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The Constitutional Logic of Affirmative Action
By Ronald J. Fiscus, Stephen L. Wasby Duke University Press
Copyright © 1992 Duke University Press
All rights reserved.
ISBN: 978-0-8223-8226-3
CHAPTER 1
The Central Argument
The Meaning of Racial Correlations Given Nonracist Assumptions and Original Positions
Our central argument combines a claim of distributive justice with a stipulated assumption about equality at birth and with deductive reasoning about subsequent departures from that equality. The argument, in bare form, is strikingly simple, and the stipulated assumption appears to be uncontroversial.
Let us imagine a group of newborn infants—in demographic terms, a cohort. For purposes of simplification, let us suppose that this cohort is roughly representative of the population of the United States, but not precisely so. Let us say that 50 percent of the infants in the cohort are male and so percent are female, and that 80 percent of the infants are white and 20 percent are black.
Now let us ask ourselves, "At the moment of birth, are there any significant differences, aside from the obvious ones, between the male and the female infants, or between the white and the black infants?" To be more specific, if we could measure it accurately, would we find statistically significant differences in the intelligence or in the potential, as-yet-undeveloped intelligence of these subgroups? Would either the average or the range of their potential IQ's be different—that is, would the bell-shaped curve indicating the spread of IQ's within each group be narrower or broader for one group, or would it center on a different point? And, let us further ask, at this point would there be differences in their character or in their potential character—in their ability to develop motivation, commitment, self-discipline, desire to "get ahead," etc., etc.? Would there, in short, be differences in their inchoate and undeveloped desires to share in all of life's promise or in their potential abilities to attain that promise?
Probably without exception, everyone asked these questions would emphatically agree that only a hard-core racist posits racial differences at birth. Most, but not all, would agree that there would be no differences between the male and the female infants at least in terms of their potential intelligence or character, but some might insist that biological differences would in and of themselves later lead to slightly different desires and motivations; and, of course, physical differences would produce different physical abilities between males and females as groups.
One has to admit that the case for absolute equality at birth is stronger with regard to race than with gender. Despite the revival several years ago by Shockley et al. of genetic theories of racial inferiority, not a single reputable study exists that would support a claim of general racial inferiority/superiority—in either intelligence or potential character—at birth. With gender, things are somewhat more complicated. No one has seriously suggested—or rather, no one worth taking seriously has suggested—that intellectual ability generally or character traits generally differ between men and women as groups as a result of heredity. But interestingly, with the progress of feminism has come a renewed interest in, and acceptance of, biologically based differences.
This should not be surprising. When assertions of general superiority/ inferiority still had a degree of respectability, and when gross "anatomy-is-destiny" generalizations still lingered, any recognition of biological differences as a source of behavioral or mental differences was both suspect and dangerous. If there is now a greater acceptance of studies attempting to link biology to gender-correlated differences in behavior and attitudes, it is doubtless because the studies have been more careful to limit their claims in terms of explanatory power and implications, and (perhaps) because it is now more possible to appreciate differences without assigning judgments of superiority or inferiority to them. To be perfectly fair, then, let us assume that reputable studies have suggested plausible biological explanations for some of the behavioral differences between men and women that show up at various stages of life.
While not conceding that a reputable study has ever furnished support (or likely would ever furnish support) for affirmative answers to any of the questions asked at the beginning of the chapter, let us illustrate our point using race and leave for another time the question of gender. Considering then, the two groups of infants, 80 percent white and 20 percent black, let us add a hypothetical condition. Let us imagine our cohort living in a perfectly nonracist society for, say, twenty-one years. Neither overt nor subtle discrimination has existed in this society. If there ever had been racism in the past, its effects had been completely eradicated by the time of the cohort's birth. Individuals harbor neither conscious nor unconscious racism; the color of one's skin is universally considered to be of no greater significance than, say, the color of one's hair or eyes. Role models exist for all of society's roles with equal frequencies, and in general white and black individuals are equally encouraged and discouraged by the society in whatever they undertake.
Before continuing, we should take note that a number of studies have strongly suggested that most of us treat people differently according to their physical attractiveness, even when we are not aware of it. Most of us at least initially impute greater intelligence and authority to individuals who are moderately attractive, and less to individuals who are either unattractive or conspicuously attractive. Perhaps the most disturbing studies are those that suggest that physically attractive defendants receive greater leniency than less attractive defendants. Other studies have suggested that a person's height affects how others respond to him or her. If the studies are correct, these initial judgments are usually not so strong that they withstand subsequent exposure to the individuals in question, but apparently the initial presumptions, when multiplied by the countless interactions in an individual life, have measurable cumulative effects. In the case of both attractiveness and height the studies show statistically significant correlations between these traits and success in the society.
Some would argue that such behavior is an ineradicable facet of human nature and is easily forgivable, but I would argue that it is essentially a matter of sensitivity, which can and should be taught. The important point is that such behavior does systematically reward and penalize individuals on a basis other than merit—usually on an irrelevant and immutable basis. We would therefore be justified in giving it a label corresponding to racism and sexism. Although "attractivism" and "heightism" are ungainly and off-putting neologisms unlikely to gain acceptance into our vocabulary, they would be legitimate parallel terminology. As with racism and sexism, they would identify a habit or pattern of judging people on the basis of an irrelevant accident of birth rather than on the basis of their actual individual merit. As with racism and sexism, they would be pejorative because they identify practices that violate the principle that individuals are entitled to be judged on their merit and not on the basis of irrelevant characteristics beyond their control. Thus, in all cases, the use of the terms would implicate judgments about fairness.
The point of this discursion is that even if the color of one's skin in our hypothetical society has no more significance than the color of one's hair or eyes, our society might not be perfectly nonracist, as our stipulation requires it to be. If all of us unconsciously prejudge each other, at least to some extent, on the basis of physical traits, then clearly differences in skin color present multiple opportunities for a kind of low-level racism even in a society that is not consciously racist. The discursion suggests that it will take some work to eradicate the last vestiges of racism; until a society becomes, in effect, color-blind, it cannot be sure that it is not judging people unfairly. The validity of our argument does not depend on the actual likelihood of achieving such a perfectly nonracist society, but simply on the truth of the claim that distributive justice requires thinking in terms of complete nonracism. For that reason alone, we must stipulate that in our hypothetical society the color of one's skin has absolutely no effect on people whatsoever, as if they were in fact color-blind.
The society described above is the sort of society that one would think everyone has a right to grow up in. In terms of the spirit of equal protection it is the ideal society, one where race truly is irrelevant in all aspects of life. Our claim of distributive justice is simply that one has a right to live in this sort of society or, if that is impossible, to be treated as one would have been treated in that sort of society. Distributive justice, as it relates to race, can only be determined by conceiving of the complete eradication of racism, even if that should prove to be a distant or even idle hope in practice. What is fair and what is to be realistically expected are frequently two different things, and if the one is to have any chance of influencing the other, the calculation of each must be kept separate. There is no extraordinary irony in the claim that justice in real societies is to be determined by first thinking about ideal societies.
My argument is that properly viewed, most affirmative action programs, even those which rely on so-called "hard quotas," advance this race-related claim of distributive justice; that in many situations such programs are the only way to advance the claim; and that, far from being unfair to nonminority individuals, such programs advance the claim for both disadvantaged minorities and advantaged nonminorities, both as groups and as individuals. The fact that our central reasoning could be used to indict a host of social practices and to support innumerable kinds of quotas throughout the society—that, in short, the reasoning could be pushed to the point of practical absurdity—is by itself no argument against employing it to remedy societal racism in at least those situations which seem amenable to quotas, that is, where racial disparities are stark and lack even apparent explanation.
To pursue the argument, then, let us imagine that after twenty- one years it is time for our cohort to apply to postgraduate schools. There is one medical school in this society, and it has one hundred openings for first-year students. Our twenty-one-year-olds make their decisions about what they wish to do, and then submit their applications. Central to their applications, of course, are their high school grades and, for those choosing to apply to medical school, their Medical College Admission Test (MCAT) scores.
What, we now ask, is the applicant pool at the medical school going to look like? Given our initial assumptions and our hypothetical condition of a completely nonracist society, strict logic tells us that it must look like this: The applicant pool will be 80 percent white and 20 percent black, and the hundred best qualified, as measured by high school grades and MCAT scores, will also be 80 percent white and 20 percent black.
Logic compels these answers because of what is implied by the initial assumption and by the stipulated condition. If there are no race-correlated differences in intellectual ability at birth, and no differences in character—in the inborn desire to achieve one's potential or in the potential for self-discipline to actually achieve it—then there should be no differences twenty-one years later in the racial distribution of the cohort across all of society's occupations unless they were caused by race-based societal factors, an impossibility given our stipulated condition.
That is, the racial pattern from one occupation to another should perfectly match the overall racial pattern of the cohort if the society has not favored one group and disfavored the other in the intervening twenty-one years. If the society has not in any way encouraged some and discouraged others because of their race, then there can be no other outcome than a statistically perfect match between all levels of achievement, on the one hand, and the overall racial composition of the cohort, on the other.
Indeed, there could be no statistically significant variations in any of life's activities. Suppose that it were found that the now-twenty-one-year-old blacks in the society voted at substantially lower rates than the whites. According to our logic, one would have to attribute the differential voting rates to some sort of racism. If there were no legal impediments to black voting, then one would have to conclude that the lower voting rate was a secondary or tertiary effect of racism—or, more likely, of various kinds of racism. What else, we would have to ask, could explain the differences? Why should the blacks in the cohort be less interested in politics than the whites? Or, why should they find it more inconvenient or more difficult or less rewarding to vote? The answer is that if the society were truly and thoroughly nonracist, they shouldn't, and they wouldn't.
Of Molecules and Mobility
There could also be no statistically significant variations in residence— that is, no racial patterns in housing—either from neighborhood to neighborhood or from one part of the country to another. What if a society exhibited racially distinctive residential patterns but denied the charge of continuing racism by attributing them to the lingering effects of an earlier, racist era? Suppose, to make our hypothetical society both more problematical and more like the United States—the ultimate focus of the discussion, after all—the society had once been racist, with both widespread de jure and de facto segregation, but that more than a century ago the society had promised that henceforth things would be different, had even amended its constitution to abolish at least legal racism. Now, over a hundred years later, there are widespread race-based residential differences in the society. Is it reasonable to conclude that racism continues to infect the society, or might the residential disparities be explained as "naturally continuing" without current or recent encouragement?
The answer is that after a century of putative freedom to move in pursuit of equal opportunities, racial patterns in residence can be explained only by continuing racism. Without racism blacks and whites would, over a few generations, become equal in accomplishments and motivation; in equal proportions the two groups would seek new opportunities in the cities and the suburbs, the North, the West, and the South. And without racism they would be equally welcomed and equally successful, thus encouraging, in equal measure, subsequent migrations. After several generations the only disparities would be due to the fact that a certain proportion of the population naturally stays put for many generations.
While one might think that number is substantial and would account for many disparities even after more than a century, the truth is that the American population—both white and black—has been highly mobile since the Civil War; whites have been highly mobile in almost all times and places during that period. In a recent five-year period, for instance, more than two out of every five Americans under the age of thirty-five moved. Although some moves were local—from one residence to another within the same city or town—nearly 50 percent were not: fully 10 percent of all persons in the United States moved from one state to another; 20 percent moved from one county to another. The figures for young adults are even more startling: in the same five-year period, more than two-thirds of all persons between the ages of twenty-five and thirty-four moved. And in both of the last five-year periods, more than 50 percent of the large and important segment of the population between ages twenty-five and forty-four moved.
Although the figures for "repeat movers" are not available, it takes no great leap of faith to conclude that these extraordinarily high figures, repeated over several five-year periods, add up to an overwhelming population movement even within one generation. When multiplied by the more than five generations since the ratification of the Fourteenth Amendment, the figures strongly suggest an interesting analogy.
The American population in an ideal state—indeed, any free and relatively mobile population—can fairly be compared to a volume of gaseous molecules, in which the constant movements of the molecules result, over time, in their random redistribution. Assuming that all the molecules are equal and equally unrestricted, then no matter how they were labeled or positioned initially, there will be no pattern discernible after a certain amount of time. Assuming that black and white Americans are equal and equally influenced in their movements, then no matter what their initial status, there will be no racial patterns discernible after a certain amount of time. The implication is unavoidable: if it were not for racism, with its channeling and inhibitory effects on migration, we would not only not have ghettos and nearly white suburbs, we would also not have significant state-to-state variations, or urban-small town or north-south or east-west variations anything like the extent to which we have them now.
(Continues...)
Excerpted from The Constitutional Logic of Affirmative Action by Ronald J. Fiscus, Stephen L. Wasby. Copyright © 1992 Duke University Press. Excerpted by permission of Duke University Press.
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