Rights Against Discrimination

In Faces of Inequality: A Theory of Wrongful Discrimination, Sophia Moreau embarks on a classic philosophical journey. It’s what philosophers nowadays call an explanatory project. The goal of explanatory projects is to deepen our understanding of wrongful actions and what they share in common. In this review essay, I argue that Moreau’s book embodies a valuable explanatory project and contribution to discrimination theory that ought to be on the radar of lawyers, legal theorists, and philosophers. After sketching the book’s arguments, (...) I explain why they are so refreshing. The remainder of the essay proceeds in a more critical mode. First, I argue that book’s explanatory aspirations fall short, and I sketch a framework for a more radically pluralistic theory of wrongful discrimination. This framework has the power to embrace Moreau’s compelling view that discrimination wrongs people by failing to treat them as equals while also recognizing a rich array of other discriminatory wrongs found in lived experience. Second, I argue that Faces of Inequality will disappoint readers looking for a truly inclusive account of wrongful discrimination. I end by emphasizing the book’s contribution to political philosophy and its ambition to provide a truly liberatory theory of what we owe to each other as moral and political equals. (shrink)

Recent philosophical accounts of discrimination face challenges in accommodating robust intuitions about the particular way in which it is wrongful—most prominently, the intuition that discriminatory actions intrinsically violate equality irrespective of their contingent consequences. The paper suggests that we understand the normative structure of discrimination in a way that is different from the one implicitly assumed by these accounts. It argues that core discriminatory wrongs—such as segregation in Apartheid South Africa—divide into two types, corresponding to violations of relational and distributive (...) equality; and that a pluralistic view of the internal structure of each type should be adopted. This normative structure serves to appropriately vindicate the mentioned intuitions; it also contributes to clarifying the normative underpinnings of legal concepts associated with discrimination (including the distinctions between direct and indirect, or ‘disparate treatment/impact’ discrimination, and intentional vs. unintentional discrimination), and developing a more productive public discourse around allegations of discrimination. (shrink)

This article examines how facial recognition technology reshapes the philosophical debate over the ethics of video surveillance. When video surveillance is augmented with facial recognition, the data collected is no longer anonymous, and the data can be aggregated to produce detailed psychological profiles. I argue that – as this non-anonymous data of people’s mundane activities is collected – unjust risks of harm are imposed upon individuals. In addition, this technology can be used to catalogue all who publicly participate in political, (...) religious, and socially stigmatised activities, and I argue that this would undermine central interests of liberal democracies. I examine the degree to which the interests of individuals and the societal interests of liberal democracies to maintain people’s obscurity while in public coincide with privacy interests, as popularly understood, and conclude that there is a practical need to articulate a novel right to obscurity to protect the interests of liberal democratic societies. (shrink)

A growing body of work in free speech theory is interested in the nature of counterspeech, i.e. speech that aims to counteract the effects of harmful speech. Counterspeech is usually defined in opposition to legal responses to harmful speech, which try to prevent such speech from occurring in the first place. In this paper we challenge this way of carving up the conceptual terrain. Instead, we argue that our main classificatory division, in theorising responses to harmful speech, should be between (...) pro-discursive and anti-discursive responses. Some legal responses to harmful speech, so we argue, make a positive discursive contribution in their own right. That is, legal restrictions on harmful speech can have a function that is importantly similar to speech that aims at countering the effects of harmful speech. (shrink)

In “Stereotyping as Discrimination: Why Thoughts Can Be Discriminatory,” I propose that stereotyping someone—even if you manage to keep your thoughts hidden and don’t act on them—can constitute a form of discrimination (2021b). What, Alex Madva asks, are the practical implications of this claim? Even if I am correct that stereotyping constitutes a form of discriminatory treatment, it’s still possible that people should keep on speaking and acting as if “discrimination” refers exclusively to behaviors and policies. He invites me to (...) explore the “potential payoffs and perils” of referring to thoughts and perceptions as discriminatory, especially as they relate to legal practice and social-scientific inquiry (2021, 46). (shrink)

In her recent book, Faces of Inequality (2020), Moreau aims at developing a normative account of discrimination that is guided by the main features of anti-discrimination law. The critical comment argues against this methodology, indicating that due to indeterminacy relative to their underlying normative principles, central anti-discrimination norms cannot fulfill this guiding role. Further, using the content of such norms to guide ethical discussions is likely to be misleading, as it reflects evidentiary considerations that are unique to the legal context. (...) The critical comment’s claims are developed based on a close examination of indirect discrimination (or disparate impact) norms, and, as such, have wider implications for ongoing moral and political debates that are heavily influenced by the content of these norms. (shrink)

Historically, the South African Institute of Race Relations (IRR) has been viewed as a reliable source of information given its near century-long work of compiling statistics and reports about race relations and the social conditions affecting different race groups in South Africa. I make the case that the IRR should not be considered a reliable source of information about race groups and their social conditions in contemporary South Africa because of how the IRR misrepresents the views of ordinary South Africans (...) with the intention of influencing policy towards the IRR’s preferred ideological positions. Rather than presenting criticism of their ideological slant, I show how their policy proposals are not supported by their survey data or their interpretation. Furthermore, I argue that their misrepresentation of South Africans’ beliefs is damaging to democratic processes because what the public claims it wants from government has a significant impact on what government’s mandate from its citizenry is thought to be. (shrink)

This Article examines whether policies—sometimes termed “vaccine mandates” or “vaccine requirements”— that consider vaccination status as a condition of employment, receipt of goods and services, or educational or other activity for participation are legally permitted, and whether such policies may even sometimes be legally required. It does so with particular reference to COVID-19 vaccines. -/- Part I explains the legality of private actors, such as employers or private universities, considering vaccination status, and concludes that such consideration is almost always legally (...) permissible unless foreclosed by specific state legislation. Part II examines the consideration of vaccination status by state or federal policy. It concludes that such consideration is similarly allowed at the state level unless expressly foreclosed, and is allowed at the federal level if appropriately supported by federal regulatory authority. Part III examines what may be a future front in these debates: whether policies considering vaccination status may be required rather than merely permitted, just as some courts have found that mask requirements may be federally required in certain circumstances. (shrink)

This paper concerns the question of what makes disability discrimination morally objectionable. When I refer to disability discrimination, I am focusing solely on a failure or denial of reasonable accommodations to a disabled person. I argue a failure to provide reasonable accommodations is wrong when and because it violates principles of relational equality. To do so, I examine four accounts of wrongful discrimination found in the literature and apply these theories to disability discrimination. I argue that all of these accounts (...) leave us wanting because they have implausible implications or other limitations. I then defend my relational egalitarian theory of wrongful disability discrimination. I argue why principles of relational equality can explain the wrongness of failing to accommodate a disabled person. I will then illustrate how my account can identify plausible instances of disability discrimination while avoiding implausible implications. Finally, I discuss some further complications with my account while highlighting its benefits. Importantly, my argument can capture the distinctive wrongness of disability law and policy’s reasonable accommodation mandates. (shrink)

The increasingly prominent role of digital technologies during the coronavirus pandemic has been accompanied by concerning trends in privacy and digital ethics. But more robust protection of our rights in the digital realm is possible in the future. -/- After surveying some of the challenges we face, I argue for the importance of diplomacy. Democratic countries must try to come together and reach agreements on minimum standards and rules regarding cybersecurity, privacy and the governance of AI.

According to the standard liberal egalitarian approach, religious exemptions from generally applicable laws can be justified on the grounds of equal respect for each citizen’s conscience. I contend that claims of conscience cannot justify demands for exemptions, since they do not meet even the most inclusive standards of public justification. Arguments of the form ‘My conscience says so’ do not explicate the rationale behind the practices that the claimants seek to protect. Therefore, such arguments do not constitute even pro tanto (...) reasons for exemptions. Rather, they are what Francis Bacon called idola fori – ‘idols of the marketplace’– conventional justifications that are deemed rational and even self- evident, while in fact they are not. (shrink)

In this paper, I argue that philosophy departments at state universities may discount women’s applications. My argument rests on two premises: if the balance of merit-based reasons supports discounting one group relative to a second, then a state institution may discount the first group’s application and the balance of merit-based reasons supports philosophy departments at state universities discounting women’s applications relative to men’s applications.The latter premise was supported by three assumptions. First, if discounting the applications of one group relative to (...) a second is supported by at merit-based reasons and not opposed by an equally strong merit-based reasons, then discounting that group’s applications is supported by a balance of merit-based reasons. Second, discounting the application of women relative to men is supported by a merit-based reason or reasons. Third, discounting the application of women relative to men is not opposed by an equally strong merit-based reason or reasons. (shrink)

It is common for conservationists to refer to non-native species that have undesirable impacts on humans as “invasive”. We argue that the classification of any species as “invasive” constitutes wrongful discrimination. Moreover, we argue that its being wrong to categorize a species as invasive is perfectly compatible with it being morally permissible to kill animals—assuming that conservationists “kill equally”. It simply is not compatible with the double standard that conservationists tend to employ in their decisions about who lives and who (...) dies. (shrink)

Presently, there is a lack of psychological and quantitative studies in Singapore about discriminatory attitudes. This paper aimed to contribute to this aspect. However, to examine actual behavior can be difficult due to the sensitive nature of the needed data. Hence, this study approached discrimination at an attitudinal level. Six vulnerable groups were examined in this study. They consisted of people of a different race, immigrants or foreign workers, homosexuals, people living with HIV/AIDS, people of a different religion, and unmarried (...) couples living together. Two research questions were posed: 1) What is the prevalence of having discriminatory attitude toward vulnerable groups? and 2) What are the predictors of these discriminatory attitudes? Using a sample population of 1,972 Singaporeans, descriptive analysis and binomial logistic regression analysis were conducted. Firstly, based on the results, the prevalence ranged between 10.76% to 42.46%. Singaporeans have discriminatory attitude toward vulnerable groups who can be categorized into two: the least discriminated (three groups ranging between 10.76% to 15.48%) and the highly discriminated (three groups ranging between 30.86% to 42.46%). Secondly, binomial logistic regression showed support for several significant predictors such as emphasis on the importance of religion and tradition, and employment status, depending on the model assessed. However, one pattern was observed in all the models, that a person who discriminates one group is more likely to discriminate another group. The findings were then discussed and explained within the context of Singapore. (shrink)

This is a review of Foundations of Indirect Discrimination Law. Edited by Hugh Collins and Tarunabh Khaitan. [Oxford: Hart Publishing, 2018. x + 292 pp. Hardback £65.00. ISBN 978-15-09912-54-4.] Foundations of Indirect Discrimination Law. Edited by Hugh Collins and Tarunabh Khaitan. [Oxford: Hart Publishing, 2018. x + 292 pp. Hardback £65.00. ISBN 978-15-09912-54-4.].

This article argues that anti-discrimination rights are individual rights to be free from wrongful treatment and do not directly advance group-based interests or prohibit group-based harm. In light of this, a number of recurring accounts of the wrong of discrimination, particularly the wrong of indirect discrimination, are unsustainable. Claims that indirect discrimination is concerned with harm that is done to social groups or that laws prohibiting indirect discrimination seek to reduce or eliminate advantage gaps between social groups must be rejected (...) as inaccurate. While principles of non-discrimination and principles of affirmative action often operate harmoniously to foster respect for the moral equality of persons, they each have a general affinity with distinct ethical traditions: deontology and teleology respectively. As such, we should conclude that indirect discrimination provisions are examples of formal and not substantive equality. Where rights to non-discrimination conflict with telic equality goals, UK law protects the rights of the individual. (shrink)

Since Austin and Searle, performatives are taken to be crucial for the construction of social reality. More recently, performatives have been proposed to be essential for the construction of personal identities, too. I intend to analyze the postmodern assumption according to which this identity construction is in the power of individuals, an assumption which presupposes a view of performatives as endowed with unconstrained power – that is, with a power that is not subject to objective constraints. I will consider some (...) reasons to reject this view. The first is rooted in Judith Butler’s idea that – since normative approaches to political correctness undesirably reduce freedom of speech in the name of equality – we should seriously consider how offensive performatives may fail, due to objective constraints on their felicity. A second reason to reject the postmodern view of performatives lies in the consideration of narcissism as an individual and political issue. Narcissism in the political sphere can be described as a transformation of the “passion for equality” in an individualistic appetite, deaf to everything else, and especially to social constraints and responsibilities. A different – less narcissistic and more social – model of the self is provided. (shrink)

Most people are completely oblivious to the danger that their medical data undergoes as soon as it goes out into the burgeoning world of big data. Medical data is financially valuable, and your sensitive data may be shared or sold by doctors, hospitals, clinical laboratories, and pharmacies—without your knowledge or consent. Medical data can also be found in your browsing history, the smartphone applications you use, data from wearables, your shopping list, and more. At best, data about your health might (...) end up in the hands of researchers on whose good will we depend to avoid abuses of power.2 Most likely, it will end up with data brokers who might sell it to a future employer, or an insurance company, or the government. At worst, your medical data may end up in the hands of criminals eager to commit extortion or identity theft. In addition to data harms related to exposure and discrimination, the collection of sensitive data by powerful corporations risks the creation of data monopolies that can dominate and condition access to health care. -/- This chapter aims to explore the challenge that big data brings to medical privacy. Section I offers a brief overview of the role of privacy in medical settings. I define privacy as having one’s personal information and one’s personal sensorial space (what I call autotopos) unaccessed. Section II discusses how the challenge of big data differs from other risks to medical privacy. Section III is about what can be done to minimise those risks. I argue that the most effective way of protecting people from suffering unfair medical consequences is by having a public universal healthcare system in which coverage is not influenced by personal data (e.g., genetic predisposition, exercise habits, eating habits, etc.). (shrink)

This paper presents a novel framework for evaluating racial profiling, including 'rational profiling' that does in fact decrease crime rates. It argues that while profiling some groups, such as African Americans and Muslims, is impermissible, profiling others, such as white men, may be permissible. The historical and sociological context matters significantly. Along the way, the paper develops a new theory of what expressive harms are, why they matter, and when it is the responsibility of the state to correct them.

In an earlier paper, Stephen Kershnar argued for the following thesis: An instance of trash-talking is permissible if and only if the relevant sports organization’s system of rules permits the expression. One person trash-talks a second if and only if the first intentionally insults the second during competition. The above theory sounds implausible. Surely, the conditions under which a player may insult another do not depend on what the owners arbitrarily decide. Such an approach doesn’t appear to be true in (...) the workplace, bar, or sandlot, so it is hard to see why it should be true in sport. With this general skepticism in mind, this paper evaluates Nicholas Dixon’s objections. Dixon rejects Kershnar’s argument because trash-talking conflicts with the internal value of a sport, violates a right, and degrades the person toward whom the trash-talking is directed. (shrink)

In this chapter, I outline what philosophers working on the ethics of immigration have had to say with regard to invidious discrimination. In doing so, I look at both instances of direct discrimination, by which I mean discrimination that is explicitly stated in official immigration policy, and indirect discrimination, by which I mean cases where the implementation or enforcement of facially “neutral” policies nonetheless generate invidious forms of discrimination. The end goal of this chapter is not necessarily to take a (...) side, but to outline the terrain and provide the reader with an adequate entryway into these philosophical discussions over discrimination and immigration. (shrink)

In the face of the Brexit vote and the election of Trump, there is serious worry about whether the liberal, democratic, and cosmopolitan values thought to underlie progressive immigration policies are in fact widely shared. In this article, I examine these worries and provide suggestions about how those who do favor just progressive immigration policies might best respond to the problems we currently face.

This paper tries to explain why racial profiling involves a serious injustice and to do so in a way that avoids the problems of existing philosophical accounts. An initially plausible view maintains that racial profiling is pro tanto wrong in and of itself by violating a constraint on fair treatment that is generally violated by acts of statistical discrimination based on ascribed characteristics. However, consideration of other cases involving statistical discrimination suggests that violating a constraint of this kind may not (...) be an especially serious wrong in and of itself. To fully capture the significant wrong that occurs when racial profiling is targeted at black Americans or other similarly situated groups, it is argued that we should appeal to the idea that this basic injustice is exacerbated when it forms part of a larger pattern of similar actions that collectively realize a state of cumulative injustice. (shrink)

Statistical evidence is crucial throughout disparate impact’s three-stage analysis: during (1) the plaintiff’s prima facie demonstration of a policy’s disparate impact; (2) the defendant’s job-related business necessity defense of the discriminatory policy; and (3) the plaintiff’s demonstration of an alternative policy without the same discriminatory impact. The circuit courts are split on a vital question about the “practical significance” of statistics at Stage 1: Are “small” impacts legally insignificant? For example, is an employment policy that causes a one percent disparate (...) impact an appropriate policy for redress through disparate impact litigation? This circuit split calls for a comprehensive analysis of practical significance testing across disparate impact’s stages. Importantly, courts and commentators use “practical significance” ambiguously between two aspects of practical significance: the magnitude of an effect and confidence in statistical evidence. For example, at Stage 1 courts might ask whether statistical evidence supports a disparate impact (a confidence inquiry) and whether such an impact is large enough to be legally relevant (a magnitude inquiry). Disparate impact’s texts, purposes, and controlling interpretations are consistent with confidence inquires at all three stages, but not magnitude inquiries. Specifically, magnitude inquiries are inappropriate at Stages 1 and 3—there is no discriminatory impact or reduction too small or subtle for the purposes of the disparate impact analysis. Magnitude inquiries are appropriate at Stage 2, when an employer defends a discriminatory policy on the basis of its job-related business necessity. (shrink)

This essay is designed to do two things: -/- First, review and critique Katharine Bartlett and Mitu Gulati's Discrimination by Customers, 102 Iowa L. Rev. 223 (2016). -/- Second, stand alone as a piece that more generally evaluates (1) efficacy and (2) autonomy- and constitutional-based objections to the regulation (both in direct and indirect form) of customer discrimination.

In this paper I consider the role of freedom in the justification of prohibitions on discrimination. As a case study, I focus mainly on U.S. constitutional and employment law and, in particular, restrictions on sex-stereotyping. I present a new argument that freedom can play at least some important role in justifying these restrictions. Not just any freedom, I claim: the Millian freedom to challenge existing stereotypes and contribute to social change. This ‘social change account’, I argue, can be a useful (...) supplement to the existing theories where their explanations run out. It also draws support from familiar liberal justifications for speech and other liberties, and provides an attractive role for the courts. (shrink)

Parties to a temporary marriage agree in advance that their marriage will only last for a fixed period of time unless renewed: that it will automatically expire after two years, for instance, or five, or twenty. This paper defends the claim that temporary marriages deserve state recognition. The main argument for this is an application of a principle of marriage equality. Some other arguments for are also canvassed, including an argument from religious freedom, and a number of arguments against recognition (...) are also discussed. The paper also discusses the question of whether such “temporary marriages” are in fact a kind of marriage, and defends the claim that they are, or would be, genuinely marriages. (shrink)

The article analyses the concept of indirect discrimination, arguing first that existing conceptualisations are unsatisfactory and second that it is best understood as equal treatment that is disadvantageous to the discriminatees because of their group-membership. I explore four ways of further refining the definition, arguing that only an added condition of moral wrongness is at once plausible and helpful, but that it entails a number of new problems that may outweigh its benefits. Finally, I suggest that the moral wrongness of (...) indirect discrimination is best accounted for in terms of the harm it does to discriminatees, and sketch three ways in which it may do so. I conclude that the analysis provides both a clearer understanding of the concept of indirect discrimination as well as indirect support for a harm-based account of the wrongness of discrimination, while suggesting that our moral obligations qua non-discrimination may be more extensive than is frequently assumed. (shrink)

In summary, Hellman’s book is well worth reading. It is powerful, well-written, and interesting and explains much of the prominent case law on discrimination. Her theory, however, is false because her explanation of wrongful discrimination fails to track a wrong-making feature. Her theory does not focus on a right-infringement in or unfair treatment of the person whom is discriminated against. It also does not focus on an incorrect attitude in the person who discriminates. These intuitively seem to exhaust the reasons (...) that make an act wrong because it wrongs someone. Her account of wrongful discrimination fails to identify the correct wrong-making feature. (shrink)

Menschenrechtsverletzungen aufgrund sexueller Orientierung und Geschlechtsidentität (SOGI) wurden auf internationaler Ebene lange Zeit kaum zur Kenntnis genommen. Doch seit einigen Jahren wird dem Thema in den Vereinten Nationen breiterer Raum eingeräumt. Die Yogyakarta-Prinzipien und eine Studie des Amtes des Hohen Kommissars für Menschenrechte stellen nur die ersten Schritte auf dem Weg zu einem umfassenderen Schutzansatz dar. Er muss gegen den Widerstand vieler Staaten weiterverfolgt werden.

In this article I critically examine a standard feature in conceptions of discrimination: the group-criterion, specifically the idea that there is a limited and definablegroup of traits that can form the basis of discrimination. I review two types of argument for the criterion. One focuses on inherently relevant groups and relies ultimately on luck-egalitarian principles; the other focuses on contextually relevant groups and relies ultimately on the badness of outcomes. I conclude that as neither type of argument is convincing, the (...) criterion is morally arbitrary, and as such untenable. Finally, I suggest both some of the conceptual and some of the practical implications of abandoning the criterion. (shrink)

Fifty years ago this year a legal practitioner turned military intelligencer turned philosopher, Herbert Hart, published The Concept of Law, still deservedly best-seller in thought about law. It presents law, especially common law and constitutionally ordered systems such as ours, as a social reality which results from the sharing of ideas and making of decisions that, for good or evil, establish rules of law which are what they are, whether just or unjust. But right at its centre is a chapter (...) on justice, informed by Hart’s professional knowledge of Plato and Aristotle and the tradition of civilized thought about justice, thought which he sums up like this: “the general principle latent in [the] diverse applications of the idea of justice is that individuals are entitled in respect of each other to a certain relative position of equality or inequality.” “Hence”, he goes on, “[the] leading precept [of justice] is often formulated as ‘Treat like cases alike’; though we need to add … ‘and treat different cases differently’”. This article will say something about three aspects of this vast topic: (i) about the factual basis and normative grounds of equality; (ii) about the proposed principle of equal concern; and (iii) about laws and social policies that pursue equality by selective prohibition of direct and indirect discrimination, and of harassment or vilification, victimisation and offence. (shrink)

Drawing on group rights theory, author argues that a group organized around a religious motif should neither be summarily excluded from nor unduly favored in secular deliberations as to public policy and practice. To arrive at this conclusion he examines the implications of each of the following claims: (1) individuals need to operate in and through groups to influence government; (2) a political system faces moral difficulties if it is open to group-generated input; (3) worthy causes can be better advanced (...) by organized groups than by unconnected individuals; and (4) this is so whether the cause is advanced by a religious or by a non-religious group. (shrink)

In this paper, I argue that it is morally permissible and should be legally permissible for state and private professional schools to discriminate against women. By professional schools, I mean law, medical, and business schools. More specifically, I argue that such schools may discount womens applications to the degree that they are likely to produce less than male counterparts. The argument differs with regard to state and private institutions because of the greater moral elbowroom that private institutions have. The argument (...) for state professional schools depends on the purpose of state professional programs. If the purpose of these programs is to provide professional services to citizens, and I argue that it is, then the state professional schools are permitted to do such discounting. My argument also supports the stronger claim that state schools have an obligation to do so, but I will focus on the weaker claim. Given their wider choice of goals, private schools are also permitted to discount womens applications, but they are not obligated to do so. In this paper, then, I provide an argument for the moral permissibility of such discounting. (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)

The most qualified applicant is the one who has the propensity to maximally satisfy the employer’s preferences. An applicant’s propensity is a function of her willingness to work hard together with the relevant capacity or potentiality to do the tasks constituting a job. Given this account of the most qualified applicant, there is only a weak duty, if any, to hire persons based on their being the most qualified. Such a duty is not justified by reference to rights, desert, fairness, (...) or the maximization of welfare. However, such a duty may come about via promises made by the employer or the employee who does the hiring. These results suggest that anti-discrimination laws cannot be justified based on merit, although other justifications might still be available. (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)

In assigning the benefits and burdens of society, we sometimes discriminate using a broad category (age, gender, race, etc.) we think correlates well with the possession of some other skill, qualification, or character trait. In this essay, I explore one rationale for this type of discrimination. I suggest a method for determining when this rationale provides a moral justification for the discrimination, and when it does not. I defend the method against some potential criticisms, and point out some exceptions to (...) its application. (shrink)