Contemporary Debates in Applied Ethics

Andrew I. Cohen, Christopher Heath Wellman, Andrew I. Cohen, Christopher Heath Wellman

• Publisher: Wiley-Blackwell
• Year: 2014
• ISBN:
  9781118479872
• Edition: 2
• Topic: Philosophy
• Subtopic: Philosophy & Ethics in Science

Now in an updated edition with fresh perspectives on high-profile ethical issues such as torture and same-sex marriage, this collection pairs cogently argued essays by leading philosophers with opposing views on fault-line public concerns.

• Revised and updated new edition with six new pairs of essays on prominent contemporary issues including torture and same-sex marriage, and a survey of theories of ethics by Stephen Darwall
• Leading philosophers tackle colleagues with opposing views in contrasting essays on core issues in applied ethics
• An ideal semester-length course text certain to generate vigorous discussion

ISSUES IN JUSTICE

Affirmative action

CHAPTER EIGHT

A Defense of Affirmative Action

Albert Mosley

Introduction

For over 300 years in what is now the United States of America, it was socially and legally acceptable to discriminate on the basis of race. Religion and science were used to justify enslaving African Americans, and after slavery was abolished, to justify excluding them from educational, employment, and investment opportunities provided to other Americans. Since the landmark Supreme Court decisions of the 1950s declaring segregation unconstitutional, the federal government has taken the lead in guaranteeing an end to racial and sexual discrimination. In publicly available education, accommodations, employment, and investment opportunities, overt discrimination against individuals on the basis of race, sex, religion, or ethnicity in the award of public goods has been legally prohibited.

But legal prohibitions against racial and sexual discrimination have not been sufficient to erase the effects of centuries of bias. Racist and sexist stereotypes, in conjunction with long-established habits and networks, continue to exclude minorities and women from educational, employment, and investment opportunities. To address this, executive orders, legislative statutes, and judicial rulings have mandated not only that discrimination cease, but that “affirmative action” be taken to end the legacies of racism and sexism.¹ Institutions doing business with or receiving payments or grants from the federal government have been required to show a good faith effort to address racial and sexual disparities in the award of educational, employment, and investment opportunities. Affirmative action is a broad set of policies that public and private institutions have evolved in response to the need to end not just the practice but also the legacy of racial and sexual discrimination. The aim of these policies is to provide women and minorities with access to positions they otherwise would be unlikely to get because of the continuing effect of historical oppression (Patterson, 1998, p. 10).

Affirmative Action as a Remedy for Past Injustices

Affirmative action utilizes procedures designed to reach out to women and minorities to ensure that they are informed of opportunities and are given fair consideration for those opportunities. It is a way of recognizing that in the past, many employment, educational, and investment opportunities were not made known to the public at large, but were discussed by word of mouth and awarded through personal networks. Thus, admission to select educational institutions was often on the basis of recommendations from faculty, staff, or alumni; employment opportunities and union memberships were obtained by referral from individuals already employed by the firm or already a member of the relevant union; and business opportunities were made known and awarded on the basis of connections to the right people.

As a result of such networks and practices, members of groups excluded through state-sanctioned action in the past are more likely to be excluded in the present, even when the explicit basis of exclusion is not race or sex. Like laws that allowed one to vote if one's grandfather had voted, networks and procedures established by past practices constitute neutral ways of perpetuating exclusions based on race and sex.

Affirmative action policies mandate taking extra steps to ensure that women and minorities are made aware of opportunities by public advertising and extensive searches. Nonetheless, many continue to assume that minorities and women are more naturally suited for menial positions because that is where most are found. Affirmative action has been a principal means of assuring that selection and evaluation procedures are not tainted by unnecessary qualifications and unconscious biases.

But many who support outreach and fairness measures designed to eliminate discriminatory practices oppose stronger affirmative action measures that take race and sex into account as a means of increasing the representation of minorities and women. While sexual differences may seem relevant in choosing applicants for many types of positions, using the race of an applicant as a relevant factor has proven to be more controversial. For many, if it was wrong to deny a person an opportunity because of his or her race, then it should be wrong to award a person an opportunity because of his or her race. If it was wrong for white people to get preferential treatment then it ought to be wrong for black people to get it.

But such reasoning, while appealing in its simplicity, is ahistorical and ignores the lingering effect of the past on the present. The historical fact is that when slavery was protected by the constitution of the United States, a black person could be enslaved but a white person could not be. Treated as property like horses and dogs, black people were denied the benefits of their labor, denied the right to accumulate wealth, to share it with their families, or to bequeath it to their progeny. Slavery was justified on the grounds that black people were morally and cognitively incapable of acting as responsible agents, and required the direction provided by their masters. Most whites of that era who opposed slavery did so not because they believed black people were their moral and cognitive peers, but because slave labor undermined the viability of free labor. Even after slavery, most continued to believe that black people were incapable of satisfying the duties of democratic citizenship. Such views have not disappeared (Levin, 1997; Kershnar, 2000, 2003).

After the abolition of slavery, legal segregation sought to insulate whites from contact with blacks, except where the latter provided services to the former. The intent was to guarantee that blacks received educational, employment, and investment opportunities commensurate with their inferior status. Individuals considered to be members of the inferior races of Europe were able to escape their status by immigrating to America and identifying generically as white. This, in turn, gave them the privilege to displace and exclude the progeny of slaves wherever opportunities were to be had (Ignatiev, 1995; Jacobson, 1998). The enforced inferiority of Africans and their descendants justified the assumption that they were innately less competent, and continues to be used to justify their over-representation among the least well off and under-representation among the most well off. Consider some sociological data: the incarceration rate of black men in America is six times higher than the incarceration rate of black men in South Africa at the height of apartheid (Guinier and Torres, 2002, p. 263); black Americans make up 12 percent of the population but over 30 percent of the poor (Appiah and Gutmann, 1996, p. 147); in 2000 the unemployment rate was 3.5 percent for whites but 7.6 percent for blacks and 5.7 percent for Hispanics; in 2000, 7.5 percent of non-Hispanic whites, 22 percent of blacks, and 21 percent of Hispanics were living in poverty (US Census Bureau, 2002, pp. 291, 368). More: schools and housing are becoming increasingly segregated, minorities are hired less often than whites with similar qualifications, earn less with similar responsibilities, and are charged more often for similar products and services (Oppenheimer, 1996).

Even when it is admitted that slavery and segregation were unjust, opponents of measures that take race into consideration in awarding opportunities emphasize that people living today were neither slaves nor slaveholders. They argue that descendants of European immigrants should not be punished for something they had nothing to do with, just as the descendants of African slaves should not be rewarded for suffering they did not experience. Some go further and argue that even if the descendants of European immigrants benefited from the sins of state-sponsored slavery and segregation, nothing is owed to the descendants of slaves for the disadvantages they have inherited. Even if the immediate ancestors of contemporary whites did commit injustices against the immediate ancestors of contemporary blacks, it does not follow that contemporary whites owe contemporary blacks. The fact that x benefits from a wrong done to y does not imply that x owes y compensation. To illustrate this point, Stephen Kershnar presents the following scenario:

Jim, a white American, is the second best tennis player in the world, second only to a Chinese-American, Frank. As a result of Frank's superiority, Jim makes only one-third the money that Frank makes. One weekend, however, Frank is out on the town with his girlfriend, and is viciously beaten and stabbed by a racist Brooklyn mob. This mob has no connection to Jim. Jim, now freed of competition from Frank, wins more tennis tournaments and as a result his income triples. Jim has thus directly benefited from an injustice done to Frank.

(Kershnar, 1997, p. 354)

This example is meant to illustrate how a person may benefit from a racial injustice yet be neither morally nor legally obligated to compensate the innocent victim. As Kershnar concludes, “Merely benefiting from an unjust act is not a sufficient condition to obligate payment on the basis of compensatory justice” (1997, p. 355).

But the simplicity of Kershnar's example begs the question. If Frank was only a random victim of the mob, then Frank's bad luck is merely Jim's good luck, much as if a car fleeing a robbery had struck Frank. That the mob was racist might be as irrelevant as that the bank robbers were racist. But if the mob's intent was to compromise Frank's ability to compete so that a minority player would not be #1 and a white player would be, then Jim's good fortune is not the result of mere chance but is morally compromised. If Jim colluded with the mob, then he is culpable for the harm suffered by Frank and should be forced to relinquish his position. If Jim had no involvement in the mob's attack on Frank but the attack was nonetheless done with the intent of benefiting Jim – and Jim comes to know this – then I believe Jim is morally obligated to condemn the attack and to relinquish in some way some of the benefits of his ill-gotten gains as a way of discouraging such possibilities in the future.

Like Kershnar, Louis Pojman uses a common-sense example in arguing that the innocent beneficiary of unjust acts need not assume the liabilities caused by those acts. Suppose Albert's parents buy a growth hormone for Albert, hoping he will become a great basketball star. However, Michael's parents steal the hormone, and give it to Michael, who, instead of Albert, grows to be 6 foot 10 inches and makes millions playing basketball. Both Albert's parents and Michael's parents die. Does Michael owe Albert anything? (Pojman, 1992, p. 195; 1998, p. 102). In Pojman's estimation, Michael does not owe Albert anything, either morally or legally. And the coach, upon hearing of the incident, is not obligated to compensate Albert by giving him Michael's position on the basketball team. Pojman concludes: “If minimal qualifications are not adequate to override excellence in basketball, even when the minimality [that is, the possession of minimal qualifications] is a consequence of wrongdoing, why should they be adequate in other areas?” (1992, p. 195).

Pojman's remarks suggest that what is true of athletes should be equally true of pilots, military leaders, business executives, and university professors. That their skills were acquired at the cost of injustices to others may be unfortunate, but this is nevertheless morally irrelevant. For both Pojman and Kershnar, individuals can legitimately inherit the benefits of unjust acts, so long as they themselves were not complicit in the performance of those acts.

But such a position ignores the fact that the agent of injustice is benefited indirectly, because the injustice furthers the agent's aim – one of which is to provide those who inherit the agent's estate with wealth they otherwise would not likely have. This position increases the probability that mobs might engage in acts that transfer wealth to those they identify with, even if that wealth does not benefit members of the mob directly. It encourages acts of injustice by tolerating them, so long as the perpetrator is not the direct beneficiary. And it makes considerations of justice less important than effectiveness, efficiency, and utility.

Affirmative Action as a Form of Compensatory Justice

By construing persons as atomized individuals, critics of restitution ignore how the prospect of benefiting those one identifies with is often a greater source of motivation than benefiting oneself. A person may commit a great injustice and be prepared to bear the personal sacrifice it entails if it is likely that his family and progeny may benefit. If this option is not discouraged, then acquiring and bequeathing unjust benefits will be sanctioned as a morally and legally permissible strategy. But human beings are not atomized, self-serving entities. Rather, human beings typically conceive themselves as having distinct family lines and group identities, and are, more often than not, as concerned with providing benefits to those with whom they identify as they are concerned with benefiting themselves (Ridley, 1995, pp. 253–266).

Some argue that selection procedures that take race into consideration in the awarding of opportunities are wrong because they do more harm than good; they especially harm those blacks who are provided with such consideration by reinforcing the public's belief that blacks cannot compete on a fair basis. Moreover, this argument continues, using race as a plus factor rewards members of such groups who are most qualified and, therefore, least harmed by past injustices. The end result is that society as a whole is harmed because the best-qualified candidates are not chosen, increasing the likelihood of ineptitude and inefficiency.

Such objections play on the fear that candidates whose race or sex is a factor in the award of an opportunity are likely to be less productive, if not unqualified, for the position they attain. To extend the scenario introduced by Kershnar in arguing against restitution, if Frank's arm is broken by the racist mob, he should not be given the #1 tennis ranking he probably would have retained had the mob attack not occurred. Likewise, Albert should not be given the position he is more likely to have had had Michael's parents not stolen his growth hormone. But these are not objections to the moral duty to provide restitution. At best, they are objections against providing restitution of a particular kind. If certain persons are rendered unable to perform the duties of a position they otherwise are likely to have occupied had they not been unjustly injured, restitution is not achieved by putting them where they are expected to do what they cannot do. This merely adds insult to injury.

Where possible, one of the aims of restitution is to put the injured party in the position he or she would have attained had the unjust injury not occurred. Thus, suppose Frank and Jim are playing a championship match, Jim wins by having Frank's water doped, and this is subsequently made public. Then we would expect Jim's title to be invalidated, and the title awarded instead to Frank. In this way, Frank is granted what he otherwise would probably have achieved had the doping not occurred. But where the injury renders ...