This essay is about the moral and political justification of affirmative action programs in the United States. Both legally and politically, many of these programs are under attack, though they remain ubiquitous. The concern of this essay, however, is not with what the law says but with what it should say. The main argument advanced in this essay concludes that most of the controversial affirmative action programs are unjustified. It proceeds in a way that avoids dependence on controversial theories of justice or morality. My intention is to produce an argument that is persuasive across a broad ideological spectrum, extending even to those who believe that justice requires these very programs. Though the main focus of the essay is on affirmative action, in the course of making the case that these programs are illegitimate, I shall defend some principles about the conditions under which it is appropriate for the state to impose on civil society the demands of justice. These principles have broader implications for a normative theory of social change in democratic societies.
1 In this essay the term “race” will generally be used as shorthand for “race, gender, or ethnicity.” This is done purely as a matter of terminological convenience. In a similar vein, I shall use the term “minority” to cover women, even though they are not in the minority in most reference populations.
2 Terry Eastland reports that the Defense Department added 10 percent to the bid submitted by Kay & Associates, Inc., a nonminority firm, so that they could be “underbid” by a minority-owned firm. For an account of some of the methods employed by the federal government in set-asides, see Eastland Terry, Ending Affirmative Action (New York: Basic Books, 1996), p. 136.
3 42 U.S.C. 2000e–2(j).
4 Kaiser Aluminum had a training program that used racial preferences for blacks over whites, which was upheld by the Supreme Court in United Steelworkers of America v. Weber, 443 U.S. 193 (1979).
5 See, e.g., Morrow v. Crisler, 491 F.2d 1053 (1974), and NAACP v. Allen, 493 F.2d 614 (1974).
6 Belz Herman, Equality Transformed (New Brunswick, NJ: Transaction Publishers, 1991), p. 105. See also Purcell Theodore V., S. J. et al. , “What Are the Social Responsibilities of Psychologists in Industry? A Symposium,” Personnel Psychology, vol. 27 (Autumn 1974), p. 436.
7 This is required by Executive Order 11246, signed into law in 1965. See 30 Federal Register 12319. The exact rules and regulations can be found in 41 C.F.R. 60–1, as amended. As of 1990, over 27 million people were employed by firms that did business with the government. See Bloch Farrell, Antidiscrimination Law and Minority Employment (Chicago: University of Chicago Press, 1994), p. 84.
8 For a horror story about the enormous burdens and administrative intrusiveness of the civil-rights bureaucracy in the life of a small contractor, see Starr Tama, “The 7.63 Percent Solution,” Reason, 02 1995, pp. 30–35.
9 See Epstein Richard, Forbidden Grounds: The Case against Employment Discrimination Laws (Cambridge, MA: Harvard University Press, 1992), pp. 212–22. For a careful discussion of some empirical evidence of the coercive impact of federal civil-rights legislation on hiring practices, see Conrad Alison M. and Linneham Frank, “Formalized HRM Structures: Coordinating Equal Employment Opportunity or Concealing Organizational Practices?” Academy of Management Journal, vol. 38 (1995), pp. 787–820.
10 Regents of the University of California v. Bakke, 438 U.S. 265, 312–19 (1978).
11 An example of this is the now-defunct minority admissions program at the University of Texas Law School, as described in Hopwood v. State of Texas, 78 F.3d 932 (1996). Although this program could have been ruled unlawful under the Bakke criteria, the fact of its existence indicates how deeply entrenched the belief in preferential treatment is, at least in this corner of the academic community. There is widespread anecdotal evidence that relatively hard quotas are in place elsewhere in the academic community, but this issue will not be explored in this essay. For reasons that will become apparent later, academic employment and admissions create special complications for the main argument this essay advances.
12 Woodyard Chris, “Disney to Boost Minority Builders,” Los Angeles Times, 06 16, 1992, p. D2. Subsequently, the planned expansion was significantly scaled back.
13 By contrast, defensive preferential treatment programs are morally justified and indeed morally required, given the legal exposure firms face from disparate-impact lawsuits. It is generally not in a firm's financial interests to be vulnerable to disparate-impact lawsuits. Whether or not firms should face that exposure is a separate question and indeed is the subject of the argument in subsequent sections of this essay.
14 Perhaps there is a de minimus level of financial harm below which moral condemnation is inappropriate or at least of little moral significance. No one seriously maintains, however, that preferential treatment programs are comparable, in terms of their net costs, to taking home some office supplies, or even to modest affirmative action outreach efforts of the sort described at the beginning of this essay.
15 For a thorough discussion of the “diversity industry,” see Lynch Frederick, The Diversity Machine (New York: The Free Press, 1997).
16 See note 7 above.
17 Quoted in Lynch, The Diversity Machine, p. 19.
18 The fiduciary duties may themselves be conceived of as demanded by justice, on the grounds that violating those duties violates the moral rights (property rights) of the principals and that justice requires that people's moral rights be respected. If that is so, the conflict is a conflict of claims of justice, with one of those claims being a rights-claim and the other being a claim of distributive (or perhaps compensatory) justice. A comprehensive theory of justice would systematically resolve such conflicts; what follows in the next section could be thought of as taking the first steps toward such a theory. However, an alternative way of describing this conflict is the way it is done in the text, namely, as a conflict between fiduciary duties and the demands of justice. The problem then is to determine what one's moral duty is, all things considered.
19 Or is it the taxpayers who own the government? Not all citizens are taxpayers and not all taxpayers are citizens, though the two groups substantially overlap. Since I do not wish to claim that anyone literally owns the government, this complication need not be pursued. All that is claimed in what follows is that citizens or taxpayers have a principal-agent relationship with their government analogous to shareholders' relationship to management, at least when it comes to the government's dealings in the economy.
20 Bloch, Antidiscrimination Law and Minority Employment, p. 112.
21 Rawls John, A Theory of Justice (Cambridge, MA: The Belknap Press of Harvard University Press, 1971), p. 3.
22 Kolko Gabriel, The Triumph of Conservatism (New York: Free Press of Glencoe, 1963).
23 In what follows, the demands of justice are limited to the demands of compensatory or distributive justice, the grounds on which affirmative action programs are typically defended. There are other forms of justice (e.g., retributive), and there are rights-claims that may not be best conceptualized in terms of justice (e.g., rights to free speech or to religious liberty). It is unclear under what circumstances, if any, the two requirements I set forth should apply in conflicts between fiduciary obligations and these other demands. For example, if honoring a fiduciary responsibility involved perpetuating slavery, it is doubtful that these requirements would apply. But that is not what is at issue here.
24 “Victims” is a morally loaded term in most contexts, though not all (e.g., “victims of disasters”); unfortunately, there is no simple morally neutral antonym for “beneficiaries.” Consequently, as the term is used in this essay, “victims” means simply those whose interests are adversely affected and carries no implication that they have been morally wronged.
25 Information in this and subsequent paragraphs on the set-aside provision in the PWEA comes from the Congressional Record, 95th Congress, 1st session (1977), pp. 5327–30.
26 Ibid., p. 5327.
27 Fullilove v. Klutznick, 448 U.S. 448, 512 (1980).
28 City of Richmond v. J. A. Croson Co., 488 U.S. 469 (1989); Adarand Constructors v. Pena, 115 S.Ct. 2097 (1995).
29 LaNoue George, “The Disparity Study Shield: Baltimore and San Francisco,” in Racial Preferences in Government Contracting, ed. Clegg Roger and Ryland Walter H. (Washington, DC: National Legal Center for the Public Interest, 1993), p. 72, n. 14.
30 Sowell Thomas, Preferential Policies: An International Perspective (New York: W. Morrow, 1990); and Sowell Thomas, “The Presuppositions of Affirmative Action,” in Discrimination, Affirmative Action, and Equal Opportunity, ed. Block Walter and Walker Michael (Vancouver, BC: Eraser Institute, 1982).
31 Rosen Jeffrey, “The Day the Quotas Died,” The New Republic, 04 22, 1991, pp. 21–27.
32 LaNoue, “The Disparity Study Shield,” p. 109.
33 Rosen, “The Day the Quotas Died,” pp. 25–26.
34 Eastland, Ending Affirmative Action, p. 178.
35 See note 5 above.
36 42 U.S.C. 2000e–(g)(1).
37 See Belz, Equality Transformed, pp. 31–40.
38 Quoted in ibid., pp. 31–32.
39 401 U.S. 424 (1971).
40 Uniform Guidelines on Employee Selection Procedures (1978), 29 C.F.R. Section 1607.4D (1989).
41 490 U.S. 642 (1989).
42 Congressional Record, 88th Congress, 2d session (1964), pp. 2571, 2576, 2605.
43 Ibid., p. 7420. See also ibid., pp. 5864, 6000. Humphrey also said he was “disturbed” by a ruling by the Illinois Fair Employment Practices Committee that invoked a precursor of disparate-impact theory to hold that a minority-group member had been the victim of discrimination.
44 Ibid., p. 7312. On the same page, Senators Clark and Case explicitly deny the disparateimpact interpretation of discrimination, though not by that name.
45 Ibid., p. 1540.
46 Congressional Record, 90th Congress, 2d session (1972), p. 1665.
47 Ibid., p. 1676.
48 See 490 U.S. 642 (1989). The summary that follows is drawn from Perritt Henry H., Civil Rights Act of 1991: Special Report (New York: John Wiley and Sons, 1992), pp. 91–92.
49 Some critics of Ward's Cove claimed that this weaker requirement would permit employers to discriminate because of customer preference or employee morale. These concerns are specious, however, since a person denied a job or promotion under these circumstances could sue under the disparate-treatment construal of discrimination.
50 490 U.S. 659 (1989).
51 See Perritt, Civil Rights Act of 1991, pp. 129–36.
52 The wording comes from Section 703 (k)(1)(B)(i) of Title VII. See Congressional Record, Daily Report, 102d Congress, 1st session (1991), p. S15274.
53 Ibid., p. S15503.
54 Ibid., p. S15276.
55 Congressional Record, Daily Report, 102d Congress, 1st session (1991), p. H9528.
56 Ibid., p. S12755.
58 Ibid., p. S12775–76.
59 Ibid., p. 15337.
60 See, e.g., Representative Jack Brooks's remarks on the quota question at ibid., p. H9525.
61 H.R. Rep. No. 40(1), 102d Congress, April 24, 1991 (Education and Labor Committee); and H.R. Rep. No. 40(11), 102d Congress, May 17, 1991 (Judiciary Committee).
62 The minority report of the Education and Labor Committee (supra note 61) raises this issue on pp. 125–39. See especially p. 138. See also Representative Dick Armey's remarks on pp. 162–64. The minority report of the Judiciary Committee (supra note 61) also raises this issue on pp. 56–60. The majority report of the Education and Labor Committee summarily dismisses these concerns on p. 44, and the Judiciary Committee's majority report simply fails to address the issue. Compare this cavalier treatment of what is perhaps the central civil-rights issue of this bill with both reports' careful discussion of the issue of the recovery of expert-witness fees and attorney's fees, which goes on for many pages.
63 For a thorough discussion of this point and an entrée into the empirical literature on the difficulties involved in validating testing in a way that would satisfy the requirements of the business-necessity defense, see Epstein, Forbidden Grounds, pp. 206–26, 236–41.
64 42 U.S.C. 2003e–(a)(1).
65 42 U.S.C. 2000e–2(j).
66 For example, there is disagreement over whether Rawls's two principles of justice imply that the economic system of advanced industrial democracies should be free-market capitalism or some form of socialism. For an argument in favor of the former, see Shapiro Daniel, “Why Rawlsian Liberals Should Support Free Market Capitalism,” Journal of Political Philosophy, vol. 3 (1995), pp. 58–85. For arguments in favor of the latter, see Clark Barry and Gintis Herbert, “Rawlsian Justice and Economic Systems,” Philosophy and Public Affairs, vol. 7 (1978), pp. 302–25; Doppelt Gerald, “Rawls' System of Justice: A Critique from the Left,” Noûs, vol. 15 (1981), pp. 259–307; Quattro Arthur Di, “Rawls and Left Criticism,” Political Theory, vol. 11 (1983), pp. 53–87; and Schweickart David E., “Should Rawls Be a Socialist?” Social Theory and Practice, vol. 5 (1978), pp. 1–28.
67 Mill John Stuart, On Liberty , ed. Rapaport Elizabeth (Indianapolis: Hackett Publishing Co., 1978).
68 Prior to joining the Clinton administration, Labor Secretary Alexis Herman came under scrutiny for having a $500,000 ownership stake in a real-estate venture for which she put up none of her own money. She served as an affirmative action consultant for the project and was taken on as a limited partner (a so-called “face partner,” in the language of minority set-asides) in the deal. See The Birmingham News, 02 15, 1997, p. 14A.
69 Fullilove v. Klutznick, 448 U.S. 448 (1980).
* I would like to thank Ellen Frankel Paul, Daniel Shapiro, and David Schmidtz for helpful comments on earlier drafts of this essay.
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