Is Affirmative Action Fair?
Racism: The belief that a race of people is inferior to another.
Moral racism: The belief that a race of people is morally inferior, and as such members of that race are deserving of less respect and concern.
Genetic racism: The belief that a race of people is genetically inferior, and as such members of that race are (on the average) less intelligent, and generally less capable.
These two forms of racism usually go together. However, they are logically distinct and it is possible for someone to subscribe to one form of racism without subscribing to the other.
Various practices in the U.S. which have been motivated by racism:
· Slavery (treating human beings as disposable property, without rights or privileges). Practiced mainly in the southern U.S. until the Civil War, outlawed in the U.S. by the 13th Amendment in 1865.
· Job discrimination (excluding people from jobs because of their race). Outlawed at the national level in 1964.
· Segregation (in schools, public places, sports, etc.). Public segregation was outlawed in 1964.
· Denial of Voting rights (poll taxes, literacy tests). After the Civil War, many areas (especially in the South) made it difficult for blacks to vote by selectively imposing “literacy tests” and other obstacles. This was also outlawed in 1964, and again in the 1965 Voting Rights Act.
Racism still exists in the U.S. today, but there is much dispute over how pervasive and influential it is. Many point to high rates of poverty and unemployment among blacks as strong evidence that racism is still very powerful. Since the inherent abilities of different races are equal, it is argued, large differences in outcome are most plausibly explained by persistent racism. Others claim that these statistics are not the result of racism against blacks, but are the result of other factors, such as high crime rates in the inner cities, low standards in public schools, the illegal drug trade, and urban cultural decay, all of which disproportionately affect blacks who are concentrated in urban areas for historical reasons. Genetic racists see the same data as evidence of racial inferiority rather than discrimination.
Today, claims of racial discrimination in employment are still common. Another bone of contention is the relationship between police and racial minorities, especially blacks. Do police departments tend to care more about protecting whites than blacks? Do they tend to harass innocent blacks and use excessive force when apprehending black suspects? Many would answer in the affirmative.
Different forms of Affirmative
Action
Weak Affirmative Action: Taking steps to ensure that discrimination based on race, gender, or other illegal criteria is eliminated through legal remedies targeted at individuals.
This might include: (a) Severe penalties for those who have been found guilty of discrimination (e.g. paying a fine, being fired, etc.). (b) Compensation for specific individuals who have been victims of discrimination (i.e. if an individual is shown to have been denied a job because of his or her race, then the employer may be required to give that person the job or a comparable job). (c) Oversight by an independent government agency to monitor employment practices for evidence of discrimination.
Medium Affirmative Action: In cases where applicants (either for a job or college admission) are equally qualified, preference is given to the candidate who is a member of a racial group which has historically suffered from racial discrimination.
In medium affirmative action, race breaks ties. It does not mean that a less qualified candidate is hired over a more qualified candidate. In addition, medium affirmative action includes all of the protections of weak affirmative action. Medium affirmative action might also include “outreach” programs, where special effort is made to seek out qualified minority candidates, rather than simply waiting for them to apply.
Strong Affirmative Action: Giving a preference (or “special consideration”), in hiring or admissions, to members of racial groups which have historically suffered from racial discrimination, in order to achieve greater representation of those racial groups.
This might include: (a) Requiring that the racial proportions of those hired/admitted are roughly the same as those in the relevant population (either local or general). Thus, if about 14% of the population is black, then it is expected that about 14% of those hired be black. This is what is often called “racial quotas”, and has been determined unconstitutional by the supreme court. (b) Giving members of certain racial groups a bonus when considering them for hiring or admission, so that their race is considered as a positive factor. This will increase their representation but does not guarantee any specific proportion of the total. This is the standard way in which AA is practiced in college admissions.
The first use of the phrase “affirmative action”, JFK 1961: [contractors using federal funds are to] “take affirmative action to ensure that applicants are employed, and employers are treated during their employment, without regard to their race, creed, color, or national origin.”
In other words, don’t just assume that discrimination isn’t going on, take action to make sure that it isn’t. This certainly sounds like a call for Weak Affirmative Action (see above).
After JKF was assassinated in 1963, Congress passed, and LBJ signed, the Civil Rights Act of 1964.
_________________________________________________
Public Accommodations: All persons shall be entitled to
the full and equal enjoyment of the goods, services, facilities, and
privileges, advantages, and accommodations of any place of public
accommodation, without discrimination or segregation on the ground of race,
color, religion, or national origin.
DESEGREGATION OF PUBLIC EDUCATION:
"Desegregation" means the assignment of students to public
schools and within such schools without regard to their race, color, religion,
or national origin, but "desegregation" shall not mean the assignment
of students to public schools in order to overcome racial imbalance.
NONDISCRIMINATION IN FEDERALLY ASSISTED
PROGRAMS: No person in the United States 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.
DISCRIMINATION BECAUSE OF RACE, COLOR,
RELIGION, SEX, OR NATIONAL ORIGIN
It shall be an unlawful employment practice
for an employer--
(1) to fail or refuse to hire or to
discharge any individual, or otherwise to discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual's race, color, religion, sex, or
national origin; or
(2) to limit, segregate, or classify his
employees in any way which would deprive or tend to deprive any individual of
employment opportunities or otherwise adversely affect his status as an
employee, because of such individual's race, color, religion, sex, or national origin.
______________________________________
By criminalizing various forms of discrimination,
the Civil Rights Act certainly takes “affirmative action” aims towards
eliminating unjust discrimination. But,
on the face of it, this is Weak Affirmative Action; the Civil Rights Act does not seem to call for Medium
or Strong AA. So where did the stronger
forms of AA come from?
President Lyndon B. Johnson (LBJ), June 4,
1965:
"You do not wipe away the scars of centuries by saying: 'now,
you are free to go where you want, do as you desire, and choose the leaders you
please.' You do not take a man who for years has been hobbled by chains,
liberate him, bring him to the starting line of a race, saying, 'you are free
to compete with all the others,' and still justly believe you have been
completely fair . . . This is the next and more profound stage of the battle
for civil rights. We seek not just freedom but opportunity—not just legal
equity but human ability—not just equality as a right and a theory, but equality
as a fact and as a result."
The idea that
affirmative action should be aimed at results and not just at ensuring equal
legal rights is indicative of Strong Affirmative Action.
In 1969, an
executive order by President Nixon set definite goals and timetables for
minority enrollment for federal contractors.
Nixon: "We would not impose quotas, but would require
federal contractors to show 'affirmative action' to meet the goals of
increasing minority employment."
To
this day, there are no state or federal laws that require Strong
Affirmative action anywhere. So why
does it exist?
Affirmative
Action Today
From
www.u-s-history.com:
The Griggs vs. Duke Power Company case of 1971: That case held that not only is intentional racial discrimination prohibited, but also hiring and employment policies that have perpetuated the effects of past discrimination. In addition, arbitrary blocks against the employment and advancement of black employees that were unintentional are prohibited and to be removed by private employers. In the Griggs case, black plaintiffs disputed Duke Power Company’s requirement that job applicants pass a general academic test of their abilities for its higher-waged jobs. It was found that test results could not predict the applicant's actual job performance. Further, it discriminated against black applicants who, due to a history of inadequate education in racially segregated schools, would more likely fail the test than their white counterparts. The ruling against Duke revolutionized the Civil Rights Act's enforcement by shifting the focus away from intent and toward a "disparate impact" standard...It established that companies failing to employ a workforce that reflected the racial makeup of the "local, qualified" labor force, were in violation of the act. It also set a precedent for outcome-oriented Affirmative Action policies.
Basically,
this means that if the employment practices of a company have a “disparate
impact”—meaning that certain minorities are less likely to be hired or
promoted—then there is a presumption that the employer is in violation of the
Civil Rights Act. Thus, employers have
decided to implement Strong Affirmative Action programs in order to protect
themselves from discrimination lawsuits.
Strong
Affirmative Action has not been mandated by the law, but the courts
interpretation of the law has created a de facto requirement of Strong
Affirmative Action. However, the
supreme court has also held that because AA programs are based on race, they
must face “strict scrutiny”, meaning that Strong AA can be implemented only
when it fulfills a “compelling governmental interest.”
In 1997,
Proposition 209 was passed in California:
"The state shall
not discriminate against, or grant preferential treatment to, any individual or
group on the basis of race, sex, color, ethnicity, or national origin in the
operation of public employment, public education, or public contracting."
This
made Strong AA in college admissions illegal at California state colleges and
universities. It is still practiced at
most universities in most states, and by most employers that fall under the
Civil Rights Act (businesses with very small numbers of employees are exempt.)
Affirmative
Action as Restitution
An example of
restitution
Suppose:
Y is competing with Z for a job.
Y was as or more qualified than Z,
but Z gets the job because Y is black and Z is white.
Justice requires that the employer
give restitution to Y by giving Y a job.
But suppose:
Y is not as qualified as a new
white candidate, Z’. Is Z’ being
treated unfairly if Y gets the job?
No, because the job is not open
to offer to Z’. Restitution requires
that it be given to Y. The new job is
not one that the employer is free to offer to the public.
“In a similar way, individual blacks who have suffered from
acts of unjust discrimination are owed something by the perpetrator(s) of such
acts, and this debt takes precedence over the perpetrator’s right to use his or
her options to hire the most qualified person for the position in question.”
Note: So far, this is compatible
with Weak Affirmative Action.
However,
Mosley believes that the same principle should be applied to groups as well as
individuals. If an employer has discriminated against blacks in the past, then
they have an obligation to remedy this by making more positions open to blacks
in the future (using Strong AA), though the beneficiaries will not be the same
blacks as were discriminated against in the past.
Of course, as a
general supporter of Strong AA, Mosley would have to go further. He would also hold that a new
employer, who does not have a history of discrimination, is obligated to
implement Strong AA. How would he
justify this?
He would argue that
the beneficiaries of Strong AA, while perhaps not victims of the original
discrimination, still suffer from the effects of it. Thus, they indirect victims of past discrimination. As for those who would bear the cost of
Strong AA:
“Many white males have developed expectations about
the likelihood of their being selected for educational, employment, and
entrepreneurial opportunities that are realistic only because of the general
exclusion of women and non-whites as competitors…[they are] recipients of an unjust
enrichment.”
Note: Mosley doesn’t support this claim, and seems
to think it is supported by the history of racism in the U.S. But as it stands, it is hard to evaluate. Are all whites males recipients of
unjust enrichment? What about poor
whites, or whites with drug-addicted parents, etc.? Is the “general exclusion” of women and non-whites ongoing, or
was this largely eliminated by the Civil Rights Act of 1964?
“Since [The Civil Rights Act of 1964] protects
seniority plans, it forces the burden of rectification to be borne by whites
who are entering the labor force rather than whites who are the direct
beneficiaries of past discriminatory practices. Given this limitation…the burden of social restitution may, in
many cases, be borne by those who were not directly involved in past
discriminatory practices.”
Mosley thinks this is
comparable to the case of restitution described above, in which the new white
applicant, Z’, is denied the job.
Justice requires that new positions cannot be legitimately offered to
the general public unless restitution takes place. Therefore, many of the new positions are not open to competition
at all, and whites have no claim on them.
Mosley
also argues that Strong AA is a way of correcting the dispositional
effect of discrimination. If an
employer is known to have discriminated against blacks, then many blacks will
simply not apply at all, adding considerably to the discriminatory effect. Using Strong AA sends a clear message that
the positions are now open to blacks.
Assuming that Strong
AA does have this (positive) effect, is this a good justification for AA? In general, we do not assume that an action
is justified merely because it has one positive consequence.
“…given the impossibility of determining what level of
representation blacks would have achieved were it not for racist
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 an equally contrived rectification.”
This claim is open
to the response that “two wrongs don’t make a right”. Of course, it would be question begging to simply assert that
Strong AA is wrong. But it is equally
question-begging to assert that a “contrived rectification” of the sort Mosley
describes is just.
Some thoughts on undeserved advantages
If Mosley is right,
then whites have undeserved advantage over blacks in society due to past
discrimination. Strong AA is justified,
in part, because the advantage is undeserved.
In other words, if someone has an undeserved advantage, then it is
legitimate to try to correct it by denying them some benefits that would
otherwise come from the undeserved advantage.
But note that there are many undeserved advantages one can have that
have nothing to do with race. Being
born wealthy certainly helps, as does being born to parents with a high level
of education. Having natural talent
doesn’t hurt, either. Are these factors
that should be considered in public policy as well? Specifically, if someone develops high expectations because they
have these advantages (which, of course, they did nothing to earn) owing to the
fact that those without them are (to some extent) excluded from consideration,
does this make them recipients of “unjust enrichment”? Consequently, wouldn’t this justify Strong
Affirmative Action based on factors other than race? In fact, since all advantages that one is born with are ones that
one has no control over, and the same is true of all disadvantages, doesn’t
Mosley’s logic suggest that everyone should have an equal shot at every job,
regardless of qualifications?
Louis Pojman “The Case Against Affirmative
Action”
“The
two wrongs make a right theses goes like this: because some whites once
enslaved some blacks, the descendants of those slaves (some of whom now may
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 have even suffered hardship comparable to
that of poor blacks.)”
This is a bit of a
Straw Man. Proponents of Strong AA are
not merely concerned with slavery, but also with other discrimination both past
and present.
“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 leftovers…”
Comment: Even if this were correct, the “leftovers”
would constitute most of the meal, since the other groups are all minorities
and the majority of positions would still be left for whites. That hardly sounds like oppression (even if
it were an injustice). Moreover,
statistics show that Asians are harmed more by Strong AA than whites…if college
admissions were based entirely on grades and test scores, Asians would be
admitted in significantly higher numbers.
The Compensation Argument
AA
doesn’t sit well with the ordinary concept of compensation, since that involves
specific wronged individuals being compensated without harm to third
parties.
“Still, there may be something intuitively compelling
about compensating members of an oppressed group who are minimally qualified.”
BUT: there are three prima facie reasons for
sticking with meritocracy that must first be overridden
(1) treating people according to their merits
respects them as persons rather than as means to social ends (a Kantian
principle)
(2) society has given people expectations that
they will be awarded for achieving certain levels of excellence
Comment: This reason seems especially weak. The mere fact that people expect something
does not justify giving it to them.
(3) filling the most important positions with
the best qualified is the best way to ensure efficiency in job-related areas
and in society in general (an appeal to utility)
The Argument for Compensation From Those Who Innocently Benefitted
From Past Injustice
Pojman
summarizes the argument in his own words:
“Young white males as innocent beneficiaries of
unjust discrimination against 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 benefited from that oppression or discrimination. So it is perfectly proper that less
qualified women and blacks be hired before them”.
Is this a fair
representation of Mosley’s argument?
Pojman
responds: “If A steals B’s car and wrecks it, A as an
obligation to compensate B for the stolen car, but his son has no obligation to
compensate B. Furthermore , if A dies
or disappears, he has no moral right to claim that society compensate him for
the stolen car…Sometimes a wrong cannot be compensated, and we just have to
make the best of an imperfect world…”
The Diversity Argument
Diversity
has social utility: being exposed to
others of different backgrounds can broaden your horizons and make you more
tolerant and able to live and work with others. This is one of the chief justifications for Strong AA at college
campuses. Some colleges argue that
diversity is important for achieving the education mission of the school, and
so Strong AA is justified in achieving diversity.
Pojman: “…while
we can admit the value of diversity, it hardly seems adequate to override the
moral requirement to treat each person with equal respect…furthermore, unless
those hired are highly qualified, the diversity factor threatens to become a
fetish.”
Does Pojman leave
the door open to some AA in college admissions based on the value of diversity?
“On
the other hand, if a black policeman, though lacking some of the formal skills
of white policemen, really is able to do a better job in the black community,
this might constitute a case of merit, not affirmative action.”
In other words, the “better qualified” white may not be better qualified
in the ways that count. Test scores and
other formal criteria or not always the most relevant to the job. Hiring a “less qualified” black in such a
case is not really AA, but is a case of hiring the best person for the job,
period. Thus, Pojman might agree to
some of what is called AA, on the grounds that it is really not AA at all.
The Equal Results Argument
“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.”
Two Arguments Against Strong AA
AA
Requires Discrimination Against a Different Group
“…this
discrimination [of Strong AA] 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. …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.
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.”
An Argument from the Principle of Merit
“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.”
…
“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.”
_____________________________________
If you oppose Strong AA:
Would you support a form of AA
in which the beneficiaries were those who are socioeconomically disadvantaged
(say, those from poor backgrounds, or who suffered abuse or neglect as children,
etc.)?
Do you think that anything ought
to be done instead of Strong AA, to help those in minority groups who have
historically been discriminated against?
If you support Strong AA:
Do you think that the way Strong
AA is currently implemented is appropriate, or do you think there is a better
approach?
What are the conditions under
which you think Strong AA would no longer be justified (in other words, what
would have to happen before you would be willing to end it)?
Notes Created August 16, 2005
Last updated August 16, 2005
These notes are provided as a supplement to the lectures and other course materials. They are not self-contained, and are not a substitute for assigned readings.