Can Affirmative Action Programs Be Defended?

by Tina Blue
January 5, 2002

Although affirmative action programs can be attacked on strictly legal grounds, they are far more defensible on moral and practical grounds, and if they are carefully designed, even their legality can be defended.

A strict interpretation of the Fourteenth Amendment to the Constitution and the Civil Rights Act of 1964 would preclude any affirmative action program simply because the effort to preferentially enhance the opportunities of any race, regardless of historical discrimination, would by definition exclude and discriminate against members of non-preferred races.  Since both laws specifically legislate against such discrimination, and do so without reference to discrimination that occurred prior to the enactment of those laws, then "color-blindness" is strictly mandated in any circumstances that fall within the parameters of those laws.

One problem with such a strict interpretation of the law is that those who insist on it were notably silent about discrimination that occurred subsequent to the enactment of either law, so long as that discrimination favored whites over African-Americans or members of other minority groups.  Even after the Fourteenth Amendment was ratified, whites continued to receive preference in educational and employment opportunities and in terms of services provided, including access to credit, the chance to purchase a home, the chance to attend college, and the chance of getting into previously proscribed professions. 

The fact that current defenders of legal color-blindness so often have a history of condoning preference as long as it benefited white men shows that they argue in bad faith.  The presence of such a powerful and wide-ranging impulse to guard white privilege against inroads by minority "interlopers" strongly suggests that a good-faith effort to end discrimination against minorities and to remedy the pernicious effects of historical discrimination would require a fairly muscular approach.

On purely practical grounds, the state has a significant interest in promoting equality of opportunity for all.  As long as members of certain minorities are effectively prevented from escaping the narrow range of opportunities which historical discrimination has relegated them to, a significant portion of those minorities will continue to be trapped in poverty. 

It is in the best interests of society to promote the general well-being of as many of its citizens as possible.  A healthy, well-educated, well-adjusted citizen contributes to both the wealth and the stability of the society.

On the other hand, a citizen that is a product of the culture of poverty is more likely to suffer from complex and multiple dysfunctions of the sort that would render him a drain on the economy and a force for disruption rather than stability in society. 

Furthermore, even the privileged members of society would benefit from improving conditions for those who are trapped in the cycle of poverty, which often has its roots in patterns of historical discrimination.

A wealthy white man who is afraid of carjackings or even simple auto theft whenever he drives his high-budget car, whose wife wears paste jewels in public for fear of being robbed if she takes her real ones out of the safe, or whose children cannot without risk walk more than a few blocks from home is suffering some of the effects of discrimination visited upon others on his behalf.

On moral grounds, too, the government of this country has a responsibility to make a good-faith effort to remedy the effects of past discrimination.  Historical discrimination in the United States against minorities (especially African-Americans) has been so pervasive and so severe that it has produced pervasively discriminatory circumstances which even today curtail the opportunities available to minorities (again, especially African-Americans).

Merely saying, for example, that African-Americans have the right to compete equally against whites for spaces in law school or medical school is disingenuous.  Many African-American children grow up in blighted neighborhoods that were created not by accident, but by discriminatory policies on the part of banks and of real estate agents, of businesses, and of the government itself. 

With little or no opportunity for employment, many residents in blighted areas either don't work or else work very hard for so little money that they form an inadequate tax base to support funding for public schools.  Thus schools in poor (and often minority) school districts are not funded sufficiently to ensure that the students will learn what they need to know, even at the most basic level, to survive in the real world, much less to go on to higher learning.

It is easy to say that a student with lower scores on an entrance exam should not be admitted to professional programs ahead of a student with higher scores.  Yet test scores have never been the sole criterion for admission to any competive school. 

In fact, many schools set aside "legacies"--spaces designated preferentially for the offspring of alumni.  Since alumni of schools that have rigorously excluded minorities in the past will be white, their white offspring will thereby be given preferential admission set-asides.

Even if those set-asides are not designated "whites only," they exist for those students as a consequence of past "whites only" policies.  As more minorities attend such schools, more legacies will be available to minority offspring, but it will take many years to reach a point where past discrimination against minorities will no longer produce present discrimination against their children.

In many ways the discrimination that has been historically practiced in this country has created inherently discriminatory circumstances that cannot be remedied merely by removing such overt discrimination in the present.  Therefore, allowing the effects of discrimination to stand without a serious effort to compensate for them equals (though not necessarily intentionally) de facto support of earlier discrimination.

Until young minority applicants are provided sufficient educational opportunities--including any necessary remediation for the effects of past discriminatory practices--they will  not be able to embark in representative numbers on the higher educational paths that lead to professional careers in medicine, law, science, engineering, mathematics, etc. 

Anyone capable of overcoming such disadvantages to reach a point of genuine competence sufficient to allow for success in a professional program, or to get through such a program in order to be available for hiring in that profession, is likely to have the qualities that make further success probable, even if his test scores or grades are not quite as high as those of a student or graduate whose path has been smoothed by not having been subject to the effects of historical discrimination.

The problem with affirmative action quotas, in education or in hiring, is that they force the admission or hiring of whatever minority applicants are available--until the quota is filled--whether or not those applicants meet necessary standards of competence. But a good-faith affirmative action program would start by establishing a standard of qualification for the position under consideration, and then never dip below that standard, even if that meant that minority applicants might sometimes be excluded.

It is damaging both to individual members of minority groups and to the groups they represent to allow unqualified minority applicants to skirt standards of qualification.  It would reinforce the pernicious stereotypes of incompetence and inferiority already in existence. 

However, if two applicants competing for the same position are both clearly qualified, the member of the group that has been historically discriminated against might fairly be given preference even if standardized test scores, grades, or simliar criteria tend somewhat to favor the non-minority applicant, provided that other criteria (including affirmative action considerations) for admission or hiring are reasonably similar between the two candidates or even slightly tilted toward the minority candidate. 

Many considerations go into selecting applicants to fill a given position.  Judgments concerning admission or hiring are seldom, if ever, based entirely on objective standards.  Besides, the scores and grades we label "objective" are often only apparently so. 

Since that is the case, and since patterns of past discrimination have so handicapped minority members in such competitions, it seems fair--that is to say, morally defensible--to use good-faith affirmative action programs (though not quotas) to compensate for that handicap when a clearly competent minority candidate for a position is available, even if there is some degree of difference favoring the non-minority candidate in terms of grades, test scores, or other ostensibly "objective" criteria.

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