This article argues against the view that affirmative action is wrong because it involves assigning group rights. First, affirmative action does not have to proceed by assigning rights at all. Second, there are, in fact, legitimate “group rights” both legal and moral; there are collective rights—which are exercised by groups—and membership rights—which are rights people have in virtue of group membership. Third, there are continuing harms that people suffer as blacks and claims to remediation for these harms can fairly treat the (social) property of being black as tracking the victims of those harms. Affirmative action motivated in this way aims to respond to individual wrongs; wrongs that individuals suffer, as it happens, in virtue of their membership in groups. Finally, the main right we have when we are being considered for jobs and places at colleges is that we be treated according to procedures that are morally defensible. Morally acceptable procedures sometimes take account of the fact that a person is a member of a certain social group.
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Notes
Eliot (1968, p. 14).
Harris-Lacewell (2007, p. 107). This article provides a useful survey of the data on differences in political attitudes by race.
As Sterba points out, gendered differences of perceptions of gender inequality are not as widely studied as racial differences in perceptions of racial inequality. But he is surely right that many US citizens (of both sexes) underestimate the scale of gendered inequality as well. I am going to focus in this paper on questions about race.
Sterba actually uses “minority” not “race” here, but the rest of the definition proceeds in such a way that it is natural to assume he means “racial (or ethnic) minority.” If he meant to exclude other kinds of minority, such as, for example, gays and lesbians, it would have been helpful to say so. And we could still ask why he includes a historically disadvantaged majority race (such as blacks in South Africa) in his discussion.
My thought is this: someone might hold that the reason that citizens have the right to vote is that they belong to a nation that has a collective right to self-government. The mechanisms by which a particular constitution allows individuals to participate in the exercise of that collective right may be normatively questionable. (Why, for example, can a majority of those voting, who may constitute a minority of those eligible to vote, determine what counts as the national will?) But the problems with the ways in which this idea is actually implemented do not, in themselves, show that we cannot proceed by deriving individual rights to vote from the collective right to self-government.
Even if someone did think this, they would be obliged to show that it was possible, since ought implies can. It is enormously difficult to imagine a system that guaranteed that the probabilities of every person finding out about a job were identical. This is not to deny that it is a reasonable ideal that there should not be systematic attempts to deny information about job opportunities to some specified class of people; nor is it to say that jobs should not be widely advertised. It is just to say that the reason why these are reasonable ideals cannot be that we are morally required to guarantee that each potential candidate has the same chance of hearing of the opportunity.
Someone might argue: “No, she only suffered a wrong if she actually applied and was denied a job.” But that is like saying that I did not wrong you when I set a man-trap in your yard, on the grounds that you did not walk into it. You can wrong somebody by raising the probability that they would suffer some direct harm in certain counterfactual circumstances.
There are other difficulties for the demand that remedial affirmative action pass over only those who have benefited from the form of discrimination it aims to remedy. Sterba argues that whites have been the beneficiaries of the racially unequal distribution of educational resources. But many whites—in rural Appalachia, for example—have been given inadequate educational resources by the US educational system too, and it is not clear that they have been benefitted even by its racially discriminatory features. The difficulty here is not primarily factual: it is conceptual. How are we to individuate the practice whose harms to black people we are remedying before going on to identify its beneficiaries? Consider local systems of racial disadvantage. Should we take the educational system as a whole? Or do we look just at its racially discriminatory practices? If so, should we examine these singly or as a whole? The educational system as a whole does not advantage the white poor. The racially discriminatory practices within it may actually disadvantage some inner-city whites and advantage some suburban blacks. Similar difficulties arise in assessing the beneficiaries of racial discrimination in the labor market. In most of the US legal cases in this area that Sterba discusses, the harms remediated derive from local discrimination in employment and contracting, and blacks who enter the labor market from elsewhere are unlikely to have been victims of these local practices, just as whites who enter from elsewhere are unlikely to have been beneficiaries. In these circumstances, it will be impossible to satisfy Sterba’s condition (iii) by any plausible policy of affirmative action, unless it denies preference to blacks and grants it to whites when they are each newly arrived in the area.
I realize that the claims of this paragraph will strike some as controversial. So far as I can see, however, the only moderately controversial presupposition of the argument here is that a private corporation is morally free to pursue goals other than maximal productivity within the law.
The discussion here is a (simplified) version of the account offered in Appiah (2001, pp. 55–71).
The number of places available at a university is limited. I take it to be obvious that, absent special circumstance, this is morally permissible. Either the number of people pre-institutionally entitled to these places is greater than the number of available places, or it is not. If it is greater, then the size of the number of places available is morally impermissible, which is inconsistent with what I just suggested was obvious. So it must be less. But then surely some explanation of the remarkably small number of those with pre-institutional entitlements to these places is due. The most likely explanation, so far as I can see, would be that everyone in the world is ranked with respect to pre-institutional entitlement to places at this university. This would require that there was some function from all the many dimensions of assessment that are relevant to assigning people to places into a final ordering. Then, if there were n places, the first n people in the ranking would be entitled to them (or, perhaps, the university would be morally obliged to offer places to those who applied according to their order in this ranking). The reason I doubt that this is so is that I cannot believe that there is such a function. Here is just one kind of reason: the abilities required to make the best use of a university place are very various, because so many different combinations of intellectual and affective attributes are required in different fields. We admit people to colleges, however, not to fields and we leave them free to discover what fields they enter. Now consider two students, with different combinations of intellectual gifts and temperaments: John would do very well, let us suppose, in English, if she chose it, Mary in Math. (Suppose, if you think this is relevant, that they come from similar homes and have worked equally hard so far.) How should we rank their pre-institutional entitlement to a place, not knowing what major they will choose?
So there is one way in which you might be said to deserve a place at an institution independent of its actual procedures, that is, if you would be admitted under any morally acceptable admissions process properly applied.
References
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Eliot, T.S. 1968. Four quartets. New York: Harcourt.
Feinberg, Joel. 1987. Harm to others. Oxford: Oxford University Press.
Harris-Lacewell, Melissa. 2007. Political science and the study of African American public opinion. In African American perspectives on political science, ed. Wilbur Rich. Philadelphia: Temple University Press.
May, Larry. 1990. The morality of groups: Collective responsibility, group-based harm, and corporate rights. Notre Dame: University of Notre Dame Press.
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Acknowledgments
I am grateful to J. Angelo Corlett for comments and suggestions on an earlier draft.
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APA Eastern Division Meeting, 2009. Session on James Sterba Affirmative Action for the Future organized by the Committee on Black Philosophers.
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Appiah, K.A. “Group Rights” and Racial Affirmative Action. J Ethics 15, 265–280 (2011). https://doi.org/10.1007/s10892-011-9103-5
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DOI: https://doi.org/10.1007/s10892-011-9103-5