The Case Against Affirmative Action
Louis P. Pojman
In this essay I set forth nine arguments against Strong Affirmative Action, which I define as preferential treatment, discriminating in favor of members of under-represented groups, which have been treated unjustly in the past, against innocent people. I distinguish this from Weak Affirmative Action, which simply seeks to promote equal opportunity to the goods and offices of a society. I do not argue against this policy. I argue against Strong Affirmative Action, attempting to show that two wrongs don’t make a right. This form of Affirmative Action, as it is applied against White males, is both racist and sexist.
Hardly a week goes by but that the subject of Affirmative Action does not come up. Whether in the form of preferential hiring, non-traditional casting, quotas, "goals and time tables," minority scholarships, race-norming, reverse discrimination, or employment of members of underutilized groups, the issue confronts us as a terribly perplexing problem. Affirmative action was one of the issues that divided the Democratic and Republican parties during the 1996 election, the Democrats supporting it ("Mend it don’t end it") and the Republicans opposing it ("affirmative action is reverse racism"). During the last general election (November 7, 1996) California voters by a 55% to 45% vote approved Proposition 209 (called the "California Civil Rights Initiative") which made it illegal to discriminate on the basis of race or gender, hence ending Affirmative Action in public institutions in California. The Supreme Court recently refused to rule on the appeal, thus leaving it to the individual states to decide how they will deal with this issue. Both sides have reorganized for a renewed battle. At the same time, the European Union’s High Court of Justice in Luxembourg has recently approved Affirmative Action programs giving women preferential treatment in the 15 European Union countries (Nov. 11, 1997).
Let us agree that despite the evidences of a booming economy, the poor are suffering grievously, with children being born into desperate material and psychological poverty, for whom the ideal of "equal opportunity for all" is a cruel joke. Many feel that the federal government has abandoned its guarantee to provide the minimum necessities for each American, so that the pace of this tragedy that seems to be worsening daily. Add to this, the fact that in our country African-Americans have a legacy of slavery and unjust discrimination to contend with, and we have the makings of an inferno, and, perhaps, in the worse case scenario, the downfall of a nation. What is the answer to our national problem? Is it increased welfare? more job training? more support for education? required licencing of parents to have children? negative income tax? more support for families or for mothers with small children? All of these have merit and should be part of the national debate. But, my thesis is, however tragic the situation may be (and we may disagree on just how tragic it is), one policy is not a legitimate part of the solution and that is reverse, unjust discrimination against young white males. Strong Affirmative Action, which implicitly advocates reverse discrimination, while, no doubt, well intentioned, is morally heinous, asserting, by implication, that two wrongs make a right.
The Two Wrongs Make a Right Thesis goes like this: Because some Whites once enslaved some Blacks, the decedents of those slaves, some of whom may now enjoy high incomes and social status, have a right to opportunities and offices over better qualified Whites who had nothing to do with either slavery or the oppression of Blacks, and who may even have suffered hardship comparable to that of poor Blacks. In addition, Strong Affirmative Action creates a new Hierarchy of the Oppressed: Blacks get primary preferential treatment, women second, Native Americans third, Hispanics fourth, Handicapped fifth, and Asians sixth and so on until White males, no matter how needy or well qualified, must accept the left-overs. Naturally, combinations of oppressed classes (e.g., a one eyed, Black Hispanic female) trump all single classifications. The equal protection clause of the Fourteenth Amendment becomes reinterpreted as "Equal protection for all equals, but some equals are more equal than others."
Before analyzing arguments concerning Affirmative Action, I must define my terms.
By Weak Affirmative Action I mean policies that will increase the opportunities of disadvantaged people to attain social goods and offices. It includes the dismantling of segregated institutions, widespread advertisement to groups not previously represented in certain privileged positions, special scholarships for the disadvantaged classes (e.g., the poor, regardless of race or gender), and even using diversity or under representation of groups or history of past discrimination as a tie breaker when candidates for these goods and offices are relatively equal. The goal of Weak Affirmative Action is equal opportunity to compete, not equal results. We seek to provide each citizen regardless of race or gender a fair chance to the most favored positions in society. There is no more moral requirement to guarantee that 12% of professors are Black than to guarantee that 85% of the players in the National Basketball Association are White.
By Strong Affirmative Action I mean preferential treatment on the basis of race, ethnicity or gender (or some other morally irrelevant criterion), discriminating in favor of under-represented groups against over-represented groups, aiming at roughly equal results. Strong Affirmative Action is reverse discrimination. It says it is right to do wrong to correct a wrong. It is the policy that is currently being promoted under the name of Affirmative Action, so it I will use that term or "AA" for short throughout this essay to stand for this version of affirmative action. I will not argue for or against the principle of Weak Affirmative Action. Indeed, I think it has some moral weight. Strong Affirmative Action has none, or so I will argue.
In what follows I will mainly concentrate on Affirmative Action policies with regard to race, but the arguments can be extended to cover ethnicity and gender. I think that if a case for Affirmative Action can be made it will be as a corrective to racial oppression. I will examine nine arguments regarding Affirmative Action. The first six will be negative, attempting to show that the best arguments for Affirmative Action fail. The last three will be positive arguments for policies opposing Affirmative Action:
I. A Critique of Arguments For Affirmative Action
1. The Need for Role Models
This argument is straightforward. We all have need of role models, and it helps to know that others like us can be successful. We learn and are encouraged to strive for excellence by emulating our heroes and "our kind of people" who have succeeded.
In the first place it’s not clear that role models of one’s own racial or sexual type are necessary (let alone sufficient) for success. One of my heroes was Gandhi, an Indian Hindu, another was my grade school science teacher, Miss DeVoe, and another Martin Luther King, behind whom I marched in Civil Rights demonstrations. More important than having role models of one’s "own type" is having genuinely good people, of whatever race or gender, to emulate. Our common humanity should be a sufficient basis for us to see the possibility of success in people of virtue and merit. To yield to the demand, however tempting it may be to do so, for "role-models-just-like-us" is to treat people like means not ends. It is to elevate morally irrelevant particularity over relevant traits, such as ability and integrity. We don’t need people exactly like us to find inspiration. As Steve Allen once quipped, "If I had to follow a role model exactly, I would have become a nun."
Furthermore, even if it is of some help to people with low self-esteem to gain encouragement from seeing others of their particular kind in successful positions, it is doubtful whether this need is a sufficient reason to justify preferential hiring or reverse discrimination. What good is a role model who is inferior to other professors or physicians or business personnel? The best way to create role models is not to promote people because of race or gender but because they are the best qualified for the job. It is the violation of this fact that is largely responsible for the widespread whisper in the medical field (at least in New York) "Never go to a Black physician under 40" (referring to the fact that AA has affected the medical system during the past twenty years). Fight the feeling how I will, I cannot help wondering on seeing a Black or woman in a position or honor, "Is she in this position because she merits it or because of Affirmative Action?" Where Affirmative Action is the policy, the "figment of pigment" creates a stigma of undeservedness, whether or not it is deserved.1
Finally, entertain this thought experiment. Suppose we discovered that tall handsome white males somehow made the best role models for the most people, especially poor people. Suppose even large numbers of minority people somehow found inspiration in their sight. Would we be justified in hiring tall handsome white males over better qualified short Hispanic women, who were deemed less role-model worthy?2
2. The Compensation Argument
The argument goes like this: blacks have been wronged and severely harmed by whites. Therefore white society should compensate blacks for the injury caused them. Reverse discrimination in terms of preferential hiring, contracts, and scholarships is a fitting way to compensate for the past wrongs.3
This argument actually involves a distorted notion of compensation. Normally, we think of compensation as owed by a specific person A to another person B whom A has wronged in a specific way C. For example, if I have stolen your car and used it for a period of time to make business profits that would have gone to you, it is not enough that I return your car. I must pay you an amount reflecting your loss and my ability to pay. If I have only made $5,000 and only have $10,000 in assets, it would not be possible for you to collect $20,000 in damages - even though that is the amount of loss you have incurred.
Sometimes compensation is extended to groups of people who have been unjustly harmed by the greater society. For example, the United States government has compensated the Japanese-Americans who were interred during the Second World War, and the West German government has paid reparations to the survivors of Nazi concentration camps. But here a specific people have been identified who were wronged in an identifiable way by the government of the nation in question.
On the face of it, demands by blacks for compensation does not fit the usual pattern. Perhaps Southern States with Jim Crow laws could be accused of unjustly harming blacks, but it is hard to see that the United States government was involved in doing so. Much of the harm done to blacks was the result of private discrimination, not state action. So the Germany/US analogy doesn’t hold. Furthermore, it is not clear that all blacks were harmed in the same way or whether some were unjustly harmed or harmed more than poor whites and others (e.g. short people). Finally, even if identifiable blacks were harmed by identifiable social practices, it is not clear that most forms of Affirmative Action are appropriate to restore the situation. The usual practice of a financial payment seems more appropriate than giving a high level job to someone unqualified or only minimally qualified, who, speculatively, might have been better qualified had he not been subject to racial discrimination. If John is the star tailback of our college team with a promising professional future, and I accidentally (but culpably) drive my pick-up truck over his legs, and so cripple him, John may be due compensation, but he is not due the tailback spot on the football team.
Still, there may be something intuitively compelling about compensating members of an oppressed group who are minimally qualified. Suppose that the Hatfields and the McCoys are enemy clans and some youths from the Hatfields go over and steal diamonds and gold from the McCoys, distributing it within the Hatfield economy. Even though we do not know which Hatfield youths did the stealing, we would want to restore the wealth, as far as possible, to the McCoys. One way might be to tax the Hatfields, but another might be to give preferential treatment in terms of scholarships and training programs and hiring to the McCoys.
This is perhaps the strongest argument for Affirmative Action, and it may well justify some weaker versions of AA, but it is doubtful whether it is sufficient to justify strong versions with quotas and goals and time tables in skilled positions. There are at least two reasons for this. First, we have no way of knowing how many people of any given group would have achieved some given level of competence had the world been different. This is especially relevant if my objections to the Equal Results Argument (#3 above) are correct. Secondly, the normal criterion of competence is a strong prima facie consideration when the most important positions are at stake. There are three reasons for this: (1) treating people according to their merits respects them as persons, as ends in themselves, rather than as means to social ends (if we believe that individuals possess a dignity which deserves to be respected, then we ought to treat that individual on the basis of his or her merits, not as a mere instrument for social policy); (2) society has given people expectations that if they attain certain levels of excellence they will be awarded appropriately and (3) filling the most important positions with the best qualified is the best way to insure efficiency in job-related areas and in society in general. These reasons are not absolutes. They can be overridden.4 But there is a strong presumption in their favor so that a burden of proof rests with those who would override them.
At this point we get into the problem of whether innocent non-blacks should have to pay a penalty in terms of preferential hiring of blacks. We turn to that argument.
3. The Argument for Compensation from Those who Innocently Benefitted from Past Injustice
Young White males as innocent beneficiaries of unjust discrimination of blacks and women have no grounds for complaint when society seeks to level the tilted field. They may be innocent of oppressing blacks, other minorities, and women, but they have unjustly benefitted from that oppression or discrimination. So it is perfectly proper that less qualified women and blacks be hired before them.
The operative principle is: He who knowingly and willingly benefits from a wrong must help pay for the wrong. Judith Jarvis Thomson puts it this way. "Many [white males] have been direct beneficiaries of policies which have down-graded blacks and women...and even those who did not directly benefit...had, at any rate, the advantage in the competition which comes of the confidence in one's full membership [in the community], and of one's right being recognized as a matter of course."5 That is, white males obtain advantages in self respect and self-confidence deriving from a racist/sexist system which denies these to blacks and women.
Here is my response to this argument: As I noted in the previous section, compensation is normally individual and specific. If A harms B regarding x, B has a right to compensation from A in regards to x. If A steals B's car and wrecks it, A has an obligation to compensate B for the stolen car, but A's son has no obligation to compensate B. Furthermore, if A dies or disappears, B has no moral right to claim that society compensate him for the stolen car - though if he has insurance, he can make such a claim to the insurance company. Sometimes a wrong cannot be compensated, and we just have to make the best of an imperfect world.
Suppose my parents, divining that I would grow up to have an unsurpassable desire to be a basketball player, bought an expensive growth hormone for me. Unfortunately, a neighbor stole it and gave it to little Michael, who gained the extra 13 inches - my 13 inches - and shot up to an enviable 6 feet 6 inches. Michael, better known as Michael Jordan, would have been a runt like me but for his luck. As it is he profited from the injustice, and excelled in basketball, as I would have done had I had my proper dose.
Do I have a right to the millions of dollars that Jordan made as a professional basketball player - the unjustly innocent beneficiary of my growth hormone? I have a right to something from the neighbor who stole the hormone, and it might be kind of Jordan to give me free tickets to the Bull’s basketball games, and perhaps I should be remembered in his will. As far as I can see, however, he does not owe me anything, either legally or morally.
Suppose further that Michael Jordan and I are in high school together and we are both qualified to play basketball, only he is far better than I. Do I deserve to start in his position because I would have been as good as he is had someone not cheated me as a child? Again, I think not. But if being the lucky beneficiary of wrong-doing does not entail that Jordan (or the coach) owes me anything in regards to basketball, why should it be a reason to engage in preferential hiring in academic positions or highly coveted jobs? If minimal qualifications are not adequate to override excellence in basketball, even when the minimality is a consequence of wrongdoing, why should they be adequate in other areas?
4. The Diversity Argument
It is important that we learn to live in a pluralistic world, learning to get along with those of other races and cultures, so we should have fully integrated schools and employment situations. We live in a shrinking world and need to appreciate each other’s culture and specific way of looking at life. Diversity is an important symbol and educative device. As Barbara Bergmann argues, "Diversity has positive value in many situations, but in some its value is crucial. To give an obvious example, a racially diverse community needs a racially diverse police force if the police are to gain the trust of all parts of the community and if one part of the community is not to feel dominated by the other part."6 Thus preferential treatment is warranted to perform this role in society.
Once again, there is some truth in these concerns. Diversity of ideas challenges us to scrutinize our own values and beliefs, and diverse customs have aesthetic and moral value, helping us to appreciate the novelty and beauty in life. Diversity may expand our moral horizons. But, again, while we can admit the value of diversity, it hardly seems adequate to override the moral requirement to treat each person with equal respect. Diversity for diversity's sake is moral promiscuity, since it obfuscates rational distinctions, undermines treating individuals as ends, treating them, instead as mere means (to the goals of social engineering), and, furthermore, unless those hired are highly qualified, the diversity factor threatens to become a fetish. At least at the higher levels of business and the professions, competence far outweighs considerations of diversity. I do not care whether the group of surgeons operating on me reflect racial or gender balance, but I do care that they are highly qualified. Neither do most football or basketball fans care whether their team reflects ethnic and gender diversity, but whether they are the best combination of players available. And likewise with airplane pilots, military leaders, business executives, and, may I say it, teachers and university professors.. One need not be a white male to teach, let alone, appreciate Shakespeare, nor need one be Black to teach, let alone appreciate, Alice Walker’s Color Purple.
There may be times when diversity may seem to be "crucial" to the well-being of a diverse community, such as a diverse police force. Suppose that White policemen overreact to young Black males and the latter group distrust White policemen. Hiring more less qualified Black policemen, who would relate better to these youth, may have overall utilitarian value. But such a move, while we might make it as a lesser evil, could have serious consequences in allowing the demographic prejudices to dictate social policy. A better strategy would be to hire the best police, that is, those who can perform in disciplined, intelligent manner, regardless of their race. A White policeman must be able to arrest a Black burglar, even as a Black policeman must be able to arrest a White rapist. The quality of the police man or woman, not their race or gender is what counts.
On the other hand, if the Black policeman, though lacking formal skills of the White policeman, really is able to do a better job in the Black community, this might constitute a case of merit, not Affirmative Action. This is similar to the legitimacy of hiring Chinese men to act as undercover agents in Chinatown.7
5. The Equal Results Argument
Some philosophers and social scientists hold that human nature is roughly identical, so that on a fair playing field the same proportion from every race and ethnic group and both genders would attain to the highest positions in every area of endeavor. It would follow that any inequality of results itself is evidence for inequality of opportunity.
History is important when considering governmental rules like Test 21 because low scores by blacks can be traced in large measure to the legacy of slavery and racism: segregation, poor schooling, exclusion from trade unions, malnutrition, and poverty have all played their roles. Unless one assumes that blacks are naturally less able to pass the test, the conclusion must be that the results are themselves socially and legally constructed, not a mere given for which law and society can claim no responsibility.
The conclusion seems to be that genuine equality eventually requires equal results. Obviously blacks have been treated unequally throughout US history, and just as obviously the economic and psychological effects of that inequality linger to this day, showing up in lower income and poorer performance in school and on tests than whites achieve. Since we have no reason to believe that differences in performance can be explained by factors other than history, equal results are a good benchmark by which to measure progress made toward genuine equality (John Arthur, The Unfinished Constitution (Belmont, CA: Wadsworth Publishing Co, 1990), p. 238.).
Sterling Harwood seems to support a similar theory when he writes, "When will [AA] end? When will affirmative action stop compensating blacks? As soon as the unfair advantage is gone, affirmative action will stop. The elimination of the unfair advantage can be determined by showing that the percentage of blacks hired and admitted at least roughly equaled the percentage of blacks in the population."8
Albert G. Mosley develops a similar argument. "Establishing Blacks’ presence at a level commensurate with their proportion in the relevant labor market need not be seen as an attempt to actualize some valid prediction. Rather, given the impossibility of determining what level of representation Blacks would have achieved were it not for racial discrimination, the assumption of proportional representation is the only fair assumption to make. This is not to argue that Blacks should be maintained in such positions, but their contrived exclusion merits equally contrived rectification."9 The result of a just society should be equal numbers in proportion to each group in the work force.
However, Arthur, Mosley, and Harwood fail even to consider studies that suggest that there are innate differences between races, sexes, and groups. If there are genetic differences in intelligence and temperament within families, why should we not expect such differences between racial groups and the two genders? Why should the evidence for this be completely discounted?
Mosley’s reasoning is as follows: Since we don’t know for certain whether groups proportionately differ in talent, we should presume that they are equal in every respect. So we should presume that if we were living in a just society, there would be roughly proportionate representation in every field (e.g., equal representation of doctors, lawyers, professors, carpenters, air-plane pilots, basketball players, and criminals). Hence, it is only fair - productive of justice - to aim at proportionate representation in these fields.
But the logic is flawed. Under a situation of ignorance we should not presume equality or inequality of representation - but conclude that we don’t know what the results would be in a just society. Ignorance doesn’t favor equal group representation any more than it favors unequal group representation. It is neutral between them.
Consider this analogy. Suppose that you were the owner of a National Basketball Association team. Suppose that I and other frustrated White basketball players bring a class-action suit against you and all the other owners, claiming that you have subtly and systematically discriminate against White and Asian basketball players who make up less than 20% of the NBA players. When you respond to our charges that you and your owners are just responding to individual merit, we respond that the discrimination is a function of deep prejudice against White athletes, especially basketball players, who are discouraged in every way from competing on fair terms with Blacks who dominate the NBA. You would probably wish that the matter of unequal results was not brought up in the first place, but once it has been, would you not be in your rights to defend yourself by producing evidence, showing that average physiological differences exist between Blacks and Whites and Asians, so that we should not presume unjust discrimination?
Similarly, the proponents of the doctrine of equal results open the door to a debate over average ability in ethnic, racial and gender groups. The proponent of equal or fair opportunity would just as soon down play this feature in favor of judging people as individuals by their merit (hard though that may be). But if the proponent of AA insists on the Equal Results Thesis, we are obliged to examine the Equal Abilities Thesis, on which it is based - the thesis that various ethnic and gender groups all have the same distribution of talent on the relevant characteristic. With regard to cognitive skills we must consult the best evidence we have on average group differences. We need to compare average IQ scores, SAT scores, standard personality testing, success in academic and professional areas and the like. If the evidence shows that group differences are nonexistent, the AA proponent may win, but if the evidence turns out to be against the Equal Abilities Thesis, the AA proponent loses. Consider for a start that the average white and Asian scores 195 points higher on the SAT tests and that on virtually all IQ tests for the past seven or eight decades the average Black IQ is 85 as opposed to the average White and Asian IQ at over 100, or that males and females differ significantly on cognitive ability tests. Females out perform males in reading comprehension, perceptual speed, and associative memory (ratios of 1.4 to 2.2), but males typically outnumbering females among high scoring individuals in mathematics, science and social science (by a ratio of 7.0 in the top 1% of overall mathematics distribution).10 The results of average GRE, LSAT, MCAT scores show similar pattens or significant average racial difference. The Black scholar Glenn Loury notes, "In 1990 black high school seniors from families with annual incomes of $70,000 or more scored an average of 855 on the SAT, compared with average scores of 855 and 879 respectively for Asian-American and white seniors whose families had incomes between $10,000 and 20,000 per year."11 Note, we are speaking about statistical averages. There are brilliant and retarded people in each group.
When such statistics are discussed many people feel uncomfortable and want to drop the subject. Perhaps these statistics are misleading, but then we need to look carefully at the total evidence. The proponent of equal opportunity would urges us to get beyond racial and gender criteria in assignment of offices and opportunities and treat each person, not as an average white or Black or female or male, but as a person judge on his or her own merits.
Furthermore, on the logic of Mosley and company, we should take aggressive AA against Asians and Jews since they are over-represented in science, technology, and medicine, and we should presume that Asians and Jews are no more talented than average. So that each group receives its fair share, we should ensure that 12% of the philosophers in the United States are Black, reduce the percentage of Jews from an estimated 15% to 2% - firing about 1,300 Jewish philosophers. The fact that Asians are producing 50% of Ph Ds in science and math in this country and blacks less than 1% clearly shows, on this reasoning, that we are providing special secret advantages to Asians. By this logic, we should reduce the quota of Blacks in the NBA to 12%.
But why does society have to enter into this results game in the first place? Why do we have to decide whether all difference is environmental or genetic? Perhaps we should simply admit that we lack sufficient evidence to pronounce on these issues with any certainty - but if so, should we not be more modest in insisting on equal results? Here's a thought experiment. Take two families of different racial groups, Green and Blue. The Greens decide to have only two children, to spend all their resources on them, and to give them the best education. The two Green kids respond well and end up with achievement test scores in the 99th percentile. The Blues fail to practice family planning and have 15 children. They can only afford 2 children, but lack of ability or whatever prevents them from keeping their family size down. Now they need help for their large family. Why does society have to step in and help them? Society did not force them to have 15 children. Suppose that the achievement test scores of the 15 children fall below the 25th percentile. They cannot compete with the Greens. But now enters AA. It says that it is society's fault that the Blue children are not as able as the Greens and that the Greens must pay extra taxes to enable the Blues to compete. No restraints are put on the Blues regarding family size. This seems unfair to the Greens. Should the Green children be made to bear responsibility for the consequences of the Blues' voluntary behavior?12
My point is simply that philosophers like Arthur, Harwood, and Mosley need to cast their net wider and recognize that demographics and childbearing and -rearing practices are crucial factors in achievement. People have to take some responsibility for their actions. The equal results argument (or axiom) misses a greater part of the picture.
6. The "No One Deserves His Talents" Argument Against Meritocracy
According to this argument, the competent do not deserve their intelligence, their superior character, their industriousness, or their discipline; therefore they have no right to the best positions in society; therefore it is not unjust to give these positions to less (but still minimally) qualified blacks and women. In one form this argument holds that since no one deserves anything, society may use any criteria it pleases to distribute goods. The criterion most often designated is social utility. Versions of this argument are found in the writings of John Arthur, John Rawls, Bernard Boxill, Michael Kinsley, Ronald Dworkin, and Richard Wasserstrom. Rawls writes, "No one deserves his place in the distribution of native endowments, any more than one deserves one's initial starting place in society. The assertion that a man deserves the superior character that enables him to make the effort to cultivate his abilities is equally problematic; for his character depends in large part upon fortunate family and social circumstances for which he can claim no credit. The notion of desert seems not to apply to these cases."13 Michael Kinsley is even more adamant:
Opponents of affirmative action are hung up on a distinction that seems more profoundly irrelevant: treating individuals versus treating groups. What is the moral difference between dispensing favors to people on their "merits" as individuals and passing out society's benefits on the basis of group identification?
Group identifications like race and sex are, of course, immutable. They have nothing to do with a person's moral worth. But the same is true of most of what comes under the label "merit." The tools you need for getting ahead in a meritocratic society - not all of them but most: talent, education, instilled cultural values such as ambition - are distributed just as arbitrarily as skin color. They are fate. The notion that people somehow "deserve" the advantages of these characteristics in a way they don't "deserve" the advantage of their race is powerful, but illogical.14
It will help to put the argument in outline form.
1. Society may award jobs and positions as it sees fit as long as individuals have no claim to these positions.
2. To have a claim to something means that one has earned it or deserves it.
3. But no one has earned or deserves his intelligence, talent, education or cultural values which produce superior qualifications.
4. If a person does not deserve what produces something, he does not deserve its products.
5. Therefore better qualified people do not deserve their qualifications.
6. Therefore, society may override their qualifications in awarding jobs and positions as it sees fit (for social utility or to compensate for previous wrongs).
So it is permissible if a minimally qualified black or woman is admitted to law or medical school ahead of a white male with excellent credentials or if a less qualified person from an "underutilized" group gets a professorship ahead of an eminently better qualified white male. Sufficiency and underutilization together outweigh excellence.
My response: Premise 4 is false. To see this, reflect that just because I do not deserve the money that I have been given as a gift (for instance) does not mean that I am not entitled to what I get with that money. If you and I both get a gift of $100 and I bury mine in the sand for 5 years while you invest yours wisely and double its value at the end of five years, I cannot complain that you should split the increase 50/50 since neither of us deserved the original gift. If we accept the notion of responsibility at all, we must hold that persons deserve the fruits of their labor and conscious choices. Of course, we might want to distinguish moral from legal desert and argue that, morally speaking, effort is more important than outcome, whereas, legally speaking, outcome may be more important. Nevertheless, there are good reasons in terms of efficiency, motivation, and rough justice for holding a strong prima facie principle of giving scarce high positions to those most competent.
The attack on moral desert is perhaps the most radical move that egalitarians like Rawls and company have made against meritocracy, and the ramifications of their attack are far reaching. Here are some implications: Since I do not deserve my two good eyes or two good kidneys, the social engineers may take one of each from me to give to those needing an eye or a kidney - even if they have damaged their organs by their own voluntary actions; Since no one deserves anything, we do not deserve pay for our labors or praise for a job well done or first prize in the race we win. The notion of moral responsibility vanishes in a system of levelling.
But there is no good reason to accept the argument against desert. We do act freely and, as such, we are responsible for our actions. We deserve the fruits of our labor, reward for our noble feats and punishment for our misbehavior.15
We have considered seven arguments for Affirmative Action and have found no compelling case for Strong AA and only one plausible argument (a version of the compensation argument) for Weak AA. We must now turn to the arguments against Affirmative Action to see whether they fare any better.
II. Arguments Against Affirmative Action
7. Affirmative Action Requires Discrimination Against a Different Group
Weak Affirmative Action weakly discriminates against new minorities, mostly innocent young white males, and Strong Affirmative Action strongly discriminates against these new minorities. As I argued in I. 4, this discrimination is unwarranted, since, even if some compensation to blacks were indicated, it would be unfair to make innocent white males bear the whole brunt of the payments. Recently I had this experience. I knew a brilliant philosopher, with outstanding publications in first level journals, who was having difficulty getting a tenure-track position. For the first time in my life I offered to make a phone call on his behalf to a university to which he had applied. When I got the Chair of the Search Committee, he offered that the committee was under instructions from the Administration to hire a woman or a Black. They had one of each on their short-list, so they weren’t even considering the applications of White males. At my urging he retrieved my friend’s file, and said, "This fellow looks far superior to the two candidates we’re interviewing, but there’s nothing I can do about it." Cases like this come to my attention regularly. In fact, it is poor white youth who become the new pariahs on the job market. The children of the wealthy have no trouble getting into the best private grammar schools and, on the basis of superior early education, into the best universities, graduate schools, managerial and professional positions. Affirmative Action simply shifts injustice, setting Blacks, Hispanics, Native Americans, Asians and women against young white males, especially ethnic and poor white males. It makes no more sense to discriminate in favor of a rich Black or female who had the opportunity of the best family and education available against a poor White, than it does to discriminate in favor of White males against Blacks or women. It does little to rectify the goal of providing equal opportunity to all.
At the end of his essay supporting Affirmative Action, Albert Mosley points out that other groups besides Blacks have been benefitted by Affirmative Action, "women, the disabled, the elderly."16 He’s correct in including the elderly, for through powerful lobbies, such as the AARP, they do get special benefits including medicare and may sue on the grounds of being discriminated against due to Agism, prejudice against older people. Might this not be a reason to reconsider Affirmative Action? Consider the sheer rough percentages of those who qualify for Affirmative Action programs. GROUP PERCENTAGE
1. Women 52%
2. Blacks 12%
3. Hispanics 9%
4. Native Americans 2%
5. Asians 4%
6. Physically Disabled 10%
7. Welfare recipients 6%
8. The Elderly 25% (est. Adults over 60)
9. Italians (in New York City) 3%
The elderly can sue on the grounds of Agism, receive entitlements in terms of Social Security and Medicare, and have the AARP lobbying on their behalf. Recently, it has been proposed that homosexuals be included in oppressed groups deserving Affirmative Action.17 At Northeastern University in 1996 the faculty governing body voted to grant homosexuals Affirmative Action status at this university. How many more percentage points would this add? Several authors have advocated putting all poor people on the list.18 And if we took handicaps seriously would we not add ugly people, obese people, and, especially, short people, for which there is ample evidence of discrimination? How about left-handed people (about 9% of the population) - they can’t play short-stop of third base and have to put up with a right-handedly biased world. The only group not the list is that of White males. Are they, especially healthy, middle class young White males, becoming the new "oppressed class"? Should we add them to our list?
Respect for persons entails that we treat each person as an end in him or herself, not simply as a means to be used for social purposes. What is wrong about discrimination against Blacks is that it fails to treat Black people as individuals, judging them instead by their skin color not their merit. What is wrong about discrimination against women is that it fails to treat them as individuals, judging them by their gender, not their merit. What is equally wrong about Affirmative Action is that it fails to treat White males with dignity as individuals, judging them by both their race and gender, instead of their merit. Present Affirmative Action is both racist and sexist.
8. Affirmative Action Encourages Mediocrity and Incompetence
A few years ago Jesse Jackson joined protesters at Harvard Law School in demanding that the Law School faculty hire black women. Jackson dismissed Dean of the Law School, Robert C. Clark's standard of choosing the best qualified person for the job as "Cultural anemia." "We cannot just define who is qualified in the most narrow vertical academic terms," he said. "Most people in the world are yellow, brown, black, poor, non-Christian and don't speak English, and they can't wait for some white males with archaic rules to appraise them."19 It might be noted that if Jackson is correct about the depth of cultural decadence at Harvard, blacks might be well advised to form and support their own more vital law schools and leave places like Harvard to their archaism.
At several universities, the administration has forced departments to hire members of minorities even when far superior candidates were available. Shortly after obtaining my Ph D in the late 70's I was mistakenly identified as a black philosopher (I had a civil rights record and was once a black studies major) and was flown to a major university, only to be rejected for a more qualified candidate when it discovered that I was white.
Stories of the bad effects of Affirmative Action abound. The philosopher Sidney Hook writes that "At one Ivy League university, representatives of the Regional HEW demanded an explanation of why there were no women or minority students in the Graduate Department of Religious Studies. They were told that a reading of knowledge of Hebrew and Greek was presupposed. Whereupon the representatives of HEW advised orally: 'Then end those old fashioned programs that require irrelevant languages. And start up programs on relevant things which minority group students can study without learning languages.'"20
Nicholas Capaldi notes that the staff of HEW itself was one-half women, three-fifths members of minorities, and one-half black - a clear case of racial over representation.
In 1972 officials at Stanford University discovered a proposal for the government to monitor curriculum in higher education: the "Summary Statement...Sex Discrimination Proposed HEW Regulation to Effectuate Title IX of the Education Amendment of 1972" to "establish and use internal procedure for reviewing curricula, designed both to ensure that they do not reflect discrimination on the basis of sex and to resolve complaints concerning allegations of such discrimination, pursuant to procedural standards to be prescribed by the Director of the office of Civil Rights." Fortunately, Secretary of HEW Caspar Weinberger discovered the intrusion and assured Stanford University that he would never approve of it.21
Government programs of enforced preferential treatment tend to appeal to the lowest possible common denominator. Witness the 1974 HEW Revised Order No. 14 on Affirmative Action expectations for preferential hiring: "Neither minorities nor female employees should be required to possess higher qualifications than those of the lowest qualified incumbents."
Furthermore, no test may be given to candidates unless it is proved to be relevant to the job.
No standard or criteria which have, by intent or effect, worked to exclude women or minorities as a class can be utilized, unless the institution can demonstrate the necessity of such standard to the performance of the job in question.
Whenever a validity study is called for...the user should include ... an investigation of suitable alternative selection procedures and suitable alternative methods of using the selection procedure which have as little adverse impact as possible .... Whenever the user is shown an alternative selection procedure with evidence of less adverse impact and substantial evidence of validity for the same job in similar circumstances, the user should investigate it to determine the appropriateness of using or validating it in accord with these guidelines.22
At the same time Americans are wondering why standards in our country are falling and the Japanese and Koreans are getting ahead. Affirmative Action with its twin idols, Sufficiency and Diversity, is the enemy of excellence. I will develop this thought in the next section.
9. An Argument from the Principle of Merit
Traditionally, we have believed that the highest positions in society should be awarded to those who are best qualified. The Koran states that "A ruler who appoints any man to an office, when there is in his dominion another man better qualified for it, sins against God and against the State". Rewarding excellence both seems just to the individuals in the competition and makes for efficiency. Note that one of the most successful acts of racial integration, the Brooklyn Dodger’s recruitment of Jackie Robinson in the late 40s, was done in just this way, according to merit. If Robinson had been brought into the major league as a mediocre player or had batted .200 he would have been scorned and sent back to the minors where he belonged.
As I mentioned earlier, merit is not an absolute value, but there is are strong prima facie reasons for awarding positions on its basis, and it should enjoy a weighty presumption in our social practices.
In a celebrated article Ronald Dworkin says that "Bakke had no case" because society did not owe Bakke anything. That may be, but then why does it owe anyone anything? Dworkin puts the matter in Utility terms, but if that is the case, society may owe Bakke a place at the University of California/Davis, for it seems a reasonable rule-utilitarian principle that achievement should be rewarded in society. We generally want the best to have the best positions, the best qualified candidate to win the political office, the most brilliant and competent scientist to be chosen for the most challenging research project, the best qualified pilots to become commercial pilots, only the best soldiers to become generals. Only when little is at stake do we weaken the standards and content ourselves with sufficiency (rather than excellence) - there are plenty of jobs where "sufficiency" rather than excellence is required. Perhaps we have even come to feel that medicine or law or university professorships are so routine that they can be performed by minimally qualified people - in which case AA has a place.
Note! no one is calling for quotas or proportional representation of underutilized groups in the National Basketball Association where blacks make up 80% of the players. But, surely, if merit and merit alone reigns in sports, should it not be valued at least as much in education and industry?
The case for meritocracy has two pillars. One pillar is a deontological argument which holds that we ought to treat people as ends and not merely means. By giving people what they deserve as individuals, rather than as members of groups we show respect for their inherent worth. If you and I take a test, and you get 95% of the answers correct and I only get 50% correct, it would be unfair to you to give both of us the same grade, say an A, and even more unfair to give me a higher grade A+ than your B+. Although I have heard cases where teachers have been instructed to "race norm" in grading (giving Blacks and Hispanics higher grades for the same numerical scores), most proponents of Affirmative Action stop short of advocating such a practice. But, I would ask them, what’s really the difference between taking the overall average of a White and a Black and "race norming" it? If teachers shouldn’t do it, why should administrators?
The second pillar for meritocracy is utilitarian. In the end, we will be better off by honoring excellence. We want the best leaders, teachers, policemen, physicians, generals, lawyers, and airplane pilots that we can possibly produce in society. So our program should be to promote equal opportunity, as much as is feasible in a free market economy, and reward people according to their individual merit.
Let me sum up my discussion. The goal of the Civil Rights movement and of moral people everywhere has been justice for all, including equal opportunity. The question is: how best to get there. Civil Rights legislation removed the legal barriers, opening the way towards equal opportunity, but it did not tackle the deeper causes that produce differential results. Weak Affirmative Action aims at encouraging minorities in striving for the highest positions without unduly jeopardizing the rights of majorities. The problem of Weak Affirmative Action is that it easily slides into Strong Affirmative Action where quotas, "goals and time-tables," "equal results,"--in a word--reverse discrimination prevails and forced onto groups, thus promoting mediocrity, inefficiency, and resentment. Furthermore, Affirmative Action aims at the higher levels of society - universities and skilled jobs, but if we want to improve our society, the best way to do it is to concentrate on families, children, early education, and the like, so all are prepared to avail themselves of opportunity. Affirmative Action, on the one hand, is too much, too soon and on the other hand, too little, too late.
In addition to the arguments I have offered, Affirmative Action, rather than unite people of good will in the common cause of justice, tends to balkanize us into segregation-thinking. Professor Derrick Bell of Harvard Law School recently said that the African American Supreme Court Judge Clarence Thomas, in his opposition to Affirmative Action "doesn’t think black."23 Does Bell really claim that there is a standard and proper "Black" (and presumably a White) way of thinking? Ideologues like Bell, whether radical Blacks like himself, or Nazis who advocate "think Aryan," both represent the same thing: cynicism about rational debate, the very antithesis of the quest for impartial truth and justice. People who have believe in reason to resolve our differences will oppose this kind of balkanization of the races.
Martin Luther said that humanity is like a man mounting a horse who always tends to fall off on the other side of the horse. This seems to be the case with Affirmative Action. Attempting to redress the discriminatory iniquities of our history, our well-intentioned social engineers now engage in new forms of discriminatory iniquity and thereby think that they have successfully mounted the horse of racial harmony. They have only fallen off on the other side of the issue.24
1. This argument is related to The Need of Breaking Stereotypes Argument. Society may simply need to know that there are talented Blacks and women, so that it does not automatically assign them lesser respect or status. The right response is that hiring less qualified people is neither fair to those better qualified who are passed over nor an effective way to remove inaccurate stereotypes. If high competence is accepted as the criterion for hiring, then it is unjust to override it for purposes of social engineering. Furthermore, if Blacks and women are known to hold high positions simply because of reverse discrimination, they will still lack the respect due to those of their rank.
2. Stephen Kershnar suggested this point to me.
3. For a good discussion of this argument see Boxill, “The Morality of Reparation” in Social Theory and Practice 2:1 (1972) and Mosley, op. cit., pp. 23-27.
4. Merit sometimes may be justifiably overridden by need, as when parents choose to spend extra earnings on special education for their disabled child rather than for their gifted child. Sometimes we may override merit for utilitarian purposes. E.g., suppose you are the best short stop on a baseball team but are also the best catcher. You=d rather play short stop, but the manager decides to put you at catcher because, while your friend can do an adequate job at short, no one else is adequate at catcher. It=s permissible for you to be assigned the job of catcher. Probably, some expression of appreciation would be due you.
5. Judith Jarvis Thomson, “Preferential Hiring” in Marshall Cohen, Thomas Nagel and Thomas Scanlon eds, Equality and Preferential Treatment (Princeton: Princeton University Press, 1977).
6. Barbara Bergmann, In Defense of Affirmative Action (New York: Basic Books, 1996), pp. 9-10.
7. Stephen Kershnar pointed this out in written comments (Dec 22, 1997).
8. Sterling Harwood, “The Justice of affirmative Action” in Yearger Hudson and C. Peden, eds., The Bill of Rights” Bicentennial Reflections (Lewiston, NY: Edwin Mellen).
9. Albert G. Mosley and Nicholas Capaldi, “Affirmative Action; Social Justice or Unfair Preference?” (Rowman and Littlefield, 1996), p. 28. Bernard Boxill Blacks and Social Justice (Rowman & Littlefield, 1984), whom Mosley quotes in his article, also defends this position.
10. Larry Hedges and Amy Nowell, “Sex Differences in Mental Test Scores, Variability, and Numbers of High-Scoring Individuals” Science vol. 269 (July 1995), pp. 41-45. See Phillip E. Vernon=s summary of the literature in Intelligence: Heredity and Environment (New York, 1979), Yves Christen, “Sex Differences in the Human Brain” in Nicholas Davidson (ed.) Gender Sanity (Rowman & Littlefield, 1989) and T. Bouchard, et. al., “Sources of Human Psychological Differences: The Minnesota Studies of twins Reared Apart” Science vol 250 (1990); Richard Herrnstein and Charles Murray, The Bell Curve (New York: Free Press, 1994); and Michael E. Levin, Why Race Matters (Westport, CT: Praeger, 1997) for support for the thesis of racial and gender differences. Although these matters are controversial, the evidence for average differences must be carefully considered before we accept the equal outcomes thesis. Arianna Stassinopoulos sums up a large body of research on gender difference this way:
Men are less average than women. They are the geniuses and the idiots, the giants and the dwarfs. The greater variability of men cannot possibly be explained on environmental grounds, as a simple difference in averages might be. If women are not found in the top positions in society in the same proportions as men because, as Women=s Lib claims, they are treated as mentally inferior to men and become so, why are there so many more male idiots? Why are the remedial classes in schools full of boys? Why are the inmates of hospitals for the mentally subnormal predominantly male? The reason why Women=s Lib does not mention this conspicuous difference between the sexes is that it can only be explained on purely biological grounds (The Female Woman (Davis-Poynter, 1973) p. 28f).
11. Glen Loury, “Getting Involved” An Appeal for Greater Community Participation in the Public Schools,” Washington Post Education Review (August 6, 1995). Stephan and Abigail Thernstrom in America in Black and White (1997) offer the same statistics and add:
Today=s typical twelfth-grader scores no better on a reading test than the average white in the eight grade, and is 5.4 years behind the typical white in science...blacks with a parent who graduated from college on average score below whites whose parents never finished high school. In a 1992 test of adult literacy and numeracy, the typical black college graduate performed only a shade better than the typical white high school graduate with no college, and far below the white college dropout” (P. 19).
12. Iddo Landau, “Are You Entitled to Affirmative Action” (Applied Philosophy vol. 11 (Winter/Spring 1997) and Richard Kahlenberg AClass Not Race” (The New Republic April 3, 1995) advocate affirmative action on the basis of class or low income, not race or gender. I think this is an improvement, depending on how it is implemented, but it ignores family responsibility.
13. John Rawls, A Theory of Justice (Harvard University Press, 1971), p. 104; See Bernard Boxill, AThe Morality of Preferential Hiring” Philosophy and Public Affairs vol 7:3 (1983) part of which is reprinted above.
14. Michael Kinsley, “Equal Lack of Opportunity” Harper=s (June 1983).
15. My point does not depend on any particular theory of free will. One is reminded of Nozick=s point that Rawls= professed aim of articulating the enormous worth of each individual seems contrary to the reductive determinism in his natural lottery argument.
16. Albert Mosley, “Affirmative Action: Pro” in Albert Mosley and Nicholas Capaldi, Affirmative Action: Social Justice or Unfair Preference? (Rowman & Littlefield, 1997), p. 53.
17. J. Sartorelli, AThe Nature of Affirmative Action, Anti-Gay Oppression, and the Alleviation of Enduring Harm” International Journal of Applied Philosophy (vol. 11. No. 2, 1997).
18. For example, Iddo Landau, “Are You Entitled to Affirmative Action?” International Journal of Applied Philosophy (vol. 11. No. 2, 1997) and Richard Kahlenberg AClass Not Race” (The New Republic April 3, 1995).
19. New York Times May 10, 1990.
20. Quoted by Nicholas Capaldi, Out of Order: Affirmative Action and the Crisis of Doctrinaire Liberalism (Buffalo, NY: Prometheus, 1985).
21. Capaldi, Op. Cit., p. 95.
22. Capaldi, Ibid. Michael Levin begins his book Feminism and Freedom (Transaction Press: 1987) with federal court case Beckman v NYFD in which 88 women who failed the New York City Fire Department's entrance exam in 1977 filed a class-action sex discrimination suit. The court found that the phys-ical strength component of the test was not job-related, and thus a violation of Title VII of the Civil Rights Act, and ordered the city to hire 49 of the women. It further ordered the fire department to devise a special, less-demanding physi-cal strength exam for women. Following EEOC guidelines if the passing rate for women is less than 80% that of the passing rate of men, the test is presumed invalid.
23. See L. Gordon Crovitz, “Borking Begins, but Mudballs Bounce Off Judge Thomas” The Wall Street Journal, July 17, 1991. Have you noticed the irony in this mudslinging at Judge Thomas? The same blacks and whites who oppose Judge Thomas, as not the best person for the job, are themselves the strongest proponents of Affirmative Action, which embraces the tenet that minimally qualified Blacks and women should get jobs over White males.
24. Some of the material in this essay appeared in “The Moral Status of Affirmative Action” Public Affairs Quarterly, vol 6:2 (1992). I have not had space to consider all the objections to my position or discuss the issue of freedom of association which, I think, should be given much scope in private but not in public institutions. Barbara Bergmann (op. cit., p. 122-25) and others argue that we already all preferential treatment for athletes and veterans, especially in university admissions, so, being consistent, we should provide it for women and minorities? My answer is that I am against giving athletes scholarship, and I regard scholarships to veterans as a part of a contractual relationship, a reward for service to one=s country. But I distinguish entrance programs from actual employment. I don't think that veterans should be afforded special privilege in hiring practices, unless it be as a tie breaker.
I should also mention that my arguments from merit and respect apply more specifically to public institutions than private ones, where issues of property rights and freedom of association carry more weight. My gratitude to Wallace Matson, Bill Shaw, Stephen Kershnar, Jim Landesman, and Elliot Cohen for comments on earlier versions of this paper.
1. In the Beginning
In 1972, affirmative action became an inflammatory public issue. True enough, the Civil Rights Act of 1964 already had made something called “affirmative action” a remedy federal courts could impose on violators of the Act. Likewise, after 1965 federal contractors had been subject to President Lyndon Johnson's Executive Order 11246, requiring them to take “affirmative action” to make sure they were not discriminating. But what did this 1965 mandate amount to? The Executive Order assigned to the Secretary of Labor the job of specifying rules of implementation. In the meantime, as the federal courts were enforcing the Civil Rights Act against discriminating companies, unions, and other institutions, the Department of Labor mounted an ad hoc attack on the construction industry by cajoling, threatening, negotiating, and generally strong-arming reluctant construction firms into a series of region-wide “plans” in which they committed themselves to numerical hiring goals. Through these contractor commitments, the Department could indirectly pressure recalcitrant labor unions, who supplied the employees at job sites.
While the occasional court case and government initiative made the news and stirred some controversy, affirmative action was pretty far down the list of public excitements until the autumn of 1972, when the Secretary of Labor's Revised Order No. 4, fully implementing the Executive Order, landed on campus by way of directives from the Department of Health, Education, and Welfare. Its predecessor, Order No. 4, first promulgated in 1970, cast a wide net over American institutions, both public and private. By extending to all contractors the basic apparatus of the construction industry “plans,” the Order imposed a one-size-fits-all system of “underutilization analyses,” “goals,” and “timetables” on hospitals, banks, trucking companies, steel mills, printers, airlines—indeed, on all the scores of thousands of institutions, large and small, that did business with the government, including a special set of institutions with a particularly voluble and articulate constituency, namely, American universities.
At first, university administrators and faculty found the rules of Order No. 4 murky but hardly a threat to the established order. The number of racial and ethnic minorities receiving PhDs each year and thus eligible for faculty jobs was tiny. Any mandate to increase their representation on campus would require more diligent searches by universities, to be sure, but searches fated nevertheless largely to mirror past results. The 1972 Revised Order, on the other hand, effected a change that punctured any campus complacency: it included women among the “protected classes” whose “underutilization” demanded the setting of “goals” and “timetables” for “full utilization” (Graham 1990, 413). Unlike African-Americans and Hispanics, women were getting PhDs in substantial and growing numbers. If the affirmative action required of federal contractors was a recipe for “proportional representation,” then Revised Order No. 4 was bound to leave a large footprint on campus. Some among the professoriate exploded in a fury of opposition to the new rules, while others responded with an equally vehement defense of them.
As it happened, these events coincided with another development, namely the “public turn” in philosophy. For several decades Anglo-American philosophy had treated moral and political questions obliquely. On the prevailing view, philosophers were suited only to do “conceptual analysis”—they could lay bare, for example, the conceptual architecture of the idea of justice, but they were not competent to suggest political principles, constitutional arrangements, or social policies that actually did justice. Philosophers might do “meta-ethics” but not “normative ethics.” This viewed collapsed in the 1970s under the weight of two counter-blows. First, John Rawls published in 1971 A Theory of Justice, an elaborate, elegant, and inspiring defense of a normative theory of justice (Rawls 1971). Second, in the same year Philosophy & Public Affairs, with Princeton University's impeccable pedigree, began life, a few months after Florida State's Social Theory and Practice. These journals, along with a re-tooled older periodical, Ethics, became self-conscious platforms for socially and politically engaged philosophical writing, born out of the feeling that in time of war (the Vietnam War) and social tumult (the Civil Rights Movement, Women's Liberation), philosophers ought to do, not simply talk about, ethics. In 1973, Philosophy & Public Affairs published Thomas Nagel's “Equal Treatment and Compensatory Justice” (Nagel 1973) and Judith Jarvis Thomson's “Preferential Hiring” (Thomson 1973), and the philosophical literature on affirmative action burgeoned forth.
In contention was the nature of those “goals” and “timetables” imposed on every contractor by Revised Order No. 4. Weren't the “goals” tantamount to “quotas,” requiring institutions to use racial or gender preferences in their selection processes? Some answered “no” (Ezorsky 1977, 86). Properly understood, affirmative action did not require (or even permit) the use of gender or racial preferences. Others said “yes” (Goldman 1976, 182–3). Affirmative action, if it did not impose preferences outright, at least countenanced them. Among the yea-sayers, opinion divided between those who said preferences were morally permissible and those who said they were not. Within the “morally permissible” set, different writers put forward different justifications.
2. The Controversy Engaged
The essays by Thomson and Nagel defended the use of preferences but on different grounds. Thomson endorsed job preferences for women and African-Americans as a form of redress for their past exclusion from the academy and the workplace. Preferential policies, in her view, worked a kind of justice. Nagel, by contrast, argued that preferences might work a kind of social good, and without doing violence to justice. Institutions could for one or another good reason properly depart from standard meritocratic selection criteria because the whole system of tying economic reward to earned credentials was itself indefensible.
Justice and desert lay at the heart of subsequent arguments. Several writers took to task Thomson's argument that preferential hiring justifiably makes up for past wrongs. Preferential hiring seen as redress looks perverse, they contended, since it benefits individuals (African-Americans and women possessing good educational credentials) least likely harmed by past wrongs while it burdens individuals (younger white male applicants) least likely to be responsible for past wrongs (Simon 1974, 315–19; Sher 1975, 162; Sher 1979, 81–82; and Goldman 1976, 190–1). Instead of doing justice, contended the critics, preferential treatment violated rights. What rights were at issue? The right of an applicant “to equal consideration” (Thomson 1973, 377; Simon 1974, 312),the right of the maximally competent to an open position (Goldman 1976, 191; Goldman 1979, 24–8), or the right of everyone to equal opportunity (Gross 1977a, 382; Gross 1978, 97). Moreover, according to the critics, preferential treatment confounded desert by severing reward from a “person's character, talents, choices and abilities” (Simon 1979, 96), by “subordinating merit, conduct, and character to race” (Eastland and Bennett 1979, 144), and by disconnecting outcomes from actual liability and damage (Gross 1978, 125–42).
Defenders of preferences were no less quick to enlist justice and desert in their cause. Mary Anne Warren, for example, argued that in a context of entrenched gender discrimination, gender preferences might improve the “overall fairness” of job selections. Justice and individual desert need not be violated.
If individual men's careers are temporarily set back because of…[job preferences given to women], the odds are good that these same men will have benefited in the past and/or will benefit in the future—not necessarily in the job competition, but in some ways—from sexist discrimination against women. Conversely, if individual women receive apparently unearned bonuses [through preferential selection], it is highly likely that these same women will have suffered in the past and/or will suffer in the future from…sexist attitudes. (Warren 1977, 256)
Likewise, James Rachels defended racial preferences as devices to neutralize unearned advantages by whites. Given the pervasiveness of racial discrimination, it is likely, he argued, that the superior credentials offered by white applicants do not reflect their greater effort, desert, or even ability. Rather, the credentials reflect their mere luck at being born white. “Some white…[applicants] have better qualifications…only because they have not had to contend with the obstacles faced by their African-American competitors” (Rachels 1978, 162). Rachels was less confident than Warren that preferences worked uniformly accurate offsets. Reverse discrimination might do injustice to some whites; yet its absence would result in injustices to African-Americans who have been unfairly handicapped by their lesser advantages.
Rachels' diffidence was warranted in light of the counter-responses. If racial and gender preferences for jobs (or college admissions) were supposed to neutralize unfair competitive advantages, they needed to be calibrated to fit the variety of backgrounds aspirants brought to any competition for these goods. Simply giving blanket preferences to African-Americans or women seemed much too ham-handed an approach if the point was to micro-distribute opportunities fairly (Sher 1975, 165ff).
3. Rights and Consistency
To many of its critics, reverse discrimination was simply incoherent. When “the employers and the schools favor women and blacks,” objected Lisa Newton, they commit the same injustice perpetrated by Jim Crow discrimination. “Just as the previous discrimination did, this reverse discrimination violates the public equality which defines citizenship” (Newton 1973, 310).
William Bennett and Terry Eastland likewise saw racial preferences as in some sense illogical:
To count by race, to use the means of numerical equality to achieve the end of moral equality, is counterproductive, for to count by race is to deny the end by virtue of the means. The means of race counting will not, cannot, issue in an end where race does not matter (Eastland and Bennett 1979, 149).
When Eastland and Bennett alluded to those who favored using race to get to a point where race doesn't count, they had in mind specifically the Supreme Court's Justice Blackmun who, in the famous 1978 Bakke case (discussed below), put his own views in just those simple terms. For Blackmun, the legitimacy of racial preferences was to be measured by how fast using them moves us toward a society where race doesn't matter (a view developed in subtle detail by the philosopher Richard Wasserstrom in Wasserstrom 1976). While the critics of preferences feigned to find the very idea of using race to end racism illogical and incoherent, they also fell back on principle to block Blackmun's instrumental defense should it actually prove both reasonable and plausible. “The moral issue comes in classic form,” wrote Carl Cohen. “Terribly important objectives…appear to require impermissible means.” Cohen asked, “might we not wink at the Constitution this once” and allow preferences to do their good work (Cohen 1995, 20)? Neither he nor other critics thought so. Principle must hold firm. “[I]n the distribution of benefits under the laws all racial classifications are invidious” (Cohen 1995, 52).
But what, exactly, is the principle—constitutional or moral—that always bars the use of race as a means to “terribly important objectives”? Alan Goldman did more than anyone in the early debate to formulate and ground a relevant principle. Using a contractualist framework, he surmised that rational contractors would choose a rule of justice requiring positions to be awarded by competence. They would choose this rule because it instantiates a principle of equal opportunity which in turn instantiates a broad right to equal consideration of interests, this last principle springing from the basic condition of the contracting parties as rational, self-interested, and equally situated choosers. On its face, the rule of competence would seem to preclude filling positions by reference to factors like race and gender that are unrelated to competence. However, Goldman's “rule” blocked preferences only under certain empirical conditions. Goldman explained the derivation of the rule and its consequent limit this way:
The rule for hiring the most competent was justified as part of a right to equal opportunity to succeed through socially productive effort, and on grounds of increased welfare for all members of society. Since it is justified in relation to a right to equal opportunity, and since the application of the rule may simply compound injustices when opportunities are unequal elsewhere in the system, the creation of more equal opportunities takes precedence when in conflict with the rule for awarding positions. Thus short-run violations of the rule are justified to create a more just distribution of benefits by applying the rule itself in future years. (Goldman 1979, 164–165).
In other words, if “terribly important objectives” having to do with equalizing opportunities in a system rife with inequality could in fact be furthered by measured and targeted reverse discrimination, justice wouldn't stand in the way. Goldman's principle did not have the adamantine character Cohen and other critics sought in a bar to preferences. Where can such an unyielding principle be found? I postpone further examination of this question until I discuss the Bakke case, below, whose split opinions constitute an extended debate on the meaning of constitutional equality.
4. Real-World Affirmative Action: The Workplace
The terms of the popular debate over racial and gender preferences often mirrored the arguments philosophers and other academics were making to each other. Preference's defenders offered many reasons to justify them, reasons having to do with compensatory or distributive justice, as well as reasons having to do with social utility (more African-Americans in the police department would enable it better to serve the community, more female professors in the classroom would inspire young women to greater achievements). Critics of preferences retorted by pointing to the law. And well they should, since the text of the Civil Rights Act of 1964 seemed a solid anchor even if general principle proved elusive. Title VI of the Act promised that “[n]o person…shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” Title VII similarly prohibited all employment practices that discriminated on the basis of race, gender, religion, or national origin.
In face of the plain language of Titles VI and VII, how did preferential hiring and promotion ever arise in the first place? How could they be justified legally? Part of the answer lies in the meaning of “discrimination.” The Civil Rights Act did not define the term. The federal courts had to do that job themselves, and the cases before them drove the definition in a particular direction. Many factories and businesses prior to 1964, especially in the South, had in place facially discriminatory policies and rules. For example, a company's policy might have openly relegated African-Americans to the maintenance department and channeled whites into operations, sales, and management departments, where the pay and opportunities for advancement were far better. If, after passage of the Civil Rights Act, the company willingly abandoned its facially segregative policy, it could still carry forward the effects of its past segregation through other already-existing facially neutral rules. A company policy, say, that required workers to give up their seniority in one department if they transferred to another would have locked in place older African-American maintenance workers as effectively as the company's prior segregative rule that made them ineligible to transfer at all. Consequently, courts began striking down facially neutral rules that carried through the effects of an employer's past discrimination, regardless of the original intent or provenance of the rules. “Intent” was effectively decoupled from “discrimination.” In 1971, the Supreme Court ratified this process, giving the following construction of Title VII:
The objective of Congress in the enactment of Title VII…was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees. Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to “freeze” the status quo of prior discriminatory employment practices.
What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to exclude on the basis of racial or other impermissible classification.
In a few short paragraphs the Court advanced from proscribing practices that froze in place the effects of a firm's own past discrimination to proscribing practices that carried through the effects of past discrimination generally. The Court characterized statutory discrimination as any exclusionary practice not necessary to an institution's activities. Since many practices in most institutions were likely to be exclusionary, rejecting minorities and women in greater proportion than white men, all institutions needed to reassess the full range of their practices to look for, and correct, discriminatory effect. Against this backdrop, the generic idea of affirmative action took form:
Each institution should effectively monitor its practices for exclusionary effect and revise those that cannot be defended as “necessary” to doing business. In order to make its monitoring and revising effective, an institution ought to predict, as best it can, how many minorities and women it would select over time, were it successfully nondiscriminating. These predictions constitute the institution's affirmative action “goals,” and failure to meet the goals signals to the institution (and to the government) that it needs to revisit its efforts at eliminating exclusionary practices.There may still remain practices that ought to be modified or eliminated.
The point of such affirmative action: to induce change in institutions so that they could comply with the nondiscrimination mandate of the Civil Rights Act.
However, suppose this self-monitoring and revising fell short? In early litigation under the Civil Rights Act, courts concluded that some institutions, because of their past exclusionary histories and continuing failure to find qualified women or minorities, needed stronger medicine. Courts ordered these institutions to adopt “quotas,” to take in specific numbers of formerly excluded groups on the assumption that once these new workers were securely lodged in place, the institutions would adapt to this new reality.
Throughout the 1970s, courts and government enforcement agencies extended this idea across the board, requiring a wide range of firms and organizations—from AT&T to the Alabama Highway Patrol—temporarily to select by the numbers. In all these cases, the use of preferences was tied to a single purpose: to prevent ongoing and future discrimination. Courts carved out this justification for preferences not through caprice but through necessity. They found themselves confronted with a practical dilemma that Congress had never envisaged and thus never addressed when it wrote the Civil Rights Act. The dilemma was this: courts could impose racial preferences to change foot-dragging or inept defendants (and by doing so apparently transgress the plain prohibition in Title VII) or they could order less onerous steps they knew would be ineffective, thus letting discrimination continue (and by doing so violate their duty under Title VII). Reasonably enough, the federal courts resolved this dilemma by appeal to the broad purposes of the Civil Rights Act and justified racial preferences where needed to prevent ongoing and future discrimination.
Thus, preferential affirmative action in the workplace served the same rationale as the non-preferential sort. Its purpose was not to compensate for past wrongs, offset unfair advantage, appropriately reward the deserving, or yield a variety of social goods; its purpose was to change institutions so they could comply with the nondiscrimination mandate of the Civil Rights Act.
5. Real-World Affirmative Action: The University
In the 1970s, while campuses were embroiled in debate about how to increase African-Americans and women on the faculty, universities were also putting into effect schemes to increase minority presence within the student body. Very selective universities, in particular, needed new initiatives because only a handful of African-American and Hispanic high school students possessed test scores and grades good enough to make them eligible for admission. These institutions faced a choice: retain their admissions criteria unchanged and live with the upshot—hardly any African-Americans and Hispanics on campus—or fiddle with their criteria to get a more substantial representation. Most elected the second path.
The Medical School of the University of California at Davis was typical. It reserved sixteen of the one hundred slots in its entering classes for minorities. In 1973 and again in 1974, Allan Bakke, a white applicant, was denied admission although his test scores and grades were better than most or all of those admitted through the special program. He sued. In 1977, his case, Regents of the University of California v. Bakke, reached the Supreme Court. The Court rendered its decision a year later (438 U.S. 265 ).
An attentive reader of Title VI of the Civil Rights Act might have thought this case was an easy call. So, too, thought four justices on the Supreme Court, who voted to order Bakke admitted to the Medical School. Led by Justice Stevens, they saw the racially segregated, two-track scheme at the Medical School (a recipient of federal funds) as a clear violation of the plain language of the Title.
Four other members of the Court, led by Justice Brennan, wanted very keenly to save the Medical School program. To find a more attractive terrain for doing battle, they made an end-run around Title VI, arguing that, whatever its language, it had no independent meaning itself. It meant in regard to race only what the Constitution meant. Thus, instead of having to parse the stingy and unyielding language of Title VI (“no person shall be subjected to…on the ground of race”), the Brennan group could turn their creative energies to interpreting the broad and vague language of the Fourteenth Amendment (“no person shall be denied the equal protection of the laws”), which provided much more wiggle-room for justifying racial preferences. The Brennan group persuaded one other member, Justice Powell, to join them in their view of Title VI. But Powell didn't agree with their view of the Constitution. He argued that the Medical School's policy was unconstitutional and voted that Bakke must be admitted. His vote, added to the four votes of the Stevens group, meant that Allan Bakke won his case and that Powell got to write the opinion of the Court. The Brennan strategy didn't reap the fruit it intended.
Against the leanings of the Brennan group, who would distinguish between “benign” and “malign” uses of race and deal more leniently with the former, Powell insisted that the Fourteenth Amendment's promise of “equal protection of the law” must mean the same thing for all, black and white alike. To paraphrase Powell:
The Constitution can tolerate no “two-class” theory of equal protection. There is no principled basis for deciding between classes that deserve special judicial attention and those that don't. To think otherwise would involve the Court in making all kinds of “political” decisions it is not competent to make. In expounding the Constitution, the Court's role is to discern “principles sufficiently absolute to give them roots throughout the community and continuity over significant periods of time, and to lift them above the pragmatic political judgments of a particular time and place” (Bakke, at 295–300 [Powell quoting Cox 1976, 114]).
What, then, was the practical meaning of a “sufficiently absolute” rendering of the principle of equal protection? It was this: when the decisions of state agents “touch upon an individual's race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest (Bakke, at 300).
Powell, with this standard in hand, then turned to look at the four reasons the Medical School offered for its special program: (i) to reduce “the historic deficit of traditionally disfavored minorities in medical schools and the medical profession;” (ii) to counter “the effects of societal discrimination;” (iii) to increase “the number of physicians who will practice in communities currently underserved;” and (iv) to obtain “the educational benefits that flow from an ethnically diverse student body” (Bakke, at 307). Did any or all of them specify a compelling governmental interest? Did they necessitate use of racial preferences?
As to the first reason, Powell dismissed it out of hand.
If [the School's] purpose is to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin, such a preferential purpose must be rejected not as insubstantial but as facially invalid. Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake.
As to the second reason, Powell allowed it more force. A state has a legitimate interest in ameliorating the effects of past discrimination. Even so, contended Powell, the Court,
has never approved a classification that aids persons perceived as members of relatively victimized groups at the expense of other innocent individuals in the absence of judicial, legislative, or administrative findings of constitutional or statutory violations (Bakke, at 308).
And the Medical School does not purport to have made, and is in no position to make, such findings. Its broad mission is education, not the formulation of any legislative policy or the adjudication of particular claims of illegality.…[I]solated segments of our vast governmental structures are not competent to make those decisions, at least in the absence of legislative mandates and legislatively determined criteria (Bakke, at 309).
As to the third reason, Powell found it, too, insufficient. The Medical School provided no evidence that the best way it could contribute to increased medical services to underserved communities was to employ a racially preferential admissions scheme. Indeed, the Medical School provided no evidence that its scheme would result in any benefits at all to such communities (Bakke, at 311).
This left the fourth reason. Here Powell found merit. A university's interest in a diverse student body is legitimated by the First Amendment's implied protection of academic freedom. This constitutional halo makes the interest “compelling.” However, the Medical School's use of a racial and ethnic classification scheme was not “precisely tailored” to effect the School's interest in diversity, argued Powell.
The diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element. [The Medical School's] special admissions program, focused solely on ethnic diversity, would hinder rather than further attainment of genuine diversity (Bakke, at 316).
The diversity which provides an educational atmosphere “conducive to speculation, experiment and creation” includes a nearly endless range of experiences, talents, and attributes that students might bring to campus. In reducing diversity to racial and ethnic quotas, the Medical School wholly misconceived this important educational interest.
In sum, although the last of the Medical School's four reasons encompassed a “compelling governmental interest,” the School's special admissions program was not necessary to effect the interest. The special admissions program was unconstitutional. So concluded Justice Powell.
6. Equality's Rule
This was a conclusion Justice Brennan tried vigorously to forestall. Brennan agreed with Powell that “equal protection” must mean the same thing—that is, remain one rule—whether applied to blacks or whites. But the same rule applied to different circumstances need not yield the same results. Racial preferences created for different reasons and producing different outcomes need not all be judged in the same harsh, virtually fatal, manner. This point was the crux of Brennan's defense of the Medical School's policy.
Powell thought there was no principled way to distinguish “benign” from “malign” discrimination, but Brennan insisted there was. He argued that if the Court looked carefully at its past cases striking down Jim Crow laws, it would see the principle at work. What the Court found wrong in Jim Crow was that it served no purpose except to mark out and stigmatize one group of people as inferior. The “cardinal principle” operating in the Court's decisions condemned racial classifications “drawn on the presumption that one race is inferior to another” or that “put the weight of government behind racial hatred and separation” (Bakke, at 358 [Brennan, dissenting]). Brennan agreed with Powell that no public racial classification motivated by racial animus, no classification whose purpose is to stigmatize people with the “badge of inferiority,” could withstand judicial scrutiny. However, the Medical School's policy, even if ill-advised or mistaken, reflected a public purpose far different from that found in Jim Crow. The policy ought not be treated as though it were cut from the same cloth.
Brennan granted that if a state adopted a racial classification for the purpose of humiliating whites, or stigmatizing Allan Bakke as inferior and confining him to second-class citizenship, that classification would be as odious as Jim Crow. But the Medical School's policy had neither this purpose nor this effect. Allan Bakke may have been upset and resentful at losing out under the special plan, but he wasn't “in any sense stamped as an inferior by the Medical School's rejection of him.” Nor did his loss constitute a “pervasive injury,” in the sense that wherever he went he would be treated as a “second-class citizen” because of his color (Bakke, at 376 [Brennan, dissenting]).
In short, argued Brennan, the principle embedded in the Equal Protection Clause should be viewed as an anti-caste principle, a principle that uniformly and consistently rejects all public law whose purpose is to subject people to an inferior and degraded station in life, whether they are black or white. Of course, given the asymmetrical position of whites and blacks in our country, we are not likely to encounter laws that try to stigmatize whites as an inferior caste (much less succeed at it). But this merely shows that a principle applied to different circumstances produces different results. Because the Medical School's program sought to undo the effects of a racial caste system long-enduring in America, it represented a purpose of great social importance and should not be found Constitutionally infirm: so maintained Brennan (Bakke, at 363 [Brennan, dissenting]).
Justice Powell never successfully engaged this way of reading “constitutional equality.” His insistence on clear, plain, unitary, absolute principle did not cut against the Brennan view. The issue between Powell and Brennan was not the consistency and stringency of the principle but its content. If the Constitution says, “The state cannot deliberately burden someone by race if its purpose is to create or maintain caste,” then constitutional law doesn't block any of the Medical School's justifications.
If we turn away from exegesis of the Constitution, are we likely to find in political theory itself any principle of equality implying that every use of racial preferences in every circumstance works an intolerable injustice? There is reason to think not. To see why, consider John Rawls' theory of justice-as-fairness. For our purposes, what is striking about the theory is the division of labor it embraces. Its very broadest principles of liberty and equality are themselves unable to single out proper micro-allocations of social benefits and burdens. This is not a defect; this is their nature. What they can do is structure roles and institutions which then create the social and legal machinery for assigning benefits and burdens. Rawls' principles oblige a constitution to protect equality of citizenship but leaves most other matters to legislative judgment. Thus, law that in form and in fact makes some people “second-class citizens” would be unjust, clearly, but this limitation doesn't bar government from asking people to bear unequal burdens for the common good, not even unequal burdens premised on race or ethnicity. Nor does Rawls' principle of fair equality of opportunity block such burdens, either, for, while ordinarily discouraging selection based on race or ethnicity, it can itself be limited in the name of achieving greater equality of opportunity (the point noted by Goldman). To reformers in a society that has grievously failed to secure equal citizenship and fair equality of opportunity for most of its history, Rawls' principles of equality supply few guideposts.
Will looking farther afield yield an understanding of general equality adamantly inhospitable to every use of preferences? The prospects seem dim. As Georgia Warnke has argued (1998), any very general notion of equality can be employed as much to defend affirmative action (and the social inclusion it effects) as to condemn it (and the racial non-neutrality it involves). The challenge here is well-illustrated by Carl Cohen's most recent effort, in a debate with James Sterba, to extract a strict prohibition on racial preferences from the Aristotelian principle that “equals should be treated equally” (Cohen and Sterba 2003, 23). This principle, urges Cohen, “certainly entails at least this: It is wrong, always and everywhere, to give special advantage to any group simply on the basis of physical characteristics that have no relevance to the award given or the burden imposed” (Cohen and Sterba 2003, 25). Whether anything interesting follows from this proposition depends on how we construe “relevance.” Cohen admits that public policy may rightly treat some people differently because of their physical characteristics. For example, the state might offer special assistance to the old or disabled. As it happens, this example suggests that the “relevance” of physical differences is something independent of social policy. Age and disability it seems are real features of persons and public policy simply tracks them. However, the difference that differences make is not something itself given by nature; it is determined by public purposes. Age and disability are made “relevant” in this manner—in the one case, by the social purpose of assuring that people do not have to live in poverty when they can no longer work; in the other case, by the social purpose of assuring that people are not foreclosed from developing and marketing their talents by impediments in the (largely constructed) physical environment.
Purpose determines relevancy, and this is true whether or not the relevant differences are physical. For example, if the nation thinks the public interest is served by maintaining a domestic sugar industry through subsidies, then a Michigan farmer who grows sugar beets is relevantly different from his neighbor across the road who grows tomatoes. If the nation thinks a modest program of redistributing income is legitimate, then it uses a social security payout formula that gives disproportionate return to low wage-earners over high wage-earners. Similarly, if the nation thinks it desirable to change white institutions so that they are less uniformly white, that purpose links skin color to recruitment.
Because the Aristotelian principle by itself doesn't rule out racial preferences (since blacks and whites may be relevantly different with respect to certain legitimate public purposes), it is not surprising that Cohen also invokes a substantive conception of equality: “All members of humankind are equally ends in themselves, all have equal dignity—and therefore all are entitled to equal respect from the community and its laws” (Cohen and Sterba 2003, 24). This principle, however, brings us back to the interpretive questions about “equal protection of the laws” played out in the Powell-Brennan exchange in Bakke. By Justice Brennan's lights, Allen Bakke's basic dignity was not violated. The Medical School's two-track policy that resulted in Bakke's rejection did not, by intent or effect, stigmatize him as inferior, or mark him off as a member of a despised caste, or turn him into a second-class citizen. Bakke arguably had to bear a particular burden because of his race but the burden was not significantly different objectively from others that public policy might have thrown his way. If the Medical School had reserved sixteen of its seats for applicants from economically deprived backgrounds, no one would have suggested that it had violated the equal protection clause of the Fourteenth Amendment. Yet under this hypothetical policy Allan Bakke could have lost out as well—lost out to low-income applicants whose college grades and MCAT scores were inferior to his own. Allen Bakke may have felt aggrieved at losing out under the Medical School's policy of racial preferences, but it is not enough to show that those who lose out under some public scheme feel offended or disgruntled. Cohen needs to specify a conception of dignity in which bearing unequal burdens on behalf of urgent social ends invariably amounts to an assault on dignity if the burdens happen to be assigned by race. This specification remains unfinished in his work so far.
7. Diversity's Dominion
How, if it held the Medical School's policy unconstitutional, did Justice Powell's Bakke opinion become the basis upon which universities across the land enacted—or maintained—racially preferential admissions policies?
If Powell had concluded with his assessment of the Medical School's four justifications, Bakke would have left university affirmative action in a precarious situation. However, he didn't stop there. In an earlier ruling on Bakke's lawsuit, the California Supreme Court had forbidden the Medical School to make any use of race or ethnicity in its admissions decisions. Powell thought this went too far. Given higher education's protected interest in “diversity,” and given that a student's race or ethnicity might add to diversity just in the same way that her age, work experience, family background, special talents, foreign language fluency, athletic prowess, military service, and unusual accomplishments might, Powell vacated that portion of the California Supreme Court's order.
Then he added some dicta for guidance. If universities want to understand diversity and the role that race and ethnicity might play in achieving it, they should look to Harvard, proposed Powell, and he appended to his opinion a long statement of Harvard's diversity program. In such a program, Powell contended, racial or ethnic background might
be deemed a “plus” in a particular applicant's file, yet it does not insulate the individual from comparison with all other candidates for the available seats.…This kind of program treats each applicant as an individual in the admissions process. The applicant who loses out on the last available seat to another candidate receiving a “plus” on the basis of ethnic background will not have been foreclosed from all consideration for that seat simply because he was not the right color or had the wrong surname. It would mean only that his combined qualifications…did not outweigh those of the other applicant. His qualifications would have been weighed fairly and competitively, and he would have had no basis to complain of unequal treatment under the Fourteenth Amendment (Bakke, at 318, 319).
In these off-hand comments, universities saw a green light for pushing ahead aggressively with their affirmative action programs. Justice Powell's basic holding could not have been plainer: any system like the Medical School's that assessed applications along two different tracks defined by race or that used numerical racial quotas must fail constitutional muster. Yet by the mid-1980s universities across the land had in place systems of admissions and scholarships that exhibited one or both of these features. When the University of Maryland's Banneker scholarships—awarded only to African-American students—were held in violation of the Constitution in 1994, the house of cards forming university affirmative action began to fall. In 1996, the Court of Appeals for the Fifth Circuit struck down the University of Texas Law School's admissions program. In 1998, the Court of Appeals for the First Circuit struck down a Boston plan assigning students to selective high schools by race. In 2001, two more schools saw their admissions programs invalidated by federal courts: the University of Georgia and the University of Michigan Law School. In many of these cases, educational institutions were using schemes that made race something very much more than Justice Powell's “plus” factor. The Fifth Circuit Court's ruling in the University of Texas case (Hopwood v. Texas, 78 F 3d 932 [Fifth Circuit, 1996]) threw a cloud even over this small window for affirmative action, boldly asserting that the Bakke holding was now dead as law and that race could not be used at all in admissions.
Given Justice Powell's singular opinion, supported by no one else on the Court, and given the drift of Supreme Court decisions on racial preferences since 1978, the Hopwood court was not outlandish, if a bit presumptuous, in declaring Powell's holding in Bakke dead. As it happened, Powell's opinion was far from dead. In the University of Michigan Law School case, Grutter v. Bollinger, eventually decided by the Supreme Court in June 2003, Justice Sandra Day O'Connor's lead opinion declared: “today we endorse Justice Powell's view that student body diversity is a compelling state interest that can justify the use of race in university admissions” (Grutter v. Bollinger, 539 U.S. 306 , at 330). Diversity was alive after all. But how it worked its affirmative action elixir remained as unclear in 2003 as it had been in 1978.
To see why, consider how in Grutter Justice O'Connor posed the issue:
The [Law School's] policy aspires to “achieve that diversity which has the potential to enrich everyone's education and thus make a law class stronger than the sum of its parts.” […] The policy does not restrict the types of diversity contributions eligible for substantial weight in the admissions process, but instead recognizes “many possible bases for diversity admissions.” […] The policy does, however, reaffirm the Law School's longstanding commitment to “one particular type of diversity,” that is, “racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against” (Grutter, at 325).
Now, posing the issue this way and allowing the Law School to assert a special interest in “one particular type of diversity” invites the conflation of general diversity—a diversity of opinions, experiences, backgrounds, talents, aspirations, and perspectives—with ethnic and racial diversity that Justice Powell appeared strongly to resist. After all, the Medical School too had asserted in its defense a similar special interest.
Diversity is many things insisted Powell; it cannot be reduced to one thing. But why not? This question—and Justice O'Connor's acquiescence in the Law School's way of framing its affirmative action goal—spotlights a crucial gap in Powell's Bakke opinion. Diversity is many things—so many things, in fact, that institutions will think it worthwhile to concentrate on some diversity factors rather than others. One college may emphasize admitting foreign students; another may make its mission to educate poor students; a third may specialize in getting science students who have shown unusual promise in high school. If colleges have a legally protected interest in choosing a diverse student body, why don't they have a legally protected interest in deciding which part of the diversity spectrum to single out for special attention? If they can single out a part of the spectrum, why can't they use a simple device like set-asides to effect their purpose?
Recall Justice Powell's principal objection to the Medical School's set-asides. In making the race or ethnicity of an applicant a “plus,” as in the Harvard Plan, an admissions scheme does
not insulate the individual from comparison with all other candidates for the available seats. The file of a particular African-American applicant may be examined for his potential contribution to diversity without the factor of race being decisive when compared, for example, with that of an applicant identified as an Italian-American if the latter is thought to exhibit qualities more likely to promote beneficial educational pluralism.…In short, an admissions program operated in this way is flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant…. This kind of program treats each applicant as an individual in the admissions process (Bakke, at 318–19).
By contrast, Allan Bakke was not able to compete for all one hundred seats at the Medical School; sixteen were reserved for candidates not like him.
It is Powell's resistance to this reservation that underpins Justice O'Connor's opinion in Grutter, where she observed:
We find that the Law School's admissions program bears the hallmark of a narrowly tailored plan. As Justice Powell made clear in Bakke, truly individualized consideration demands that race be used in a flexible, non-mechanical way. It follows from this mandate that universities cannot establish quotas for members of certain racial groups (Grutter, at 337).
What vindicated the Law School in O'Connor's eyes was its “highly individualized, holistic review of each applicant's file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment” (Grutter, at 339). This “individualized consideration” is crucial; in Gratz v. Bollinger, decided the same day as Grutter, Justice O'Connor switched sides to hold unconstitutional the undergraduate admissions process at the University of Michigan. The undergraduate admissions office operated differently than the Law School. It computed an index score for each applicant by assigning numerical points for academic factors such as high school grades, admissions test scores, quality of high school, strength of curriculum; and for nonacademic factors such as being a resident of Michigan, a child of an alumnus, a recruited athlete, or a member of “an underrepresented minority group.” An applicant falling in this last category automatically received 20 points (Gratz v. Bollinger, 539 U. S. 244 , at 287). In O'Connor's view, this “mechanical” procedure meant that the undergraduate admissions office did not fully take account in each application “of all factors that may contribute to student body diversity (Gratz, at 288).
But O'Connor's conclusion here simply draws us back to the lacuna in Justice Powell's Bakke opinion. Why should the undergraduate admissions office take account of all the factors that may contribute to student body diversity if it especially wants to select from certain parts of the diversity spectrum? Why can't it, like the Law School, claim a special interest in “one particular type of diversity”? Why bar the undergraduate admissions office from using an effective tool to promote its interest even if the tool is “mechanical”? In fact, the Law School's “non-mechanical” procedure differed from the undergraduate admissions policy only on its face, not in its results. During admissions season, the Law School's director of admissions frequently consulted the “daily reports” that “kept track of the racial and ethnic composition” of the incoming class. He did so to make sure a “critical mass” of minority students was included (Grutter, at 326). In short, the Law School “managed” its admissions process so that roughly 6 to 7 percent of each entering class was African-American. The undergraduate admissions procedure, with its index scores, yielded a similar outcome (Grutter, at 367–69 [Rehnquist, dissenting] and 374 [Kennedy, dissenting]). Only surface appearance distinguished the two procedures. Justice Scalia called the Law School's “holistic” admissions process “a sham,” and not without reason (Grutter, at 375 [Scalia, dissenting]).
In any case, the Law School's affirmative action program was vindicated by the Supreme Court and “diversity” securely established as its basis. Nevertheless, diversity hardly seems the right basis. When the University of Michigan was first challenged in federal court it insisted that it had a compelling educational interest in achieving racial and ethnic diversity and put into evidence findings by one of its psychology professors, Patricia Gurin, showing that
students learn better in a diverse educational environment, and they are better prepared to become active participants in our pluralistic, democratic society once they leave such a setting.…[S]tudents who experienced the most racial and ethnic diversity in classroom settings and in informal interactions with peers showed the greatest engagement in active thinking processes, growth in intellectual engagement and motivation, and growth in intellectual and academic skills (Gratz v Bollinger, 122 F. Supp. 2d 811 , at 823).
But suppose Patricia Gurin's findings had turned out differently. Can we imagine that the University would have abandoned affirmative action?
8. The Integration Argument
In fact, the main reason the University of Michigan strives for a reasonable representation of minorities on campus is because of the way it conceives of its mission: to prepare Michigan's future leaders.
The argument is straightforward:
- The leadership of the state ought roughly to represent the state's population, ethnically and racially.
- As the state's premier training ground for leadership, the University ought to graduate rising generations of future leaders that conform to this representational goal.
- To graduate such rising generations, it needs to admit racially and ethnically representative classes.
This is the “Michigan Mandate” (Gratz v. Bollinger, 135 F. Supp. 2d 790 , at 796–797). Racial and ethnic diversity aren't incidental contributors to a distinct academic mission; they are part of the mission of the University, just as educating young people from Michigan is part of it.
This “integration” rationale seems much more aligned with the actual practice of university affirmative action than the diversity rationale. Indeed, in the midst of her nominally Powell-like defense of the Law School, Justice O'Connor for a moment veered away from the “educational benefits of diversity” to go down a quite different path. Institutions like the University of Michigan and its Law School, she noted, “represent the training ground for…our Nation's leaders.” She went on:
In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity. All members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training.…Access…. must be inclusive…of every race and ethnicity, so that all members of our heterogeneous society may participate in the educational institutions that provide the training and education necessary to succeed in America (Grutter, at 336).
This “legitimacy” argument—not in any way about enriching the climate of opinion on campus—parallels the simple syllogism set out just above. It provides an oblique way of justifying the second premise. Justice O'Connor inserted this new rationale into the middle of her Grutter opinion—inserted it unexpectedly and then abandoned it just as quickly to resume tracing the byways of diversity.
Certainly, something in the spirit of the “Michigan Mandate” has animated the elite universities studied by William Bowen and Derek Bok in The Shape of the River: Long-Term Consequences of Considering Race in College and University Admissions. The primary aim of these institutions is not through vigorous affirmative action to enhance the liberal learning of their students (although they welcome this gain for all students). Their main motive for assuring that the percentage of African-Americans and Hispanics on their campuses is more than token derives from their self-conceptions as institutions training individuals who will some day take up national and international leadership roles in the professions, arts, sciences, education, politics, and government (Bowen and Bok 1998, 7). Society, they believe, will be stronger and more just if the ranks of its leading citizens include a racially and ethnically broader range of people than it does now (and than it did twenty-five years ago).
Three recent works have developed versions of the integration argument. In a long article, “Integration, Affirmative Action, and Strict Scrutiny,” published just before the Supreme Court's decisions in Grutter and Gratz, Elizabeth Anderson argues that an integration rationale is superior to the diversity rationale not only on its merits but as a plausible rending of what “compelling state interest”—the legal standard employed by the Supreme Court in racial classification cases—really demands. She concludes:
Current affirmative action debates have lost sight of the ideal of integration as a compelling moral and political goal. Unless disadvantaged racial groups are integrated into mainstream social institutions, they will continue to suffer from segregation and discrimination. But the loss is not only theirs. It is a loss suffered by the American public at large in its failure fully to realize civil society—extensive social spaces in which citizens from all origins exchange ideas and cooperate on terms of equality—which is an indispensable social condition of democracy itself. It is high time that institutions of higher education—the most ardent practitioners of integration today—forthrightly defend this ideal in its own right, and that the Supreme Court recognize integration as a compelling interest legitimately addressed through race-conscious means. (Anderson 2002, 1270–71)
Anderson has developed her thesis more elaborately in her recent book, The Imperative of Integration (Anderson 2010).
Robert Fullinwider and Judith Lichtenberg, in their 2004 book, Leveling the Playing Field: Justice, Politics, and College Admissions, present an integration argument for affirmative action centered around the little syllogism above (Fullinwider and Lichtenberg 2004, 165–188). A state like Michigan has strong reasons for wanting its leaders of commercial, financial, legal, cultural, and educational institutions to reflect to some practical degree the racial and ethnic variety of its population. One of the reasons is offered by Justice O'Connor: the very legitimacy of state institutions comes under a cloud if important segments of the population—long excluded from participating at the highest levels—remain on the outside looking in. Another reason is emphasized by Elizabeth Anderson: democratic governance draws nurture from inclusion rather than exclusion. If the leaders who frame the political agenda and shape public opinion remain uniformly white, the common good gets shortchanged; it isn't really common. Finally, racial and ethnic comity are harder to achieve when whites see a black or brown face in a position of leadership or power as a novelty rather than a commonplace. Thus, if states like Michigan have strong reasons for creating an integrated stratum of leaders, they have strong reasons for making sure that the universities that feed this stratum are themselves integrated.
Lastly, Lesley Jacobs, in Pursuing Equal Opportunities (2004), sees affirmative action as a means of overcoming the structural exclusion of African-Americans from major institutions: affirmative action assists structural integration, and structural integration serves the ideal of equal opportunity (Jacobs 2004, 124–142).
The integration argument, like the diversity argument, is straightforwardly instrumental. It points to hoped-for outcomes of affirmative action. If those outcomes don't materialize, then affirmative action's cause is weakened. Moreover, the little integration syllogism isn't complete as it stands. It needs to include another premise: that the gains from achieving racially and ethnically integrated classes don't come at a disproportionate cost.
Perhaps the cost is high, or even too high. Stephan and Abigail Thernstrom certainly think so. They contend that most of the cost falls on the very persons affirmative action is supposed to benefit. Under-prepared African-Americans are thrown into academic environments where they cannot succeed (Thernstrom and Thernstrom 1997, 395–411). In the Thernstroms' view, race-blind admissions policies will result in a desirable “cascading,” with African-American and Hispanic students ending up at colleges and universities where the academic credentials of their fellow students match their own. However, the Bowen and Bok study provides some evidence that cascading isn't necessarily a valuable phenomenon. In fact, at the schools they studied, the better the institution a student entered, whatever his academic credentials, the more likely he was to graduate, go on to further education, and earn a good income (Bowen and Bok 1998, 63, 114, 144).
Even so, the select schools Bowen and Bok studied may be quite unrepresentative of the full range of colleges and universities that resort to racial preferences and the cost-benefit picture that holds for these schools may not hold for the rest. Indeed, the picture drawn by Richard Sander in a lengthy review of affirmative action in law schools, published in the November 2004 Stanford Law Review, lends credence to the Thernstrom's academic mismatch thesis. Ranking law schools from best to worst, Sander found that affirmative action boosts African-American students 20 or more steps up the ladder, putting them in schools with white classmates who possess considerably better LSAT scores and undergraduate college grades. The upshot: “close to half of black students end up in the bottom tenth of their classes.” This bad performance yields three bad consequences. First, African-American students suffer high attrition rates. Second, they fail the bar exam at a high rate (the principal predictor of a student's passing or failing is her grades, not the quality of her school). Third, they suffer a significant employment penalty for low grades “in all schools outside the top ten.” Sander estimates that under a race-blind admissions system, American law schools would actually create more African-American lawyers than they do under affirmative action (Sander 2004, 449, 460, 478, 479).
Sander's article inspired a flurry of responses disputing his methodology and conclusions (e.g., Ayers and Brooks 2005, Chambers, et al. 2005, Wilkins 2005, Ho 2005, Barnes 2007, and Rothstein and Yoon 2008). Sander replied to his critics (Sander 2005); other writers found evidence of mismatch effects in educational domains outside law schools (Elliott et al. 1996, Smith and McArdle, 2004, Arcidiacono et al. 2012); yet other scholars presented independent confirmation of Sander's hypothesis (Arcidiacono et al. 2011b, Williams 2013); one critic, upon re-analysis, had to withdraw her refutation of Sander (Barnes 2007, Barnes 2011); and in 2012 Sander joined with co-author Stuart Taylor to publish Mismatch, a book-length treatment setting out old and new research supporting Sander's hypothesis.
One reason disputes persist about cause and effect is paucity of data. Sander was able to launch his study of mismatch in law schools because the Law School Admissions Council had undertaken a study in the 1990s tracking 27,000 law students from matriculation to bar passage. Likewise, Bowen and Bok were able to access a vast store of information about students and colleges collected by the Mellon Foundation. The Bowen and Bok information remained “in–house,” not available to all researchers. The Sander information dwelt just on law students and only within a narrow time-frame. Much of the back–and–forth about the effects of affirmative action could be resolved if educational institutions disclosed information about their admissions processes, student grades, graduation rates, and the like. But institutional resistance makes this unlikely.
9. A Blip
In 2004, after the Supreme Court's Grutter decision, the University of Texas revised its admissions policy to include race as one input to an applicant's Personal Achievement Index which, combined with her Academic Index, qualifies her, or not, for admission. Prior to 2004, the University's admissions procedure had been governed by the Hopwood decision of the Fifth Circuit Court of Appeals, which barred the University from considering race; and by the Top Ten Percent policy created by the Texas legislature soon after the Hopwood decision. The University had broadened the considerations making up the Personal Achievement Index in order to improve minority admissions but saw Grutter as opening a way for a more direct and effective approach. In 2008, Abigail Fisher, an unsuccessful applicant to the University, sued. As her case proceeded toward the Supreme Court, her plea, among other things, asked the Court to overturn Grutter. Instead, by a 7–1 vote in June, 2013, the Court left the Grutter framework in place but sent the case back to the lower courts, arguing that they had been too deferential in accepting the University's argument that using race was “necessary” to achieving a “critical mass” of minority students on campus (Fisher v. Texas, 133 S. Ct. 2411 , at 2417–2422).
10. Desert Confounded, Desert Misapplied
The affirmative action debate throws up many ironies but one in particular should be noted. From the time in 1973 when Judith Jarvis Thomson conjectured that it was “not entirely inappropriate” that white males bear the costs of the community's “making amends” to African-Americans and women through preferential affirmative action, the affirmative action debate has been distracted by intense quarrels over who deserves what. Do the beneficiaries of affirmative action deserve their benefits (Allen 2011)? Do the losers deserve their loss?
Christopher Edley, the White House assistant put in charge of President Clinton's review of affirmative action policy in 1994–95, speaks of how, during the long sessions he and his co-workers put in around the conference table, the discussion of affirmative action kept circling back to the “coal miner's son” question.
Imagine a college admissions committee trying to decide between the white [son] of an Appalachian coal miner's family and the African American son of a successful Pittsburgh neurosurgeon. Why should the black applicant get preference over the white applicant? (Edley 1996, 132ff)
Why, indeed? This is a hard question if one defends affirmative action in terms of compensatory or distributive justice. If directly doing justice is what affirmative action is about, then its mechanisms must be adjusted as best they can to reward individual desert and true merit. The “coal miner's son” example is meant to throw desert in the defender's face: here is affirmative action at work thwarting desert, for surely the coal miner's son—from the hard scrabble of Harlan County, say—has lived with far less advantage than the neurosurgeon's son who, we may suppose, has reaped all the advantages of his father's (or mother's) standing. Why should the latter get a preference?
A defender might answer in the way that Charles Lawrence and Mari Matsuda do in their 1997 book, We Won't Go Back: “All the talk about class, the endless citings of the ‘poor white male from Appalachia,’ cannot avoid the reality of race and gender privilege” (Lawrence and Matsuda 1997, 190–191). Because white privilege persists, racial preferences really do balance the scales. Because male privilege persists, gender preferences really do make selections fairer. There must be no concession: in every case the loser in affirmative action is not the more deserving.
Even Justice Brennan tried his hand at this argument, writing in Bakke:
If it was reasonable to conclude—as we hold that it was—that the failure of minorities to qualify for admission at [the University of California at] Davis [Medical School] under regular procedures was due principally to the effects of past discrimination, then there is a reasonable likelihood that, but for pervasive racial discrimination,…[Bakke] would have failed to qualify for admission even in the absence of Davis' special admissions program (Bakke, at 365–6 [Brennen, dissenting].
Bakke was not denied anything to which he had moral claim in the first place.
Just as Mary Anne Warren and James Rachels in the 1970s thought that the losers under affirmative action were losing only illicit privileges, and the gainers merely gaining what should have been theirs to start with, so Michel Rosenfeld in the 1990s, in his extended “dialogic” defense of affirmative action, echoes the same thought:
Although affirmative action treats innocent white males unequally, it need not deprive them of any genuine equal opportunity rights. Provided an affirmative action plan is precisely tailored to redress the losses in prospects of success [by African-Americans and women] attributable to racism and sexism, it only deprives innocent white males of the corresponding undeserved increases in their prospects of success…. [R]emedial affirmative action does not take away from innocent white males anything that they have rightfully earned or that they should be entitled to keep (Rosenfeld 1991, 307–8, emphasis added).
However, programs that give blanket preferences by race or gender are hardly “precisely tailored” to match desert and reward since, as Lawrence and Matsuda themselves acknowledge at one place, the white male “privilege” is “statistical” (Lawrence and Matsuda 1997, 252). Yet it is individuals, not statistical averages, who gain or lose in admissions determinations and employment selections.
The persistence of this strategy of defense reflects a residual feeling that the fruits of affirmative action are somehow spoiled if they are not deserved (Harris 2003). Nevertheless, it is the wrong strategy for defending real world affirmative action. The programs legitimated under the Civil Rights Act, in both their nonpreferential and preferential forms, had—and have—a clear aim: to change institutions so that they can meet the nondiscrimination mandate of the Act. Selection by race or gender was—and is—a means to such change. To the extent that such selection also compensates individuals for past wrongs or puts people in places they really deserve, these are incidental by-products of a process aimed at something else.
The same is true with university admissions policy. When the Medical School of the University of California at Davis offered four reasons in defense of the special admissions program that left Bakke on the outside, none of these reasons said anything about matching admissions and desert. The criteria of the special admissions program—race and ethnicity—were instruments to further ends: integrating the classroom, the profession, and the delivery of medical services, and breaking the chain of self-reproducing societal discrimination. Likewise, when the University of Michigan and the University of Texas defended their programs they pointed not to desert rewarded but educational value generated.
Now, if the neurosurgeon's son because of his race can advance each of these goals and the coal miner's son, because of his race, cannot, then isn't the selection decision easy? Pick the African-American neurosurgeon's son (however advantaged he may be) over the white coal miner's son (even if he is the most deserving creature imaginable). The aims of real world affirmative action make race and ethnicity (and sometimes gender) salient, not personal desert or merit. The test of real world affirmative action lies in the urgency of its ends (preventing discrimination, promoting diversity or integration) and the aptness (moral and causal) of its means (racial, ethnic, and gender preferences). Both remain much in dispute.
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