Is Affirmative Action Fair?



Background:  Forms of racism and racial discrimination



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 Today


            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.


The Civil Rights Act of 1964, highlights



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.


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




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.)



Albert G. Mosley  “Affirmative Action:  Pro”



Affirmative Action as Restitution


An example of restitution




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.”


Some questions for students


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.