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moralperspectivesonaffirmativeaction

moralperspectivesonaffirmativeaction - Racism and Justice...

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Unformatted text preview: Racism and Justice The Case for Affirmative Action Gertrude Ezorsky Hf Cornell University Press Ithaca and London Copyright © 1991 by Cornell University All rights reserved. Except for brief quotations in a review, this book, or parts thereof, must not be reproduced in any form without permission in writing from the publisher. For information, address Cornell University Press, 124 Roberts Place, Ithaca, New York 14850. First published 1991 by Cornell University Press. International Standard Book Number 08014-16217 (cloth) International Standard Book Number 0-8014-9922—4 (paper) [library of Congress Catalog Card Number 914:062 Printed in the United States of America Librarians: Library of Congress cataloging information appears on the last page oft/76 book. kc The paper in this book meets the minimum requirements of the American National Standard for Information Sciences —Permanence of Paper for Printed Library Materials, ANSI 239.48-1984. 4 Moral Perspectives on Affirmative Action AA’s benefits to blacks can be viewed from both a forward- looking and a backward—looking moral perspective.‘ From a forward-looking perspective, the purpose of AA is to reduce institutional racism, thereby moving blacks toward the goal of occupational integration. When that goal is achieved, millions of blacks will no longer be unfairly barred by the effects of their racist history from employment benefits. Moreover, such integra- tion will significantly dissipate invidious racist attitudes. As I have suggested earlier, individuals socialized in a world where blacks are assimilated throughout the hierarchy of employment will no longer readily assume that they belong at the bottom. From a backward-looking perspective, blacks have a moral claim to compensation for past injury. The paramount injustice perpetrated against blacks—enslavement—requires such com- I. For moral justifications of AA—type benefits to blacks which are also both backward and forward looking but differ in some respects from mine, see Howard McGary, Jr, “Justice and Reparations,” Philosophical Forum 9 (i 977— 78): 250—67,; Bernard R. Boxill, Blacks and Social‘lustice (Totowa, N.J.: Row— man and Allanheld, 1984), chap. 7. 73 Criticisms of Affirmative Action pensation. If the effects of that murderous institution had been dissipated over time, the claim to compensation now would certainly be weaker. From the post-Reconstruction period to the present, however, racist practices have continued to transmit and reinforce the consequences of slavery. Today blacks still predomi- nate in those occupations that in a slave society would be re— served for slaves. Such ongoing racism has not been the work only of private parties. The racism of government practices encouraged race discrimination by landlords who blocked the escape of blacks from ghettos, and by employers and unions who refused to hire, promote, or train them, as well as widespread communication of an insulting stereotype of blacks, derogatory to their ability and character. During the first two-thirds of this century, racism was in many respects official public policy. That policy included: legally compulsory segregation into inferior private and publicly owned facilities such as schools, which—as recognized in Brown v. Board ofEducation of Topeka (r954)——violated the constitu- tional rights of black children; court-upheld racially restrictive covenants in the transfer of private residences; antimiscegenation laws that resembled the prohibition of marriage by persons with venereal diseases; race discrimination in government practices such as public employment, voting registration procedures, fed- eral assistance to business persons and farmers, and allocation of state and municipal services to black neighborhoods (e.g., police protection, sanitation, and educational resources); manifest ra- cial bias in the courts; and pervasive police brutality against black people. The practices of the Federal Housing Authority exemplified governmental racism. For decades after its inception in 1934, the FHA, which insured mortgage loans, enshrined racial segrega- tion as public policy. The agency set itself up as the protector of all-white neighborhoods, especially in the suburbs. According to urban planner Charles Abrams, the FHA‘s racial policies could 74 Moral Perspectives “well have been culled from the Nuremberg Laws."Z Today white suburban youths continue to benefit from the past racist practices of this government agency. Not only will they inherit homes purchased with the FHA assistance, denied to blacks; they also enjoy racially privileged access to the expanding employment opportunities in all-white suburbs. In 1973, legal scholar Boris I. Bittker summed up governmental misconduct against blacks: “More than any other form of official misconduct, racial discrim- ination against blacks was systematic, unrelenting, authorized at the highest governmental levels, and practiced by large segments of the population.”3 The role of government in practicing, pro- tecting, and providing sanction for racism by private parties suffices to demonstrate the moral legitimacy of legally required compensation to blacks. This past of pervasive racism-public and private—follows blacks into the labor market, as we have seen. They are also especially vulnerable to recessionary layoffs because they possess far smaller reserves of money and property to sustain them dur- ing periods of joblessness. Such vulnerability also affects many newly middle-class blacks who, lacking inherited or accumulated assets, are—as the saying goes—two paychecks away from pov- erty. Are AA measures, such as preferential treatment in employ- ment, an appropriate method of compensation for blacks? In 2.. Quoted in Kenneth T. jackson, Crabgrass Frontier (New York: Oxford University Press, 1985), p. 2.14. 3. Boris l. Bittker, The Case for Black Reparations (New York: Random House, 1973), p. 2.1. The summary of past injustices to blacks is based on Bittker, chap. 2.; Michael Reich, “The Economics of Racism,” The Capitalist System, ed. Richard C. Edwards, Michael Reich, and Thomas E. Weisskopf (Englewood Cliffs, N.j.: Prentice-Hall, 1972.);jackson, pp. 2.1 3—14; A Common Destiny: Blacks and American Society, ed. Gerald David jaynes and Robin M. Williams, jr., for the Committee on the Status of Black Americans, Commission on Behavioral and Social Sciences and Education, National Research Council (Washington, DC: National Academy Press, 1989), p. 366. 75 Criticisms of Affirmative Action fact, federal and state governments recognized the appropriate— ness of employment preference as an instrument of compensation to veterans long before the adoption of AA measures.4 This court-sanctioned policy has affected the employment of millions of workers, and in some states where veteran preference is prac- ticed, nonveterans have practically no chance to obtain the best positions. What are the specific claims of those who find moral fault with such programs? First, concerning the compensatory rationale for AA, some analysts argue that compensation for blacks is counter- productive. Others claim that better-off blacks do not deserve the compensation of preferential treatment, especially where whites excluded by such preference are themselves disadvantaged. Sec- ond, AA trammels the rights of others—of employers who have a right to hire whomever they please, or of white candidates who are wrongfully excluded by preferential treatment. Finally, some critics suggest that blacks themselves may be morally injured by racial preference, which allegedly damages their self-respect. Compensation as Counterproductive? Shelby Steele, a professor of English, criticizes the compensa— tory claim for AA, according to which AA is “something ‘owed,’ as reparation”: “Suffering can be endured and overcome, it can- not be repaid. To think otherwise is to prolong the suffering.”5 But if compensation should be withheld from blacks because suffering cannot be repaid, then for the same reason compensa- tion should also be withheld from veterans, Holocaust survivors, and victims of industrial accidents. Members of these groups do 4. Robert Fullinwinder, “The Equal Opportunity Myth,“ in Report from the Center for Philosophy and Public Policy (College Park: University of Maryland, Fall, 1981). 5. Shelby Steele, “A Negative Vote on Affirmative Action,” New York Times Magazine, May 13, 1990. 76 Moral Perspectives not complain that compensation prolongs their “suffering”; on the contrary, they have often insisted on their right to such benefits. I see no reason for assuming that compensation per se injures its recipients. Affluent Blacks as Undeserving The philosopher William Blackstone criticizes the compensa— tory rationale for preferential treatment for affluent blacks: There is no invariable connection between a person’s being black . . . and suffering from past invidious discrimination. . . . There are many blacks and other minority group members who are highly advantaged, who are sons and daughters of well— educated, affluent lawyers, doctors and industrialists. A policy of reverse discrimination would mean that such highly advantaged individuals would receive preferential treatment over the sons and daughters of disadvantaged whites or disadvantaged mem— bers of other minorities. I submit that such a situation is not social justicef’ Blackstone offers two arguments: (1) Black persons born into better-off black families have not suffered discrimination; hence, he suggests, they do not deserve compensation. (2) Preference that benefits these blacks at the expense of disadvantaged non- blacks is unjust. First, it is false that blacks born into better-off families have not been injured by discrimination. Because racist treatment of blacks in business and professions reduced family income, it hurt their sons and daughters. Among the racist injuries these black parents suffered were the racially discriminatory policies of fed- 6. William T. Blackstone, “Reverse Discrimination and Compensatory Jus- rice,” in Socialjustice and Preferential Treatment, ed. William T. Blackstone and Robert T. Heslep (Athens: University of Georgia Press, 1977), p. 67. 77 Criticisms of Affirmative Action eral agencies in allocation of business loans, low-interest mort- gages, agrarian price supports, and government contracts.7 They also were victimized by racist exclusion from practice in white law firms and hospitals and by legally imposed or encouraged residential and school segregation that impaired their education and isolated them from white business contacts. Because of such invidious discrimination, black professionals and entrepreneurs could do far less for their children than their white counterparts. Moreover, the sons and daughters of black lawyers, doctors, and business persons have themselves suffered the experience of liv- ing in a segregated, pervasively racist society. Laurence Thomas, a black university professor of philosophy, attests to the humiliating distrust that he and other well—placed black academics endure today in public places.3 Fears that affect blacks of all classes are described by Don Jackson, a black police sergeant who, while investigating reports of police racism in 1989, was stopped by white police officers, one of whom shoved Jackson’s head through a window during the arrest. The feeling that no matter how hard you worked you could always be reduced to the status of a “field nigger” haunts the lives of black Americans at every economic stratum. . . . It has long been the role of the police to see that the plantation mentality is passed from one generation of blacks to another. . . . The black American finds that the most prominent reminder of his second- class citizenship are the police. . . . A variety of stringent laws were enacted and enforced to stamp the imprint of inequality on the mind of the black American. . . . No one has enforced these rules with more zeal than the police. Operating free of constitu- tional limitations, the police have long been the greatest nemesis of blacks, irrespective of whether they are complying with the law or not. We have learned that there are cars we are not supposed to drive, streets we are not supposed to walk. We may still be 7. Bittker, pp. 16—17. 8. Laurence Thomas, New York Times. op-ed, August 13, 1990. 78 Moral Perspectives stopped and asked “Where are you going, boy?” Whether we’re in a Mercedes or a Volkswagen.9 Even if one assumes that the economically better-off blacks are less deserving of compensation, it hardly follows that they do not deserve any compensation. As Bernard Boxill observes in Blacks and Socialjustice: “Because I have lost only one leg, I may be less deserving of compensation than another who has lost two legs, but it does not follow that I deserve no compensation.””’ It is true that where preference has been extended to blacks— as with craft workers, professionals, blue- and white-collar em- ployees, teachers, police, and firefighters—some excluded whites may be financially less well off than the blacks who gained. This shift fails to show that these blacks were not victimized by invid- ious discrimination for which they should be compensated. Also, compensatory employment preference is sometimes given to vet- erans who are more affluent than the nonveterans who are there- by excluded from jobs. Indeed, some veterans gained, on the whole, from military life: placed in noncombat units, they often learned a valuable skill. Yet no one proposes that for this reason veteran preference be abandoned. Unqualified Blacks as Unaffected by AA Thomas Nagel, a philosopher who endorses preferential treat- ment, nevertheless faults the compensatory justification for such preference, claiming that blacks who benefit from it are probably not the ones who suffered most from discrimination; “those who don’t have the qualifications even to be considered” do not gain from preferential policies.11 9. Don jackson, New York Times, op—ed, January 2.3, 1989. 10. Boxill, p. 148. 1 1. Thomas Nagel, “A Defense of Affirmative Action,“ in Report from the Center for Philosophy and Public Policy,.p. 7. 79 Criticisms of Affirmative Action Of course, AA preference does not help blacks obtain very desirable employment if they lack the qualifications even to be considered for such positions. But preferential treatment in di- verse areas of the public and private sector has benefited not only highly skilled persons but also poorly educated workers. It is also true that blacks who lack the qualifications even to be considered for any employment will not gain from AA preference. As I indicated in my critique of William J. Wilson, AA cannot help those so destroyed as to be incapable of any work or on-the-job training, who require other compensatory race-specific rehabili- tation programs. But AA employment programs should not per— form the function of these programs.12 The claim that unemploy— able blacks are most deserving does not imply that employable blacks fail to deserve any—or even a great deal of—compen- sation. Granted, we do not know whether the particular blacks who benefit from preference at each level in the hierarchy of employ- ment are the very same individuals who, absent a racist past, would have qualified at that level by customary standards. Justi- fied group compensation, however, does not require satisfaction of such rigid criteria. Veterans who enjoy hiring, promotion, and seniority preference are surely not the very same individuals who, absent their military service, would have qualified for the posi- tions they gained by such preference. Unlike job preference for veterans, AA racial preference in employment contributes to eradication of a future evil. It is an instrument for ending occupational segregation of blacks, a leg- acy of their enslavement. The Rights of Employers According to libertarian philosophers, laws that require any type of AA in the workplace—indeed, those merely requiring r 2. Nor should AA employment programs substitute for other compensatory programs to blacks, such as cash payments to the elderly, compensatory educa— 80 Moral Perspectives passive nondiscrimination—violate the rights of private employ— ers. The philosopher Robert Nozick suggests that the right of employers to hire is relevantly similar to the right of individuals to marry.13 Just as individuals should be free to marry whomever they please, so private entrepreneurs should be free to employ whomever they please, and government should not interfere with employers in their hiring decisions. But surely the freedom to choose one’s spouse and the freedom to select one’s employees are relevantly different. Individuals denied such freedom of choice in marriage are forced to give their bodies to their spouses. They are subject to rape—a destructive, brutal, and degrading intrusion. Marital choices belong to the deeply personal sphere where indeed government should keep out. State intervention in employment is another matter. To re- quire that an auto plant hire some black machinists falls outside the sphere of the deeply personal; it is not, like rape, a destruc— tive, brutal, and degrading personal intrusion. I conclude that the analogy between freedom to marry and freedom to hire fails.14 The Rights of White Candidates According to some philosophers, while the social goal of pref- erential treatment may be desirable, the moral cost is too high. tion programs in primary and secondary ghetto schools, and preferential admis- sions with effective financial support to black students for college and profes- sional schools. I 3. “If the woman who later became my wife rejected another suitor. . . would the rejected less intelligent and less handsome suitor have a legitimate complaint about unfairness . . . (Against whom would the rejected suitor have a legitimate complaint? Against what?). . . . The major objection to speaking of everyone’s having a right to various things such as equality ofopportunity, life and so on, and enforcing this right, is that these ‘rights’ require a substructure of things and materials and actions; and other people may have rights and entitlements over these” (Robert Nozick, Anarchy, State, and Utopia [New York: Basic Books, 1974], pp. 237—38; first and third emphases in original, second added). 14. Libertarians deny the right of government to interfere with private em— ployers not only in hiring but also in determining working conditions, as by 81 Criticisms of Affirmative Action The burden it imposes on adversely affected whites violates their right to equal treatment. They are unfairly singled out for sacri- fice. Thomas Nagel states that “the most important argument against preferential treatment is that it subordinates the individ- ual’s right to equal treatment to broader social aims”.‘5 Some proponents of preferential treatment reject the charge of unfairness because, as they see the matter, whites have either been responsible for immoral racist practices or have gained from them. According to this claim, all whites deserve to pay the cost of preferential treatment (hereafter, the desert claim).”’ I do not accept the desert claim; indeed, I suggest that the criticism of racial preference as unfair to adversely affected whites is not without merit. The relevant point is not that such preference be abandoned but rather that it be implemented differently. According to the desert claim, whites either have been respon- sible for racism or have passively benefited from it. Let us exam- ine the responsibility claim first. Certainly no one has demonstrated that all whites, or even a majority, are responsible for racism. How then shall the culpable whites be identified? Many employers and unions have certainly engaged in either overt racism or avoidable neutral practices that obviously excluded blacks. Perhaps they should pay the cost enacting minimum—wage laws and so forth. Libertarians such a...
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