that are independent of its social consequences, they might seemore clearly that its use and the extent of its deployment should depend onthe value of the social outcomes it delivers.20

Correspondence: Matthew Clayton, Department of Politics and Interna-tional Studies, University of Warwick, Coventry CV4 7AL, UK.Email: [email protected]

16 M. Clayton


NOTES

1 Because arrangements for education in Scotland, Wales and Northern Ireland are devolved tonational assemblies or parliaments, this policy applies only to higher education institutions inEngland.

2 Public funds will remain in place to finance the tuition fee scheme, in which students will pay backloans under certain conditions, and it is anticipated that the Government will not recoup all thefunds spent in this way.

3 They also highlight various sanctions available to OFFA to encourage compliance with theGovernment’s agenda. OFFA has the power to remove a university’s right to charge fees of morethan £6000, impose a fine of up to £500,000, and require a university to compensate individualstudents whose rights under an access agreement have been violated.

4 Positive discrimination has been practised in various US universities and has been the focus oflong-standing legal and political debate. Several Indian universities also practise it in admissionsand hiring decisions in higher education. An example within Europe is France’s leading universityfor the social sciences, Sciences Po, which since 2001 has run a programme called ConventionsEducation Prioritaire, in which individuals from working class or unprivileged backgrounds whowould not ordinarily be selected are admitted. This programme accounts for about 10% of itsintake.

5 For this argument, which she claims is a reason to favour her ‘integrative model’ of affirmativeaction over compensatory models, see Anderson, 2010. See also Dworkin, 1986. For furtherreflection on the issue of how justly to specify qualifications that form the basis of selectiondecisions, see Lippert-Rasmussen, 2009.

6 See, for example, Miller’s critical discussion of the view that ethnicity or sex might be a constituentof merit (1999, pp. 173–174).

7 Though I elaborate the meritocratic conception with reference to Miller’s distinction between thetwo different parts of the ideal, I should emphasise that Miller places higher education in thesecond part of meritocracy, and takes ability as given (Miller, 1999, p. 181). Why he does this isnot obvious.

8 I am grateful to Andrew Williams for this argument.9 It might be objected that marks awarded in universities are not rewards, which are valuable items

that are given in recognition of achievement, but merely indicators of achievement. I thank ananonymous reviewer for this observation. Still, Miller’s claim is that an individual should receivewhat she deserves on the basis of her performance in the position she occupies. The argument thatuniversities might fulfil that requirement whether they admit more or less able students does notdepend on them being viewed as institutions that reward.

10 I repeat Richard Wasserstrom’s (2005) claim and his example.11 Many desert theorists who defend the best-qualified candidate principle agree that it as a species

of nonmoral desert that carries no connotations of virtue (Sher, 1987, p. 109).12 Thomas Nagel (1991, p. 113) makes a similar point about the possibility of expressing admiration

of talent and excellence without the use of money.13 This argument is adopted by Andrew Mason (2006, pp. 56-64), who qualifies it in certain ways.

The criticism that follows develops and defends an argument first expounded in Clayton, 2007.14 I consider productivity arguments in the next section.15 For a different argument for the conclusion that respect for agency is compatible with hiring an

individual who is expected to perform less well in the job, see Lippert-Rasmussen (2009) whoargues that it might be respectful of agency to employ an accomplished athlete as a lawyer even ifshe will practise law less well than someone else who possesses only ordinary athleticism.

16 I thank Andrew Mason for this challenge.17 Sher seems to affirm this extreme interpretation of respect for agency when he says that ‘[w]hen

we hire by merit, we abstract from all facts about the applicants except their ability to perform . . .’(1987, p. 121, emphasis added). Exclusionary reasons do not override other reasons we have.Rather they tell us to disregard those reasons. There is a place for exclusionary reasons in practicalreasoning in certain contexts, such as understanding the concept of authority. However, the claimthat respect for agency excludes, rather than overrides, other reasons, appears unmotivated.For clarification of exclusionary reasons, see Raz, 1990, postscript to the second edition; 1986,part one.



18 Other arguments that purport to justify the best-qualified candidate principle by appeal to itsbeneficial consequences are available and I lack the space to consider all of them. For example, adifferent argument of this kind asserts that the aim of higher education to produce academicexcellence is inconsistent with admitting individuals who are less qualified than other applicants.I thank one of the reviewers for this suggestion.

19 One limit is that admitting individuals who are well below the academic standard exhibited byother students might jeopardise effective small group teaching in which students benefit from anexchange of ideas between similarly able peers. I thank a reviewer for this suggestion. Theobservation suggests that even if we depart from the best qualified candidate principle we need toadopt a good enough candidate principle, in which ‘good enough’ may vary depending on theacademic standard of others in a particular university.

20 Previous versions of this paper were presented at the University of Louvain, the University of EastAnglia, Jawaharlal Nehru University, and Aarhus University. I am grateful to the audiences at theseplaces for their comments and questions. I thank, in particular, Sara Connolly, Per Engzell, AxelGosseries, Francis Jackson, Niraja Gopal Jayal, Hussein Kassim, Kasper Lippert-Rasmussen,Andrew Mason, Tom Parr, Fabienne Peter, Shirin Rai, Jaivir Singh, Zofia Stemplowska, VictorTadros, Vidhu Verma, and Andrew Williams. I am also indebted to two anonymous reviewers fortheir helpful suggestions.

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Anderson, E. (2010) The Imperative of Integration (Princeton, NJ, Princeton University Press).Bowen, W. and Bok, D. (2000) The Shape of the River: Long-Term Consequences of Considering

Race in College and University Admissions (Princeton, NJ, Princeton University Press).Brighouse, H. and Swift, A. (2008) Putting Educational Equality in its Place, Education Finance

and Policy, 3, pp. 444–466.Cable, V. and Willetts, D. (2011) Guidance to the Director of Fair Access. Available online at:

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Clayton, M. (2007) The Limits of Equal Opportunity, European Political Science, 6, pp. 412–420.Department for Business, Innovation and Skills (2011) Higher Education: Students at the Heart of

the System (London, HMSO).Dworkin, R. (1986) A Matter of Principle (Oxford, Clarendon Press).Hirschman, A. (1991) The Rhetoric of Reaction: Perversity, Futility, Jeopardy (Cambridge, MA,

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(eds) The Ideal of Equality (Basingstoke, Palgrave Macmillan).Sher, G. (1987) Desert (Princeton, NJ, Princeton University Press).Smith, J. and Naylor, R. (2001) Determinants of Degree Performance, Oxford Bulletin of Econom-

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On Widening Participation in Higher Education Through Positive Discrimination

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