The most frequent objection to affirmative action, when it takes the form of preferential treatment for minorities, is that it discriminates because of race. This objection is fundamental. Nevertheless, there are others, which deserve far more attention than they receive.
Affirmative action as racial preference is often compelled by government. It operates by lowering standards of selection, rather than by preparing people to meet regular standards. It has no clear criteria as to which groups should receive preference. It is secretive and duplicitous. It does not reflect the will of the people, and it was not adopted by their representatives in Congress.
These objections, if warranted, will guide us to a better policy. But before expounding them, let me insert a brief description of affirmative action and the problem it was designed to solve.
Affirmative action began three decades ago with efforts to ensure the elimination of discriminatory practices but soon developed into programs conferring special treatment, particularly in higher education and employment. Decisions typically affected have been admission to college and graduate school; and hiring, promotion and training for both private and governmental employment. The groups now regularly designated for favorable treatment based on race or ethnicity are blacks, Hispanics and American Indians. Asians sometimes receive it; whites, never. The advantage is usually conferred by applying a double standard, whereby the requirements for selection are less exacting for members of the favored group.
Between 1950 and 1970, statutes had been enacted at the federal, state and local levels, barring unequal treatment in voting, housing, health care, public accommodations, public facilities, education and employment. They established the right not to be discriminated against, and the corresponding duty not to discriminate, on account of "race, color or national origin." This right was not reserved for members of particular groups but was ascribed equally to every person in the United States.
For most Americans this legislation was an historic triumph of moral principle, essential to a democratic, multiracial society. But for blacks it could be seen as a two-edged sword, banning adverse discrimination to be sure, but also prohibiting any discrimination in their favor. The antidiscrimination statutes left blacks with two important disadvantages. They were still held back by deficiencies in ability, training and motivation attributable to past discrimination, and they could expect that discrimination against them in the future, though illegal, would often occur.
Any society, ending an era of oppressive racial discrimination, faces a dilemma. If everyone is granted the right not to be discriminated against on account of race, the possibility of helping the victims of past discrimination through racial preference is lost. But if members of a previously excluded group are favored on the basis of race, the right of everyone else not to suffer racial discrimination is denied.
The American response to this dilemma has been to retain the ban against racial discrimination in most areas of national life, but to grant preference in higher education and employment, where special assistance might be most helpful to a previously excluded racial group. However, the objections to this policy are grave.
1. Affirmative action as racial preference constitutes racial discrimination. Preference signifies unequal treatment, by which one person is favored over another. However, that is exactly what is meant by discrimination. Preference based on race is discrimination based on race. Racial preference discriminates, in favor of one applicant and against a competitor, because they belong to different racial groups.
2. It is often compulsory. Many firms are not allowed to follow impartial standards in the selection of their employees. Numerical goals for hiring "underutilized minorities" are set or demanded by government. In order to meet them, employers are often forced to discriminate in favor of these minorities, against applicants who are better qualified. The penalty for refusal may be the loss of government contracts, or lawsuits by government agencies or private parties.
In 1950, racial discrimination was mandated by law in about a third of our states (mostly in the Old Confederacy); the remaining states and the federal government neither required nor endorsed it. In 1995, under the rubric of affirmative action, the federal government mandates racial discrimination throughout the land.
3. It operates by lowering standards of selection. Affirmative action might have focussed on helping people increase their ability to meet regular standards. Instead, it lowers the standards, to accommodate inferior ability. A 1992 survey reports the mean combined-SAT scores for Freshmen at twenty-six leading private colleges. At the median school, blacks and Hispanics (admitted predominantly via preference) averaged 180 and 129 points, respectively, below the white mean; Asians were 30 above. The aptitude test scores of applicants for law and medical school show comparable gaps between the average black or Hispanic and the average white or Asian.
4. It has no clear criteria as to which groups should receive it. There has never been an authoritative statement - not from the President, the Supreme Court, or any federal agency charged with overseeing affirmative action - of the reasons why certain minorities are designated for preference, but not others. If a history of slavery or prolonged legal segregation is a necessary condition, why are Hispanics and Indians eligible? If it is sufficient that one's group has been subjected to substantial discrimination in this country, why are Irishmen, Poles and Italians not eligible? Why persons with a Spanish, but not those with a Portuguese surname? Why nationality groups from South America, but not from northern Africa or the Middle East? Why Asians sometimes, rather than always or never?
5. It is secretive and duplicitous. Educators and employers are glad to report the percentage of their students or employees who are white, black, Hispanic, Asian or Indian. However, the number of their applicants who benefit or suffer from racial preference is almost always a closely guarded secret. Proponents of affirmative action never call it preferential treatment or discrimination, and generally deny that anything of the sort is involved. Universities and corporations that practice racial preference, as well as governmental agencies that foster it, publicly declare that their policies do not discriminate on the basis of race, color or national origin.
6. It does not reflect the will of the people and was not adopted by their representatives in Congress. During the three decades of affirmative action, public opinion polls have consistently reported an overwhelming majority against racial or ethnic preference in higher education and employment. In the Civil Rights Act of 1964, Congress forbade racial discrimination in public colleges, in private colleges receiving governmental aid, and in private businesses having more than twenty-five employees. This prohibition has never been repealed or revised. The programs of racial preference in these institutions were mandated, not by the legislature, but by administrators and judges.
No one denies the problem: many people need or deserve special help from educators, employers or government. But a policy with the objections we have described cannot be an acceptable solution. On the contrary, the objections and the principles they imply suggest a better way: -
Any discrimination (unequal treatment) based on race or ethnicity in the rules or operation of the program would be banned. The antidiscrimination rule would be restored to its rightful authority over education and employment in general. It would be more strictly enforced, to make up for the unavailability of reverse discrimination as a preventive of unfair treatment to members of traditionally excluded groups. The use of a double standard in selection would be prima facie evidence of unequal treatment, but the use of a reasonable single standard would not, even when it resulted in a disproportionate rejection of applicants from one racial group, as compared with others.
Very difficult decisions would be necessary: under what auspices to provide the special education, how large the program should be, what criteria of eligibility would ensure that it reached the neediest and most promising individuals, and so on. But once adopted, the rules and policies of the program, as well as their ongoing implementation, must be honestly described and freely accessible to public scrutiny.
This alternative to racial preference has disadvantages, but none, I believe, that can compare with the evils of present policy.