READING FOUR - Opinion Essay

AFFIRMATIVE ACTION: THE NEW RACIALISM?

Assessing Affirmative Action

S To assess affirmative action, one has to examine, however briefly, some of the many of arguments that have been offered in its defense. This examination reveals the lack of moral or intellectual foundations for affirmative action. It also reveals the profoundly destructive racialist modes of thinking that lie at the core of advocacy of affirmative action. Happily, recent Supreme Court decisions have rejected a good deal of this racialist thinking. These recent decisions provide some hope that the ideal of non-discrimination may be systematically revived. These decisions also provide some hope that the resentments, disharmony, and racial conflict that is caused by preferential selection may not further engulf this country.

What Affirmative Action Is

Affirmative action is a principle governing how people are to be selected for valued positions, e.g., for jobs, for public honors, or for admission to schools. The principle of affirmative action is that a significant factor in the selection process should be the race, ethnicity, or gender of the candidates for the position. According to this principle, some candidates are to be significantly favored over others on the basis of their race, ethnicity, or gender. This necessarily means that other candidates are to be discriminated against on the basis of their race, ethnicity, or gender.

Affirmative action is decidedly not scrupulous regard for the genuine merits of all individual candidates. Rather, advocates of affirmative action reject the ideal of non-discriminatory selection on the basis of individual qualifications. They favor a process that gives significant, if not decisive, weight to the race, ethnicity, or gender of the candidates.

Advocates of affirmative action usually favor preferential selection for members of a variety of groups, e.g. African-Americans, Hispanics, or women. For the purposes of this essay, I will focus on the defense of affirmative action that is to be carried out for the supposed benefit of African-Americans. (This narrower focus obscures the deep quandary for advocates of affirmative action about how to divide the spoils of preferential selection among all the groups clamoring for it.)

The Individual Corrective Justice Argument

Some advocates of affirmative action attempt to defend it on the model of Individual Corrective Justice. If person A unjustly enriches himself at person B's expense, then A owes compensation to B. If A's descendent is unjustly enriched by A's past unjust act, and B's descendent is unjustly disadvantaged by that past act, then A's descendent owes compensation to B's descendent.

However, although some white Americans once benefited from monstrous injustices inflicted upon African-Americans, the case for present preferential treatment faces a serious twofold problem. The lesser but still significant problem is the difficulty of identifying which present day African-Americans should be classified as currently still uncompensated victims of those past moral crimes. Certainly the most credible African-American candidates for highly valued positions will usually have much less claim to be currently still uncompensated victims of injustices than will many other African-Americans and many white applicants.

So those most likely to gain from corrective justice policies are those least likely to either need or be entitled to them. The more significant problem is the difficulty of establishing that white (and other non-black) candidates who will be discriminated against by an affirmative action policy have been unjustly advantaged by past injustices against African-Americans. Do the unjustly advantaged include descendants of those who supported underground railroads or who were killed or maimed during service in the Union army? Do the unjustly advantaged include recent immigrants or the descendants of fairly recent immigrants who themselves were unjustly treated (both before and after immigration)? Do the unjustly advantaged include those whose parents or who themselves have paid tens of thousands of dollars in taxes for programs which, our wise leaders assure us, greatly benefit the disadvantaged?

In light of these and many similar considerations, it is extremely implausible to maintain that all or even most of those non-blacks who are discriminated against by affirmative action programs are themselves unjust beneficiaries of past injustices. Thus, the Individual Corrective Justice model can justify very little of what is now being done in the name of affirmative action.

Indeed, the factual component of the case for preferential treatment as corrective justice is so difficult to establish that advocates of affirmative action never actually try to show that the candidate who is to receive preferential treatment is in fact a victim of past injustices, and that the candidates who are to be discriminated against have received unjust benefits. Despite all the rhetoric about seeking out the disadvantaged and nullifying unjust advantage, no one actually engaged in affirmative action programs pays the slightest heed to who among particular individual candidates have been (unjustly) disadvantaged or (unjustly) advantaged.

The Collective Corrective Justice Argument

Indeed, advocates of affirmative action have abandoned the model of unjustly enriched and unjustly disadvantaged individuals. They have shifted to doctrines of Collective Racial Guilt and Collective Racial Compensation. The key idea here is that the Group or Collective Entity made up of white individuals extending across generations has as a Group unjustly enriched itself at the expense of the Group or Collective Entity made up of African-American individuals extending across generations. Thus, current preferential selection of a member of the Black Race over members of the White Race is defended, not as corrective justice among individuals who are morally important in their own right, but rather as achieving compensation between the Races.

On this Group Corrective Justice argument, it does not matter if a relatively advantaged African-American individual is given preference over a relatively disadvantaged white individual because it's Races, not individuals, that matter. On this view, the almighty "us" and "them" reign supreme. What matters is that one of "us" gets the position and that one of "them" doesn't (or visa versa).

What is most striking here is the horror of this descent into racialist thinking. But let us ignore that for awhile in order to take note of another false and dangerous premise of this argument. Recast so as to avoid racialist Group-thought, this is the premise that the injustices that have been done to black individuals in American society have overall been beneficial to the aggregate of white individuals in American society. This premise is false and dangerous. It is false because it ignores the pervasive costs to everyone (or nearly everyone) of attempts to right those injustices and of the numerous social problems that are due (in part at least) to these injustices. All of us (or certainly nearly all of us) would be better off had these injustices not been wrought. This premise about the overall benefits to whites of past injustices is dangerous because it says to white people (indeed, to members of every particular race), "If you want to benefit yourselves, inflict injustices upon others." That is not a message likely to encourage just conduct.

The Diversity Argument

Let us move on, however, to the third and currently most common defense of affirmative action: the Diversity argument. Although it comes in a variety of versions, the key idea here is simply that, within every institution or aspect of American society, the distribution of positions ought to match the racial, ethnic, or gender composition of American society has a whole.

The irony is that this aspiration is not based on the liberal vision that all people are ("under the skin") fundamentally alike so that, when discrimination is banished, there will be a natural tendency toward proportionate "representation." Rather the Diversity demand for the selection of people on the basis of their race, ethnicity or gender is based on the belief that the members of any given racial, ethnic, and gender group are fundamentally different from members of other groups. According to this Diversity argument, the differences among people are perceived as matters of individual talents, aspirations, efforts, choices, and character. Rather, people differ from one another on the basis of biological groupings. What matters is not who you are as an individual or what you have made of yourself as an individual but what group you represent.

On this Diversity view, it is a profound error to attempt to look through or beyond racial, ethnic, or gender differences to the question of individual merits and qualifications. For, according to the Diversity view, if you look to individual merits and qualification, the deep differences among racial, ethnic, and gender groups will guarantee that some groups will be "under-represented" in some institutions or aspects of society.

In short, the Diversity view, with its emphasis on the group-based differences among people, joins hands with old-fashioned racialism in proclaiming that African Americans (and whoever else is targeted for preferential selection) can rarely, if ever, compete on their individual merits and qualifications with members of other races. Of course, advocates of the Diversity argument would not say, as do old-fashioned racialists, that African Americans are inferior to members of other racial groups. But they are committed to the starkly condescending claim that African Americans are so deeply culturally different or so deeply wounded by life in American society that they cannot be expected to advance under a regime of liberal non-discrimination.

So the underlying message is the same as that offered by the old-fashion racialist: First and foremost we should think of individuals as members of this or that racial grouping and, because of their race-linked characteristics, African-Americans can only attain proportionate representation through processes of preferential treatment. One of the many insidious effects of such arguments and preferential policies is to cast a shadow of suspicion over the selection of any African-American for any valued position no matter how truly deserved that selection has been.

Thus, the Diversity argument unites with the Group Corrective Justice argument in reviving the mode of thought that is essential to racism and that has been one of the great causes of human injustice and misery. This is the disposition to view people as merely tokens or representatives of racial types rather than as unique, complex, self-responsible, individuals, each with a claim in justice to be seen, appreciated, and evaluated in her own right -- each with a claim to be treated with common human decency.

Advocates of affirmative action often decry the level of racialist thinking and feeling in American society and propose policies of preferential selection as remedies for these evils. But the fact of the matter is that such policies and the defenses offered for them bear a major share of the blame for the increased race-mindedness of our society and the increased belief that racial groups are and, in the nature of things, must be at odds with one another.

Constitutional Matters and Court Rulings

Space obviously does not permit the presentation and defense of a systematic constitutional perspective from which to evaluate governmental enforcement of racially preferential policies. My view is that such governmental enforcement is unconstitutional in light of a proper understanding of the purpose and legitimate powers of the constitutional government envisioned by the founders and upon a correct reading of specific constitutional materials, e.g., the equal protection clause of the Fourteenth Amendment.

Any governmental act or policy that makes race as such a determinant of how the government treats an individual is unconstitutional and, indeed, is flatly contrary to the 1964 Civil Rights Act. Plessy v. Ferguson was a bad constitutional decision because it accepted as constitutional governmental policies that determined how people would be treated on the basis of their race. In Brown v. Board of Education, the Court ruled correctly, but for the wrong reasons. The Court was mistaken in believing that it had to argue that segregated state schools were (inherently) unequal. For segregated public school systems are unconstitutional even if the segregated schools are genuinely equal. They are unconstitutional simply because they involve determining where students and teachers go on the basis of race.

The trend in recent Supreme Court decisions is for the Court to be much less permissive of governmental action that determines, on the basis of race, how individuals will be treated. The key cases here are Wygant v. Jackson Board of Education, City of Richmond v. J.A. Croson Co. and Adarand Construction v. Pena, Secretary of Transportation (and, in the Fifth Circuit Court, Hopwood v. State of Texas). The Court's evolving position is that any race-based decision-making is constitutionally highly suspect. Race-based decision-making violates basic moral norms of respect for individuals as individuals and basic constitutional norms of equal protection under the law. All race-based decision-making is invidious and likely to have highly malign effects.

Thus, the Court now reasons, governmental race-based decision-making can only be constitutionally acceptable if the race-based treatment involved effectively advances a compelling governmental interest and does so in the least constitutionally suspect way. Furthermore, the Court seems now to hold that the only compelling government interest is Individual Corrective Justice. If a governmental agency has itself unjustly discriminated, then that agency may now favor those individuals it formerly disfavored. But, the Court now rejects Collective Corrective Justice and Diversity (understood as racial proportionality) as genuine compelling interests. Thus, the Court now rejects governmental action that favors or discriminates against individuals simply on the basis of their race.

In effect, the Court has now returned to the basic and proper thrust of Brown v. Board of Education. If this position stands and effectively reins in the enormous number of counter-productive race-based policies and practices now in place, the cause of racial justice and harmony will be granted another chance of success.