5

EQUALITY OF OPPORTUNITY
Michael Levin

Everyone agrees that opportunities shnuld be equal. There is less

consensus, however, on what equality of opportunity is-what it is
that everyone is entitled to. The main object of this discussion is to
defend a certain account of this elusive notion. I will confine myself,
somewhat artificially, to opportunity for jobs and thence to equality
of job opportunity. The extension of the proposed measures to other
kinds of opportunity will be sufficiently obvious. Indeed, my main
aim is to explicate, not "equal opportunity," but the expression "is
a situation in which opportunity rights are respected equally." My
reason for concentrating on the latter - I discuss the former
ambulando -is the following: Equality of opportunity is important
because everyone accepts it as a normative principle that "all should
have equal opportunity," whether for jobs or for the other good
things in life. That a society interferes with or prevents equal opportunity is a legitimate criticism of it. What needs explicating, then, is
equal opportunity as it occurs in the principle, "Opportunities
should be equal for all." There is great scope for fallacies of equivocation here. As we will see, certain obvious measures of equality of
opportunity - what the man in the street may sometimes mean by
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Martinus Nijhoff Publishing 1981

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MICHAEL LEVIN

equality of opportunity-actually render the moral principle false.

In those senses of equal opportunity, there is not a reason in the
world why opportunities should be equal. I conclude from this that
the normative principle that is the real focus of interest is best understood as requiring that opportunity rights be respected equally, and
it is therefore this latter notion that deserves close scrutiny.
DEFINITION OF OPPORTUNITY

Before attempting to say what equality of opportunity or opportunity rights are, one must say what an opportunity is. I take an opportunity for a job to be, simply, the probability that one will be
offered that job. 1 A competitor can of course get more than one job,
although, in general, he cannot take more than one job. I am focusing
on the acquisition of jobs in the sense of job offers because this is
where questions of opportunity arise; what one does with ajob after
it is offered has little to do with what one's competitive opportunities were. 2 As the rest of my discussion hinges on this probabilistic account of opportunity, I would like to justify it with knock-down
arguments. I can't do that-but only because it seems to me virtually
self-evident. Apart from cohering with ordinary usage (an opportunity for a job is a chance at a job), it is the same criterion that the
Carnegie Commission on the Family adopted. 3 Such agreement
suggests that this account is a fixed point for all parties to the discussion, since the commission's view of equal opportunity differs
radically from the one to be defended here. Now in ordinary speech
"Smith has an opportunity for a given job" sometimes means that
there is merely some chance that Smith will get the job. But we must
pass beyond this. Given a license to idealize, the measure I am proposing of Smith's shot at the job clearly does exist. Anyway, understanding opportunity as merely some chance means that any two
competitors who each have some nonzero chance at a given job have
the same opportunity. This renders absurd the claim (or complaint)
that I and Lee lacocca do not have the same opportunity of becoming president of General Motors. Perhaps in some sense Lee lacocca
and I will turn out to have equal opportunity vis-a-vis the presidency
of GM, but this possibility should not follow trivially from a defini-

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57

tion. Those who complain about unequal opportunities must have a

more precise measure in mind, and I follow them in this regard.

COMPETITION CURVES

Taking opportunity as probability naturally suggests that a competitor's overall employment opportunity is the graph of his or her
probability of getting a job taken against all extant jobs. This graph
is an opportunity profile or, as I will call it, a competition curve. 4
Individual A's competition curve is situated in "competition space,"
whose other inhabitants are the competition curves of A's competitors. And, as this implies, assessing A's relative competitive position
means introducing A's competitors into the picture. After all, A may
have a rather poor shot (say, less than 5: I) at every job, yet still be
the best-off competitor if all the others have, say, less than a 10: I
shot at any job. Since all talk of equal opportunity refers to the relation of A to competitors, we assess A's advantage by comparing A's
curve to those of the competitors.
This apparatus suggests certain definitions. First, we can say that
A is as well situated as B if A has at least as good a chance as B at
any job. 5 A is strictly better situated than B if A's chances of getting
any given job are higher than B'S.6 Finally, we may term A better
situated than B if A is as well situated as B and possessed of a better
chance than B to get at least one job. 7 We may add certain conditions that evidently constrain competition curves themselves. A given
competitor's curve must lie somewhere between certainty of getting
every job and certainty of going unemployed. Competitor A cannot
be more than certain of getting every job, although he or she can be less
than certain of getting any. 8 More crucially, it cannot be more than
certain that a given job will be taken, but it can be less than certain. 9
It can even be certain that it will not be taken-if, for instance, there
are no qualified candidates for it.
The two foregoing conditions are purely formal and relatively a
priori. It seems plausible, however, to add a further, empirical condition: a job in a reasonably healthy economy backed by a diversified
pool of competitors will always or nearly always be offered to someone. Chance expands to fill opportunity, and a job with reasonable

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MICHAEL LEVIN

qualifications will normally be taken. 10 This empirical hypothesis,

even in its weaker ("nearly always") form, has implications that will
bear heavily on the right to equal opportunity, however explicated.
Suppose A and B are after the same job J. Were it not certain that J
would be taken, it might be possible to boost A's chance at J without
lowering B's. But this is impossible if J is certain to be filled: increasing A's chance at J must lower B's chance. If there are other competitors for J, raising A's chance at J must lower someone else's chance
at J or lower everyone else's a little. Even if J is only almost certain
to be taken, A's chances can be raised only a very little without
depressing those of the competitors. Now it is tempting to suppose
that if A's competition curve is raised for J at time t,l1 while B's
remains the same or drops, A and B cannot be said to have equal
opportunity in a morally significant sense both before and after t.
According to the concept of equal opportunity I will be advocating,
this is not so, although it is of course obvious that their competition
curves cannot coincide both before and after t. Nonetheless, it will
turn out that the more "connected" competition curves are, the
harder it is to maintain equality of opportunity (or, as I shall stress,
equal respect for opportunity rights) across changes in single competition curves, and it must always be borne in mind that raising one
competition curve will almost certainly lower another.
THE EQUIPROBABILITY CRITERION

The apparatus of competition curves suggests a very simple definition

or criterion of equality of opportunity: A and B have equal opportunity when they have the same competition curve. Indeed, this may
be what the man in the street means when he talks of equal opportunity. And as a purely explicative or stipulative definition it is unexceptionable. However, it almost certainly cannot be what equal
opportunity means when the term appears in the normative principle
that opportunities <?ught to be equal or the principle that all have a
right to equal opportunity. Understood as the right to the same
chance at the same jobs, the moral principle is absurd, if only because it is so impracticable and unrealizable. Opportunities can never
be equal in this sense; the vicissitudes of life are too great. Some

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59

jobs-for example, modeling designer jeans-call for slimness and

grace, while others-for example, being a bouncer-call for stocky
muscularity. Given human diversity and the diverse requirements
that employers may rationally impose on jobs, no two individuals
can occupy the same (or even isomorphic) competition curves. I
labor the absurdity of this position only because it evidently has its
attractions. One often hears that, for example, I have a legitimate
grievance because, the absence of legal barriers notwithstanding, my
opportunity to become president of GM (or of the United States, or
to buy five thousand shares of GM) is not equal to Lee Iacocca's
because I have a smaller chance than he does at the presidency of GM
(or of the United States, or to buy five thousand shares of GM). The
authors of the Carnegie Report endorse this view; they regard it as
unfair that some children begin life with the prospect of unequal
curves. 12 Anyone who agrees with this view must be equating
equality of opportunity as a norm with occupancy of the same
competition curve.
There is, to be sure, a more flexible version of the equiprobability
criterion. Let the expectation of a job for a competitor be his
chance at it times the value of the job for him (measured as you
please - by money, status, happiness; it can be competitor-relative).
A competitor's expectation is the sum of his expectations over all
jobs. Shall we then say that A and B have equal opportunity if they
have the same expectation? Again, we can always stipulate that this
is what we shall mean, or we can claim with some plausibility that this
is what the man in the street means when he says, of two infants in
the nursery, that they have the same life prospects. This usage has
the further advantage of permitting comparison between competitors
whose curves overlap or crisscross and hence are incomparable with
respect to the three relations introduced earlier. But, again, it now
becomes an entirely open question whether this is what equal opportunity means or can mean in the principle, "There should be equal
opportunity for all." And, speaking realistically, it is just about as
hard to find two individuals with identical expectations as it is to find
two individuals with identical competition curves. The patent facts
of human diversity, the difference between excellence, competence,
and incompetence, and the diversity of job requirements make it unlikely that A's poor chance at one good job (in comparison to B) will

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MICHAEL LEVIN

always be compensated for by a symmetrical exchange of expectations relative to some other job. If equality of opportunity is to be
understood in this sense, we must reject the principle that people
ought to have equal opportunities on the simple grounds that
"ought" implies "can."
This dismissal of equiprobability as a norm may seem much too
quick, and I will return to the matter shortly. But I want to digress
briefly to point out what seems to me the most interesting feature of
the equiprobabilistic criterion of equal opportunity: egalitarian
though it is, this criterion wars with the most primitive and most
egalitarian concept of equality of opportunity, namely, equality of
result. According to this latter concept, A and B have (or had) equal
opportunity when A and B end up in the same position ("sameness
of position" determined as you please).13 Now, while even ardent
egalitarians shy away from endorsing equality of outcome as a criterion for equality construed normatively, they would presumably
endorse both the U.S. Supreme Court's finding that inequality of
result is prima facie evidence of discriminatory inequality of opportunity and Congressional Act 20 U.S.C. 956, which mandates an
"equal opportunity progress assessment" in the results of NEH
fellowship competitions. Thus making outcome equality a test of
equal opportunity lets the egalitarian have his cake and eat it; he can
use sameness of result in judging equality while eschewing it as an
analysis. And he eschews it with good reason. Achieving equality of
result requires a drastic curtailment of freedom; conceived as an
ideal, it denies the diversity of human talents and obliterates the
very distinction between an opportunity and what one makes of it.
But what I want to emphasize is that even the highly egalitarian
"probabilistic" concept of equal opportunity is not compatible with
equality of outcome. (In philosopher's jargon, they are not even
extensionally equivalent.) This is perhaps the most forceful objection
to pure egalitarianism as a norm and argues against taking inequality
of result even as evidencing prior diversity of competition curves.
Very simply, individuals with probabiIistically equal opportunities
can end up in quite different positions. They can have the same expectation, even the same curve, yet scale very different heights of
success. This is a fact about probability. A fair coin can undergo a
run of several consecutive heads or a run of 6 heads and 4 tails. A

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61

tally of 50 heads and 50 tails in 100 trials is rather unlikely; what

is likely is that the number of heads will be within 5 of 50. The same
is true here. Even if A and B have the same chance at any or all jobs,
it can just happen that A ends up employed and B not. If A and B
occupy the same curve for a reasonable stretch of time (the curve itself may undulate), it is rather improbable that they will end up in
precisely the same position. (How far apart they can be expected to
end up is a matter for statisticians.) Equality of outcome, then, is not
even an empirically necessary consequence of equality in initial
chances. How does equality of outcome maintain its tenacious hold
as an evidential criterion for prior equality of expectation and even
as the norm for equality of opportunity? I return to these questions below.
I dismissed identity of competition curve or expectation as a
normative criterion for equality of opportunity on the grounds that
it is too demanding. It entails that virtually no one in this (or any)
society is getting his or her just deserts and that our domestic free
market mechanism, instead of creating a "land of opportunity,"
actually robs people of the competition curves they deserve. Now
some people will find these consequences to be no objection at all.
They will regard them not as reductions, but as the unvarnished truth
and an indictment of a system that systematically denies its participants their right to equal opportunity.14 So it might help to draw
some further consequences from the equiprobability criterion.
According to it, the fairest way of choosing between two competitors for a job, the surest guarantee of equal opportunity, is to flip a
coin. If there are n competitors, the surest guarantee of equal opportunity is a lottery. The ancient Athenians chose their strategoi in
some such way. Various refinements are possible if we are out to
equalize expectation only. Thus we might increase A's chances of
getting a so-so job while decreasing the chances of getting a desirable
one. This would at least create the impression that the competitors
differed more than solo numero. But in the end we would have to
fall back on a lottery-like procedure to ensure everyone the same
life chance.
Today we look askance at the Athenian practice. It isn't really
democratic, since selecting leaders at random severs any connection
between the policies of the leaders and the will of the governed. It

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renders pointless the practice of publicly presenting one's views with

the aim of getting elected. The utility of this procedure, whether for
assigning jobs or governmental positions, is questionable. Won't
things go badly if I, who know nothing about automobiles, am given
the same chance of being president of GM that Lee Iacocca has? Or
if my lower chance at that important job is balanced by a higher
chance at another plum for which I may be unqualified? Unfortunately, utility is out of fashion today (at least where it is important,
as in the maintenance of an army; it tends to be all the rage where it
ought to take a back seat to fairness, as when philosophers are prepared to embrace affirmative action on the-rather dubiousgrounds that it increases productivity). So I'm not sure these
consequences would move committed egalitarians. They might
say that the loss in freedom or utility is "worth it." Thus, under the
banner of expanding employment opportunities for women, the
civilian bosses of the U.S. Defense Department are now assigning
to women tasks previously reserved for men and want to extend this
to combat, even though by all quantifiable standards women do not
do as well as men at these tasks. Evidently the Defense Department
feels that risking a compromise in our ability to defend ourselves is
"worth it." So a more systematic counterattack is needed, a fundamentally different conception of what "equality of starting point"
is. To that I now turn.
ACQUIRING A COMPETITION CURVE

As first-year law students learn, "Property is a bundle of rights." My

fundamental claim is that this aphorism applies to competition
curves: one owns one's competition curve. One has a right to it, to
those probabilities it assigns one for getting various jobs. A competition curve can be property just as your shirt can be property; just as
you are entitled to your shirt, you are entitled to your chances at
various jobs. These remarks, of course, hold only for legitimately
acquired competition curves, just as they hold only for legitimately
acquired goods. A shirt is yours only if you acquired it properly. But
before going into the matter of legitimate acquisition, let me expand
on the "bundle of rights" theme. For you to own a thing, for that

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63

thing to be yours, means that, within limits, you can do with it as

you wish. This means in tum that a legal mechanism exists that prevents people from interfering with your disposal of that object
within those limits. Your owning a shirt comes down to your having
an enforceable right not to be stopped from using that shirt as you
please. And this concept of ownership is clearly broad enough to
cover competition curves. It certainly covers probabilities-it is
possible to own a lottery ticket, that is, to own a l-in-2,000,000
chance at $1,000,000. To say that a competition curve is yours
means that you have a right to expect society to prevent anyone from
forcibly altering your job-getting probabilities and to prevent anyone
from stopping your pursuit or gathering of wages from a job you
have earned.
Once this leading idea of opportunity as property is granted,
equality of opportunity falls into place. As a first approximation,
we can say that two competitors have equal opportunity if both have
come by and maintained their respective competition curves by
legitimate means-if, for example, no legal constraint was imposed on
either competitor. But this is not the most felicitous formulation; as
I mentioned earlier, equality of opportunity as a purely descriptive
notion is reasonably well explicated as identity of competition
curves, and this what people do mean by "equal opportunity" at
least part of the time. It is best, then, to say that "A and B came by
their competition curves legitimately" explicates "the opportunity
rights of A and B have been equally observed," and to understand
the norm of equal opportunity as the norm that competitors should
compete in a situation in which opportunity rights are equally
respected or observed. In precisely the same way, equality of property rights is respected if two individuals set about acquiring the
same rights to objects under the same ground rules and if holdings
are all come by in legitimate ways. And just as equal respect for
property rights is compatible with wide diversity in holdings, so two
individuals can occupy wildly different competition curves even
when opportunity rights are equally respected. We say that Macy's
respects everyone's right to acquire property equally because it sets
the same price on its pate maison for all buyers. Anyone can buy a
pound of pate maison at Macy's for a given price. This does not mean
that everyone will want to buy it or that everyone can afford it.

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Similarly, so long as all competition curves were legitimately acquired

and maintained, B can have nothing to complain about even if A
ends up strictly better situated. We saw that the right to equal opportunity cannot mean the right to the same opportunities. I am suggesting that it means the right to noninterference with legitimate
competition curves. And while admitting the descriptive adequacy of
sameness of competition curve as an explication of equal opportunity, I would stress again the risk of equivocation encouraged by
such usage. It invites one to interpret the principle of equal opportunity as the ideal of a single competition curve (or one of a small
number of equivalence-class-defining curves) for all. However, to
limit verbiage and conform to what is unexceptionable in ordinary
usage, I will sometimes use "right to equal opportunity" as shorthand for "right to participate in a competitive situation in which
opportunity rights are respected equally." This usage will always be
signaled by quotation marks.
I will doubtless be pressed to clarify the difference between legitimate and illegitimate ways of acquiring and maintaining a competition curve. In fact, however, I am under no obligation to supply any
details. Once you agree that there are legitimate as opposed to
illegitimate ways of acquiring a curve, you must agree that competition curves can be owned, that the right to equal opportunity must
be understood as a species of property right, and that "equality
of opportunity" is compatible with wide divergence in probabilities
for attaining jobs. You must even agree that, given the contingencies
of life, "equal opportunity" must eventually scatter competition
curves rather widely. The parallel with property is patent. If there are
legitimate as opposed to illegitimate ways of acquiring property (and
there evidently are), the sheer size of someone's holdings, the sheer
net difference between two holdings, is entirely irrelevant to whether
rights to property have been observed in the amassing. No details are
needed to show the independence of equal respect for property
rights from equality of actual possessions.

Legitimate Acquisition

Nonetheless, let me mention some examples of legitimate ways of

acquiring a competition cu~e, if only by way of making my basic

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"existence claim" more convincing. The most obvious is this: You,

an employer, may decide to give me a job. (What if you decide on
grounds irrelevant to the task at hand, like consanguinity or skin
color? The matter is controversial. In general, free choice here is now
very much in disfavor.) Or, you may publicly announce certain qualifications that I fill. If you change the qualifications, I drop to a lower
curve. Another way I can be entitled to my competition curve is
attaining it by effort. One prerequisite for being a fireman is the
ability to lift ninety pounds. Last year I couldn't do that, so my
chances of being a fireman were nil. Today, through a program of
weight training, I can do it, so my chance of being a fireman (and
hence my competition curve) has risen. I take it to be uncontroversial
that I have legitimately (locally) raised my competition curve. Or
consider this: To become an airplane mechanic I will have to learn
many things about airplanes that I do not now know, so my chance
today of being an airplane mechanic is nil. However, suppose I am
fortunate enough to afford expensive books that contain the necessary information-either because my father left me his vast estate, or
because I invested shrewdly, or because I was lucky enough to find
a thousand dollars in the street. I buy the books, learn what I need to
know, and pass the mechanic's certification test. Have I not legitimately acquired a greater opportunity to work for Pan Am?
There is an old argument against the legitimacy of these latter
ways of improving my competition curve. Suppose your advertisement for an Antarctic expedition calls for persons of strength, intelligence, and courage. I happen to have these traits, so up goes my
curve. But whether I have these qualifications is not something that
is or was in my control. I was born with these traits, or with the
perseverance to acquire them (or with enough money to give myself
free time). The "natural lottery" bestowed these gifts, and it is unfair
that I should benefit from them. 15 Now this argument confuses two
quite separate matters: whether I deserve my traits and whether my
traits entitle me to the job. It is perfectly obvious that I am not
entitled to my courage or to the perseverance that carried me through
a course of weight training. But that is not what is in question; what
is in question is whether I fit your bill for the job. I may not deserve
to fit the bill; but if I do fit it, I merit the job. Do I deserve a penny
(or the thousand dollars) I find in the street? I am certainly not
entitled to find it. I found it because the amoral natural lottery put

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me in the right place at the right time. What is at issue is not whether
I am entitled to be the finder, but, given that I am the finder,
whether I am entitled to keep it. Common sense suggests I am. It is
at any rate a gross non sequitur to conclude, from the premise that I
didn't deserve to find the coin, that I don't deserve the coin despite
the fact that I found it. And it is this fallacy (among others) that the
argument from the natural lottery commits. And the mistake occurs
even when the argument impugns fortuitously acquired competitive
advantages. Not everyone is lucky enough to afford the hefty textbooks I bought, but if this nullifies my right to a better chance at
the mechanic's job, the fact that not everyone is lucky enough to
walk with his or her head down nullifies my right to the penny
I found.
Illegitimate Acquisition

It is also rather easy to come up with illegitimate ways of curve

boosting. I can make you promise to hire me by putting a gun

to your head. I can forge my credentials. A dictator can order
you to hire me. These are all ways of getting to curves I have no
business being on. So with or without a general theory, the only
question to be asked about a competition curve in determining
its conformity to "the right of all to equal opportunity" is clearly:
"Legitimately acquired?"
An interesting side issue i:s the "statute of limitations" that seems
to apply to the acquisition of competition curves and holdings. If I
have a better chance at a job because I bribed an official last week,
my competitive gain should be nullified. But if I have a better chance
at a job today because my great-grandfather bribed an official-that
is, had the bribe not been offered and taken. I would now be on a
lower curve-it is not so clear that my advantage should be nullified. Is this intuition morally or epistemologically based? That is,
is it that we think long~past wrongs don't count, or that the facts
of long-past cases are too hard to determine to use in our moral
calculations? While it would be absurd to say that sheer temporal
location was morally significant, there is the fact that the farther in
the past a wrong occurred, the more my net competitive advantage

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tends to be due to my efforts (and to those of others), and less to the

wrongdoing per se. 16 Still, why not cancel out that part of my
competitive advantage due to my innocent strivings and dock me just
the advantage due to past malfeasance-instead of ignoring the past
wrong altogether, as we usually do? The explanation must, I think,
be epistemological. We would calculate proper competitive situationsin the way indicated if we could, and we don't because we
simply don't know how much a long-past wrong contributed to a
competition curve. This hypothesis would also explain a seemingly
unrelated moral intuition. If my father steals your car and gives it to
me, then even four years later I ought to give it back to you. But if
he sells the car and finances my college education, it is not clear that
I should give you the earning power my college education gave me,
or even the dollar value of the car. Why should the continued existence of the stolen physical object make such a difference? Evidently because keeping track of it is how we identify what was
stolen. In the absence of an enduring coherent physical object, we
don't know how to tell precisely how much I have benefited from
my father's wrongdoing. So the difference in the two "recompense"
cases is to be explained epistemologically.
OPPORTUNITY AS PROPERTY

What may seem odd about assimilating competition curves to property is their abstractness. They are probabilities, not things. But this
distinction, usually so important, is idle here. I have already noted
that ownership is a matter of rights, and rights can pertain to chances
as well as to objects. Indeed, people possess many abstracta. Take an
option to sell a stock. I own an option to sell you a share of GM; if I
decide to sell you the stock, you are obligated to buy it from me at
the agreed-on price. There are legal mechanisms to see that payment
is made. And opportunities are no more abstract than options. True,
stock options cease to exist after their associated dates. In this they
resemble opportunities, which usually have accompanying deadlines,
and are unlike ordinary goods, which tend to outlast transactions
involving them. But this hardly detracts from the status of options or
opportunities as property. I can own or buy ,a physical object that I

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know will disintegrate on a specified date. I own the milk in my

refrigerator even though it will go bad by next month.
Another seeming disanalogy between opportunities and ordinary
goods is that the former are not easily or obviously transferable, as
the latter are. I cannot just give you my 50 percent chance at a certain job. At the very least, my prospective employer must acquiesce
to this transfer and may legitimately refuse if you lack my qualifications. Physical objects, by contrast, can normally be transferred without the consent of third parties. But this disanalogy is again quite
superficial. First, there are probabilities, even opportunities, I can
transfer freely. I can sell or give you my lottery ticket. Second, the
transfer of even ordinary property may require the acquiescence of a
third party. I want to sell you my tractor, but one term of the transfer is that it must reside in your driveway by 5:00. However, the
only way I can get it to you is by driving it across my neighbor's
lawn. So his permission is needed if I am to sell you my tractor. That
a prospective employer must go along with my transfer to you is,
then, consistent with taking my chance at the job he is offering as
something lawn. Finally, as a kind of Hegelian synthesis of these
cases, there can be completely free transfers of job opportunities.
Suppose the casting director of the motion picture Socrates announces that he will draw 100 jurors at random from the first 500
extras who show up at the studio in chitons. Can I not arrive 400th,
appropriately clad, and simply give or sell my position (and my costume) to you? The director and the 499 other actors who made the
cut will be indifferent to the change, and surely those who arrived
late have nothing to complain about. Here, then, is a "dyadic" transfer of a 20 percent job opportunity.
If opportunity is property, then, as I have been stressing, "equality
of opportunity" is compatible with a wide scatter of competition
curves and an even wider scatter of outcomes. We should no more
expect equal outcomes or chances if "equality of opportunity" is
respected than we should expect equal distribution of stock certificates if property rights are equally respected. What is equal amid all
this inequality are the rules for securing competition curves and for
curve hopping from the curves on which individuals are perched
when they come into the world. We can even say that second-order
opportunities are equal in the probabilistic sense: every competitor
has the same opportunity to acquire opportunities. What precisely

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69

the rules should be is a matter of detail, albeit important detail, that

leaves the basic notion of "equal opportunity" sketched here quite
unaffected.
UPGRADING IMPROPERLY DEPRESSED
COMPETITION CURVES

The empirical connectedness of competition curves makes the question of upgrading improperly depressed competition curves as difficult as the rectification of improperly distributed goods. Indeed, the
questions fuse. If you are on a lower curve than you would have been
had you or an ancestor not been wronged, there may seem to be an
obligation-on the part of the state, society, or private employersto raise your curve. But if your curve is connected to mine, helping
you will harm me. And what if I had nothing to do with that past
wrong? Lowering my curve may seem permissible a priori, but the
more my curve looks like property, the less permissible such tampering seems. If a thief steals your car, it would undoubtedly be a
good thing if the state restored it or its value to you. But it cannot
do so by taxing me, an innocent bystander. The state cannot do
so even if I am better off as a result of your loss -even if, for
example, the market value of my car rises. The state can rectify your
holdings only by getting the car or its value from the thief. If he
eludes capture, it seems wrong to assess me for even part of your
loss, as if I were a thief. In the same way it is wrong for the state to
give you the curve you should have had by worsening mine if I had
nothing to do with your plight and if I "benefit" from it only in the
sense of occupying a (relatively) higher curve than I would have had
in a more perfect world. Since so many rationales for preferential
hiring on the basis of sex or race focus on restoring what are claimed
to be rightful competition curves at the cost of lowering those of
innocent bystanders, preferential hiring is to that extent wrong, and
wrong for a simple reason: it violates property rights. (Private employers may decide to rectify what they take to be improperly low
competition curves on their own - by offering jobs on a racial or
sexual basis. I can see no objection to that, so long as the state maintains a consistent hands-off policy and allows other employers to
discriminate invidiously.)

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The empirical connectedness of competition curves calls into equal

question the various utilitarian arguments for preferential treatment.
These now seem no better than utilitarian arguments for redistributing ordinary property. Suppose that, on the whole, everyone would
be better off if my car were given to a pauper. Our natural reaction
is: "So what?" If the car is mine, nobody can take it away from me
and give it to someone else. But precisely the same holds for competition curves conceived as property. Suppose everyone would be
better off if female graduate students were given higher competition
curves. (I have often been assured that this is so, although I have
never been offered a cogent reason.) Our natural reaction again is,
or should be, "So what?" You can no more take my chances from me
and give them to someone else because that would be a good thing
than you can do so with my car. (l should add that the consequentialist arguments usually given for racial or sexual favoritism strike
me as uniformly preposterous-for example, that it will increase
women's self-respect. The damage done to the morale of white males,
the placement of incompetents, and the abandonment of merit
as an ideal are all highly negative consequences of favoritism.)

THE ARGUMENTS OF EMPIRICAL EGALITARIANS

Many people will find outrageous the conclusion that "equality of

opportunity" can coexist with special privilege and gross inequality.
But what is remarkable is that many of the same people will accept
the main outlines of the argument I have drawn. No one, after all,
would deny a competitor's right to a legitimately acquired chance.
Why, then, take umbrage at privilege and inequality? I have met a
similar difficulty in connection with Nozick's entitlement theory of
holdings. Virtually all egalitarians balk at the idea that people can
rightfully end up with very different holdings. Yet-except for strict
egalitarians who do take equality of outcome!7 as the test of the
goodness of a set of holdings-many egalitarians concede Nozick's
basic point that you are entitled to what you legitimately acquire.
What then is the disagreement about? The answer, I believe, is that
although these issues are often presented as a collision of normative
principles, and often perceived as such by their antagonists, the dis-

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71

pute really revolves around an empirical disagreement. Egalitarians

assume that talents are pretty much uniformly distributed throughout the human race. Having assumed this, egalitarians can accept
everything I have said but conclude that any inequality in result or
competitive position must be due to chicanery of some sort. They
concede that you can in principle have "equality of opportunity"
and inequality of outcome, but they believe that in fact this can
never happen. Similarly, "empirical egalitarians" believe that, as a
matter of empirical fact, the only explanation there can be for the
vast differences in wealth found in a free market economy is force
or fraud. So it is beside the point to argue moral principles with this
-sort of egalitarians; their rejection of divergent competition curves as
illicit arises from the empirical belief that good competition curves
can be acquired only by means that all parties to the dispute would
repudiate. Perhaps their argument strikes a responsive chord in you:
everyone is entitled to opportunities acquired through natural
ability, effort, the free choices of others, and luck. But what outcome should we expect if (discounting inherited wealth) people were
to start from scratch to secure competitive positions? Since everyone
has about the same talents and will power, and local perturbations
caused by human caprice and luck are random, competition curves
will end up pretty much alike. But this is not what our vaunted free
market presents. Some have good jobs, others not; some - through
poverty, ignorance and so on-do not even have such abilities as that
of deferring gratification and hence have no chance at all at good
jobs. So either those with more attractive competition curves or their
predecessors must have done something wrong.
There are, to be sure, all kinds of egalitarians. Those impressed by
the natural lottery argument might concede the nonrandom distribution of talents but insist that these differences ought not to count.
They would consider discrimination based on talent as an illegitimate
way of changing competition curves. And there are, again, egalitarians who take equality (or some related pattern) as their summum
bonum and do not worry how we get there. But my sense of the
debate is that most egalitarians-those who find inequality cause for
moral qualms-are so because they are empirical egalitarians. (Their
empirical egalitarianism is usually bound up with an almost unlimited
environmentalism.) If this is so, philosophers must not ignore this

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version of egalitarianism, for the differences between it and the negative free-marketeering of Nozick, myself, and others will persist long
after agreement is reached on basic moral principles. Indeed, the
fierceness plus inconclusiveness of the debate suggests that some sort
of inexplicit empirical premise, like the one I have broached, is really
what is at stake. 1S Indeed, I sense a similar and similarly buried
premise beneath the socialist claim that private property is theft. It
is easy to take this declaration as dissent from the idea that anyone
can have a right to ownership of anything. This interpretation frames
the debate between socialists and their opponents as one about
rights. But conversations with socialists and perusals of their writings
suggest that this is the wrong way to view the debate. For when
asked to justify their rejection of private property, 19 to explain why
all contemporary holdings are illegitimate, socialists tend to fall back
on lurid tales of robber barons and sweatshops. Under pressure, it
becomes clear that socialists don't think private property is intrinsically theft at all; only that certain property, property acquired
in the wrong way, is. And one must follow them here: one should
not acquire holdings the way a cattle rustler does. The real source of
the socialists' condemnation of contemporary holdings is the (to me
curious) empirical belief that all private property, or all greater than
average pools of private property, must have been acquired wrongly
and that indeed resort to wrongful methods is inevitable in a free
market situation. They hold, in effect, that each of us has a robber
baron in our past. As with many an egalitarian, it would be a mistake
to argue with many a socialist on normative grounds. The issue is
really empirical.
No social policy flows from the empirical egalitarians' dilemma
that extant competition curves were illegitimately acquired. They
may recommend selectively raising too low curves (too low because
lower than average), possibly on the basis of membership in some
group. This cannot be done without lowering the curves of some
others, but this is all right since those others got where they are
illicitly. Empirical egalitarians will not be worried by the problem
that nobody knows how extant competition curves should be
rearranged, since according to their theory they do know how they
should have come out - namely, more or less identically - and they
need not worry about the particulars of the past. On the other hand,

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73

they may be worried about the harmful consequences of artificially

transforming competition space; while agreeing that women deserve
a greater chance at military leadership than conspiring males have
permitted them, empirical egalitarians may be reluctant to insist
on preferential advancement of female military officers because the
Soviets have not been so cooperative as to proceed similarly. Presum ably , righting wrongs must take a back seat to protecting the
Western world. Such egalitarians might suggest reparations for those
illegitimately deprived of higher curves, leaving opportunities themselves to those who can best take them. Or, finally, they might hold
that the total cost to society of making all those reparations is too
great (if, say, it reduces the GNP by over 10 percent); their course
then is to endorse the status quo, but with a guilty conscience.
WHO IS RIG HT?

Are empirical egalitarians right? What strikes one first about their
view is how completely it conflicts with everything the social and
biological sciences teach and with everything we observe about people. Anyone who has participated in sports knows that athletes are
born, not made. Training can improve an athlete's skills, but no
amount of training can endow the would-be outside receiver with the
necessary muscles and coordination. Some children are smarter than
others, and are so from their earliest days. Empirical egalitarians will
dismiss these as misleading appearances and try to explain them
away. But their explanations (in terms, for example, of social conditioning or role models) tend to be less plausible than the simple
assumption of natural human diversity. However nice it would be if
empirical egalitarians were right,20 in point of fact an enormous
disparity in competition curves is just what we should expect were
"equal opportunity" rigorously observed.
Empirical egalitarians may grant even this but draw the line when
differences in competitive position follow group lines. Surely, they
say, abilities are randomly distributed among population pools, if
not among individuals. So, if a population is disproportionately
represented in some activity, it is a very reasonable empirical assumption that there was chicanery somewhere along the line. Once again,

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the dispute between egalitarians and those-not so willing to contest

current competition curves turns out not to be normative at all. At
bottom, it is a debate about biological and historical fact. Indeed,
their disagreement proves so intractable precisely because at least
one party confusedly perceives it as a disagreement about moral
principle. While no one doubts that group-directed mischief has
occurred, and while there can be disagreement about the norms by
which to judge and alter the upshot of that mischief, the main
disagreement is simply about how talents are distributed across
groups and how group competition curves would have looked had
there been no chicanery.
Well, what are the facts? Admittedly, it is difficult to assess the
empirical egalitarians' assumption. Group differences, a matter that
invariably stirs passions, is a subject best left to the experts. It is
sometimes said that the issue is undecidable or meaningless, but I
know of no successful arguments to this effect. It is sometimes said
that the egalitarians' premise ought not to be questioned, but such an
attitude goes against the whole tenor of post-Enlightenment
Western civilization. 21 It seems to this admitted nonexpert that,
meant in its full generality -and if not so meant, it is empty -empirical egalitarianism is absurd. Certain "natural kinds" in the human
community have certain opportunity-related traits to a degree that
is more or less than "average." There are no world-class Oriental
basketball players because Orientals tend to be short. They tend to
prefer sports like gymnastics for which height is not required. Similarly, it would seem that the simplest explanation for the dominance
of blacks in basketball involves physiological factors determining the
ability to run, jump, and pivot. The same remarks hold for psycho. logical, as well as physiological and psychophysiological, abilities. All
pertinent evidence, for example, supports the common-sense belief
that men and women differ in kinds of motivation and "cognitive
style." Women are apparently more verbal than men (not only do
women score higher on verbal tests later in life, but female infants
respond earlier and more readily than male infants to the human
voice). This sufficiently explains-without mention of illicit action
on anyone's part-the overall differences between male and female
competition curves with regard to activities involving personal relations. The fact that women seem less at home with spatial abstractions would explain in a sim,ilar way other overall differences.

EQUALITY OF OPPORTUNITY

75

I stress again that the particulars of these differences should be left

to the experts. What must be emphasized in its turn, however, is that
before attributing differences in competitive position to hypothetical
injustices-and certainly before endorsing policies designed to rectify
these postulated injustices - one must verify by detailed empirical
investigation that the competition curves in question really did arise
from injustice. It is sometimes hard to tell, and always very sticky to
ask, about innate abilities of groups. But it is worse, and gratuitous,
to place individuals on lower competition curves before being very
sure they got their current ones through individual or ancestral
wrongdoing. 22

NOTES
1. Competitor A's opportunity for job J, then, can be represented as the
two-place function p(A,J). If there are n competitors AI, ... ,An and m jobs
II, ... , I m, the entire range of opportunities is represented by the mn terms
peA i>h), i = 1, ... ,n; k = 1, ... ,m. One can represent A's chance at I at time
t by a time-indexed function pt(A,J).
2. If you live in Alaska and have no money for travel, does the fact that you
have a l-in-3 chance of being offered a job in Florida mean you have a l-in-3
chance at that job? I am assuming you do, or at least ignoring complications
such cases might raise.
3. Richard DeLone, Small Futures: Children, Inequality and the Limits of
Liberal Reform (New York: Harcourt Brace Jovanovich, 1979), written for the
Carnegie Council on Children; see pp. 3-4.
4. A's compeition curve is{p(A,h): k = 1, ... ,m}. Since p is a function
(although usually not 1 - 1), the result is indeed a graph, easily visualized if one
adopts some ordering for the J k as the "x-axis." While p has only mn arguments, there are obviously devices for filling the curve between the mn points
p(A,h)

5. I.e., V.kp(A,Ik) ~ p(B,Jk).

6. I.e., Vkp(A,Jk) > p(B,Ik)'
7. I.e., A is as well situated as Band 3kp(A,h) > p(B,Jk)'
8. I.e., 0';;;; "i:,kP(A,h) .;;;; m. The function p'(A,h), which expresses the
probability that A will end up employed, should satisfy the inequality 0 .;;;;
"i:,kP'(A,h) .;;;; 1 and indeed should permit conditionalizations of the form
P'P(A .Jr)(A,Jk), k
r. But as noted, it is p rather than p' that concerns us.
9. I.e., 0 .;;;; "i:,i p(Ai,I) .;;;; 1.
10. "i:,iP(Ai,J) = 1, or, more weakly,"i:,i p(Ai,I) ~ l. For convenience I will say
"I will be taken," although, as noted, it is always possible that J will be turned
down by all those to whom it is offered.

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11. A's competition curve is raised at k at t if pt(A,Jk) < p/ (A,Jk) and

V r[r =1= k ::> pt(A,Jr ) = p/(A,Jr)l. Lowering is defined similarly. A's curve is
raised for J at t if it is raised at k at t and J = h.
12. DeLone, Small Futures, p. 4. See also note 14, below.
13. Once again, one is free to stipulate that "equality of opportunity" shall
mean or be measured by equality of result. But, as before, this simply leaves the
principle, "Opportunities should be equal" open to dispute.
14. See, for example, Thomas Nagel, "Inequality," in Mortal Questions (Cambridge: Cambridge University Press, 1979). The Carnegie Council Report is very
explicit on this point. On page 4 DeLone notes that a child with a slightly lower
than average IQ is eight times less likely to get into college than a child with a
slightly higher than average IQ, and he writes: "The odds against certain children
deny them the equal social and economic opportunity in which most Americans
believe." Here is a good example as well of slipping from equality of opportunity
descriptively understood as identity of competition curve to equality of opportunity understood as it figures in the norm "in which most people believe."
What perhaps scandalizes DeLone is that seemingly small differences in IQ can
make such big differences in competition curve. But this is like being shocked
that only a few tenths of a second separated Eric Heiden's gold-medal time in the
1,000-meter speed-skating event in the Olympics from those of unremembered
also-rans. When all competitors are going all out, very small differences in ability
will make great differences in result.
15. See John Rawls, A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971). Rawls applies this argument to holdings, but I suspect he
would apply it to competition curves as well.
16. lowe this idea to George Sher.
17. Or some other "pattern" of holdings.
18. Many practical claims advanced by philosophers as challenges to ordinary
morality are really not proposed revisions in moral thinking at all, but ordinary
morality combined with unusual empirical assumptions. Thus James Rachels and
Peter Singer have argued in various places that each of us in the affluent West is
obligated to set aside a good deal of income to aid those in poorer parts of the
world. Superficially, this seems to conflict with our ordinary idea of whom we
should help (we should devote most of our energies to our immediate family,
some to local causes we find important, and so on), but at bottom it does not.
Most people admit an obligation to help strangers in distress, if they can really
help. They don't see this as requiring the donation of 25 percent of their income
to Biafra because (a) they are not sure how to turn 25 percent of their income
into food for Biafrans, (b) they are dubious about ponderous bureaucracies that
promise to manage the transfer for them, and (c) they believe that investing,
say, $10,000 in municipal bonds does more good for everyone on net than
sending a $10,000 check to the mayor of a Biafran village. The issue is not the
moral question, "Should we help strangers in distress?" but the factual question,
"Is it really possible for me to aid starving Biafrans on net?"

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19. Remember that the socialist, who advocates public ownership (or "control") of the means of production, cannot consistently repudiate all property
rights. There are many "consequentialist" arguments for socialism that seem to
have nothing to do with empirical questions about how in fact free market holdings arise, but I believe that careful scrutiny of such arguments-for example,
the alleged monopolistic consequences of an unrestrained free market - invariably turns up the robber baron premise.
20. Science fiction is rife with disturbing egalitarian dystopias.
21. See N. Block and G. Dworkin, "IQ, Heritability and Inequality," in their
anthology, The lQ Controversy (New York: Random House, 1976), and my
"Science with Taboos: An Inherent Contradiction," in E. Sagarin, ed., Taboos
in Criminology (Beverly Hills, Calif.: Sage Publications, 1980), pp. 23-36; also
my "Reply" in that volume, pp. 125-27.
22. I have left unaddressed the more bizarre ways of rearranging competition
space. The Supreme Court of the State of New York declared the practice of
asking applicants for police positions for prison records to be in violation of the
Fourteenth Amendment. It held that since the black crime rate is higher than
the white crime rate, this criterion would discriminate against blacks. Presumably we have here a very strong form of egalitarianism: anything that skews
competition curves must be ignored. I know of no argument against this view,
since it is virtually a self-parody. Similarly, the army has helped women meet
various job requirements by lowering the requirements; for example, they no
longer have to demonstrate an ability to pull themselves up by their arms or to
fight hand-to-hand with men. One can be sure that the leaders of the Red Army
are eagerly looking forward to combat with soldiers so delicately handled.