Arguments against Affirmative Action

Luc Bovens has recently advanced a novel argument for affirmative action, grounded in the plausible idea that it is hard for an employer to evaluate the qualifications of candidates from underrepresented groups. Bovens claims that this provides a profit-maximizing employer with reason to shortlist prima facie less-qualified candidates from underrepresented groups. In this paper, I illuminate three flaws in Bovens’s argument. First, it suffers from model error: A rational employer does not incur costs to scrutinize candidates when it knows their (...) qualifications with perfect certainty, nor does it refuse to hire better-qualified candidates just because they did not require extra scrutiny. Second, Bovens’s core premise--that there is greater variance in the evaluation of underrepresented candidates than there is the evaluation of other candidates--hurts underrepresented candidates rather than helps them. Third, candidates who are not shortlisted for the reasons Bovens gives have a plausible complaint about unfairness in the hiring process. (shrink)

In two recent cases, Grutter v. Bollinger, 539 U.S. 306. and Gratz v. Bollinger, 539 U.S. 244., the Supreme Court held that the Equal Protection Clause permitted state schools to use race-sensitive admissions in order to obtain the educational benefits that flow from a diverse student body. The diversity-based argument for race-sensitive admissions, scholarships, awards, and other opportunities at universities should have been rejected because it does not consider the full range of costs and benefits and because the more narrow (...) educational effects probably weigh against such programs. However, this does not suggest that applicants' race, ethnicity, and gender should be ignored. Rather the same consideration that led to the defeat of the diversity argument, i.e., reasoning capacity, supports the consideration of demographic factors. However, attention to such factors further undermines the consequentialist case for affirmative action. (shrink)

Among the most controversial issues in the United States is the question of whether public or private agencies should adopt preferential treatment programs or be required to pay reparations for slavery. Using a carefully reasoned philosophical approach, Stephen Kershnar argues that programs such as affirmative action and calls for slavery reparations are unjust for three reasons. First, the state has a duty to direct resources to hose persons who, through their abilities, will benefit most from them. Second, he argues that, (...) in the case of slavery, past injustice – where both the victims and perpetrators are long dead – cannot ground current claims to compensation. As terrible as slavery was, those who claim a right to compensation today owe their existence to it, he reasons, and since the events that bring about a person’s existence are normally thought to be beneficial, past injustices do not warrant compensation. Finally, even if past injustices were allowed to serve as the basis of compensation in the present, other variables prevent a reasonable estimation of the amount owed. (shrink)

In Grutter, preferential treatment was held to be Constitutional on the basis of the contribution of “diverse” students to the education of their classmates. An implicit assumption in this argument, at least given how schools such as Michigan have interpreted it, is that the contribution involves making it more likely that the other students adopt the beliefs (or perspective) of the minorities. Three beliefs seem relevant here: justice is concerned with equality, racial and ethnic minorities are currently treated unequally, and (...) the state has a mandate to combat this type of injustice. I argued that the first two beliefs are likely false and that in any case they are already well represented on campuses. If my arguments succeed, then this narrow experiential diversity argument is incapable of establishing the moral permissibility, let alone Constitutionality, of these programs. A broader consequentialist argument may avoid this objection but only at the extent of introducing Constitutionally irrelevant considerations. (shrink)

Slavery harmed the slaves but not their descendants since slavery brought about their existence. The descendants gain the slaves’ claims via inheritance. However, collecting the inheritance-based claim runs into a number of difficulties. First, every descendant usually has no more than a portion of the slave’s claim because the claim is often divided over generations. Second, there are epistemic difficulties involving the ownership of the claim since it is unlikely that a descendant of a slave several generations removed would have (...) retained the claim of inheritance given the loss of wealth and disinheritance that often characterizes families. There are also problems in determining the amount of inheritance. This is in part because of the problems of calculating in the effects of offsets, especially crime-related offsets, which are owed by a significant portion of the descendants. Even if this inheritance claim can be established with sufficient confidence certain entities may not be asked to pay it. The federal government does not owe compensation since as a historical matter it permitted but did not cause enslavement. The beneficiaries of slavery do not owe compensation since merely receiving the benefit of an unjust activity does not by itself generate a debt of compensation. When combined these problems constitute an overwhelming case against reparations. (shrink)

Affirmative action programs are not justified by compensatory justice. They place a disproportionate burden on white-male applicants. White-male applicants do not owe compensation because they committed a relevant wrongdoing or because they benefitted from another’s wrongdoing. They did not commit a relevant wrongdoing. Receipt of an unjust benefit, when unavoidable and mixed with hard work, does not justify a duty to compensate a victim of the injustice. Thus, the compensatory-justice argument for affirmative action fails.

The compensatory‐justice justification of affirmative action requires a comparison of the actual world in which the injured person lives with a relevantly similar possible world in which this person lives but where the unjust injuring act never occurred, in order to identify the degree of harm brought about by the unjust injurious act. The problem is that some unjust injuring acts, particularly acts of slavery, led to intercourse and the later creation of the ancestors of many members of minority groups. (...) Hence, there is no possible world in which these individuals exist and in which the injustice, e.g., slavery, did not occur. As a result, the counterfactual test does not allow us to measure or even understand the existence of a compensatable injury to these persons. I provide an inheritance‐based account of compensation that escapes this. (shrink)

We should adopt the following principle with regard to compensatory justice. (1) If an unjust act benefits an innocent person and there is no reasonable way to assess the amount of damages to the victim, then compensatory justice does not require that the innocent beneficiary pay compensation for those damages. We cannot reasonably assess the amount of damages to current racial minorities that have resulted from past discriminatory acts. Problems arise in determining the identity of the injured parties, the identity (...) of the injuring agents and injuring acts (and omissions), and the degree of injury that directly resulted from these acts (or omissions). Since such compensable damages cannot be accurately estimated and since white male applicants are innocent beneficiaries of past discriminatory acts, the value of compensatory justice does not justify strong affirmative action programs. (shrink)

In the context of state educational institutions, young white males are owed a duty to respect their interest or desert tokens. Not all white males have waived this duty since many white males have not performed the relevant types of culpable wrongdoing. Merely having benefitted from an unjust injury act or being a member of a community that owe a debt of compensation to racial minorities and women are not sufficient grounds to override the duty owed to the white male. (...) Since the three most plausible attempts to provide a compensatory justice justification for strong affirmative action programs at state educational institutions fail, I conclude that the following is false. (1) Other things being equal, a state educational institution may choose to hire a less qualified candidate over a more qualified candidate because the weight given to the race or gender of the less qualified candidate relates to the elimination of a debt of compensatory justice. Hence, unless strong affirmative action programs at state educational institutions can be justified by reference to some other value, such as the value of diversity, the state ought to eliminate such programs. (shrink)