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«Martin Frank University of Bremen Institut for Intercultural and International Studies (InIIS) Paper prepared for the ECPR-workshop on Equality of ...»

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Martin Frank

University of Bremen

Institut for Intercultural and International Studies (InIIS)

Paper prepared for the ECPR-workshop on Equality of Opportunity in Granada, April 2005

Equal Opportunity for Groups

I. Conceptual framework: the place and task of the equality of opportunity principle

There are a number of different ways in thinking abstactly about equality of opportunity.

Some theorists start with reflections about popular usages (Radcliffe Richards 1998). Others

try inductive approaches beginning with considerations about cases of application (Barry 2001). Again others try to define equality of opportunity according to its place and function within a general theory of justice or equality (Gosepath 2004). For the conceptual framework of this essay a rather structural version of the last strategy is used. It tries to conceptualize equality of opportunity through specifying its main tasks, functions and places in a theory of distributive justice. Therefore, the central step of analysis consists in identifying its essential tasks. Or, what is the point of equality of opportunity?

1. Equality of opportunity is part of a theory of distributive justice. Its purpose is the solution of a distributive problem. In contrast to other views (Nozick), a distribution connects a quantity of goods or burdens from a total set of such objects to a number of beneficiaries selected from a total set of applicants or potential claimants. If this is what distribution is essentially about, Nozick´s overall view of holdings which refuses to consider shares (and comparisons) is not a theory of distributive justice.

2. Equality of opportunity is not a distributive criterion (desert, need, entitlement etc.), that is the aspect with regard to which an allocation is organized, but a principle or distributive rule (e.g. proportionality) which determines the kind and amount of an allocation. This is indicated by the use of the term "equality" in equality of opportunity.

3. More specifically, equality of opportunity is a procedural rule. If a distribution is typically a two-step affair, in which first the set of possible claimants and then the actual beneficiaries are defined, the equality of opportunity principle is primarily concerned with the appropriate functioning of the second step.

4. Insofar, equality of opportunity is essentially a procedural rule of a selection process.

Contrary to a common assumption that equality of opportunity speaks in favour of greater inclusiveness of potential first-step claimants, the equality of opportunity principle in the strict sense is conceptionally not able to fulfill this task. The reasons for inclusion in the first place must be independent and substantive reasons (e.g. distributive criteria, democratic citizenship, persons paying relevant contributions or optional application). Thus e.g., the move from hierarchical exclusiveness to general inclusion of all adult members can be motivated by equality, but the equality of democratic citizenship and not by a equal opportunity principle. If in some contexts optional application is the correct first-step rule, there is no way of critizising the voluntary application or non-application of some persons with the help of the equal opportunity principle. To avoid misunderstandings, in another context or from another (e.g. reflective) perspective, the determination of the pool of potential claimants may be seen as the final step of a different allocation. The equality of opportunity principle then aims at equalizing the conditions and chances of all admitted participants. Either the selection process is simply the application of a distributive rule, then equal opportunity consists mainly in equalizing access (nobody is missed or priviledged). Or the selection is reached by some procedure (examination, contest), then equality of opportunity has to secure equal conditions for the participants within the procedure. Therefore, it seem more appropriate so state, that the substantive reasons help to determine the specific content of the relevant opportunity (opportunity of what). Thus, one should not conclude from the fact that there is a close connection between the concept of equality and equal opportunity that both concepts have identical purpose, content and scope.

5. What sort of equality? There is no way to establish in general terms how equality is to be interpreted in equality of opportunity. That is, the principle of equal opportunity as such or pure conceptual reasoning does not tell us how equalization is to be unterstood. At least the specific context, the kind of opportunity and the ultimate benefit are in part necessary to determine the relevant meaning of equality. In some cases it may be rather formal as in having equal rights (access). In other cases it may be rather statistical as in the prevention of structural discrimination. In again other cases it may be rather substantive as in the case of de facto equal chances of specified individuals.1

6. Equality of opportunity as a procedural principle is more concerned with the input (access) and throughput (procedural conditions) than with the output (results). The equalization of results is not an aim of the equal opportunity principle. Some egalitarian theorists see equality of opportunity as a default principle, when the simple equal distribution of goods is not attainable. If the equality of output cannot be reached for various reasons, then at least the equality of access and conditions should be guaranteed. But this way of talking about outputs and results is misleading, since equality of opportunity as the solution of a distributive problem will inevitably yield some results. But its proper results (and objects) are opportunities. And if one defines an opportunity in


terms as a chance of an agent to choose to attain a specified goal without hindrance (see Westen 1997, 160f), then the difference can be stated in terms of opportunities and benefits. An opportunity is a specified and circumscribed chance to reach a benefit if the agent wishes so. If the agent does not use the chance she will not reach the benefit. And even if she takes the opportunity, the attaining of the benefit is in some cases merely possible but not guaranteed.

Thus, it is plausible that it is not a necessary sign of a violation of equal opportunity if different participants to the distributive procedure do not end up with the same amount of benefits. Nevertheless, in some cases different allocative results can be seen as sufficient evidence for unequal opportunities. But this observation or conjecture is not the end of reasoning but simply its starting point. The required argument is complex and has to take the distributive context, the kind of good and procedure, background conditions etc. into consideration as well.

7. The equal opportunity principle is not primarily related to the allocation of goods, but concerned with how to select applicants. Thus, the opportunity is not the good that is to be distributed in the first place, but part of the way how the selection is carried out.

8. The selection of beneficiaries can be reached by applying a distributive principle or by using a procedure. Such a selection procedure is typically characterized by competition. This may sound trivial or analytic, insofar as any competition for a valued but scarce good is in the Some theorists interpret this as different steps rather than as alternatives (see Gosepath 2004, 437ff).

end some kind of selection. But, firstly, to see a distributive procedure as a selection is typically the perspective of the distributive agency, while the claimants of the good view the procedure rather as a competition with others. Secondly, if the distributive task is solely done by the agency, that is without any contribution of the involved claimants,2 the required principle of equalization would best be described as equal treatment or equal concern and respect. Thus, the principle of equality of opportunity should be interpreted as a distributive rule which focusses typically the involved claimants in a competitive procedure. Within a competitive procedure, the selecting agency´s role is confined to supervising the procedure and to identify and choosing the winning or highest ranked participant. The idea is that the procedure should substitute for the selector´s discretion.

The principle of equal opportunity aims at equalizing the terms of a competitive procedure for all participants, either by securing equal starting positions or equal conditions (rules, means, obstacles etc.) within the competition. Therefore, the central point of the principle is to secure the fairness of the selection. The appropriateness of the distribution, on the other hand, has to be determined with reference to the substantive reasons and criteria mentioned above.

Discimination e.g. can be the arbitrary exclusion of claimants or the application of irrelevant or unconnected reasons. Both, the arbitrariness and the irrelevance, can be identified and critizised only with the help of such substantive reasons. Perhaps one can modify the Rawlsian idea and state with some simplification: The appropriate considerations within a fair framework will attain distributive results which can with considerable confidence be suspected as just.

9. Nothing in this restricted conceptual framework rules out that political (parties, parliamentary groups), social (trade unions, churches, organizations, associations) or ethnocultural groups (ethnic and national groups or their organizations) are potential claimants. While the proposed framework holds a restricted view about the place and task of the equality of opportunity principle, it is quite formal and tolerant in relation to the kinds of claimants. There is no (political or legal) reason to suppose that collectives as such cannot be proper subjects of equal opportunity claims.

A good illustration is the case of national elections, a typical competitive selection procedure.

In Germany the elections to the federal parliament are organized through lists of officially In Matt Cavanagh´s distinction of two kinds of competitions – beauty contest and sporting competition – this registrated parties. In order to keep the campaign as fair as possible the registrated parties get the equal opportunity of publicly funded television time for advertising. There are some informal rules restricting the upper limit of campaign expenditures with more or less the same intention. And although there is also an incentive motive in the public funded compensation for election campaigns for successful parties, the measure is normally seen as support especially for smaller parties in order to get the election chances more equal. A similar concern for equal opportunity can be found in the German act that exempts political parties of national minorities from the 5%-quorum in national and state elections.

The political process in parliament is another example of a competitive procedure. The rivalry of government and opposition is not a clear case of equal opportunities. But some parliamentary rules concerning party competition are intended to equalize chances of participation. Regulations of speaking time, representations and chairmanships in commitees, public funded financial support, certain rights to ask the government etc. are related to parliamentary groups (Fraktionen). Furthermore, the participation of so-called socially relevant groups (trade unions, churches, other lobby groups etc.) in consultative bodies of government and administration (e.g. broadcasting board) do raise questions of equal opportunities as well. This is especially significant, if the consultation is equipped with statedelegated competences, even if the consultation itself is not a competitive process.

Similar issues of equal opportunities araise if a market competition between social or religious groups is partially interfered by state-delegated competences.3 In granting organized religious groups (mostly churches) the right to provide confessional religious education within public schools, which is in Germany a constitutional duty, the selected groups will have a considerable advantage with respect to their reproduction compared to non-recognized groups. The recent debates about Islamic education in public schools highlighted the unequal opportunity background.4 The related question, whether the state still should care about equality of opportunity for religious groups, if these are perfectly private associations competing for members in a non-state market, is a question of the limits of equal opportunity.

seems more related to the beauty contest (see Cavanagh 2002, 33f).

Liberties (e.g. to run private schools) and immunities (e.g. tax releases) can probably have the same effects.

The Jehovah´s Witnesses are recently granted this official status in Berlin.

II. Limits

1. As described above, the equality of opportunity principle is only part of a general distributive justice framework and thus also a dependent principle. Some theorists cannot see any general limits of application, neither to specific societal sectors nor to particular tasks (see Schaar 1997, 137; Westen 1997, 166). Others want to confine the application of the principle in at least two ways. The first view proposes a restriction on specific goods, for example posts and positions5 (see Rawls §§ 12-14; Gosepath 2004, 433ff). The rationale can be either that the distribution of these goods is inherently competitive (meritocratic criterion), so that equal opportunity is needed as a secondary principle. Or the distribution become competitive because the good is scarce and highly valued but indivisible (see Gosepath 2004, 436; Rae et al. 1981, 65). Thus, there is need for procedure which is regulated by equality of opportunity.

It need not be a competitive one, but can select claimants by rotation, waiting lists, first come first serve principle, lotteries etc.. The other view proposes a restriction of application to the public domain (see Arneson; and the above example). The clearly private sphere is thought not to be obliged to use the principle of equal opportunity. It is not that there would be no meaningful cases of application, quite the contrary. The background is simply a decision to separate responsibilities, which requires an independent defense. Both views can partly be combined.

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