WEIGHING THE MORALITY OF
AFFIRMATIVE ACTION
AS RACIAL PREFERENCE
Curtis Crawford, September 1992

Is affirmative action, as racial preference, morally justified? Affirmative action in the United States began with efforts to ensure the elimination of discriminatory practices, but soon developed into programs conferring preferential treatment. Preferential treatment has been upheld as a remedy for past injustice, yet condemned as an instrument of present injustice. It has been praised for increasing minority access to business and professional careers, and blamed for debasing standards in the process. It is supposed by some to have raised and by others to have undermined the self-esteem of its recipients and the value placed on them by others.

The emotions involved in the controversy over preference are powerful and often partisan. It is not my purpose to arouse these emotions or to persuade by means of them. Rather, I wish to inquire whether there are moral principles, commonly accepted, that are or should be decisive. American law on this subject is uncertain, even contradictory; however, the question here is not what the law but what morality requires.

How Affirmative Action as Racial Preference Is Implemented

Preference on the basis of race or national origin occurs primarily in higher education and employment. During the last two decades, the minority groups most often designated for preference have been blacks, Hispanics, Native Americans and Asian Americans. The decisions typically affected are, in higher education, admission to college and graduate school; and in business and industry, selection for hiring, promotion and special training. Many programs that provide preferential treatment were freely chosen because of their supposed benefits to the recipients, to the institution or to society; many others were mandated by governmental regulations or judicial decisions. Whether voluntary or compelled, they have become exceedingly widespread.

Standard procedures exist for the implementation of preference. An institution, having determined the qualifications most likely to assure the best selection, may rank all applicants accordingly but grant extra points to members of groups designated for preference. Or, though applying a single standard to all, it may judge minority applicants in separate pools, so that they compete only against members of their own racial or ethnic group; the best qualified in each minority pool are then selected in sufficient numbers to meet the goals of the affirmative action program. Or, the institution may dispense with optimum qualifications and comparative judgments, placing all who meet a minimum standard into a single pool of "basically qualified" candidates, from which it selects the proportion of minority applicants it considers appropriate. In each case the process is tilted so that more people are drawn from the favored groups, than if the best qualified applicants had been impartially chosen regardless of race or national origin.

The circumstances that initially prompted preferential treatment may be illustrated as follows. Imagine a black college graduate applying to a law or medical school in, say, 1967. He is very probably the descendant of slaves and, if a resident of the South, the product of an educational system segregated by law. Among members of his own race, his academic credentials, as measured by aptitude and achievement tests, place him at the 80th percentile, which is to say, ahead of four-fifths of his fellow blacks. The school plans to accept the upper 50 percent of its candidates for admission, but unless our applicant receives special treatment he will not be included. In 1967 the usual difference between the average test scores of the two races is such that half the whites rank above 84 percent of the blacks. If admission corresponds to test scores and the ratio of white to black applicants is ten to one, the school will enroll thirty-two whites for every black, a ratio that would make black integration into the professions extremely slow. The school wants more rapid progress toward integration and believes that applicants scoring somewhat below its ordinary cutoff can still do passing work. It decides to admit this black applicant in the place of a white applicant, who is academically better qualified. Given the disadvantages and injustices suffered by the black applicant and his people, such assistance toward attaining the levels of ability and achievement he might otherwise have reached seems only fair.

The Case against Preference: Initial Considerations

But is it fair to give some people, because of their race or national origin, an advantage over others? It is now generally believed that preferential treatment for whites in the segregated South was morally wrong. Indeed, many people think that the evil was sufficient to justify civil disobedience, through lunch-counter sit-ins and other non-violent tactics. If racial preference was wrong then, how can it be right now? Or, if racial preference is morally justifiable now, why not then?

Today's racial and ethnic preference is defended as a remedy for past injustice and as a way of improving the quality of life for certain minority groups and for society as a whole. But if racial preference is morally wrong, how can it be acceptable as a means to justice or to other desirable ends? When people have been the victims of assault or fraud, we do not offer as redress a license to assault or to defraud others. Every year, according to the government's victimization surveys, more than twenty-five million thefts take place in the United States. But no matter how large the number of victims, how great their losses, or how many times the same person has been robbed, we do not respond to these injuries by granting licenses to steal. Moreover, there exist in our society extreme inequalities of wealth, often the source of great misery and deprivation. These inequalities could be reduced by authorizing the poor to rob the rich. But this solution is rejected because, whatever the social benefit from the decrease of inequality, the means is believed to be morally wrong. If racial discrimination is comparable to theft or fraud or assault, it is not available as a means for social improvement.

The law does not and should not forbid everything that is immoral. The interaction of people and institutions includes much by way of deception, coercion, manipulation, domination, selfishness and unfairness, condemned by conscience though permitted by law. On the other hand, some actions are wrong enough to be placed out of bounds. The law confirms and reinforces a moral duty not to engage in such conduct, together with a corresponding right not to be subject to it. The question before us is where, in these degrees of moral and immoral, we should place difference in treatment based on race or national origin.

I have spoken of different or preferential treatment: should this be labeled discrimination? Opponents of preference would say, Of course; but its supporters avoid the term. The dictionary gives two definitions of discrimination: (1) any difference, certainly any inequality, in treatment; (2) any difference in treatment that is unfair. The first definition is morally neutral; the second presupposes a negative judgment. To use the word here in the second sense would beg the whole question. I shall use the word, discrimination, but only in the first sense. Whether the difference in treatment it denotes is right or wrong will depend on the circumstances involved and the moral standards we apply.

Perhaps everyone would agree that there are important human actions, including one's choice of friends, of a mate, even of a governmental representative, in which racial discrimination, though morally doubtful, should be permitted by law. But the case seems different with respect to housing, health care, voter registration, department stores, restaurants, hotels, theatres, parks and the like. Racial discrimination in these areas is outlawed by a plethora of local, state and federal statutes, establishing the legal duty not to discriminate on grounds of race or national origin and the legal right not to be discriminated against on the same grounds. There is no discernible public demand for the repeal of this legislation: even zealous advocates of preference in education and employment seem convinced that in other areas racial discrimination should be prohibited.

At this stage of our inquiry the moral position opposed to preference seems simple: Discrimination (i.e., different or unequal treatment) based on race is wrong in principle; racial preference is discrimination based on race; therefore racial preference is wrong. In most transactions involving the distribution of social goods the evil of racial preference is grave enough to create a moral duty to refrain, which should be recognized and enforced by law; where preference is outlawed for one race, it should be outlawed for all.

A Viable Exception to The Racial Nondiscrimination Rule?

In contrast, the moral position in favor of preference seems like a square circle. It agrees that racial preference in the segregated South was morally wrong and should have been illegal. It agrees further that racial preference in contemporary America, in most interactions now covered by anti-discrimination statutes, is morally wrong and justly prohibited. But it would make an exception concerning higher education and employment by removing the bar to preference in favor of African, Hispanic, Asian and Native Americans, while retaining it with respect to other racial and ethnic groups. How can racial preference be morally wrong for our ancestors then and in most areas of life now, yet morally right if practiced by schools and employers? How can racial preference in education and employment be wrong when it favors whites or Anglos, but right when it favors blacks or Hispanics? A position that affirms such contraries seems either to abandon reason or to create a double standard of moral judgment.

Thus challenged, the supporters of preference may reply that racial policy should have twin goals: non-discrimination and full participation. The first goal requires strict adherence to most of the anti-discrimination laws; the second, an exception with respect to higher education and employment. Preference in these two areas, because of the opportunities they afford for individual development, should be adopted as the most effective way to advance previously excluded groups. As full participation is reached, preference will be unnecessary, but to abandon it now would unduly postpone or forever preclude the crucial end it serves.

This reply helps to explain the puzzling combination of approval and disapproval of discrimination in the advocacy of preference. But is it materially different from an argument, say, that in order to accomplish the twin goals of eliminating theft and poverty, we ought to prohibit stealing in general, but make an exception for robbing banks and department stores, provided that the proceeds are distributed to the poor?

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If racial discrimination is wrong it cannot be made right simply by its effectiveness in bringing about a desired end. What more would be required? Under what circumstances might the end justify a means that is ordinarily out of bounds, both legally and morally?

What if the means in question had won the approval of the people who have to deal with the problems it is meant to solve? Although opinion surveys of the general public show a consistent majority against racial preference in education and employment, the administrators of schools and corporations, as well as judges and government officials—the men and women who make the decisions day by day and case by case—have for the most part adopted preference. Moreover, they have done so, despite misgivings, with the conviction that the law is on their side.

One might interrupt to ask how such a conviction is possible, given all those anti-discrimination statutes. One answer is that the courts have often interpreted the laws concerning education and employment to permit or even to require racial preference as a form of affirmative action. They have reasoned that, despite statutory language clearly prohibiting different treatment based on race or national origin, the purpose of the legislation was to remove barriers to the participation of previously excluded minorities, and racial preference in their behalf is an effective means to that end. Against this reasoning is the extreme improbability that the legislation would originally have passed if it had explicitly, or even implicitly, authorized racial preference. On the other hand, subsequent sessions of the legislature, with ample time to reject the courts' interpretations, have let them stand.

When most of those responsible for interpreting and applying the rules believe racial preference to be the better course, is that sufficient to make it morally right? Surely not. Where segregation flourished in this country the people who implemented it believed it to be the better course, but that did not make it morally right. Suppose that current public opinion were to shift, creating a large majority in favor of preference for black, Hispanic, Asian and Native Americans, and that the anti-discrimination statutes were revised accordingly. We cannot reasonably assert that overwhelming public support would make racial preference morally acceptable, since we do not hesitate to condemn it in other times and places, even if based on majority opinion and legislative decision.

It is usually held that the end may justify the means, when the end is survival and the means is necessary. If necessary to save a human life, we excuse theft; when the survival of a society is at stake, killing the enemy is not only permitted but commanded. When the danger is substantial, clear and present, a means that is ordinarily prohibited may be used if necessary to avert the danger. In such an emergency some moral rights and duties may be temporarily suspended.

Is Racial Preference Justified To Avert Dangerous Racial Conflict?

Does the survival of the republic require the full participation of black, Hispanic, Asian and Native Americans? If it does, is preference a necessary means to that end? It could be argued, for example, that without a substantial and effective policy of preferential treatment, a gross inequality of participation for certain minorities will persist, breeding an intensity of racial or ethnic conflict dangerous to the survival of the United States.

What is meant by full or equal participation? Presumably an equal share, not only in opportunities, but in results; not only in work and responsibility, but in wealth, status and achievement. The equality proposed is not for every individual, but for certain racial or ethnic groups in comparison with others.

If the goal of equal participation is to be taken seriously, we need a brief account of the scope of the problem: the magnitude of present inequality and some of the factors that contribute to it. Various measures might be used in comparing participation; let us start with (1) the proportion of persons living below the poverty level, (2) the income per capita and (3) the proportion of adults employed as managers and professionals, the best paid and most prestigious occupational classes.

For the white population in 1990, the proportion of individuals living in poverty was approximately 11 percent; per capita income, $15,000; and the proportion of managers and professionals, 29 percent. Asian Americans, with slightly lower average income but a larger proportion of managers and professionals, were roughly equal participants. Not so, the other minorities usually designated for preferential treatment. Compared to whites, the proportion of blacks living in poverty was three times as large, while the income per capita and the proportion working as managers and professionals were both less than three-fifths of the white levels. The situation of Hispanics was no better, as will appear from the table.

(The situation of Native Americans seems comparable,
but the data are too sparse for inclusion here.)

The gaps are huge. Since 1970 some progress has occurred, but not much. In twenty years the difference between the white and black poverty rates has decreased by 13 percent. The gap between the proportion of whites and the proportion of blacks and Hispanics working as managers and professionals has narrowed by a few percentage points. Relative per capita income for the three groups, and the difference between white and Hispanic poverty rates, have stayed about the same.

Obstacles to Racial Equality in Income and Professional Representation

Why are the gaps so large and persistent? One factor is unemployment. The current unemployment rate for Hispanics is one and three-fourths, and for blacks more than twice, the rate for whites.

A second factor is the amount of formal education. The proportion of black adults who have graduated from college is now about 55 percent of the white proportion; the proportion of Hispanics, about 45 percent. (These percentages are similar to the relative proportions of the two groups, presented in the table above, who now work as managers and professionals.) Another measure of educational difference is the comparative proportion of adults who do not finish high school, which for blacks is 1.6 times, for Hispanics 2.3 times, the white rate. Since 1970 the gaps between the two minority groups and the white majority have decreased with respect to college graduates, but increased in the proportion of adults who have not finished high school, especially in the case of Hispanics. The low figures for the latter are due in part to the fact that a very large proportion of present-day Hispanic Americans are immigrants, mostly Mexican. In 1980, the last year for which such figures are available, the proportion of adult Mexican American immigrants who had finished high school was only 21 percent, a formidable handicap in competing with other immigrants or with whites, whose proportions of high school graduates were, respectively, 53 and 68 percent.

When differences in the rate of unemployment and in the number of years in school are removed, the gaps in income become much smaller than those in the table. Black men aged 25-64, employed full-time, now earn about 80 percent as much as white men with the same amount of schooling; Hispanic men, between 85 and 90 percent. Hispanic women working full-time earn 90-95 percent and black women, 95-100 percent, of the pay received by their white counterparts.

A further obstacle to equality of condition is the difference in cognitive skills among students with the same number of years in school. In national aptitude and achievement tests, Hispanic students on average score from six- to eight-tenths, blacks from eight- to nine-tenths, of one standard deviation below the white mean. Native Americans score between blacks and Hispanics; Asian Americans are slightly ahead of whites. The practical meaning of these differences may be illustrated as follows. Assuming a normal distribution of individual scores, if the average for Group B is six-tenths of a standard deviation below the average score for Group A, an institution that sets the latter score as its cutoff point would accept half the applicants from A, but only a fourth of the applicants from B. If Group B is down by nine-tenths of a standard deviation, less than a fifth of its applicants will have scored above the cutoff. The cognitive gaps described here are daunting but, for blacks at least, significantly smaller than those reported in the 1960s.

High crime rates are another kind of obstacle to productive and respected participation in the larger society. Of violent crimes the two most common are robbery, defined as stealing directly from a person by force or the threat of force, and aggravated assault, a physical attack that uses a weapon or causes serious injury. The frequency of these crimes, and of homicide, has declined in the United States since the 1970s, but remains very high in comparison with other developed countries. White, black and Asian Americans differ enormously in their relative contributions to the problem. Official estimates based on interviews of victims indicate that in 1990 the number of robberies committed by blacks as a percentage of the black population was more than twelve times the number of robberies by whites as a percentage of the white population; the corresponding black/white ratio for aggravated assault was over three to one. Arrest statistics compiled by the police for the same categories of offense are roughly similar; in addition, they show a black-white ratio for homicide of almost eight to one. Native Americans are arrested for these crimes at about twice, and Asian Americans at about half, the white rate. (Figures on Hispanic suspects are not included in either source.)

Differences in the proportion of births to unmarried mothers and of children living in single-parent families are causes of inequality whose impact stretches far into the future. In 1988 the illegitimacy rate for blacks was more than three and a half times, for Hispanics about twice, the white rate. There were parallel differences in the proportion of children living with their mother as the only parent: the rate for blacks was more than three times, for Hispanics somewhat less than twice, the white rate. The powerful relationship between these patterns and economic inequality is suggested by the fact that, for both black and Hispanic Americans, the chances were about one out of two that families headed by a woman with no husband present were living in poverty.

Other obstacles could be named, but these should be enough to indicate why the reduction of social and economic inequality has been neither rapid nor easy.

A Clear and Present Danger to the Republic?

We can now return to the question: assuming that racial preference is wrong as a general rule, is it justifiable nevertheless in present circumstances as necessary for national survival? More specifically, have inequalities of condition generated an intensity of racial hostility that constitutes a clear and present danger to the survival of the republic? And if such a danger exists, is preferential treatment for black, Hispanic, Native and Asian Americans necessary to avert it?

Events in the lands that recently were Yugoslavia and the Soviet Union are reminders of the destructive potential in ethnic strife. Clearly, ethnic or racial hostility can become severe enough to dismember or to devastate a country. The question is whether it has reached that degree of severity in the United States. Not to mince words, is large-scale racial warfare a clear and present danger for this nation? The answer is that, despite occasional riots and continual tension, the danger is not clear, and certainly not present. I know of no serious claim, or credible evidence, that large-scale racial war is a present danger. To be sure, some people fear it as a future danger, requiring present action; but the criterion for suspending the rules is a present danger, not the present fear of a future danger. Nor is such warfare a clear danger, even for the future. This I conclude from the fact that Americans have lived for more than a century without the serious threat of secession or civil war, despite inequalities of condition across racial and ethnic lines as great as, or greater than, now exist. That inequalities of this magnitude have not been lethal thus far is of course no proof that they never will be, but the danger from them must be regarded as uncertain and future.

If the danger were to become clear and present, how effectively would preference avert it? When the problem is inequality of condition, preferential treatment seems the most direct solution: if a group's average income is less, give its members better jobs and the preparation necessary to fill them, until the inequality is removed. But there are obstacles to equal participation that preference in higher education and employment scarcely affects, such as the group differences outlined above in high school attendance, cognitive skills, family arrangements and criminal activity. A quarter-century of preference for blacks and Hispanics, though enlarging their middle class, has done very little to close the overall gap between these groups and the white population and no one considers the various forms of special assistance to American Indians over several generations to have been notably effective. In the case of Hispanics, preference arguably widens the gap, by making immigration more attractive to newcomers, whose poverty and lack of education then lower the average economic and social condition of Hispanic Americans in general.

If preference has not closed the gaps, has it at least prevented them from becoming worse? Has it moderated the intensity of racial antagonism demonstrated in the violent summers of 1966 through 1968, and thereby forestalled the emergence of a danger to survival that would have been clear and present? Perhaps it has; such possibilities cannot be proved or disproved. But the criterion for suspending the moral rules is danger clear and present, not future and possible. A society that suspends its morality for every possible danger will soon have no morality to suspend. Is the state forbidden, then, to act against future dangers when they might still be prevented? Not at all; the only conduct proscribed is that which violates the laws and the moral principles they embody. The state remains free to adopt any feasible and effective measure within the rules and to change any rule that seems unjust.

Is There a Group Right to Equality of Results?

Though fears of civil disorder, racial strife and social disintegration may have been powerful influences, supporters of preference have preferred to emphasize other motives. Their stated concern has not been the requirements of survival, but of justice. They believe that equal participation for black, Hispanic, Asian and Native Americans is a matter of right. This view informs the federal regulations requiring affirmative action in employment; the problem is there defined as "under-representation," to be remedied by goals and timetables designed to ensure that the numbers hired and retained from the favored group are equal to its proportion of the labor force or of the population.

If some groups have a moral right to equality of results, this group right might outweigh an individual's right not to be discriminated against. But what would be the scope and basis of a group right to equal participation? If it applies to black, Hispanic, Asian and Native Americans, why not as well to other racial and ethnic groups? But why stop there? Our anti-discrimination laws typically extend to religious belief and affiliation. If there is a right to equal results for racial and ethnic groups, then why not for religious groups? And for groups based on gender, age, sexual orientation, ability, occupation, education, income and so on? If morality indeed requires equal results for social groups, we need to survey all of these groups, to determine how much preference is needed and for which. When the implications are perceived, people soon realize that they do not believe that justice requires equal results in wealth, status and achievement for every social group. Even if the principle were confined to groups that have suffered discrimination in American life and whose condition is now below the general average, no one proposes that every such group be granted preferential treatment.

At the individual level, everyone would agree that there is no right to equal results. Any notion that fairness requires an equal chance of selection for every individual regardless of his suitability would be absurd; on the contrary, consideration of relevant individual differences is precisely what fairness is thought to imply. Groups are composed of individuals. If individuals have no moral right to equal participation though less qualified, whence would their group acquire such a right? How could fairness require equal participation regardless of qualifications for certain groups when it demands the contrary for the individuals who constitute the groups?

If the concept of a group right to equal results is nonsense, why does it remain so influential? One reason may be an assumption concerning the distribution of human characteristics: that despite substantial differences among individuals, every group when large enough should have the full range of individual differences and the same average level of strengths and weaknesses as every other group. If this equality does not appear in actual experience, one can interpret deficiencies as the effects of past discrimination. If social groups are equal in ability and behavior, or would be except for discrimination, one can argue that they deserve equal success. This argument has an initial plausibility if one has in mind only the differences between American blacks and Indians on the one hand, and American whites. Compared to whites, these two minority groups have suffered greater discrimination and now have important disadvantages that might be attributed to it, such as lower cognitive skills, poorer work habits and higher crime rates. But when other racial and ethnic groups are considered, the argument founders. The low test scores of most Hispanic Americans cannot be explained by past discrimination in the United States, nor is it contended that they reflect discrimination in Latin America. As compared with Jewish Americans, whites on the whole have lower test scores and make less money; compared to Asian Americans, whites have higher crime rates and poorer study habits. This would prove, according to the argument, that white Americans have suffered more discrimination than Asian and Jewish Americans. It is obvious that important group differences exist and plausible that they are in some degree the effects of discrimination. But the notion that no other causes operate—that, had it not been for discrimination, no differences in ability and conduct would exist among racial and ethnic groups—is wholly unwarranted.

Another reason that equal participation seems plausible as a requirement of justice is a common misunderstanding of the concept of equal opportunity. Among civil rights activists, 'equal opportunity' is now preferred to 'nondiscrimination' as a name for the principle that should rule, as if the two terms meant something different. If this were true, there might be occasions when the right to equal opportunity would oppose and overrule the right to nondiscrimination. In ordinary use, the word, opportunity, means chance: an equal opportunity to be selected for a position would mean an equal chance of being selected. However, it was never intended by the statutes against discrimination that every applicant should have an equal chance to be selected regardless of individual differences in ability, character, experience, etc. What was intended was an equal chance, regardless of race. But this latter concept easily slips unnoticed into something quite different. "An equal chance for every person regardless of race" is restated as "an equal chance for every race" and then interpreted as a right of the racial group to equal participation. This interpretation, instead of implementing the idea of equal opportunity regardless of race, destroys it. When racial groups are selected in proportion to their numbers, individuals cannot be selected regardless of race. Between the individual's right to equal opportunity regardless of race, and his right not to be discriminated against on account of race, there is no conflict whatever: they are the same right, expressed in different language.

Is Racial Preference Justified as Compensation for Past Discrimination?

We come at last to the right most frequently asserted as a justification for racial preference: a right to compensation for the injuries from past discrimination. An immediate problem with this rationale is that it does not apply to most Hispanic and Asian Americans; as recent immigrants, they cannot ordinarily claim that their ancestors were victims of American oppression, and their own voluntary arrival has increasingly coincided with an era of discrimination in their favor. Supporters of preference who press a right to compensation usually emphasize the history of slavery and segregation suffered by blacks in this country and sometimes add the long devastation of American Indian life. The question, then, is whether racial preference, if limited to black and Native Americans, would be justifiable as compensation for past injustice.

It will be helpful to distinguish the right to compensation as a judicial and as a legislative remedy. The courts have the authority to compensate people for injury from unlawful conduct; the legislature, for serious injury due to injustice not remedied by the courts.

The right to judicial compensation is a right of great importance. By compelling the person responsible for the injury to pay monetary damages, it can override the fundamental right not to be deprived of property without one's consent. Having such priority, the right to judicial compensation could well take precedence over the right not to be discriminated against, were the two in conflict. It is important to recognize that there is no general legal or moral right to be compensated, by the offender or by the state, for unlawful injury. When illegal conduct is prosecuted as a crime, the offender may be punished, but the victim is not compensated; only when there is trial and proof of civil wrong does compensation occur. Thus, most injury from unlawful conduct goes uncompensated. When the right to compensation exists, it is provided by law for particular offenses, one of which is indeed racial discrimination.

I find no occasion for conflict between the moral right to judicial compensation and the right not to be discriminated against because of race. Even when racial discrimination is the cause of injury, it is unnecessary as a remedy. Equitable compensation, such as monetary damages or reversal of the discriminatory decision, is fully available and sufficient. Though injured because of race, the complainant is compensated because of injury. If one has been injured by unlawful discrimination, the injury is all the justification for compensation that is needed; if one has not been injured, no justification for compensation exists. In neither case is preference because of race necessary or appropriate.

Judicial compensation satisfies our sense of fairness by meeting four conditions. (1) The injury must have been caused by unlawful conduct. (2) The judgment as to whether injury and unlawful conduct have in fact occurred must be determined by a fair and reasonable process. (3) The compensation must go to the person injured. (4) The compensation must come from the person responsible for the injury. When schools or employers confer preferential treatment, these conditions are not met. Without any assertion or finding of unlawful conduct, compensation in the form of preference is provided at the expense of applicants and institutions not judged to be guilty, in favor of other applicants not judged to be injured. Since it is contrary to the requirements of judicial compensation, and unnecessary as a remedy for unlawful discrimination, racial preference cannot be justified by the acknowledged moral right to judicial compensation.

Legislative Compensation for Extraordinary Injustice

As defined here, the right to judicial compensation reaches only unlawful injury. Yet most of the historical injustice inflicted upon American blacks and Indians was lawful when it occurred. Since the courts are powerless to remedy this kind of injustice, is there a right to compensation by the legislature? May it take the form of racial preference?

At first glance the proposition seems eminently fair that people who suffer injustice deserve compensation, especially when the injustice is great. However, we have noted already that unlawful injury, the kind of injustice the courts are meant to remedy, often goes uncompensated even when successfully prosecuted. We must now add that if the unjust treatment was lawful, compensation is extremely rare. Why is this?

In the first place, compensation cannot be required from those who supposedly committed the injustice: not having violated any law, they cannot be tried; not having been tried, they cannot be penalized. To prosecute in these circumstances would be to enforce a law ex post facto, a law created after the event. Secondly, society lacks an accepted procedure for determining whether and to what degree actions permitted by law were unjust. Laws are amended or repealed all the time, many presumably because they have come to be considered unjust. Any past conduct in accord with such laws, but now perceived by someone as harmful, would be a potential cause of action for damages, if compensation for lawful injustice were the rule. Indeed, the most direct route to the center of responsibility and to the deepest pocket would be claims against the government for having adopted the unjust laws in the first place. A society committed to compensating past injustice could devote all its resources to the project with no end in sight. Hence the paradox, that justice must oppose any general rule that lawful injustice be compensated, because such a requirement would contradict the rule of law and exhaust the state.

Nevertheless, lawful injustice may occur, so extraordinary that a special right to compensation is recognized and implemented by the legislature. Those responsible for the injustice cannot be prosecuted, but society as a whole can accept the cost of damages. The injustice being extraordinary, the number of injured may be huge. Still, the cardinal principle of just compensation remains the same as for a single individual: the group to be compensated, whatever its racial complexion, is defined by the injury; the compensation belongs to the persons injured, always because of their injury, never because of their race. To justify legislative compensation, not only must the injustice be extraordinary; the individual injury should be substantial. As examples of extraordinary injustice the United States Congress might have chosen slavery, the wanton extermination of certain Indian tribes, or racial segregation by law. The criteria for individual compensation might have included, respectively, having been enslaved, having lost members of one's family to extermination, or having grown up where one's race was systematically excluded from the best education and employment. Thus applied, a special right to legislative compensation for extraordinary injustice, having its basis in specific injury, would provide no reason for racial preference.

Unfortunately, by the time the state decides to remedy extraordinary injustice, most of the people who might have qualified for compensation may no longer be alive. When the victims cannot be made whole, the impulse naturally arises to compensate their descendants. However, since the right to compensation is based on unjust injury, it cannot extend to descendants, unless their relationship to the victims was so immediate and dependent, like that of minor children, as to place them also among the injured.

When the extraordinary injustice involves the prolonged and effective oppression of entire racial or ethnic groups, it may reasonably be contended that the injury reaches past the direct victims. The morale and culture of a people may be damaged: the values, expectations, skills and patterns of behavior that are transmitted by parents, relatives, friends and neighbors to the next generation may all be affected; injury may thus be passed on to persons quite distant in time and place from the original injustice. If the injury thus extends to the group as a whole, should not the remedy as well? Under this approach the right to compensation would be implemented by racial preference, whether in the form of monetary reparation, special education and training, or preferential selection. The reason for compensation would still be injury, but its basis would be race. Have we found at last a circumstance in which the right to compensation would oppose, and override, the right not to be discriminated against?

Decisions as to whether and how much to compensate are ordinarily based on the existence and extent of personal injury. In the situation just described, these two guideposts would be unverifiable and speculative. All members of the racial group would be assumed to be equally injured and equally eligible for compensation, as it became available. Justice defined as fairness to individual differences would have to be sacrificed to justice as fairness to the racial group. But how could the latter be determined? With no help from proven injury to individuals, one would need an evaluation of the effects of the extraordinary injustice on the overall condition of the group, including a reasonable demonstration of the extent to which present shortcomings were due to past oppression and not to other causes. Cultural evaluation of this sort is surely not the business of government; and the findings, whatever they were, would be fiercely disputed. The proposal under consideration would be hard to justify, even if compensation for lawful injustice were common practice.

As we have observed, such compensation is extremely rare. This is not the result of heartless negligence, but a requirement of the rule of law. To justify compensation in this context, not only must the injustice be extraordinary; the injury to each person compensated must be specifiable and substantial. When these criteria are not met, the justice of compensation disappears. Therefore, it would not be appropriate to include, as recipients of legislative compensation for lawful injustice, persons not victims themselves, who may have been collaterally affected by injury to other members of their racial group.

The principle of compensation, whether applied by the legislature or the courts, is not the place to look for a justification of racial preference. The moral right to compensation is based on proven injury. Racial identity can never be part of this basis, since it cannot be the injury itself, or its proof. As an additional basis, race will always be superfluous; as a substitute, unavailing.

Everyone agrees that African and Native Americans, as racial groups, suffered prolonged oppression in this country, and are now substantially below the population as a whole in wealth and achievement. Although special assistance for these two groups cannot be justified under the moral principle of just compensation, why not extend help simply because it is needed, and because we believe that society as a whole has contributed to the problems? If a social group has long been kept down, are we morally prohibited from helping it stand up? Certainly not, if the group is defined by economic class or interest. But if the group is defined by race, the answer is more complicated. If the help consists in the removal of discrimination, it is not only desirable but obligatory under the antidiscrimination principle. But help in the form of special assistance to a racial group is different treatment based on race; if this is morally wrong, it is not available as a means of helping people in need.

Thus far, we have not seriously questioned the principle that racial discrimination is morally wrong. After recognizing that this principle is violated by racial preference, our task has been to see whether there were grounds sufficient to justify the violation. We have not found any. The individual's right not to be treated differently because of race could be overridden, if there were higher, group rights to equal participation, or to compensation, but no such rights exist. A clear and present danger of racial warfare might justify a temporary suspension of the right to nondiscrimination, but the danger, however serious for the future, is not clear and present. Racial preference is widely practiced with the permission and often the mandate of government, but this does not suffice to transform wrong into right. Even if substantial economic and social benefits could be demonstrated as the results of racial preference, the end would not justify a means that is morally out of bounds.

Should Wrongful Discrimination Be More Narrowly Defined?

It is time now to ask whether the categorical prohibition of racial discrimination goes too far. Its clarity and simplicity have made it a powerful weapon for the overthrow of discriminatory practices and institutions, and an appealing formula for legislation. But, as we have discovered, it also condemns affirmative action programs that confer racial preference.

No one wants to repeal in toto the laws against discrimination, but some would redefine the offense. It is argued, for example, that difference in treatment based on race is not wrong in itself and should be prohibited only if motivated by racial prejudice or by a racist purpose, or if adopted by and in behalf of a racial majority against a racial minority. If the antidiscrimination principle and the statutes were revised along these lines, the moral and legal obstacles to racial preference would supposedly disappear.

Was the sweeping public condemnation of racial discrimination that emerged in the twentieth century an error of moral judgment? The vehement opposition to discrimination in this and other countries did not turn on questions of motive or purpose: we were confident that none of the ends practitioners claimed to serve by racial discrimination could justify such a means. Our feelings, however, were engaged, not primarily by the violation of an abstract principle but by the systematic oppression of millions of people. Since racial discrimination was an essential part of racial oppression, it was condemned in that context. Now although racial oppression requires discrimination, the reverse need not be true: the practice of racial discrimination does not necessarily imply a policy of racial oppression. Did we mistakenly extend to all racial discrimination a condemnation that should have been confined to racial oppression? The redefinitions mentioned above are attempts to limit the moral prohibition to what may be called "invidious" or "oppressive" racial discrimination.

Discrimination combined with systematic oppression is obviously worse than discrimination taken by itself, but the latter is not harmless. The case against it may be summarized under two heads. (1) Both the work of society and the development of persons are better served, when the distribution of opportunities and resources is determined according to individual ability and need, undistorted by circumstances, such as racial identity, that are beyond a person's control and irrelevant to the merits of the case. (2) Racial discrimination, whatever the motive, intensifies racial consciousness and partisanship, strengthening any social tendencies that already exist toward racial exclusion and racial strife. The first set of considerations is not usually regarded as sufficient to justify a moral prohibition. We believe that we are all much better off when selection goes by merit, but we don't insist. We do not prohibit an employer from hiring someone who seems less able but pleasanter to work with, or more in need of a job; or a college from giving preferential treatment to children of alumni or to local residents. But preferences of this sort, idiosyncratic and self-limiting, tend to cancel each other out, whereas racial preference easily spreads throughout a society so that a race discriminated against in one locality is likely to suffer the same fate in many others. Either head by itself represents substantial harm; taken together, they seem reason enough for the moral bar to racial discrimination as such, even when the latter is not accompanied with systematic oppression.

Further objections to prohibiting only "oppressive" discrimination arise from difficulties in definition and enforcement. Which motives would constitute 'prejudice' under the rule? If a white neighborhood, citing comparative statistics on violent crime, refused to sell homes to blacks, would the discrimination be treated as reasonable or prejudiced? If an affirmative action program designated Hispanics but not Portuguese, Italians or Armenians, what would be necessary to show that the designation was impartial? As a legal standard, 'racist' is also ambiguous. Perhaps everyone would agree that the systematic oppression of a race as morally inferior is racist, but what about legislation designed to give one race an advantage over others? How substantial and enduring must the advantage be to qualify as racist? If the criterion of unacceptable discrimination were its adoption by a racial majority at the expense of a minority, what would prevent legal chaos in a country with a multitude of jurisdictions dealing with a host of racial and ethnic groups whose numerical balance is subject to considerable variation and change?

When a moral principle is to be enforced by law, it should be formulated so as to enable a fair and accurate determination of guilt. Such a determination may be difficult, even when the offense is defined as "different treatment based on race"; however, assuming that the school or employer has explicit standards for selection, it is usually possible to check whether the same standards have been applied to all applicants. On the other hand, if the offense were defined as "prejudiced or racist discrimination," its core would no longer be an act (different treatment), but a motive, much harder reliably to ascertain.

For reasons such as these the suggestions for redefining the antidiscrimination principle have enlisted few supporters. A good test of any redefinition is whether one would be willing to have it stand as the only protection for the racial or ethnic group he considers most vulnerable. None of the revisions seems to pass this test. I know of no person concerned about the rights of blacks, for example, who believes that discrimination demonstrably motivated by prejudice or racism is the only kind against which they should be protected. For an advocate of preference, a further defect of the redefinitions is that they do not clearly legitimize the programs he favors, many of which might be accused of prejudiced or racist considerations.

Summing Up

The rejection of racial preference is based on a syllogism:

A. Racial discrimination is morally wrong and should be legally prohibited.
B. Racial preference is a form of racial discrimination.
C. Therefore, racial preference is morally wrong and should be legally prohibited.

If the premises are both true, the conclusion necessarily follows. Having defined discrimination as any difference in treatment, we had no reason to question the minor premise. This left as the crucial issue our attitude toward the major premise: should it be abandoned, redefined, affirmed with exceptions, or accepted as stated? Abandonment would be contrary to the principles and policies of all parties, while the redefinitions that have been suggested would do more harm than good. Thus, the principal question in our inquiry has been whether discrimination based on race or national origin should be prohibited categorically, or with exceptions concerning higher education and employment for black, Hispanic, Asian and Native Americans.

The most persuasive basis for an exception to the duty and right of racial nondiscrimination would be the requirements of a higher right. We have discussed several rights that have been urged as a basis for preference, but the reader may have noticed that none of them would apply to all the groups that receive it. A right to equal results for every racial group would not justify preference for Asian Americans, whose average condition is already comparable to the white population. A right to compensation for historical injustice would not justify preference for Hispanic and Asian Americans, most of whom are recent immigrants or the children of recent immigrants. The only criterion that would validate preference for all the groups currently designated would justify it also for many others: a right to compensation for every racial or ethnic group that has ever suffered substantial discrimination in the United States. Brought up to date, this category would have to include not only such traditional victims as Jews, Italians, Poles, Irish, etc. but also the white population in general, whose right to nondiscrimination has been regularly violated by a quarter century of preference for other racial groups.

We have found that the moral rights supposed to justify preference for at least some of its recipients are unfounded or inapplicable. A right to just compensation, to equal opportunity or to equal results, if higher and in conflict with the right not to be discriminated against, might supersede it. However, no right to equal results exists, for individuals or their racial groups. The right to equal opportunity, when properly defined, is the right to an equal chance for selection regardless of race, which is the same thing as the right not to be discriminated against on account of race. The right to compensation is a right of the person injured to be compensated because of his injury, not a right of other members of the same ancestral group to be compensated because of their race. We found also that the large gaps in wealth, status and achievement between the white population and black, Hispanic and Native Americans do not constitute a clear and present danger to the survival of the country and thus do not justify any suspension of the bar to racial discrimination.

This inquiry began with the hope of finding a moral principle that would be decisive concerning racial preference in higher education and employment. Such a principle is now clearly and consistently before us. Abandonment of the principle is unacceptable; redefinition, unwise; an exception for higher education and employment, unjustified. The moral duty not to discriminate on grounds of race or national origin and the right not to be discriminated against on the same grounds stand solid and fundamental. Racial preference in higher education and employment flouts the duty and violates the right; it should be completely eliminated.

A Final Word

Finally, it may be asked why racial preference, if so clearly wrong, continues to be supported by much of the country's professional, corporate, religious and political leadership. An answer might begin with the conflict, through most of our history, between the precept of equal treatment and the practice of racial discrimination. The secession from Great Britain of the thirteen American colonies was justified in part on the principle that all men are equal in their rights to life, liberty and the pursuit of happiness. The blatant violation of these rights with respect to the Negro race was long a source of deep shame to the national conscience. The repudiation of legally sanctioned segregation, when it finally took place, was accompanied by a powerful impulse, not merely to end racial injustice but to make amends. Guilt for the past, eagerness for a cleansed, integrated America, and fear for the future if ancient evils were not remedied, all played a part. The principal source of these feelings was the historical treatment and present situation of blacks, but it was assumed from the first that racial preference would be politically more acceptable if extended to other groups, usually considered non-white, that had suffered discrimination in this country.

American politics has always been in large part a struggle for advantage among interest groups. A faction may profit from conferring privilege—whether as tariff, subsidy, license, tax break or other preference—as well as from obtaining it. The prohibition of racial discrimination is an attempt to remove both the need and the tools for the consolidation of interest groups based on race or ethnicity, but the pull is difficult to withstand. Whatever the moral arguments, no black or Hispanic political leader condemns racial preference when it favors his constituency. Democrats depend on, and Republicans would love to have, the votes of these two minorities, whose combined proportion of the population is over twenty percent and growing; neither political party is likely to hazard such a prize for the sake of racial impartiality, unless the white majority insists.

The reversal of liberal and conservative positions concerning the morality of racial discrimination is striking evidence of the influence of political factors. Forty years ago it was a hallmark of liberal thought to favor an end to all forms of racial discrimination, whereas conservatives excused its practice and opposed radical or rapid change. Nowadays any insistence on non-discrimination as a principle is likely to come from a conservative, whereas liberals avoid the term. The earlier conservatives were allied with Southern segregationists, whose cooperation was essential to a conservative ascendancy in national affairs; present conservatives, lacking this encumbrance, are freer to recognize the moral beauty of non-discrimination. Like the earlier conservatives, present liberals are allied with strong supporters of racial preference; the cooperation of these supporters, especially black and Hispanic Americans, is deemed essential to the creation of a popular majority for liberal programs and reforms. Like present conservatives, the earlier liberals had no such impediment to their moral vision: the principle of non-discrimination, fearlessly and unequivocally applied, liberated their political allies and discomfited their opponents.

These considerations are a reminder of the difficulties, in the midst of politics, of adhering to the path of reason and principle. But if a political observation from the sidelines may be permitted, it seems imprudent not to make better use of the American public consensus against racial discrimination that emerged in the middle of this century. Although discrimination had been standard practice throughout most of human history, its general repudiation in America is taken largely for granted. The acceptance of equal rights, by a racial majority having ample power to continue, even to enlarge, its privileges, was a moral advance of the highest importance, yet it is scarcely celebrated. The moral consensus required for this step has been damaged by a quarter century of preferential affirmative action, with its mixed message that racial discrimination is somehow both wrong and right. But the consensus has not been entirely destroyed. If wisely cultivated, clarified and reinforced, it could be again a strong foundation for inter-racial justice and cooperation.

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SOURCES FOR ECONOMIC AND SOCIAL STATISTICS

(The sources below supply the basic data for the groups in question;
the ratios comparing the groups were my calculations.)

Re Asian and Native Americans:
Income and Poverty Rates, 1980: Statistical Abstract of The United States, 1985, Tables 7,38. Income, 1990: U.S. Census Bureau, Current Population Survey, Series P-60, #174, Table A (Asians).

Managers and Professionals: Equal Employment Opportunity Commission, Job Patterns for Minorities and Women in Private Industry, annual, Table 1.

Re White, Black and Hispanic Americans:
Unemployment Rates: SAUS 1991, Table 635.

Poverty Rates: CPS P-60 #175, Table 2.

Per Capita Income: CPS P-60 #174, Table B8.

Formal Education: SAUS 1991, Table 224. of Mexican Immigrants: SAUS 1987, Table 41.

Income When Differences in Education and Employment Are Removed: CPS P-60 #174, Table 29.

Cognitive Skills: U.S. Dept. of Education, Digest of Educational Statistics, 1991, Tables 122, 124.

Crime Rates: U.S. Dept. of Justice, Criminal Victimization in The United States, 1990, Tables 45, 52. Federal Bureau of Investigation, Crime in The United States, 1990, Table 38.

Illegitimacy Rates: SAUS 1991, Table 89.

Mother as Only Parent: SAUS 1991, Table 70.

Proportion in Poverty: CPS P-60 #175, Table 11.