Law and Social Justice in Higher Education

Crystal Renée Chambers

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317694953
• Edition: 1
• Topic: Education
• Subtopic: Education General

The latest volume in the Core Concepts in Higher Education series explores the complexity of law in higher education and both the limits and opportunities of how law can promote inclusivity and access on campus. Through a historical and legal framework, this volume discusses undergraduate students' histories of inclusion and struggles for social justice in higher education by race, sex, social class, dis/ability, and sexual orientation. Bridging research, theory, and practice, Law and Social Justice in Higher Education encourages future and current higher education and student affairs practitioners to consider how they can collaborate to further a just society.

Special features:

• 
  
  

• Discussion of case law illustrates the reach and limits of law and where higher education professionals can continue to push for social justice.

• 
  
  

• Accessible to non-lawyers, chapters highlight key legal terms and key concepts to guide readers at the beginning of each chapter.

• 
  
  

• End-of-chapter questions provide prompts for discussion and encourage student interactivity.

1
Justice, Social Justice, and Higher Education

Eighteenth century British philosopher John Stuart Mill identifies justice as “a name for certain classes of moral rules which concern the essentials of human well-being more nearly, and are therefore of more absolute obligation, than any other rules for the guidance of life” (1863/2001, p. 59). In this vein social justice concerns the essentials of human well-being not just for individuals, but for society more broadly (Capeheart & Milovanovic, 2007). The purpose of this book, Law and Social Justice in Higher Education, is to explore higher education as a setting wherein social justice, the well-being of society, can be furthered. Higher education is also a space where social injustice occurs, as campus actors, persons socialized within an uneven society, mirror injustices within our larger society.

To garner a better understanding of what social justice is, this chapter glosses through philosophical approaches to justice, and provides foundations for understanding justice in society generally and in higher education particularly. In considering justice as a foundation for law, one can see the limits of legalistic approaches to equity.

To engage with social justice work in the academy, one must contend with biases—against women, people of color, people with disabilities, [poor people], and gay, lesbian, bisexual, transgender, and queer individuals—that are embedded in institutions, either because they are designed with the lives and perspectives of the privileged in mind and/or because their structure still reflects the subordination that formal legislation has outlawed.

(Osei-Kofi, Shahjahan, & Patton, 2010, p. 327)

In this vein, antidiscrimination law is a mere beginning. To bring about social justice in higher education and society, underlying structures must be considered. Understanding and awareness, while insufficient for the scale of change needed, are necessary next steps to restructure higher education and create a socially just society.

Higher education has a key role in advancing the values of justice, democratic life and their wider dissemination in society. This is not a separate, free standing, theoretically disposable role, but a central or core value, part of the enduring concept of education as universal enlightenment, civic development and personal fulfillment.

(Skilbeck, 2000, p. i)

Given the important role of higher education in the advancement of social justice in society, throughout this volume consider both what you know and what you can do.

Key Concepts

• Communism
• Cuban Revolution
• Arab Spring
• Equity
• Fascism
• Great Society
• Inequality
• Justice
• Justice as Fairness
• Justice in Holdings
• Liberty
• Marxism
• Minimum Wage
• Occupy Movement
• Oppression
• Social Justice
• Southern Compromise
• Wage Subsidies
• Welfare

Philosophical Foundations of Social Justice

Conceptions of justice extend from prehistoric to contemporary times. Highly influential in the development of justice in Western civilizations, Greco-Roman and Judaic justice traditions can be surmised from Byzantine Emperor Justinian’s maxim that justice means “to live honestly, to hurt no one, to give every one his due” (Spooner, 1882, ¶8). Yet conflict among individuals is inevitable. The Biblical story of Cain and Abel is set with a world population of four people, all related, and conflict resulted in the murder of one, or 25% of society. With a world population of over seven billion people (United Nations, 2013), conflict over resources, decision making, and power are endemic. Even if all lived honestly and with integrity, inevitably someone will be hurt, physically or otherwise, and the hurt inflicted need not be intentional. Consider the following questions: What does it mean “to give every one his [or her] due? To what are individuals in a society entitled?” In other words, what are individuals in a society “due” as a matter of procedure (as in due process of the law) and as a matter of substance (is there a basic set of provisions a society ought to ensure that every individuals have)? The beauty of the Justinian maxim is in its simplicity, which may work well for a personal mantra (justice as virtue, as articulated in Plato’s Republic). However, as a matter of resolving conflict in a way that people interpret as just, or fundamentally fair, the maxim is lacking.

Justice can be conservative, legalistic, and preserving of the social order, giving society a rhythm and groove that all can follow and understand. Justice can also be reformative, giving effect to factors of fairness and equity and consideration to context. These conceptions are necessarily at odds, and can prove a tricky balancing act.

Take the example of a judge who has a flat rule that if someone’s cell phone rings during session, that individual is subject to a fine of $25. This rule applies to the judge himself, and when his own cell phone rang in court, he held himself to the same fine. It is a simple rule, easy to follow, and without exceptions. Individuals know what to expect when coming into this courtroom and can adjust their behavior accordingly. What if it is the case that an individual, like the judge, forgets to turn off his/her phone, but unlike the judge $25 is a financial hardship? What if the person in the courtroom is a high school student who misses classes in order to work and be able to pay the costs of monitoring during his/her probation? Is justice being served? According to Judge Raymond Voet, social order within a system of justice is of utmost import, even for minor infractions:

If I’ve got someone standing in front of me for something that’s labeled a misdemeanor and they’ve failed to follow through with court orders on that … am I supposed to tell the rest of the world, the rest of the law-abiding citizens, that they’re chumps and fools for having respected the law and respected the court’s orders?

(Shapiro, 2014, ¶38)

Voet ordered a 19-year-old, unemployed high school dropout to jail for three days. Jail time was not for the infraction of catching a smallmouth bass out of season, but for when the defendant failed to pay his $155 fine. It is not the case that this person willfully ignored or failed to pay the fine. Instead, when the defendant paid $175 to a bail bondsman, he was of the belief that the bail fee included his fine, a fact to which Judge Voet attests (Shapiro, 2014). Conservative, legalistic justice was served, but what about opportunities for reformative justice? What could be an alternative approach?

While the social stability of conservative approaches is a beneficial social bedrock, its very nature to preserve the status quo works against change to create a more perfect society (Raphael, 2001). In the above case, the judge could have ordered a continuance to collect the fine at a later date, reduced or dismissed the fine, or a combination of the two. Would these options serve justice? Tensions between conservative and reformative justice implicate two traditions which dominate the way we think about justice: liberty and equity-centered approaches.

Liberty

Liberty-centered approaches to justice follow Lockean tradition. Often dubbed the father of classical liberalism, enlightenment theorist John Locke held that “justice gives every man a title to the product of his honest industry, and the fair acquisitions of his ancestors descended to him” (1689/1993, §42) and “that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions” (1689/1993, §6, emphasis in original). “No one” here is not limited to everyday societal members, but extends to the government itself, in philosophy often generically referred to as “the state.” The context of Locke’s writing is the protest of absolute monarchies and the philosophers who supported them (e.g., Thomas Hobbes and Robert Filmer, who supported the right of kings to act as they pleased, whether justified by divine right or in exchange for the safety of subjects from threats outside of the realm). In contrast, Locke, as a natural rights philosopher, argues that God gives life, health, liberty, and property; therefore, it is by natural right, the divine inheritance of all to own and enjoy what God gives. It is then the purpose of government to protect those rights.

Liberty-centered approaches, especially as articulated in contemporary strains of libertarianism, are process oriented and have little regard for outcomes (Vallentyne, 2012). Policies modeled in the liberty frame protect negative liberty, freedom from governmental intrusion. This would include many of the freedoms seen in the U.S. Bill of Rights, including freedoms from state imposed religious practice, the housing of troops in civilian homes, warrantless search and seizure, as well as freedom from discrimination as provided in the Fourteenth Amendment. Liberty-centered policies and processes, alone, do not attend to whether individuals have basic knowledge, skills, abilities, and opportunities to engage society wholly, reaping the financial and social rewards of societal engagement. Nevertheless, even Locke contends that there is a baseline entitlement to care that should be provided to all members of a society: “charity gives every man a title to so much out of another’s plenty as will keep him from extreme want, where he has no means to subsist otherwise” (1689/1993, §42). This baseline inserts into the Lockean frame an aspect of positive liberty, the freedom to engage, which may require some governmental support.

Contemporary libertarian approaches to liberty-centered justice often overlook this aspect of the Lockean frame. In fact, Robert Nozick, hailed by the Stanford Encyclopedia of Philosophy as the most influential contemporary libertarian scholar, leaves this section of Locke’s Second Treatise out of his statement on justice, Anarchy, State, and Utopia. Instead, Nozick asserts a theory of justice which he bases in Lockean traditions, but solely focuses on the distribution of societal goods and services. He calls this justice in holdings:

What each person gets, he gets from others who give to him in exchange for something, or as a gift. In a free society, diverse persons control different resources, and new holdings arise out of the voluntary exchanges and actions of persons.

(1974, p. 149)

Under this conception, one’s holdings, or ownership rights, are just if

1. 1) the acquisition is just (this usually involves some form of labor); or
2. 2) the transfer is just (this regards gifts).

Nozick adds that the only distributions that are just are acquisitions, transfers, or repayments for a violation of acquisition or transfer. Repeated acquisitions and transfers create relied upon processes whereby people can make exchanges, getting and gifting their way to an undefined utopia—it will be what it is when we get there.

The only limit on acquisitions and transfers, which he calls the Lockean proviso, is that one cannot acquire a monopoly over a good which is needed to sustain life. Ergo, a single government, individual, or corporation could not be allowed to gain a monopoly over things such as clean water and air.

Under Nozick’s logic, even taxation violates his theory of justice in holdings as taxes are neither individually acquired nor willingly gifted. Instead, “taxation of earnings from labor is on par with forced labor” (1974, p. 169). It follows that “the minimal state is the most extensive state that can be justified. Any state more extensive violates people’s rights” (1974, p. 149).

Reflect upon that last statement a moment and consider what things—what goods and services—we would like a state to provide, and why is it that governments collect taxes? In classical philosophy traditions, the purpose of a state is to provide a means for people to do things collectively that they cannot do individually, even with lots of acquisitions and transfers. At a base level, individuals do not do as good a job at self-protection, but use the state’s military for protections from extra-national entities. States also provide police and judiciaries to protect individual interests from others within the state. Even Nozick agrees that people tend to overestimate harms committed against them and underestimate the injustices they inflict.

States provide much more than these security services. In fact, in the United States, the greatest share of expenditures in state budgets is for education. So let us consider the sum total of goods and services provided by the state for its citizens domestically, such as education, health services, transportation, police and corrections, housing, parks, and recreation. What if we were to pay for each of these services not by taxation (income [labor as mentioned above], property, or sales) but by fees? Fees do not violate justice in holdings because they are an exchange one willingly gives to the government because there is a service one needs or wants to make use of. However, are fee-based approaches sufficient and enough to cover expenditures and meet the needs and wants for governmental services? While there are fewer concerns about people who would overinvest in public goods, what about those who underinvest? Consider the story of Vicki Bell. She and her partner watched alongside firefighters as their home burned to the ground. The two failed to pay the $75 annual fee for fire protection. While the couple was aware of the policy, they just did not believe a fire would happen to them (Hibbs, 2011). Is it just for firefighters to watch a house burn? What alternative options could localities consider?

What are the implications of fees for services in education? In higher education in the United States, fee for service in the form of tuition and fees is normal (although internationally this is not a universal practice and many governments underwrite higher education costs). But what about K–12 education? According to the logic undergirding justice as holdings, in areas where there are plenty of families with children, there should be ample demand for education, and parents can just pay for it. In the United States and other countries where elementary and secondary education is compulsory, the government provides educational services free of tuition, although an individual can still elect to pay for private schooling. Yet, in regions (such as some in Southern Asia, South America, and Sub-Saharan Africa) where basic education is not universal and there are lots of families with children, education is often a privilege. In spite of the abundance of school age students, there just is not enough family income to pay for basic schoo...

Table of contents

• Cover
• Title
• Copyright
• Contents
• List of Figures
• Series Editor Introduction
• Preface
• Acknowledgments
• Chapter 1 Justice, Social Justice, and Higher Education
• Chapter 2 Citizenship and Racial Fragmentation: College Access From the Colonial Era to the Antebellum Period
• Chapter 3 Breaking Barriers: From Emancipation to Desegregation
• Chapter 4 Desegregating Historically White Colleges and Universities (HWCUs)
• Chapter 5 Student Activism and Institutional Transformation
• Chapter 6 Affirmative Action, the Desegregation of Higher Education Systems, and the Proliferation of Minority Serving Institutions
• Chapter 7 Women’s Subjugation and Higher Education From the Colonial Era to the Mid-1960s
• Chapter 8 The Sex Revolution and Reminiscences
• Chapter 9 Law and the Advancement of Social Justice in Higher Education: Considering Social Class, Sexual Orientation, Gender Identity, and Dis/ability
• Index