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«Affirmative Action and the Choice of Amends George Hull Received: 8 March 2014 / Revised: 16 July 2014 / Accepted: 2 October 2014 / Published online: ...»

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Philosophia (2015) 43:113–134

DOI 10.1007/s11406-014-9564-4

Affirmative Action and the Choice of Amends

George Hull

Received: 8 March 2014 / Revised: 16 July 2014 / Accepted: 2 October 2014 /

Published online: 25 October 2014

# The Author(s) 2014. This article is published with open access at Springerlink.com

Abstract

Affirmative action is often implemented as a way of making redress to

victims of past injustices. But critics of this practice have launched a three-pronged

assault against it. Firstly, they point out that beneficiaries of preferential policies tend not to benefit to the same extent as they were harmed by past injustices. Secondly, when its defenders point to the wider benefits of affirmative action (e.g. destruction of stereotypes, creation of role models), critics maintain that such ends could never be sufficiently weighty to permit violating equal treatment. And, thirdly, critics dispute whether the alleged benefits of affirmative action really ensue. I argue this threepronged assault is flawed at the conceptual level. Firstly, it operates with an impoverished conception of redress. When X wrongs Y, X does not make exhaustive redress to Y by compensating Y for the harm Y suffered due to X’s wrong action.

Redress also requires rectification of the wrong: X must put right the wrong done to Y by making adequate amends. While the means of compensation are determined by the extent of the harm for which compensation is due, the adequacy of amends for a wrong is less tightly controlled by the nature of the wrong. So, secondly, it is perfectly right that the choice of amends be informed by the prospect of wider benefits. Whether, thirdly, these benefits are in fact in prospect in the case of affirmative action is an empirical question which philosophy cannot answer.

Keywords Affirmative action. Redress. Rectification. Compensation. Harm. Wrong “Affirmative action” has shifted in meaning over the years, 1 and the phrase remains

ambiguous;2 but the affirmative action I propose to defend takes the following form:

(A) An institution offering employment, education, training or contracts to selected applicants implements a policy of giving preference to those qualified applicants See Cohen 2003a, 12–20; Sterba 2003a, 191.

See Goldman 1976, 193; Sterba 2003a, 199-200; Cohen 2003b, 279; Benatar 2008a, 275.

G. Hull (*) Philosophy Department, University of Cape Town, Private Bag X3, Rondebosch 7701 Cape Town, South Africa e-mail: george.hull@uct.ac.za 114 Philosophia (2015) 43:113–134 who possess characteristic C, where characteristic C does not render an applicant more qualified for the position, place or contract they apply for (B) Either just (i) (below) or both (i) and (ii) (below)—but not (ii) alone—is true of the institution implementing such a policy (i) The institution in question has, in the recent past, intentionally discriminated against those who possess characteristic C in a way which constituted a serious injustice, and its current policy of preference is intended as a way of making redress for this serious injustice to those who possess characteristic C (ii) The institution in question intends, by means of its current policy of preference, to increase the diversity with regard to possession or non-possession of characteristic C of its body of workers, students, trainees or contractors, reasonably anticipating that this increase in C-diversity will benefit the institution itself, those who are professionally linked to the institution, or the wider community in which the institution in question is situated Both (A) and (B) (above) must apply.

To be qualified for a place, position or contract, an applicant must be able to carry out adequately the tasks attached to that place, position or contract, or the recruiting or contracting institution must reasonably anticipate them to be. An applicant not able adequately to carry out these tasks, or whom the recruiting or contracting institution reasonably anticipates not to be, is unqualified. Among qualified applicants, an applicant who is able to carry out the tasks in question to a higher standard than another applicant is more qualified than that other applicant. Among unqualified applicants, an applicant who is able to carry out the tasks in question to a higher standard than another applicant is less unqualified than that other applicant.

A body of workers, students, trainees or contractors becomes more diverse with regard to the possession or non-possession of a given characteristic, the closer the ratio of possessors to non-possessors of that characteristic in the body in question comes to 1:1. The closer a body of workers, students, trainees or contractors comes to 100% possessors of a characteristic, or 100% non-possessors of it, the less diverse is the body in question with regard to the possession or nonpossession of that characteristic.

An institution intentionally discriminates against those who possess a given characteristic when it implements a policy of treating those who possess that characteristic differently from those who do not possess it, on the basis of their possession of the characteristic in question, and in a way which tends to harm or disadvantage them or which otherwise constitutes an injustice. It is possible for an institution intentionally to discriminate against those who possess a given characteristic without that constituting an injustice.





An institution may be articulated into a number of branches or subsidiaries at different levels of the institution’s overall hierarchy, enjoying various degrees of autonomy. When this is the case, a branch or subsidiary at one level may implement a preferential policy in order to make redress for unjust discrimination perpetrated by itself, or by a different branch or subsidiary at the same level as it, or by a different branch or subsidiary at a different level to it, or by the institution as a whole. The institution as a whole may implement a preferential policy in order to make redress for Philosophia (2015) 43:113–134 115 unjust discrimination perpetrated by any branch or subsidiary at any level of its overall hierarchy, or by the institution as a whole.

Not every policy or programme which deserves the label “affirmative action” satisfies the above description. An institutional policy which gave preference even to unqualified candidates, for example, or a policy of preference implemented with the sole aim of reaping the benefits of diversity could also count as cases of affirmative action. Equally, a preferential policy intended by one institution to make redress to Cpossessors for an injustice committed against them by a second institution, unconnected to the first, could count as affirmative action, as could a preferential policy intended to make redress for unjust, but not seriously unjust, discrimination, or for discrimination which, though unjust, was not intentional. Additional aims could, furthermore, replace or supplement (B) (i) and (ii), making a preferential policy affirmative action of a distinctive type. To create a more just society in the future could be one such aim,3 as could be to achieve a workforce or student body whose proportional possession of characteristic C was in line with that of the national population. 4 And sometimes affirmative action consists simply of steps taken by a recruiter or contractor to ensure that it does not discriminate unjustly against C-possessors, and to ensure that as many C-possessors as possible are aware of the places, positions or contracts it offers.5 I do not propose to defend any of these further forms of affirmative action; but that does not imply I regard all of them as indefensible.

I do, though, regard as indefensible some cases of affirmative action which would satisfy the above description. For instance, the degree of preference an affirmative action programme gave to C-possessors might be greater than was warranted by the gravity of the injustice for which the preferential policy in question was intended as redress. The variety and extent of the benefits which could reasonably be expected to flow from a given preferential policy might also have a bearing on whether that preferential policy ought to be implemented. But factors under (B) (ii) and factors under (B) (i) impact upon the normative status of preferential policies under (A) in rather different ways, as I will explain shortly.

I must also explain in due course what it is for one party to make redress to another party for an injustice done by the former to the latter. But, as a preliminary approximation, to make redress to someone whom one has wronged is to make up for what one has done to them by doing something for them (for example, transferring goods or money to them, or performing or providing a service for them). I will not, on the other hand, specify under what conditions intentional discrimination against those who possess a given characteristic constitutes an injustice against those possessing that characteristic. It will be enough for the purposes of my argument to rely on consensus regarding various classes of case.

For defences of this rationale for preferential policies see Dworkin 1976, 69, 74, 82; Dworkin 1977, 228, 232, 239.

For critical discussions of this rationale for preferential policies see Cohen 2003b, 296; Benatar 2008a, 297– 299.

Cohen (2003a, 40) advocates this form of affirmative action, calling it “outreach”. Benatar (2008a, 275–277) calls it “equal opportunity affirmative action”. Sterba (2003a, 204–205, 208–209) divides it into “outreach” and one form of “remedial affirmative action”, though sometimes (2003a, 277) he uses the phrase “outreach affirmative action” to refer to a combination of the two.

116 Philosophia (2015) 43:113–134 What follows is chiefly a defence of affirmative action of the type I have specified.

However, I will also make clear what sorts of consideration can mean that in certain circumstances it is not justified.

Although conceptually it is somewhat narrow, the type of affirmative action I am defending is instantiated by a large number of current and historical cases.

The United States of America and the Republic of South Africa—to take just the two most discussed examples—are states which have, in the recent past (well within living memory in both cases, in the South African case within a generation), discriminated against those inside their borders who were of particular ethnicities in a way which constituted a serious injustice.

In both the United States and South Africa legislation and judicial rulings emanating from various levels of the state, and enforced by the police and the army, intentionally placed special restrictions on the employment and education opportunities,6 freedom of movement,7 and voting rights8 of those who were of particular ethnicities.

Soon after acknowledging that they had discriminated unjustly against those who were of the ethnicities in question, these two states both implemented preferential policies intended to make redress to those of the ethnicities in question for this serious injustice.

These policies (still in place to differing degrees in both countries) were implemented by various levels of the state, and gave preference to those of the ethnicities in question who applied for a range of employment opportunities, education and training places, and government contracts.9 Besides stressing the necessity of making redress, both of these states, in order to justify their preferential policies, have appealed to the benefits, to local communities as well as to society as a whole, of increased diversity (with regard to being or not being of the ethnicities in question) in the bodies of workers, students, trainees or contractors affected by those policies.

Though these policies have largely been in line with the specification of affirmative action I gave earlier, it must be admitted they have sometimes contradicted it by abandoning the explicit aim of redress—and perhaps in other respects too. Moreover, they have at times pursued further aims on top of (B) (i) and (B) (ii), including that of approaching or achieving bodies of workers, students, trainees or contractors with an ethnic make-up in line with that of the national population. 10 And, unsurprisingly, implementation has not always corresponded perfectly with declared policy.11 Much the same could also be said of many historical and current affirmative action policies implemented not by states but by other institutions, such as corporations and universities.

On the South African Bantu Education Act of 1953 and its context, see Thompson 2000, 195–197; Bloch 2009, 43–45. On racial segregation of educational institutions in the U.S.A. see Jones 1995, 269.

Thompson (2000, 191–195) and Gumede (2007, 19) explain South Africa’s “homelands” and pass laws, and the Group Areas Act of 1950. On racial segregation in the U.S.A. up to the 1950s see Tindall & Shi 1997, 1020–1024.

On South Africa’s electoral system in the 1980s, see Thompson 2000, 225–226. On denial of the franchise to black people by the state in the American South as late as the 1960s, see Jones 1995, 536.

See Jones 1995, 582; Sterba and James 2003a, b, 193–196.

See Terreblanche 2012, 93–94; Cohen 2003a, 18–20.

For critical discussions of the implementation of Black Economic Empowerment in South Africa, see Gumede 2007, 287–300; Mbeki 2009, 66-73; Terreblanche 2012, 93–100.

Philosophia (2015) 43:113–134 117 The type of affirmative action I specified earlier faces a three-pronged assault,

against which I mean to defend it:

(1) Wrong people The first prong of the assault says that affirmative action of the type I have specified is generally an inept way of making redress for C-discrimination. The extent to which C-possessors benefit from a policy of C-preference will vary, some benefiting from it a lot, some less, and some not at all. The extent to which an individual C-possessor benefits from a preferential policy depends, not on how much that individual was harmed by unjust C-discrimination, but on whether they are qualified for the place, position or contract on offer, and on how qualified they are. This—says the first prong of the assault—is a systemic problem with affirmative action considered as a means of redress, because redress for unjust discrimination ought to be calibrated to make redress to individuals in proportion to how much unjust discrimination harmed them.



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