Justice and Reverse Discrimination

by Alan H. Goldman

Overview

Through careful consideration of the mutually plausible yet conflicting arguments on both sides of the issue, Alan Goldman attempts to derive a morally consistent position on the justice (or injustice) of reverse discrimination. From a philosophical framework that appeals to a contractual model of ethics, he develops principles of rights, compensation, and equal opportunity. He then applies these principles to the issue at hand, bringing his conclusions to bear on an evaluation of Affirmative Action programs as they tend to work in practice.

Originally published in 1979.

The Princeton Legacy Library uses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These editions preserve the original texts of these important books while presenting them in durable paperback and hardcover editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905.

Product Details

ISBN-13:	9780691628004
Publisher:	Princeton University Press
Publication date:	03/08/2015
Series:	Princeton Legacy Library , #1809
Pages:	264
Product dimensions:	6.10(w) x 9.10(h) x 0.70(d)

Read an Excerpt

Justice and Reverse Discrimination

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By Alan H. Goldman

PRINCETON UNIVERSITY PRESS

Copyright © 1979 Princeton University Press
All rights reserved.
ISBN: 978-0-691-07233-3

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CHAPTER 1

Introduction

This book will present a sustained argument for a single coherent view on the question of preferential treatment for members of minority groups and women. Arguments derived from other philosophers and lawyers will be considered when relevant to the development of this view, but I shall not attempt to provide a survey of possible positions on each facet of the issue. Collections of articles representing different moral viewpoints on the subject are available, but in the course of writing several articles myself, I came to the conclusion that the subject cannot be treated adequately in such limited space. The issue is too complex, and the opposing claims too plausible and initially compelling, to be sorted out in twenty or thirty pages. Adequate development of a reasoned position on so difficult a moral issue demands preliminary exploration of such fundamental moral concepts as rights and their relation to utilities, the value of and right to equality and equal opportunity, and the concept of adequate compensation for injury or injustice.

That the issue demands such thorough treatment needs little argument. Relations among races and between sexes, assertions of individual rights, and demands for equality in distributions of society's benefits — all of which figure prominently in this issue — constitute the fundamental social problems of our era. Thorough philosophical treatment is demanded not only because many persons' futures are at stake, but also as a test of the fruitfulness of ethical theory itself. If concrete social issues cannot be settled by thorough moral reflection that aims at consistency with settled moral convictions and accepted principles, they can be settled only by political muscle or in terms of shallow initial impressions. If normative moral theory cannot be tested by implications regarding correct solutions to real issues, then it remains academic and in all probability oversimplified. If moral philosophers do not dirty their hands in the soil of social problems, their abstract principles remain without adequate grounding. In fact, the sterility of such supremely general principles as the principle of utility becomes apparent only when we see how many distinct and less general principles need to be developed before a coherent solution to a problem like the justice or injustice of reverse discrimination can be even suggested.

Our object here will be to decide in which situations and for which individuals preferential policies can be justified and in which situations they cannot. We may begin by defining reverse discrimination as preferential treatment for minority-group members or women in job hiring, school admissions, or training-program policies. This definition will be improved throughout the initial chapters, as I examine the initial distributive rule for awarding positions, and as I distinguish among the various forms that preferential hiring and admissions policies can take. One form of preferential treatment that we will be considering attempts to correct for situations created by earlier treatment that departed from generally relevant criteria in an invidious way. Another form aims to create equal opportunities for those who presently have none. The question we must answer is: When can corrective preferential treatment of either form be justified and for whom. The question is a pressing one because preference is being given to many individuals under government pressure (affirmative action programs), and it is clear that the results of such pressure do not always accord with justice. While the realignment of political power that is taking place may be an improvement in distributing power to those who formerly lacked it, from a moral standpoint the policies that emerge from this realignment may not always be the best of available alternatives. The fact that different forms of preferential treatment are officially advocated in executive orders and put into practice under their threats makes a decision on their constitutionality by the courts (now partly decided as a result of the Bakke case) and on their justice by social philosophers even more crucial. While the opinions of social philosophers may be of less immediate practical consequence, and while philosophers have no exclusive insight into the correct verdict, we may presume that those in power will generally pursue a policy of whose justice they are convinced and that moral philosophers trained to analyze arguments in this and similar areas may be best equipped to do the persuading.

The recent Supreme Court decision in the well-known Bakke case did little to resolve this issue morally. The decision found against only those programs of professional schools innocent of prior discrimination that aim at fixed quotas of minority representation. The legal status of the great majority of affirmative action programs that set goals for minority representation in education and employment was left unsettled. More important, it is questionable whether the Bakke decision, which prohibits programs that require fixed percentages of minority-group members in positions at professional schools but allows race to count as a positive qualification for admission, is morally consistent. If race (or sex?) is considered a qualification in itself, then a person otherwise better qualified can lose a position solely because of his or her race (or sex), independent of whether the person thus advanced actually suffered from discrimination in the past. If this policy is to be justified on grounds of the value of diversity in the classroom, as Justice Powell argued in his key opinion, why not use quotas to achieve a mix that is considered optimal? That there is by definition a difference in degree to which race is considered in these two methods cannot be maintained, since no program has ever called for filling a quota with applicants who otherwise lack minimally acceptable qualifications. A school can adjust this level of minimal acceptability by adjusting the size of its quota as easily as by adjusting the degree to which race is to count as a qualification.

Hence there is no moral distinction — or any basis for a legal distinction — between the two types of programs distinguished in the Bakke decision, and especially in the opinion of Justice Powell. The real moral distinction is between those programs that award preference according to race or sex and those that demand evidence of individual desert for preference. This difference was not seen as crucial in the Bakke opinions. That decision, like the decision on abortion in Roe v. Wade, seemed politically astute in aiming to satisfy as many of the competing interests as possible. However, if the Supreme Court is not to be one more majoritarian political institution in our society, decisions in which distinctions lack legal or philosophical basis deserve little praise for their political astuteness. We shall be concerned here with the moral rather than the legal issue. But if denial of equal protection of the laws under the Fourteenth Amendment includes denial of equal opportunity for social benefits through the operation of state regulations or programs, and if we interpret equal opportunity in the morally correct way, then these issues appear to coincide.

I shall argue that those most competent for the positions for which they apply have prima facie rights to those positions; that reverse discrimination is nevertheless justified in order to compensate specific past violations of these rights or denials of equal opportunity; that a policy of preference is justified as well in order to create equal opportunity in the future for the chronically deprived; that preference cannot be justified when directed indiscriminately at groups defined only by race or sex, in order merely to increase their percentage representation in various social positions; and that affirmative action programs are unjust to the extent that they encourage or directly mandate such group-oriented preferential policies. The position to be advocated here falls between that of those who call for preference for all women and members of minorities until percentage representations are proportionate to numbers of those seeking positions from various groups, and that of those who believe that any departure from "merit criteria" is unjust. My position differs from the compromise view represented in the Bakke decision in calling for individualization of criteria for preferential treatment. This can be accomplished even when aiming to correct only injustices connected with racial and sexual discrimination, as opposed to all economic or social handicaps. Given the extensive amount of past injustice to individuals still seeking positions — denial of jobs and promotions to most competent or potentially most competent women or blacks, denial of equal educational opportunity by forced attendance at segregated schools, etc. — and given the chronic social deprivation prevalent in many ghetto communities, the preferential policies advocated would need to be fairly widespread. My objection to present policies is not that they are preferential or involve reverse discrimination, but that they tend to benefit many (and in some cases mainly) individuals who do not deserve preference on either of the grounds to be defended.

Before pursuing and developing the main argument, I shall make clearer some initial definitions and distinctions, and say something about the methods to be used in arriving at a final verdict.

Initial Distinctions

For treatment to be preferential, it must employ criteria that depart from characteristics generally considered relevant to the award of the positions in question and from the rule stipulating these generally relevant characteristics. For example, race or sex are not generally considered relevant characteristics upon which to base appointments; when they are used as such, the decisions will be preferential toward some individuals and discriminatory against others. Chapter Two will be concerned with establishing a general rule for awarding positions in a just distributive social system. Justifying this rule from a moral standpoint will involve not only more precise definitions of first-order and reverse discrimination, but also a demonstration of their prima facie injustice. (The distinction between these forms of discrimination lies in the intent of the latter to compensate or prevent the former and in the individuals for whom the latter is therefore preferential.) All discrimination departs from criteria that are initially relevant from the point of view of justice, hence all is prima facie unjust. Obviously, no redeeming features of discrimination against minority-group members or women (first order) can override violation of the normally proper rule (rather, further injustices are involved, such as undeserved insult). The question is how can compensatory and other considerations override prima facie just criteria for award of positions in the case of reverse discrimination or preferential treatment of minority-group members. This question will occupy subsequent chapters.

One central distinction between the forms of preferential policies mentioned above pertains to their application to whole minority groups as opposed to their application to individuals. Preferential policies, as stipulated in official programs, now generally grant preference to members of broad groups defined by race or sex. Various rationales can be offered for stating the criteria for preferential treatment this broadly. For example: that the original first-order discrimination for which this policy attempts to atone was made on the basis of race and sex; that only programs that employ these broad criteria can create equality of opportunity and give a fair share of power to all women and blacks by granting them desirable positions of responsibility quickly; or that insuperable administrative difficulties are avoided by stating the policy in terms of such easily identifiable characteristics as race or sex. I shall argue against these rationales in the third and fourth chapters. As we shall see, most of the reasons given in justification of preferential treatment are also compelling reasons for defining criteria of eligibility more narrowly than by race or sex, in order to single out only certain individuals within minority groups for preference. For example, if the reason given for preference is past discrimination, then we should prefer individuals actually discriminated against in the past. If the justifying reason is to end the cycle of chronic economic and social deprivation, then only those who are so deprived should be preferred. The desirability of increasing representation of particular groups in particular professions is not judged in itself to be a compelling reason to override the prima facie rights of others to positions. The concept of group rights does apply in certain contexts, but not in this one.

An initial distinction must also be drawn between weak and strong forms of reverse discrimination, and among the forms of strong discrimination. Weak reverse discrimination occurs when a minority-group member is preferred only when as qualified as any other candidate for a position. Strong preference is shown in one of two ways: when a minority-group member is given a certain percentage advantage within the scale of competence requirements used in hiring or admissions (we may term this "handicapping"), or when certain places are reserved outright for such individuals (sometimes with the requirement that the individuals demonstrate a level of competence above a prescribed minimum). An example of the former would be to add a certain number of points to the standard test scores of minority candidates when comparing them with those of white male applicants to graduate schools; the latter could be illustrated by an order to increase minority membership in a union or police department to 20 percent, or to reserve places in a professional school for members of some group in proportion to their percentage of the local population. The latter, if accomplished without comparing the qualifications of minority applicants with those of others, is the strongest form of reverse discrimination possible. The policy of the University of Washington Law School, challenged by De Funis, apparently involved the former type of strong preference; that at issue in the Bakke case involved the latter type.

These last distinctions are more important when award of the position in question depends upon open-ended degrees of competence or excellence rather than a fixed level of competence. Thus the justification for preferential treatment in hiring unskilled laborers, where equal competence may be expected to be widespread and where political considerations therefore may be allowed to have more weight, may be different from the justification for preferential programs of hiring in the universities. When open-ended degrees of excellence are possible for positions (such as those of doctors or professors), preferential policies will tend toward strong rather than weak reverse discrimination, the latter being applicable only in cases in which applicants have equal qualifications. There also will be differences between preferential treatment in training programs or admissions to schools and preference at the level of hiring, resulting from differences in the availability of the positions and the social costs involved in filling them. If and when reverse discrimination is justified in such cases as hiring in universities, the applicability of a strong or only a weak form will have to be made clear in each instance.

Finally, there is an initial distinction to be drawn among the types of reasons for preferential policies, that is, justifications in terms of compensation for past harm (backward looking) and those in terms of creating equality of conditions or equality of opportunity (future looking). It can be argued that those groups or individuals against whom there has been unjust discrimination in the past are now owed compensation in kind, that is, jobs of the type formerly barred by discriminatory practices. It can also be argued that those who are culturally or economically deprived through no fault of their own cannot have equality of opportunity for themselves or their children without decent jobs to raise their standard of living and level of motivation. These different lines of argument can be combined in various ways: if either justification alone is accepted, the group for whom the preferential policy is advocated will be larger; if both justifications must apply, the group will be smaller. I shall examine backward-looking justifications in the third chapter and future-looking in the fourth; the preliminary issue of a generally just initial rule for hiring and admissions will be settled in Chapter Two.

(Continues...)

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Table of Contents

• Frontmatter, pg. i
• CONTENTS, pg. vii
• ACKNOWLEDGMENTS, pg. ix
• ONE. Introduction, pg. 1
• TWO. Awarding Positions by Competence, pg. 22
• THREE. Compensation and the Past, pg. 65
• FOUR. Equal Opportunity and the Future, pg. 141
• FIVE. Conclusion, pg. 230
• NOTES, pg. 235
• SELECTED BIBLIOGRAPHY, pg. 241
• INDEX, pg. 247