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.
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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 http://www.priestsforlife.org/testimony/reversingroe.htm, 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.
Allen, Anita L. 2005. Affirmative action. In Encyclopedia of African-American culture and history: The Black experience in the Americas, ed. Colin Palmer, 31–40. New York: MacMillan.
Allen, Anita L. 2001. Civic virtue, cultural bounty: The case for ethnoracial diversity. In Nomos XLIII: Moral and political education, ed. Stephen Macedo, and Yael Tamir, 434–456. New York: NYU Press.
Allen, Anita L. 1999. Affirmative action: Moral success and political failure. In Combating racial discrimination: Affirmative action as a model for Europe, ed. Erna Appelt, and Monica Jarosch, 23–40. London: Berg Publishers.
Allen, Anita L. 1996. The half-life of integration. In Reassessing the sixties: Debating the political and cultural legacy, ed. Stephen Macedo, 207–227. New York: W.W. Norton.
Allen, Anita L. 1992a. Legal rights for poor Blacks. In The underclass question, ed. William Lawson, 117–139. Philadelphia: Temple University Press.
Allen, Anita L. 1992–1993. The role model argument for faculty diversity. The Philosophical Forum, 26:267–281.
Allen, Anita L. 1990–1991. On Being a Role Model. Berkeley Women’s Law Journal [renamed, Berkeley Journal of Gender, Law and Justice], 6:22–42.
Carbado, Devon W., and Cheryl I. Harris. 2008. The new racial preferences. California Law Review 96: 1139–1214.
Gratz v. Bollinger. 2003. 539 U.S. 244.
Grutter v. Bollinger.2003. 539 U.S. 306.
McCorvey, Norma, and Andy Meisler. 1994. I am Roe: My life, Roe v. Wade and freedom of choice. New York: HarperCollins.
Onwuachi-Willig, Angela. 2010. Another hair piece: Intersectional race and gender discrimination under title VII. Georgetown Law Journal 98: 1079–1132.
Onwuachi-Willig, Angela, Mary Campbell, and Emily Houh. 2008. Cracking the egg: Which came first—stigma or affirmative action? California Law Review 96: 1299–1352.
Parents v. Seattle. 2007. 551 U.S. 701.
Ricci v. DeStefano. 2009. 129 S. Ct. 2658, 557 U.S.
Sterba, James P. 2009. Affirmative action for the future. Ithaca: Cornell University Press.
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Allen, A.L. Was I Entitled or Should I Apologize? Affirmative Action Going Forward. J Ethics 15, 253–263 (2011). https://doi.org/10.1007/s10892-011-9102-6
- Affirmative action
- African American
- Corrective justice