The Journal of Ethics

, Volume 15, Issue 3, pp 253–263

Was I Entitled or Should I Apologize? Affirmative Action Going Forward



DOI: 10.1007/s10892-011-9102-6

Cite this article as:
Allen, A.L. J Ethics (2011) 15: 253. doi:10.1007/s10892-011-9102-6


As a U.S. civil rights policy, affirmative action commonly denotes race-conscious and result-oriented efforts by private and public officials to correct the unequal distribution of economic opportunity and education attributed to slavery, segregation, poverty and racism. Opponents argue that affirmative action (1) violates ideals of color-blind public policies, offending moral principles of fairness and constitutional principles of equality and due process; (2) has proven to be socially and politically divisive; (3) has not made things better; (4) mainly benefits middle-class, wealthy and foreign-born blacks; (4) stigmatizes its beneficiaries; and (5) compromises the self-esteem and self-respect of beneficiaries who know that they have been awarded preferential treatment. By way of a thought experiment, imagine that after decades of public policy and experimentation, the United States public finally came to agree: affirmative action is morally and legally wrong. Employing such a thought experiment, this essay by a beneficiary of affirmative action—written in response to James Sterba’s Affirmative Action for the Future (2009)—examines duties of moral repair and the possibility that the past beneficiaries of affirmative action owe apologies, compensation or some other highly personal form of corrective accountability. Beneficiaries of affirmative action have experienced woundedness and moral insecurity. Indeed, the practice of affirmative action comes with a psychology, a set of psychological benefits and burdens whose moral logic those of us who believe in our own fallibility—as much as we believe in the justice of what we have received and conferred on others—should address.


Affirmative actionAfrican AmericanApologyCorrective justiceDiscriminationRaceReparation


Roughly speaking, “affirmative” action is a measure designed to remedy the effects of wrongful discrimination or improve diversity. Affirmative action can remedy the injustice of discrimination on the basis of race and sex, and other traits as well, such as sexual orientation or language. As a U.S. civil rights policy, “affirmative action” commonly denotes race-conscious and result-oriented efforts by private and public officials to correct the unequal distribution of economic opportunity and education attributed to slavery, segregation, poverty and racism.

They say affirmative action is wrong.1 Personally, I do not agree with them.2 Why is it supposed to be wrong? Opponents argue that affirmative action violates ideals of color-blind public policies, offending moral principles of fairness and constitutional principles of equality and due process enshrined in the 14th Amendment. They argue that affirmative action has proven to be socially and politically divisive. They further argue that three decades of affirmative action has not made things better: it does not work and it is not the key to raising minority and female achievement levels. They claim that affirmative action for African Americans mainly benefits middle-class, wealthy and foreign-born blacks rather than native blacks raised in socially, educationally or economically disadvantaged families. They further claim that affirmative action stigmatizes its beneficiaries.3 They even argue that affirmative action compromises the self-esteem and self-respect of beneficiaries who know that they have been awarded preferential treatment.

The arguments against affirmative action have experienced partial success in the federal courts.4 Affirmative action opponents’ victory in Gratz v. Bollinger, the Supreme Court decision which struck down a University of Michigan’s undergraduate minority admissions plan, was followed by related wins in Parents v. Seattle and Ricci v. DeStefano, cases limiting the ability of municipalities to design racially diverse schools and work forces.5

By way of a thought experiment, imagine that after decades of public policy and experimentation, the United States public finally came to agree: affirmative action is indeed morally and legally wrong, and for some of just the panoply of reasons opponents have claimed.6 Consider the implications. I am especially interested here in the implications for duties of moral repair. I want especially to explore the possibility that the individual past beneficiaries of affirmative action owe apologies, compensation or some other highly personal form of corrective accountability.

Not all wrongs have to be righted. Some wrongs are trivial and we do not much care about accountability. Some wrongs are not trivial, but they are excused and accountability is not required. But when racial discrimination, an indignity and human rights violation, has become public policy and accumulated numerous victims, we should be prepared to take seriously righteous demands for apologies, monetary reparations, and other remedies. We have heard the demands made on behalf of the victims of black slavery in the U.S., state-enforced racial segregation, the Japanese internments of the World War II era and the displacement and destruction of the Native American Indian tribes. Many nameless and faceless individuals could claim denials of equal opportunity for school admissions or jobs on account of their race. The compensatory demands of post-1960’s victims of preferential treatments policies should be heard as well. It is worth considering whether, if affirmative action on behalf of women and minorities were wrongful discrimination against nonminority males, something would be owed them, and if so, what and from whom.


Affirmative Action has been implemented by public and private institutions for decades. Imagine that affirmative action has turned out to be wrong. What then follows for individuals? Guilt? Remorse? Shame? The need to repent, compensate and apologize?

As a female minority group member who benefitted from affirmative action, I take seriously the possibility that I owe something to someone because of the public policies that have benefitted me. Normally, because I think affirmative action policies are just, I understand the thing that I owe is unbroken effort, professional accomplishment, and services to the community. But might I owe more? Perhaps I owe an acknowledgement of some sort to the white teenager with very high SAT scores and spirit enough to attend a brand new experimental liberal arts college who could have been admitted to New College, in Sarasota, Florida in 1970 in my place, had there been no affirmative action.

In the world of my thought experiment, perhaps I owe, not just an acknowledgment, but an apology. Paradigm acts of apology are addressed to the persons harmed or offended. I have no idea whom I actually displaced. Given the demographics of the New College entering class of 1970 my entering class, it is possible that the student I displaced was a gifted, upper middle class prep-school graduate from the northeast. But he could have been a southerner, a public school grad from Colorado, or a Jewish youth from Miami.7 Whoever he was, I will now refer to him as “Bob” and try out this apology by way of moral repair:

Bob, I was a National Merit Commended Student with a 3.9ish GPA. But my SAT score was at least 100–300 points lower than yours and I had graduated from a mediocre public high school in Columbus, Georgia under a court-ordered desegregation plan.

It was 1970 and New College was committed to integrating its tiny campus to the extent possible (consistent with its motto that “The best education comes from the active confrontation of first class minds”).

I applied to college at 16 and I was too young to know that I was not good enough for New College, having been told I was “college material.” I had never heard of “affirmative action”. I applied the New College because I liked the sound of the curriculum.

My guidance counselor told me I might be accepted at the University of Georgia if I applied. Indeed that is one of the many schools that perfectly “matched” my paper credentials. But I was looking for something different. New College reached out to pull me up; and rather than cascade down, I reached high beyond my desert, displacing you Bob. I am sorry.

Bob, had you witnessed my struggle that first year at New College, you might have concluded that I was not only less qualified than you, but unqualified. I almost squandered the opportunity I was wrongly given at your expense.

I was one of two African Americans in my class. The other, a boy from a middle class professional family, quickly fell prey to drugs and dropped out. I was so lonely, alienated and depressed my first year of college that I rarely went to class or could not finish most of what I started. With all the migraines, rotting molars that I could not afford to have treated by a dentist, and with that huge ovarian tumor that had to come out after freshman year, I was often in physical agony.

Moreover my parents could not afford to send me money, so I had to work. I worked as a babysitter and in the school library. I had graduated from high school in 3 years with honors; but I took incompletes as a college freshman. I was placed on probation.

I would be lying if I claimed to know exactly how I got on track. My friends helped, including a white classmate, whom fifteen years, I married. And I had great mentors: philosophers Bryan Norton and Gresham Riley took me under their wings. My ultimate success had something to do with a fear of failure. In my mind, it was this college or no college. I didn’t want to return to my parents to work in a drug store, clean houses or bus tables.

After a full four years, I graduated. I miraculously received (I dare not say earned or won) a Ford Foundation Fellowship for minorities seeking PhDs and was admitted to the University of Michigan’s Philosophy Department. I was admitted despite the fact that my GRE score was so low compared to that of my white boyfriend, who failed to get into the University of Chicago that same year and had to defer his dreams, that I cried.

Bob, I took from you; more precisely, I was given what you deserved, and I am sorry for that.


In Affirmative Action for the Future, Professor James Sterba defends affirmative action, defined as “a policy of favoring qualified women, minority, or economically disadvantaged candidates over qualified men, nonminority, or economically advantaged candidates, respectively with the immediate goals of outreach, remedying discrimination, or achieving diversity, and the ultimate goals of attaining a colorblind (racially just), a gender free (sexually just), and equal opportunity (economically just) society”.8 Sterba offers his definition as “best” because, unlike some, it does not stack the deck in favor or against the often controversial practices whose morality and justice society needs to evaluate, p. 31f.

Sterba keeps the conversation open. But his aim is to present affirmative action aimed at inclusion of qualified women, minority group members and economically disadvantaged persons in a strong, unapologetic light. Affirmative action is a just, moral institution that can work for the U.S., he argues. Affirmative action need not be accepted sheepishly or with a grudge, on the condition that it is time-limited to the date certain, or only on the condition that absolutely no other approach to justice could achieve the same or similar results as or more efficiently.

Sterba clearly distinguishes the most common approaches to affirmative action today: (1) “outreach affirmative,” that is, “searching out qualified women, minority, or economically disadvantaged candidates who would not otherwise know about or apply for available positions;” (2) “remedial” affirmative action, either to “put an end to an existing discriminatory practice” or to “compensate for past discrimination and its effects” by awarding preferences; and (3) “diversity” affirmative action to reap “educational benefits” or to “create a more effective workforce” by selecting a diverse mix of students or workers. All forms of affirmative action involve allocating resources to groups and individuals on the basis of gender, race, ethnicity, disability, income and other demographic traits. Sterba states that outreach affirmative action is easy to defend, and not terribly controversial. He therefore devotes most of his pages to responding to five major objections to remedial affirmative action and three against diversity affirmative action. But first he defines affirmative action and describes the disturbing context of racial, social and economic disparities in the US.

The book has three principal virtues. First, it is mercifully brief, 120 compact pages, not a word wasted. Second, it dares to take on the social science-based arguments against affirmative action that have flourished in the past decade or so. These can be intimidating to philosophical moralists unskilled in evaluating arguments based on empirical research and statistical methodologies. Third, from my point of view, a virtue of the book is that it is mostly right on the points that matter most. Affirmative action is not unjust, and certainly not by definition because it bases preferences on race or gender. Sterba shows why the goals of today’s most popular affirmative action programs, outreach and diversity, are not undercut by the arguments that (1) minorities would do better or as well without affirmative action; that (2) demographic diversity is a bogus or unimportant goal; or that (3) it is unjust and illegal to try to remedy present and (especially) past injustices against minority groups or women through preferential treatment. The moral difficulty of intergenerational reparations is one of the things, along with the Supreme Court’s interpretations of the constitution and civil rights law as hostile to certain quotas and color consciousness, that have made “diversity” and “outreach” the safer and more attractive goals for contemporary affirmative action. But when properly designed and restricted, remedial affirmative action can be defended as well.

As Sterba observes, affirmative action, as a distinctively race-relations-based policy, came about in the 1960’s with the Civil Rights Movement. The term “affirmative action” was used in President John F. Kennedy’s executive order 10925 in 1961 (Sterba 2009, p. 15). Yet advancing neither minorities nor women generated the first calls for affirmative action. This is a point worth more than the endnote Sterba gives it, more effectively to counteract the common misconception that the concept of affirmative action was invented to benefit unqualified blacks and women. It is important to appreciate the whole story.

The term “affirmative action” entered U.S. law in 1935. That year the U.S. Congress passed the landmark National Labor Relations Act (nicknamed “Wagner Act,” after New York senator Robert F. Wagner), expressly requiring that employers guilty of discrimination against workers on the basis of union membership remedy past discrimination with “affirmative action.” These workers were not predominately female or racial minority group members.

The term made another appearance in 1941. President Franklin D. Roosevelt issued Executive Order 8802 in June 1941, seeking to improve this country’s wartime economy and reduce staggering African American unemployment. The Order called for “special measures” and “certain action” to end “discrimination in the employment of workers in the defense industries or government [occurring] because of race, creed, color, or national origin.” Roosevelt’s bold move deserves credit as the beginning of this country’s race-related outreach and remedial affirmative action policies.

Discussions in the White House of employment policy during Eisenhower years included consideration of mandatory affirmative action. On March 8, 1961, President Kennedy issued Executive Order 10925. The Order established a President’s Committee on Equal Employment Opportunity to expand and strengthen efforts to promote full equality of employment opportunity across the races. Order 10925 also imposed a duty on government contractors to refrain from discriminating “against any employee or applicant for employment because of race, creed, color or national origin” and to “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.”

The historic Civil Rights Act of 1964 outlawed racial discrimination in employment, education, housing, public accommodations, and voting. With the stroke of a pen the Act desegregated de jure restaurants, cinemas, retail stores, hotels, transportation, and beaches. The Act required even-handed application of the requirements of voter registration, a requirement enhanced by the Voting Rights Act of 1965, which restricted literacy tests and authorized federal supervision of elections. Building on Brown v. Board of Education (1954), the Act terminated federal aid to segregated schools. Title VII of the 1964 Civil Rights Act created the Equal Employment Opportunity Commission (EEOC) and banned discrimination by labor unions, employment agencies, and, critically, employers with workforces in excess of twenty-five workers. Title VII empowered the federal courts to order “affirmative action as may be appropriate” to remedy past workplace discrimination. Some federal courts were open to the possibility that implementation of the civil rights laws would require the use of quotas, numerical goals and timetables. The EEOC early took the position that all employers within its jurisdiction, along with federal contractors and schools receiving federal monies, had an obligation to employ effective, results-oriented affirmative action. By the early 1970s affirmative action in employment and in education had become national policy.


Like virtually everyone who writes about affirmative action, Sterba neglects what I will call the “positive moral psychology” of affirmative action. By this term I mean the way the people on the ground recruited for affirmative action think and feel about it, both as unreflective and reflective persons. There are two dimensions of positive moral psychology that merit greater attention: (1) attending the wounds and (2) attending the fallout.

First, rhetorically speaking, outreach and diversity affirmative action have overtaken remedial affirmative action in practice, at least in higher education discourse. Yet I believe the notion of an obligation to remedy past and present wrongs which lies at the heart of what Sterba calls “remedial” affirmative action lurks for some African Americans (and perhaps white women and other groups) in the background of all affirmative action talk and practices. I suspect African Americans, and perhaps other beneficiaries of affirmative action, understand the rhetorical emphasis on outreach and diversity as warranted by contemporary needs, disparities, and prejudices, but also by injustices suffered by earlier generations of black men and women. We can make the distinctions Sterba urges conceptually as philosophers, but in reality the sense of hurt and entitlement to a remedy is present even where preferences are being granted on outreach and diversity grounds. In short, I suggest there is wound-licking as well as consumption at the outreach and diversity tables. How does a just and ethical society address that pain? It can make people feel crazy to be hushed and told that they are wanted for the diversity they add; while they believe they deserve an extra chance because they or theirs have been discriminated against.

Second, the vociferous opposition to affirmative action is something that it’s youngest and most thoughtful beneficiaries may find especially confusing. What if it is not right? What should I do about that? For applied ethicists, affirmative action is a place where an interesting array of issues of moral confidence, ethical integrity and moral repair cry out for analysis.

I have written elsewhere about the constitutional law of affirmative action and about the role model argument for affirmative action programs. I have criticized the Supreme Court for turning its back on aggressive affirmative action by refusing to distinguish between evil and just race-consciousness. I have suggested that, to a point, women and minority students can in fact benefit from same-kind role models. I believe competently designed affirmative action programs can comport with ethics, law and utility. Every school in my university is required to have an affirmative action officer and I have served in that post. Like Sterba, I believe particular efforts at affirmative action can and have gone wrong; but that the concept of affording positions and opportunities to persons by virtue of their race is not inherently misguided. Sterba’s book gives me renewed confidence that my own acceptance of affirmative action—as a positive social good for the U.S.– is not morally thoughtless or irrational.

But can anyone, especially a young adult, be completely confident about the ethics and justice of affirmative action? For that matter, can anyone be confident enough about a stance on any important controversy that they refuse to trace the implications of the possibility that they are wrong. What if you are wrong that capital punishment is unethical? That it is acceptable to cheat on one’s taxes? That early abortions are ethically permissible?

Even a quite confident person is capable of considering, as an act of self-reflection and imagination, the possibility he or she is wrong about something. Most of the “what if I am wrong” thinking that we do, we do in private. Sometimes we do it even when we do not expect that we will ever be persuaded or proven wrong. Sometimes we do it, with virtue, because we are thoughtful/curious, humble and open-minded. Sometimes, we do it without virtue, because we are strategic, paranoid, anxious or insecure.

Ethical integrity (and perhaps corrective justice) would seem to command that (1) if a person is not sure about an important controversy, he or she should not become a public advocate in the first place; (2) if a person learns he or she was wrong about a controversy, he or she should refuse future acts of advocacy, even if the social costs of disloyalty and shame are high; and (3) if a person comes to believe he or she was seriously wrong and has significantly harmed others, he or she must make appropriate moral repair. Norma McCorvey (Jane Roe of Roe v. Wade fame) came to believe abortion is morally wrong. She switched sides in the abortion debate, joined forces with pro-life activists and took up the cause against the controversial practice. I do not know if she apologized to the US. public she believed she harmed; she may have, more than once.9 She may also have attempted to apologize to the terminated pregnancies she indirectly facilitated.

Consider what a responsible moral agent should do if he or she comes to believe, as a result of a philosophical argument or experience, that what he or she once believed was right in a public policy arena, is wrong. If the agent’s only involvement with the issue is as a citizen, the thing she should perhaps do is resolve to “vote” her new conscience. And then stick to her resolve. Vote in the future for candidates to public office who take what one now believes to be the most moral and just stance. The agent could also “give” her conscience: direct charitable giving to causes that promote the more just stance.

But sometimes one’s relationship with a public policy controversy is not that of mere citizen-observer. What should the agent do if she comes to be persuaded that, for example, abortion is wrong, but she has written and published in law reviews, philosophy journals and op ed articles defending abortion; donated thousands of dollars to pro-choice organizations and has served on the Board of Directors of Planned Parenthood? Her hands are dirty. She needs to wash them clean. Make up for her mistakes. Repair the injury.

Because of the depth of my personal involvement in affirmative action the “what if I am wrong” exercise is fraught with emotional intensity. I have practiced outreach, remedial and diversity affirmative action in my roles as faculty appointments committee member, research-assistant employer and law admission committee member. I have rarely regretted the results, as rarely as I have regretted the results of non-affirmative action hiring. But perhaps I should have regrets. Perhaps I am wrong.

I have presumably, almost certainly given my age and race and experiences, benefited from affirmative action in accepting admissions to public and private schools—New College, the University of Michigan and Harvard—despite modest SAT, GRE and LSAT scores. I have also benefitted from affirmative action in employment by accepting visiting and tenured appointments at elite universities such the University of Pennsylvania, Harvard, and Yale. It is even possible my employment at a top New York law firm, Cravath Swaine & Moore, despite a below the mean performance at Harvard, had something to do with affirmative action. The man who hired me said “You have the worse grades I have ever seen, but you are the most poised and articulate person I have ever interviewed.”

If affirmative action is wrong, not only have I defended a wrong in my writing and conversations, I have irrevocably, economically, and professionally benefitted from injustice. My hands are dirty. Forgive the drama, but I am like the children of slave-owners and robber-barons who inherited their father’s wealth and kept it. Or worse, I am like the slave-owner or robber-baron himself. I have actively, directly participated in the furtherance and perpetuation of an unjust practice.

Suppose affirmative action in higher education were wrong? Suppose racial preferences are morally unjust because of the harm they do to the people not admitted to the colleges or universities of their choice and not hired as professors or administrators at the colleges and universities of their choice. What then? What, if anything, is owed the flesh and blood unique individuals passed over in favor of members of racial minority groups or white woman with lesser grades, test scores, or other credentials? Granted these individuals have probably done well in life, just as blacks and Hispanics down-marketed into less-selective state colleges and lower-tier private schools would have done well in life. The point is not that lives have been altogether ruined by affirmative action; but that opportunities, prestige and perhaps satisfaction, diminished (Notice that we might think an apology is owed even if we do not believe white men had a right to the opportunities, prestige and satisfaction they lost to women of all colors and minority men).

One thing the victims of affirmative action—reverse discrimination—might be owed is an apology. Perhaps the President of the United States should apologize to the victims of reverse discrimination just as some believed the President should have apologized for slavery. Perhaps reparations are owed. Congress could authorize payments to whites and males displaced by minorities and women during the era of affirmative action a sum of money equivalent to the differential in salaries and other income between elite institution graduates and staff and those of lesser institutions, plus appropriate interest. Perhaps there should be a truth and reconciliation process in which victims and beneficiaries of reverse discrimination could tell their stories to one another.

And just perhaps the individual beneficiaries of affirmative action should apologize to the people whose opportunities we have been wrongfully conferred. We are not thieves who set out to steal opportunities, but public and private officials have handed us stolen opportunities. Once we know and understand that we have been given something that should have gone to another, perhaps we should apologize—we cannot return what we have been given. It is now constitutive of who and what we are.

Those of us who wish to perpetuate affirmative action into the future need to better address the woundedness and moral insecurity of those we intend to benefit from our rhetoric and recruitment. We should not leave them to their secret dialogues with hypothetical Bobs rattling around in their consciences. The predicament and the practice of affirmative action comes with a psychology, a set of psychological benefits and burdens whose moral logic those of us who believe in our own fallibility as much as we believe in the justice of what we have received and conferred on others must air, despite the discomforts of doing so. What if I am wrong? What if I have been wronged? What do I owe? What am I owed? To ask these questions is not to add fuel to any opponent’s fire, but to acknowledge how much we really care about personal integrity and corrective justice, both.


Philosopher James P. Sterba, who defends many forms of affirmative action, identifies some of its best-known academic opponents and their strongest arguments in his book, Affirmative Action for the Future (Ithaca: Cornell University Press, 2009).


My endorsement of certain gender-conscious and race-conscious affirmative action practices is reflected in the following body of work: Anita L. Allen, “Affirmative Action,” in Colin Palmer, ed., Encyclopedia of African-American Culture and History: The Black Experience in the Americas (New York: MacMillan, 2005), pp. 31–40; “Civic Virtue, Cultural Bounty: The Case for Ethnoracial Diversity,” in Stephen Macedo and Yael Tamir, editors, Nomos XLIII: Moral and Political Education (New York: NYU Press, 2001), pp. 434–456; “Affirmative Action: Moral Success and Political Failure,” in Erna Appelt and Monica Jarosch, Editors, Combating Racial Discrimination: Affirmative Action as a Model for Europe? (London: Berg Publishers 1999), pp. 23–40; “The Half-Life of Integration,” in Stephen Macedo, Editor, Reassessing the Sixties: Debating the Political and Cultural Legacy (New York: W.W. Norton, 1996), pp. 207–227; “Legal Rights for Poor Blacks,” in William Lawson, editor, The Underclass Question (Philadelphia: Temple University Press, 1992), pp. 117–139; “The Role Model Argument for Faculty Diversity,” The Philosophical Forum, 26 (1992–1993), pp. 267–281; and “On Being a Role Model,” 6 Berkeley Women’s Law Journal [renamed Berkeley Journal of Gender, Law and Justice], 22 (1990–1991), pp. 22–42.


But see Angela Onwuachi-Willig, Mary Campbell and Emily Houh, “Cracking the Egg: Which Came First--Stigma or Affirmative Action?” California Law Review, 96 (2008), pp. 1299–1352. Survey data based on a small sample of law students raises doubt about whether minority law students feel stigmatized by affirmative action, as some have claimed.


In Gratz v. Bollinger, 539 US. 244 (2003a), the United States Supreme Court held that the University of Michigan’s undergraduate admission program unlawfully included race as an admissions criterion in violation of the 14th Amendment; but in Grutter v. Bollinger, 539 US. 306 (2003b), the court upheld the same university’s law school admission plan, which included race as a factor in admissions.


Early affirmative action cases embraced quotas and other numerical goals, see Allen 2005. The most recent cases, Parents v. Seattle, 551 U.S. 701 (2007) and Ricci v. DeStefano, 129 S. Ct. 2658, 557 US. __ (2009) reject what could be characterized as affirmative action plans aimed at racial diversity in education and employment, respectively.


Thought experiments have been used by others to help illuminate anti-discrimination measures. Cf. Devon W. Carbado and Cheryl I. Harris, “The New Racial Preferences,” California Law Review, 96 (2008), pp. 1139–1214. The authors’ critique anti-affirmative action policy by engaging in what they refer to as a kind of “thought experiment” designed to show that not taking race into account (if applicants are asked to write admissions essays) is far more difficult than the ideal of racial colorblindness suggests: what if we took anti-affirmative action laws and policies seriously and tried to eliminate race from our thinking about school admissions—could we do it? In Angela Onwuachi-Willig, “Another Hair Piece: Intersectional Race and Gender Discrimination Under Title VII,” Georgetown Law Journal, 98 (2010), pp. 1079–1132 forthcoming, also engages in a thought experiment: what if mainstream employers adopted grooming codes requiring that female employees wear their hair in braids, twists or locks? She suggests that such codes would be rejected as burdensome on white women and discriminatory, even codes effectively compelling African American women to cover-up with wigs or chemically straightened or heat-style their naturally kinky and curly hair are often defended as legitimate.


Assuming I displaced someone, I might have displaced a white woman, an Asian or Hispanic, or even a better or worse qualified member of my own race. It is possible that I displaced no one. Maybe I was the nth best qualified person on the basis of GPA and test scores, in a class of n admittees or matriculants. But I do not believe it.


Sterba 2009, p. 34.


Norma McCorvey (with Andy Meisler), "I Am Roe: My Life, Roe v. Wade and Freedom of Choice" (New York: HarperCollins, 1994). McCorvey he has often told the story of her “pro-life” conversion, including in a video, “Norma McCorvey Story." See, accessed 18 January 2010. She has participated in numerous public protests and anti-abortion rallies, including one on the campus of the University of Notre Dame in 2009 which led to her arrest. She was also arrested in 2009 for shouting down Al Franken at the Senate confirmation hearings of Suprme Court Justice Sonya Sotomayor.


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