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A Defense of Affirmative Action by Albert Mosley


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 access to positions they otherwise would be unlikely to get because of the continuing effect of historical oppression (Patterson, 1998: 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 (Kershnar, 2000, 2003; Levin, 1997).

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: 263); Black Americans make up 12 percent of the population but over 30 percent of the poor (Appiah and Gutmann, 1996: 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: 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 doesn’t 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. (Kershar, 1997: 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: 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: 195; 1998: 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: 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: 253–66).

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/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 the victim incapable of fulfilling the duties he or she likely would have been capable of, an alternative aim of restitution is to provide appropriate substitutes so that the disadvantages suffered by an injured party are minimized. Thus, if Frank’s arm were broken before his match with Jim, it would do no good to offer Frank the opportunity to play Jim that he otherwise would have had. On the other hand, it would be pernicious to allow Jim to gain the title by forfeit, especially if the intent of breaking Frank’s arm was so that Jim would win. Even if Jim is not complicit in causing Frank’s arm to be broken, he becomes complicit if, upon learning that Frank was injured in order to enrich him, he does nothing to rectify the injuries done to Frank.

One of the central concerns of compensatory justice focuses not on the costs to the victim, but on the possible rewards to the perpetrator of the injury. Consider the following scenario: Jim is the Great White Hope of boxing and knows he can make $10,000,000 in one year if he becomes the new champion. Frank, being the typical black boxing champion, only expects to make $1,000,000 in the subsequent year. Jim discovers a dope that can only be detected at least one year after its use, has it administered to Frank during the fight, Jim wins, and his duplicity is discovered a year and a half later. Should he only be obligated to forfeit the title and the $1,000,000 Frank expected to make? Should Jim be allowed to keep the other $9,000,000 so long as it goes to his estate but not to him? I believe most people would be uneasy with a morality that tolerated injustice for the sake of innocent beneficiaries (Ridley, 1995; Sher, 1981: 10, 17). Imposing fines, penalties, and other damages that exceed the cost to the injured is one way of guaranteeing that the injuring party does not benefit or pass on benefits from the unjust injury.

Taking race or sex into consideration is not simply reversing the historical discrimination against women and people of color, for it does not affect the ability of white males to perform in positions of status and power. Rather, taking race and sex into consideration is a practical acknowledgment that prejudices and historical practices have unjustly limited the opportunities of qualified women and people of color, and that exclusion will be maintained in many areas unless directly addressed.

Many Americans resent being asked to apologize and provide restitution for injuries they had no part in. But there are many situations in which we are expected to assume moral responsibility for actions we did not do personally. Suppose A makes B a gift of $100,000 to get started in a business. But unbeknownst to B, A has robbed C of a million dollars. If B becomes aware of the robbery, but nonetheless refuses to accept any responsibility for C’s fate, then B becomes complicit in the original act and continues the injury of that act (Marino, 1998). We should not be surprised that B, acting in self interest, would explain C’s injuries in such a way as to minimize the effect and the injustice of A’s assault, while disavowing any personal inclination to inflict similar harms. In a similar fashion, many whites disavow any personal inclination to deny any person opportunities on the basis of race alone, but also believe that being black is highly correlated with having lower intelligence, lower morals, lower motivation, etc. By avoiding overt racist justifications and opposing the use of racial categories altogether, it is possible to condemn racial oppression while maintaining the effects of state supported racial exclusion.

Standardized Tests and Race

Some who oppose using race as a factor in the selection of candidates for opportunities argue that affirmative action should only guarantee the right to compete, not the right to succeed (Wolf-Devine, 1997: 183). But the very right to compete is compromised when selection procedures are biased. This was clearly true before the Civil Rights revolution, when being of European origin was a necessary condition to be selected for the most prestigious institutions and offices. It is also true, though less clear, that selection based on the results of standardized tests is biased as well. One of the most important factors in selecting applicants for admission to select postsecondary and professional schools is their score on the ACT, SAT, GRE, LSAT, etc., all of which are highly correlated with standard IQ tests. Typically, black, Hispanic, and Native American applicants have average scores on these tests that are lower on the average score of white applicants (Nisbett, 1998; Rosser, 1989). This has reinforced the claim that less-qualified minority applicants are replacing more-qualified white and Asian candidates.

Such claims resonate with benign justifications of slavery and segregation which held that, because Africans were less intelligent, they were prone to immoral acts and irrational beliefs, and it was the white man’s burden to help save them from themselves. While few contemporary whites are prone to advocate slavery or segregation as a solution to the presence of Africans in the US, a substantial proportion of whites continue to believe that blacks are less intelligent than whites. And this is not merely a belief of the uneducated. More than half the educational psychologists in the top universities of the US believe that the difference in average IQ score between blacks and whites is due to genetic factors that are inherited, and which are resistant to social and environmental changes (Patterson, 1998: 61; Synderman, 1987: 137–44).

In The Bell Curve, Herrnstein and Murray (1994), for instance, attribute average socio-economic class differences to average differences in intelligence capacity (IQ), and differences in average intelligence between races to differences in genetic makeup. Because genetic information is resistant to somatic influences, they suggest that changes in social and physical environment can affect genetic differences only minimally. They acknowledge that in particular cases, a less intelligent person may be more successful than a more intelligent person, but the evidence they present suggests this is not what we should expect on the average. Similarly, one may on particular occasions find a black person who is more intelligent than a white person, but this is not what we should expect on the average. The status quo is the way it is because of innate differences between species and between races. Such a point of view appears to receive scientific support from aggregate test results that show that, even when blacks achieve a middle-class status, the average IQ of their children remains below the average IQ of the children of the lower-class whites (Hacker, 1992: 146). But such facts conceal as much as they reveal. Income parity does not mean that a middle-income black family is alike in all relevant respects to a middle-income white family. In fact, a middle-income black family has fewer assets than a lowerclass white family, their children attend schools that are less well endowed, and they and their children are more likely to be denied employment and convicted of a crime (Brooks, 1990: 65; Oliver and Shapiro, 1995: 101, 111). And many recent Asian immigrants are highly educated, but accept low incomes in order to gain a foothold in America.

Like IQ tests today, in the earlier part of the twentieth century, the cephalic index was considered a reliable measure of intelligence capacity. The cephalic index measured skull shape and capacity, and was considered to be genetically determined. However, Franz Boas measured average cephalic indices for immigrants from “lower European races,” and showed that averages changed dramatically between descendants born in Europe and those born in America from the same parents. Such sudden changes could not be accounted for by changes in the distribution of genes between generations. Some of the most damaging evidence to the claim that IQ differences are fixed from birth reflects the earlier work of Boas regarding the claim that the intellectual potential of lower European races was limited by genetic factors fixed from birth (Boas, 1912).

More than five years before The Bell Curve was published, James Flynn released data which shows that, from generation to generation, IQ scores have been rising at a faster pace than can be explained by genetic changes (1987: 171–91). Herrnstein and Murray acknowledge Flynn’s results, and conclude that, “on the average, whites today may differ in IQ from whites, say, two generations ago as much as whites today differ from blacks today. Given their size and speed, the shifts in time necessarily have been due more to changes in the environment than to changes in the genes” (1994: 307–8; see also Swain, 2002: ch. 8). Many other examples from public health show how improved nutrition, health, educational opportunities, and smaller family sizes have produced dramatic changes in attributes otherwise believed to be fixed and permanent features of a group’s racial essence.

There is also much evidence that intelligence and aptitude tests are culturally biased. Critics of paper-and-pencil intelligence tests have pointed to numerous assumptions built into the test and the test-taking environment that create barriers for otherwise qualified candidates. Even the manner in which questions are posed on a test has been shown to differentially influence the performance of blacks and whites (Freedle, 2003). Moreover, IQ tests are not good predictors of who will be most academically successful, and academic success is not a good predictor of professional success (Rosser, 1989). Nonetheless, a long history of racist and sexist arguments makes it easy to ignore this and other evidence of the extent to which differences in test scores are products of the social and physical environment.

Presumably, written tests eliminate selection based on birth, family connections, class, and other considerations; their role is to provide an objective yardstick for measuring qualifications, one that affords each individual an equal opportunity to demonstrate his or her individual merit. Those who score highest on the tests believe it is an indication that they have more merit and are entitled to the opportunity in question. African, Native, and Hispanic Americans are considered less qualified compared with European and Asian Americans because they tend to have lower test scores and GPAs.

But we should not enshrine test-taking scores and GPAs as the principal criteria for selection. Bowen and Bok (1998) show that students admitted to our most prestigious schools under affirmative action programs are typically as successful, and are more civically involved, than those not admitted under affirmative action. Indeed, those who scored highest on admissions tests often gave least back to their communities in terms of involvement in civic affairs. A study of Harvard Law School graduates showed an inverse relationship between entering LSAT scores and postgraduate income, community involvement, and professional satisfaction (Lempert et al., 2000: 468). If one of the objectives of higher education is to contribute to the practical good of human communities, those admitted under affirmative action have often given back as much or more than their higher scoring counterparts.

Because of their importance in admissions decisions, there is a growing trend for students to study to pass tests such as the ACT, SAT, LSAT, and GRE, and for parents who can afford it to purchase expensive test-preparation programs that guarantee higher scores on standardized tests for their children. But SAT scores are little better than chance in predicting college performance after the first year of study. Instead of providing an objective way of predicting who will do best in college and afterwards, SAT scores correlate significantly more with parental income than with success in college. Thus, it is questionable whether using SAT scores as a major factor in admissions improves a college’s ability to admit those candidates who are most likely to be successful in fulfilling the mission of higher education (Crouse and Trusheim, 1988: 128). To the extent that admission to select institutions is based on scores on standardized tests, the selection procedures will exclude those whose families have traditionally been denied the opportunity to accumulate wealth.

In short, we should be wary of assuming that timed paper-and-pencil tests provide a reliable estimate of who will do best as students, workers, and citizens. Some suggest that people who do best on standardized tests may often be least prepared for reallife situations involving competing perspectives and ineliminable uncertainties. Paperand-pencil test have been notoriously inadequate in their ability to predict an individual’s capacity for creative choices and collaborative involvement (Sturm and Guinier, 2000). Limiting educational opportunities at our most select institutions by the use of paper-and-pencil tests limits participation in the workplace and in civic activities at the highest levels.

Even where professional success is our primary criterion, a survey of top executives of Fortune 1,000 companies revealed that most people considered qualities such as creativity, drive, and leadership to be more important than SAT scores. Many cautioned that multiple-choice pencil-and-paper tests were poor measures of the attributes most important for success in corporate America. Only 4 percent of the executives interviewed considered standardized tests such as the SAT and the ACT to be important for long-term success, and only 20 percent cited grades in college or graduate school as good predictors of success. The core attributes considered important for success were: integrity, will to succeed, determination, hard work, ability to motivate, and ability to overcome obstacles (National Urban League, 2001).

A more diverse classroom and workplace help to counteract habitual thinking about race and gender differences (Guinier and Sturm, 2001: 9). The fact that in the past women and minorities have not been leaders in science, commerce, and the arts should not be our guide to the choice of future leaders. This requires eliminating both the discriminatory intent of individuals and the disparate impact of institutional barriers. Selection procedures need to integrate the insight that many people learn on the job in ways that are not replicated by paper-and-pencil tests. As our world evolves and institutions change, past procedures may not be reliable guides to success in the future. Affirmative action has provided the occasion for us critically to examine the extent to which aptitude and intelligence tests are good predictors of academic and practical success. Instead of estimating capacity in order to determine who participates, it acknowledges participation as necessary for developing capacity (Sturm and Guinier, 2000).

Affirmative Action and Equal Protection

The use of race in deciding to include some rather than others for benefits is severely limited by the Fourteenth Amendment and the 1964 Civil Rights Act to situations where doing so is necessary to achieve a compelling state interest. Thus, the Supreme Court has sanctioned the use of race in cases where an agency has continued a documented practice of invidious racial discrimination and is mandated, as part of a settlement, to include members of the formerly excluded group. In such a case, race is not irrelevant to achieving the designated goal of dismantling a culture of racial exclusion.

According to Justice Powell’s position in Regents of the University of California v. Bakke (1978), the state has a different but equally compelling interest in producing a diverse learning environment for its future leaders. Powell argued that, for the purpose of achieving diversity, the use of race as a factor in the selection process is constitutionally valid. However, that purpose is forward-looking, not remedial, and seeks to insure that future leaders have been exposed to diverse points of view. The goal is to assemble the optimum learning environment. For Powell, “The Nation’s future depends upon leaders trained through wide exposure to . . . ideas” (Regents of the University of California v. Bakke, 1978: 312). The First Amendment protection accorded the free exchange of ideas recognizes the importance of providing an arena for the exploration of different points of view. Democratic governance requires an informed citizenry that is able to explore and choose from a cross-section of ideas.

According to Justice Powell, the kind of creative play and experimentation that vitalizes higher education is best achieved with a diverse student body: “The atmosphere of speculation, experiment and creation – so essential to the quality of higher education – is widely believed to be supported by a diverse student body” (Regents of the University of California v. Bakke, 1978: 312). We would expect the farm boy from North Dakota to bring different perspectives from those of the prep school graduate from New England, and we would expect a black student from a middle-class family in Clinton, Maryland to offer a different perspective from that of a white student from a middle-class family in Chevy Chase, Maryland.

Nonetheless, any legally sanctioned use of race is suspect, and prohibited unless a strong case can be made that it is necessary to achieve a compelling state interest. Thus, Cheryl Hopwood did not sue the University of Texas Law School because she was rejected even though she had higher scores than more than 100 other white applicants who were admitted. She sued because certain students were admitted whose race was used as a factor in their assessment. She argued that her rights had been violated because the Fourteenth Amendment and the Civil Rights Bills (of, e.g., 1964, 1971, etc.) explicitly prohibit state support for institutions that make choices using racial differences a significant factor.

In making its decision in this case, the Fifth Circuit Court of Appeals explicitly rejected the claim that race may be used as a factor in choosing between applicants in order to foster diversity:

Within the general principles of the 14th Amendment, the use of race in admissions for diversity in higher education contradicts, rather than furthers, the aim of equal protection. Diversity fosters, rather than minimizes, race [as a discriminatory factor]. It treats minorities as a group, rather than as individuals. It may further remedial purposes [the only permissible rationale in the court’s view] but, just as likely, may promote improper racial stereotypes, thus fueling racial hostility. (Hopwood v. State of Texas, 1996: 945)

But just because two individuals are treated differently because of race does not mean that one of them has been treated unfairly. Fairness and equal consideration are not always achieved by identical treatment and color blindness (Appiah and Gutman, 1996: 109). Fairness too often is construed as identical treatment. But in fact it is unfair to treat people with significantly different histories and capacities as if they were identical. To take an extreme example, treating a paraplegic as one would a normally ambient person is not being fair, and it is not fair because they are being treated identically. Fairness is best construed as providing equal concern, not identical treatment. Different people may have different needs and different potentials for producing effective solutions. Using physical strength as a measure of potential for effective policing is unfair to women because it fails to consider other capacities that may be as or more effective in resolving conflicts and defusing volatile situations (Sturm and Guinier, 2002).

The backward-looking justification for affirmative action contends that centuries of white supremacy impose historical liabilities that put people of color at greater risk. When attempting to redress a wrong or achieve diversity, a qualified candidate may be given preference over other qualified candidates because of the possession of an attribute that is connected to righting the wrong or introducing an important perspective. Equal consideration of relevant differences instead of identical treatment makes equality of opportunity a reality rather than merely an abstract principle.

We do not live in a time and place where skin color makes no difference. We are not color-blind. Color-consciousness has been an important part of American history and continues to influence our perceptual judgments. To act as if color made no difference would be to ignore the facts (Appiah and Gutman, 1996: 110, 125; Guinier and Torres, 2002: 274–5). Color may be as important a qualification for a school with few or no black members as being from the south-west may be for a school whose members would otherwise all be from the north-east.

But being color-conscious does not commit one to the position that skin color is a biological sign of predictable physical, cognitive, and behavioral differences. Like all concepts, racial categories evolve, and being identified as a person of color can change from being a mark of inferiority to being a locus of historical oppression and resistance. Most of the categories we use originated in the past, but we do not always continue to use them with their original meanings (Mosley, 1997). We continue to use the terms “sunrise” and “sunset” to distinguish our perceptual awareness of the relative motion of the earth and sun, though we no longer believe that the sun is itself moving above and then below the horizon. Likewise, continuing to use racial categories to distinguish human beings does not preclude giving those categories new and more appropriate meanings.

Racialization and racism have changed over time and appear differently in different historical eras. Before WWII, the notion of European sub-races coexisted with the distinction between European, African, Asian, and Native American races. American racism created a generic white race that enabled European immigrants to displace African, Asian, and Native Americans from employment, education, and investment opportunities. The operation of racism within European populations has been displaced from view by the focus of attention on people of non-European origin. Many whites suppress the historical experience of their own racialization, while continuing to view “poor white trash” as a race apart, often immorally conceived and genetically marred.

Hitler and the Nazis brought general discredit to race theories of the past, giving rise to the view that race has no biological validity and is purely a social construct. Such views have been used to support the demand for race-blind policies and procedures: if the concept of race has no valid biological meaning, then it was a mistake to have used it to exclude individuals from opportunities, and it is equally a mistake to use it to include individuals for opportunities sought by the public at large. Using racial notions with benign intentions, it is argued, is just as ill-conceived as using racial notions invidiously. If there are no races, it becomes difficult to see how there can be such a thing as a meaningful quest for racial diversity.2

In this way, critics of affirmative action argue that eliminating all uses of racial categories is a legitimate way of banishing racism. Delegitimizing race deters individuals from banding together as members of the same or different races. People disadvantaged by state-sponsored racism in the past are dissuaded from coming together around notions of race, and are often persuaded that any reference to a racial affiliation is illegitimate.

Intended originally to protect blacks, the Equal Protection clause of the Fourteenth Amendment is now being used to protect advantages others have gained from past acts of exclusion. For some philosophers, it is better to let traditional victims bear the primary costs of the past, rather than extend those costs to innocent beneficiaries (Kekes, 1998: 886).

On the other hand, color-conscious policies acknowledge the continuing effect of slavery and segregation, and ask that those who benefit from the unjust acts of the past relinquish some of those benefits. White applicants are not asked to bear the burden of past racial and gender injustice alone, but to relinquish the increased odds of success made possible through the inheritance of unjust benefits.

Given the prospect of losing benefits, there is little wonder that many whites are motivated to believe that blacks are not as intelligent as whites, are lazier, more violent, and prefer welfare to work (Guinier and Torres, 2002: 261; Sniderman and Piazza, 1993; Swain, 2002: 149). Such beliefs resonate with beliefs of generations past, and give comfortable explanations of why higher proportions of blacks than whites are incarcerated, undereducated, impoverished, sick, injured, and likely to die younger. Explanations from the past reappear in a new guise and repeat habits of thought that maintain the practical effects of an era of white supremacy. Bringing more blacks into the professional mainstream provides more opportunities to challenge such ideas and explore solutions that take all sides into consideration.


Opponents of affirmative action programs that take race and gender into consideration agree that it is important that we learn to interact with individuals from diverse backgrounds. But they do not take the high percentage of blacks among the least well off and low percentage of blacks among the most well off to be primarily the products of slavery and segregation. Even if there had been no slavery and segregation, it does not follow that women and minorities would be represented in all areas in proportion to their presence in the general population. To assume that any disproportionate representation is the result of an unjust act is, they argue, overbroad. Natural and cultural differences between groups of people may predispose them to different professions and to different proportional representations within professions – without this being the effect of systemic injustices.

Louis Pojman points out that African American men are over-represented and Asian American men are under-represented in professional basketball. Should our quest for diversity lead us to insist that Asian Americans be hired until parity is reached with African Americans? Would this improve the quality of professional basketball? On the other hand, Asian Americans are over-represented in the sciences. Should we require that their numbers be limited so that African Americans can be integrated into those disciplines? Would this improve the quality of science? (Pojman, 1998: 106).

Basketball is used as an example of an arena in which anti-discrimination is sufficient to allow talent to exhibit itself, and where affirmative action could be little more than an artificial attempt to achieve proportional representation. But basketball is a bad analogy because there is no history of excluding Asian Americans in basketball. If there were such a history, we might well suspect that the low proportion of Asian American players was the result of persistent attempts to eliminate them from the competition. Because we know that the participation of women and minorities in the sciences has been historically restricted, we should be concerned whether effects of that past might not be contributing to a continuing injustice.

Carl Cohen, like so many who oppose explicit attempts to increase minority enrollments, commits himself to addressing the evil of racism. He is even prepared to accept policies that use race as a factor in determining admissions, as long as race is not “dispositive.” By this, he means that between two equally qualified candidates, race cannot be used as a “tie-breaker.” Cohen (1997) accused the University of Michigan of using race in this fashion and of maintaining separate tract systems. Of applicants to the law school with similar GPA and LSAT scores, 85 percent of the minority applicants but only 5 percent of the non-minorities were admitted. And in the undergraduate school, of applicants with similar GPA and SAT scores, 11.5 percent of the non-minority applicants and 100 percent of the minority applicants were admitted. Cohen believes the difference in admission rates between minorities and nonminorities (17 to 1 in the law school admissions process and 9 to 1 in undergraduate admissions) proves that race is not just a factor, but also a “dispositive” factor, and is accorded more weight than is fair.

What Cohen in fact shows is how misleading percentages can be without attention to the actual number of cases involved. In the law school example, 6 out of 124 white applicants with GPAs and LSAT scores in the low range were accepted, while 17 out of 20 black applicants in this range were accepted. If treated identically, only 1 black applicant would have been admitted and an additional 16 higher-scoring nonminority applicants. Likewise, in undergraduate admissions, whites with the lowerrange scores were admitted 11.5 percent of the time but black students with similar scores were admitted 100 percent of the time. For applicants with this range of test scores and GPAs, minorities were about 9 times more likely to be accepted than nonminorities. But in terms of actual numbers, if minorities were accepted at the identical rate as non-minorities, 5 minorities would have been admitted and 56 additional majority students. Taking into consideration the small number of qualified minority applicants helps make clear how a description in terms of percentages merely distort the real situation. Contrary to the intent of equal consideration, identical treatment is more likely to perpetuate than eliminate socially determined educational disparities.

For Cohen, utilizing racial categories even for benign purposes is akin to using an evil means to achieve a good end.3 In contrast, I have argued that the constitution does not prohibit the use of race in order to disassemble a pattern and culture of racial exclusion. Nor need we assume that the use of racial categories commits us to the meanings and theories originally attached to those terms. Anti-discrimination policies have helped us to recognize that race-blind descriptions and procedures may distribute costs and benefits selectively between blacks and whites without using racial terminology at all. Many procedures that make no mention of racial categories have nonetheless been shown to have a disparate impact on a historically excluded group.

Affirmative action works to sever the link between skin color and social destiny by placing qualified people of color in positions they otherwise would be unlikely to achieve. Many institutions see it as part of their mission to help counter the lingering effects of a racist past by accepting qualified blacks for stereotypically white positions in greater numbers than would normally be expected. As Appiah and Gutmann put it, “By hiring qualified blacks for stereotypically white positions in greater numbers than blacks would be hired by color blind employers the US will move farther and faster in the direction of providing fair opportunity to all its citizens” (1996: 131). But without an appreciation of the wrong perpetrated on people of color, and a commitment to correct that wrong, it is debatable why a concern with diversity should give special attention to the “racial” variety.

The question is whether and how America addresses the continuing effect of an era of exclusion on the basis of race. I believe all Americans – white, black, red, and yellow – have an obligation not to allow certain groups to constitute the primary victims of history, while certain other groups are its primary beneficiaries. Victims and beneficiaries of past unjust acts must be reconciled, not by banishing reference to racial ills, but by addressing them openly and directly. It remains to be seen whether the most controversial part of affirmative action, the use of race as a factor in addressing the lingering effects of state-enforced racism, will be subject to such “strict scrutiny” that racial exclusion is condemned in theory but maintained in practice.


1 Executive Orders include: Executive Order 8802 by Franklin Roosevelt (1941); Executive Order 10952 by John F. Kennedy (1961) (“take affirmative action to insure that persons are hired without regard to race, color, or creed); Executive Order 11246 by Lyndon Johnson (1965) (establishing Office of Federal Contract Compliance); and the Philadelphia Plan (1970). Legislative statutes include: 1964 Civil Rights Act, Equal Employment Opportunity Act of 1972, and the 1990 Civil Rights Bill. Supreme Court decisions include Brown, Griggs v. Duke Power Co., Bakke, United Steelworkers v. Weber, Sheetmetal Workers Union v. EEOC, Richmond v. Crosson (1989), Adarand (1995), as well as many other rulings at different levels of the judiciary.

2 The very use of racial categories is considered by some to continue a racist agenda. People who trace their disadvantages to racial injustice come to be viewed like people who blame witches for their misfortune. There are no witches, and there are no races. It is possible for certain individuals to have been harmed by the false belief in the existence of races, just as individuals have been harmed by the false belief in witches.

3 “We all aspire one day to transcend the racism that has so long pervaded American life. Difficult to achieve, that goal will certainly not be advanced by the continued reliance upon the very evil we seek to eradicate” (Cohen, 1997). We may ask how this passage is consistent with Cohen’s claim that race can be used as a factor, so long as it is not “dispositive.” Thanks to Ernie Alleva for this point.]


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