Reference no: EM132203351

U.S. Supreme Court decisions have not been completely clear about the legality of affirmative action programs. A large number of federal court decisions have agreed that the use of affirmative action programs to redress racial or gender imbalances that are the result of previous discrimi- natory hiring practices is legitimate. Moreover, the Supreme Court has ruled that companies can legally use affirmative action programs to remedy a “manifest racial imbalance” or a “historic,” “persistent,” and “egregious” underrepresentation of women or minorities, even if the representation was not the result of past discriminatory job practices.84 Over the years, the Supreme Court has placed additional conditions on affirmative action programs.

Of course, affirmative action programs are not found only in the United States. In Canada, affirmative action pro- grams are widely used for women, people with disabili- ties, Aboriginal people, and members of visible minority groups. India uses affirmative action programs particu- larly for members of the lowest castes who are underrep- resented in schools and within government jobs. India’s

lowest castes, sometimes called the “Depressed Classes,” include those once popularly referred to as “untouch- ables,” people who have long been (and who in many parts of India still are) humiliated, shunned, oppressed, segregated, and impoverished, but for whom the govern- ment now reserves a certain percentage of places in schools and universities plus jobs in government. Many Chinese universities have affirmative action policies directed at several of their own ethnic minorities, while Romania uses affirmative action for the Roma people oth- erwise known as “gypsies.” The South African govern- ment supports affirmative action programs for blacks, Indians, and coloreds. Israel uses such programs for Jew- ish Ethiopians. However, as in the United States, affirma- tive action is highly controversial and has been attacked in foreign nations.

Arguments that defend affirmative action as a form of com- pensation are based on the concept of compensatory jus- tice.90 Compensatory justice implies that people have an obligation to compensate those whom they have intention- ally and unjustly wronged. Affirmative action programs are then interpreted as a form of reparation by which white male majorities now compensate women and minorities for unjustly injuring them by discriminating against them in the past. One version of this argument holds, for example, institutions and, apparently, even by the government when it that blacks were wronged in the past by U.S. whites and that consequently the former should now receive compen- sation from whites.91 Programs of preferential treatment provide that compensation.

The difficulty with arguments that defend affirmative action on the basis of the principle of compensation is that the principle requires that compensation should come only from those specific individuals who intentionally inflicted a wrong, and it requires them to compensate only those specific individuals whom they wronged. For example, if five red-haired persons wrongfully injure five black-haired persons, then compensatory justice obligates only the five red-haired persons to give to only the five black-haired persons whatever the black-haired persons would have had if the five red-heads had not injured them. Compensa- tory justice, however, does not require that compensation should come from all the members of a group that contains some wrongdoers, nor does it require that compensation should go to all the members of a group that contains some injured parties. In this example, although justice requires that the five red-haired persons must compensate the five black-haired persons, it does not require that all red-haired persons should compensate all black-haired persons. By analogy, only the specific individuals who discriminated against minorities or women in the past should now be forced to make reparation of some sort, and they should make reparation only to those specific individuals against whom they discriminated.96

Although affirmative action programs usually benefit all the members of a racial or gender-based group, regard- less of whether they specifically were discriminated against in the past, and because these programs hinder every white male regardless of whether he specifically discriminated against someone in the past, it follows that such preferen- tial programs cannot be justified on the basis of compensa- tory justice.97 In short, affirmative action programs are unfair because the beneficiaries of affirmative action are not the same individuals who were injured by past dis- crimination, and the people who must pay for their injuries are usually not the ones who inflicted those injuries.

A second set of justifications advanced in support of affir- mative action programs is based on the idea that these programs are morally legitimate instruments for achiev- ing morally legitimate ends. For example, utilitarians have claimed that affirmative action programs are justi- fied because such programs promote the public wel- fare.102 They have argued that past discrimination has produced a high degree of correlation between race and poverty.103 As racial minorities were systematically excluded from better-paying and more prestigious jobs, their members have become impoverished. The kinds of statistics cited earlier in this chapter provide evidence of this inequality. Impoverishment in turn has led to unmet needs, lack of self-respect, resentment, social discontent, and crime. Therefore, the public welfare is promoted if the position of these impoverished persons is improved by giving them special educational and employment opportunities. If opponents object that such affirmative action programs are unjust because they distribute bene- fits on the basis of an irrelevant criterion such as race, the utilitarian can answer that need, not race, is the criterion by which affirmative action programs distribute benefits. Race provides an inexpensive indicator of need because past discrimination has created a high correlation between race and need. Need, of course, is a just criterion of distri- bution.104 Appealing to the reduction of need is consistent with utilitarian principles because reducing need will increase total utility.

The major difficulties encountered by these utilitarian justifications of affirmative action have concerned two areas:

1. Some have questioned whether the social costs of affirmative action programs (such as the frustrations felt by white males) outweigh their obvious bene- fits.105 The utilitarian defender of affirmative action, of course, will reply that the benefits far outweigh the costs.

2. More important, opponents of the utilitarian justifiica- tions of affirmative action have questioned the assumption that race is an appropriate indicator of need. It may be inconvenient and expensive to iden- tify the needy directly, critics argue, but the costs might be small compared with the gains that would result from having a more accurate way to identify the needy.Utilitarians answer this criticism by arguing that all minorities (and women) have been impover- ished and psychologically harmed by past discrimination. Consequently, race (and gender) provide accurate indicators of need.

Compare and contrast the main arguments used to support affirmative action programs.

Do you agree or disagree with these arguments? If you disagree with an argument, state clearly which part of the argument you think is wrong, and explain why it is wrong.