Reconsidering Affirmative Action

Reconsidering Affirmative Action

            Considerations of race and gender gain relevance when juxtaposed with affirmative action.  Beginning with the President Kennedy’s Executive Order 10925, which created the Committee on Equal Opportunity and mandated “affirmative action,” affirmative action has had a storied and controversial history (SEP, 2005).  The year after the 1964 Civil Rights Act’s passage, President Lyndon B. Johnson issued Executive Order 11246, implementing Kennedy’s Executive Order (SEP, 2005).  The controversy, however, never came to a head until the 1970s.  This can be attributed to two separate developments, one political and another philosophical.  First, in 1972, the Secretary of Labor instituted the Revised Order Number 4, fully implementing Johnson’s Executive Order (SEP, 2005).  Furthermore, in 1978, Allan Bakke, a white student that was rejected by the University of California Medical School to accommodate less qualified minority students, sued the college and brought affirmative action to the Supreme Court (SEP, 2005).  The second development was essentially a revolution in how philosophy was (and is) approached.  Prior to the 1970s, the Anglo-American tradition of philosophy was to approach problems as abstract, and lay the basic rules for social interaction, but no further.  This changed in 1971.  Harvard Professor John Rawls published his groundbreaking A Theory of Justice, outlining how justice ought to be approached and applied in a politically liberal society.  Later, in the same year, the journal Philosophy and Public Affairs was published and backed by Princeton, explicitly applying philosophy to society (SEP, 2005).  Furthermore, the journal published two major articles in affirmative action history:  Thomas Nagel’s “Equal Treatment and

Compensatory Justice” and Judith Jarvis Thomson’s “Preferential Hiring.”  Since the publishing of those two articles, affirmative action has been publicly debated by members from all political or social persuasions (SEP, 2005).  Affirmative action has recently garnered major public attention over two suits between the University of Michigan’s undergraduate program and law school, Gratz v. Bollinger and Grutter v. Bollinger, respectively (SEP, 2005).  In these landmark decisions, the Supreme Court ruled that race may legitimately be a factor for consideration in postsecondary admissions (SEP, 2005).  Throughout all of this controversy, however, one concept has remained constant: in some shape or form, affirmative action exists as a mechanism to provide for equal opportunity.  The question is: does it work?

Before we can consider equal opportunity and affirmative action’s impact, we must first understand what affirmative action is.  A major reason for the confusion surrounding affirmative action is because the definition itself is highly contested.  For instance, even if we narrow the matter to “considerations of gender and race,” the phrase remains quite vague.  What do considerations entail?  To what effect do we implement these considerations?  Do we create some sort of quota system?  A number of authors provide valuable insights into how affirmative action ought to be conceptualized.  John Hart Ely, as explained by Charles W. Collier, argues that we ought to “[police] the process of representation.”  Collier explains,

“Affirmative action in this sense may be defined as policing the process of selection: not in order to determine or even influence the outcome of that process (on the analogy to determining the outcome of an election), but simply to ensure that the process of selection is rigorously fair.” (Collier, 1995)

This notion of affirmative action is strictly procedural and mutually exclusive of any standards-based definition of affirmative action; that is to say, it is unconcerned with the end results of the process.  After all, if we find that a process is scrupulously fair, who would contest the results?  The next question to be answered is that of fairness.  Historically, the beneficiaries of affirmative action are those that were previously overlooked.  Minorities once cast aside are now seriously considered.  Thus, we would conclude that an accurate model of affirmative action implicitly (or explicitly) requires that admissions officers now make an effort to consider every applicant.  This is consistent with Supreme Court decisions, which have always maintained that universities (and other institutions) should reject all unnecessary exclusionary policies (SEP, 2005).  Finally, an application of Temple Law Professor Richard Delgado’s writings on affirmative action would lead us to believe that affirmative action must be considered procedurally.

“[Affirmative action] thus bases inclusion of people of color on principles of social utility, not reparations or rights (emphasis his).  When those in power decide the goal has been accomplished, or is incapable of being reached, what logically happens?  Naturally, the program stops.  At best, then, affirmative action serves as a homeostatic device, assuring that only a small number of women and people of color are fired or promoted.” (Delgado, 1995)

Therefore, when we consider affirmative action as something which achieves a particular goal rather than as a fair selection process, minorities are ultimately disenfranchised.  Thus, we refer back to Ely’s procedural conceptualization of affirmative action as the only fair and reasonable definition for two reasons: first, the concept of rejecting all unnecessary exclusionary policies is the only historically stable and consistent part of affirmative action; second, because no race or

gender is born with greater potential or ability, then insofar as the admissions process is created to be fair, then it follows that the results would be as well.  The definition does indeed consider definitions based upon arbitrary metrics or quotas to be misguided and incorrect.  My contention is that affirmative action successfully equalizes opportunities because it combats unfair standards, exposes racist mindsets, and fairly reallocates power.

It is often said that history is written by its victors.  Less often, however, is it noted that the victors also determine the standards of merit.  You may recall that in the last paragraph, I had noted that affirmative action ought to be procedural, which by its very nature, is separate from the ends.  The means, however, can rectify the ends.  In the United States, white males have traditionally held power.  One might note the acronym WASP as a criterion for presidential eligibility; that is, to be President, one should be a white, Anglo-Saxon, and protestant male (the notable exception being Kennedy).  As such, white males have traditionally formulated the standards and metrics for success.   For minority groups to buy into these standards and allow themselves to be chosen by these same standards is absurd.  Delgado explains:

“As marginalized people we should strive to increase our power, cohesiveness, and representation in all significant areas of society. We should do this, though, because we are entitled to these things and because fundamental fairness requires this reallocation of power…Our acquiescence in treating it as “a question of standards” is absurd and self-defeating when you consider that we took no part in creating those standards and their fairness is one of the very things we want to call into question.” (Delgado, 1995)

The way that considerations of race and gender combat these standards is quite subtle but very effective.  Affirmative action as a policy of inclusion requires admissions officers to consider minorities without deferring to standards that necessarily marginalize their achievements.  At first blush, it might seem absurd or foolish that I am advocating nothing more than fairness.  After all, who could disagree with such a notion?  Yet, the Civil Rights Act of 1964 did not erase centuries of bias.  Tests such as Harvard’s Project Implicit have concluded that those of us who claim to be racially unbiased still associate lawyers with white males before black females.  What is needed to turn the tide against this passive bias is active enforcement of fair standards.  Thus, affirmative action “creates” equal opportunity by literally requiring that all applicants be treated without regard to biased standards.

It is also said that every philosophy presupposes a sociology (MacIntyre, 1984).  Accordingly, affirmative action, a philosophy with calls for inclusiveness and equal opportunity for all, presupposes a world in which this would occur.  In virtue of the fact that there exists a mechanism called affirmative action, affirmative action would require a shift in mindset.  Indeed, opponents of affirmative action might claim that this shift in mindset occurred at the passage of the Civil Rights Act of 1964.  In truth, however, this act only created a formally neutral system; a system in which we claim that things are scrupulously fair, whereas in truth, the system does nothing but to mask subtle and perverse discrimination.  Delgado confirms this notion, writing

“[N]eutral mechanisms cannot spot, much less redress, most forms of racism because they are not designed to do so. They are calculated to detect and punish only that which appears abnormal — i.e., shocking incidents of intentional racism.

But with the realization that racial subordination is the norm, formal neutrality’s failure to do much to repair our racial ills is unsurprising.”

Thus, in order for admissions to be fair and opportunities to be equal, we need a shift in mindset.  The claim that our system of awarding competence with the appropriate reward is illegitimately biased.  Affirmative action actively combats this inequity by requiring admissions officers to consciously realize that their decisions are underscored with bias.  This allows minority groups to be fairly represented without disadvantaging other groups or risking “reverse discrimination.”  That is, if the selection process is fair and requires admissions officers to be fair, then we find that minority groups gain acceptance on their own accord, rather than specially formulated quotas or standards.

There is yet another adage which observes that a dollar is always worth more to a hobo than a millionaire.  Money, and other goods like it, always has diminishing returns.  In the opening paragraph, it was noted that John Rawls’ seminal work, A Theory of Justice, set the affirmative action debate on its way.  While changing the application of Anglo-American philosophy, the text also provides a valuable insight into how societies ought and their resources to be organized.  Rawls argues that societies should be organized in accordance with a hypothetical “original position,” in which the individual has no awareness of himself or herself (Rawls, 1971).  For instance, an individual in the original position would be unaware of their race and, accordingly, would be deterred from creating racist policies.  From this position, Rawls formulated two principles of justice as fairness: first, each individual should have access to the same liberties and second, social and economic inequalities should be of greatest benefit to the least advantaged individuals (Rawls, 1971).  For instance, unfair tax codes should aid the poorest

more than they would aid the rich, as goods have diminishing returns.  Applying the second principle, it becomes clear that affirmative action, even if it does harm majority groups, should be implemented.  Those in the lowest echelons, those most in need, should benefit the most from an unequal policy.  Coupled with the previous two paragraphs, it seems obvious that affirmative action is necessary.  Not only does it require fair admissions policies, at the point at which one individual might claim affirmative action is unfair, we still conclude that it is fair in virtue of the fact that it benefits the most disadvantaged.

In light of this, however, many still object to the notion of affirmative action.  The most common objection is that affirmative action results in “reverse discrimination.”  That is, by aiding minority groups, affirmative action discriminates against majority groups, i.e. white males such as Allan Bakke.  Aside from the previous paragraph, it is important to note that those currently “in power” quite literally received their power as a result of another affirmative action system.  Delgado explains,

“For more than 200 years, white males benefited from their own program of affirmative action, through unjustified preferences in jobs and education resulting from old-boy networks and official laws that lessened the competition.  Today’s affirmative action critics never characterize that scheme as affirmative action, which of course it was. By labeling problematic, troublesome, and ethically agonizing a paltry system that helps a few of us get ahead, critics neatly take our eyes off the system of arrangements that brought and maintained them in power….” (Delgado, 1991)

It now seems that this reverse discrimination is not as perverse as it is made out to be. Affirmative action necessarily corrects a far more unjust affirmative action program of the past, one that clearly violates the Rawls’ second principle of justice.  Others commonly object that affirmative actions stigmatize minorities and trivialize their advances.  The very existence of this objection stems from the confusion in affirmative action literature.  When we begin to conceptualize affirmative action not as a series of standards and quotas but as a procedure do we realize affirmative action requires and allows for minorities to be judged in accordance with their achievements.  Thus, it is clear that the objections commonly voiced are not the fault of an individual’s shortcomings but rather from the muddled history and understanding of affirmative action.

While infrequently debated, many wonder whether we must pay for the sins of our fathers.  The enslavement of the Negro or the domestication of the woman are events perpetrated by our fathers, yet it seems as though we are entrusted with ameliorating these ills.  Nevertheless, by conceptualizing affirmative action as John Hart Ely does and Delgado would intend, as a movement to consciously create fair admissions policies, we right these wrongs without violating the opportunities of others.  Affirmative action, in this regard, combats unfair standards, exposes racist mindsets, and fairly reallocates power.  While some might claim that a fresh start is what is truly necessary, a history of disenfranchisement requires that policies such as affirmative action are implemented now.  As Thurgood Marshall observed, “it is because of a legacy of unequal

treatment that we now must permit the institutions of this society to give consideration to race [and gender] in making decisions about who will hold the positions of influence, affluence, and prestige in America.” (Regents, 1978)

Bibliography

Collier, Charles W. “The New Logic of Affirmative Action.” Duke Law Journal 45 (1995): 559-578.

This source was invaluable in understanding how to conceptualize affirmative action, i.e. procedural versus standards-based.

Delgado, Richard. “Review: Recasting the American Race Problem.” California Law Review 79 (1991): 1389-1400.

Delgado’s justifications for why formally neutral systems only perpetrate prejudice provide much needed analysis and authority to an otherwise tenuous claim (please excuse the alliteration).

Delgado, Richard. “Affirmative Action as a Majoritarian Device: or, Do You Really Want to Be a Role Model?” Michigan Law Review 89 (1995): 1222-1231.

In tandem with the Collier article, this article provided an extremely compelling case for why the current conceptualization of affirmative action only entrenches the disparities.  This article was probably the motivation for the two-fold case that I provided: first, we must rethink affirmative action; second, the advantages follow naturally.

Fullinwider, Robert, “Affirmative Action”, The Stanford Encyclopedia of Philosophy (Spring 2005 Edition), Edward N. Zalta (ed.), URL = <http://plato.stanford.edu/archives/spr2005/entries/affirmative-action/>.

As a primer to the affirmative action debate, this article was extremely helpful in providing a history of the topic.  The latter parts of the article dealt with niche topics outside the scope of this paper

Macintyre, Alasdair. After Virtue: a Study in Moral Theory. 2nd ed. Notre Dame: University of Notre Dame, 1984.

Almost all of the concepts of After Virtue were not referenced in this paper, save a quotation.  Nevertheless, the book is an extremely accessible introduction to moral thought.

Rawls, John. A Theory of Justice. 1st ed. Cambridge: Belknap, 1971.

Rawls’ two principles and the original position are described in greater detail in A Theory of Justice.

Regents of the University of California V. Allan Bakke. No. 76-811. Supreme Court. 28 June-July 1978.

Thurgood Marshall’s dissent in this case, while largely outside the scope of the paper, was instrumental in framing how I viewed affirmative action.