THERE'LL BE NO DESERT FOR YOU TODAY, YOUNG MAN:
Affirmative Action as a Numbers Racket

Joel Warren Lidz, Ph.D.

OUTLINE

Introduction

I.
UTILITARIAN ARGUMENTS
   Ia.
Minority Members Broaden a School's Intellectual Horizon
   Ib.
Affirmative Action Is Productive of Social Health

II.
THE DEONTOLOGICAL ARGUMENT: Affirmative Action as Compensation
   IIa.
Compensation and the Moral Relevance of Race
   IIb.
Affirmative Action Is Just Because it Does Not Intend to Exclude

III.
PROPORTIONALITY

IV.
MISCELLANEOUS ARGUMENTS
   IVa.
Opponents of Affirmative Action Are Hypocritical
   IVb.
Merit Cannot be Determined Exactly
   IVc.
Qualifications Are Diverse
   IVd.
Since Qualifications Are Undeserved, So Are the Benefits That Flow from Them

V.
CRITIQUE OF TESTING

VI.
ROLE MODELS

VII.
CONCLUSION

INTRODUCTION

Affirmative action is a quintessentially American approach to dealing with a problem: find the quickest and easiest solution and implement it - unless, of course, it involves a sacrifice on one's own part, in which case it can no longer be considered the easiest solution - the "Can't someone else do it?" syndrome. Anecdotal evidence for this consists in the fact that I have never heard of a single white proponent of affirmative action offering his or her own position to a qualified minority person, even if it could be shown that the minority person's credentials were indubitably superior. Nor do we hear much support for the proposal of some activists, who suggest that substantial monetary reparations should be made to blacks as a whole by whites as a whole, as that would require a sacrifice on the part of every white person. On the contrary, proponents of affirmative action seem all too happy to give others the shirt off your back. George Sher's attempt to justify reverse discrimination provides a fine example whereof I speak:

"The crucial fact about [white males who suffer reverse discrimination] is ... that unless reverse discrimination is practiced, they will benefit more than the others from its effects on their competitors. They will benefit more because unless they are restrained, they, but not the others, will use their competitive edge to claim jobs which their competitors would otherwise have gotten. Thus, it is only because they stand to gain the most from the role of the effects of the original discrimination, that the bypassed individuals stand to lose the most from reverse discrimination."(1)

Three things strike me about this passage. First, note that Sher speaks of white males in the third person; evidently, he does not consider himself a white male for present purposes. Secondly, Sher fails to consider that whereas prospective applicants "stand to gain" (a mere possibility), persons such as Sher already have gained - at least according to Sher. One wonders whether it might not therefore be more just were Sher to offer his position to a minority person or allow some younger majority applicant to share in the benefits which he has already enjoyed. And why does Sher speak in the future tense - "They will benefit" - as if they haven't been benefitting all along? If white males have been getting a free ride all these years, where is Sher's self-doubt? Finally, the imagery of "restrained" white males is notable, as it evokes predatory men intent on preventing others from claiming "jobs which their competitors would otherwise have gotten," despite the fact that some white males favor preferences. Sher's blanket statement thus paints white males with a sexist/racist brush, while begging the question as to whether the "others" were in fact deprived of positions they deserved.

The original idea of affirmative action was for outreach, to insure that all qualified persons were aware that a certain position was available. But when it became apparent that there were simply not enough qualified minorities to meet the demand, a new offensive tack was adopted: it was claimed that tests are biased, that merit is a subjective notion, (2) that the benefits of diversity outweigh competing considerations, that belonging to a minority is itself a merit, that qualifications qua merit are undeserved because they flow from undeserved attributes, and so on. For purposes of this essay, I mean by affirmative action the practice of preferring people for positions on the basis of criteria having nothing to do with the applicant's accomplishments. This is done for ideological reasons, such as the belief that diversifying an institution racially, ethnically, etc., is of sufficient importance so as to outweigh an applicant's accomplishments.

Advocacy of affirmative action cannot itself be justified independently of the notion of merit, precisely because it presupposes that certain groups of people have been treated in a manner which they did not merit. Moreover, proponents of affirmative action seem to differ on the goal of the program: President Johnson stated that: "we seek ... not just equality as a right and a theory but equality as a fact and equality as a result,"(3) whereas President Clinton stated that "our search to find ways to move more quickly to equal opportunity led to the development of what we now call affirmative action."(4) Is the goal then equal results or merely equal opportunity? Or is the assumption that the only thing that will determine whether results are equal is whether opportunity is equal?

In this paper I am especially concerned with situations in which the use of criteria other than merit has the potential to harm innocent individuals.(5) In such cases, justice concerns not merely those who have traditionally been excluded from a place within the power structure, but also those whose lives will be affected by selection procedures - and so, with rationally justifiable ideals of merit and desert. Even if one assumes that "the reduction in the prospect of success of an innocent white male does not necessarily violate his right to equal opportunity or personal autonomy and integrity,"(6) it may harm someone whom the white male might have aided.

The issue of merit (i.e., whether it can be meaningfully determined and which attributes deserve to be regarded as merit) becomes most significant in areas such as the training of physicians, lawyers and teachers, whose competence is likely to influence in a profound way the quality of many people's lives - people who had no control over the selection or training (and thus, competence) of those graduates upon whom they necessarily depend and often cannot choose.(7) The life-and-death nature of medical and legal cases (in particular) is what makes the issues of merit and desert of special importance. By selecting candidates according to merit as it relates to likely future performance, clients of those candidates are most likely to receive what is deserved, expected and needed.

UTILITARIAN ARGUMENTS
Arguments concerning preferential treatment typically fall into forward-looking (utilitarian) or backward-looking (deontological) types. Utilitarian arguments advocating preferential treatment seek to show that certain benefits will (likely) result when certain jobs are given to minorities on a preferential basis.
(8) (Complicating the issue is the fact that persons will differ over what constitutes relevant and appropriate benefits.) Common utilitarian arguments in favor of preferential hiring include the claims that it may: (1) break down stereotypes;(9) (2) allow minority persons to serve as role models for other minority persons and to (3) serve minority clients more effectively; (4) reduce racial tensions by reducing the feeling among minorities that they are being excluded from desirable positions. Anyone familiar with the literature on affirmative action knows that for these and other such utilitarian arguments there are equal and opposite counter arguments. Moreover, as Michel Rosenfeld has noted:

"One of the principal drawbacks of the pure utilitarian argument in favor of race- and gender-based affirmative action is that it seems to justify the use of race or gender for purposes of excluding blacks or women. Indeed, if, for example, whites are so hostile to blacks that hiring the latter would generate such tension and discontent on the job as to lead to a net decrease in efficiency, it would seem perfectly justified under the pure utilitarian position to refuse to hire blacks on account of their race."(10)

Richard Wasserstrom argues that if taking qualifications into account is justified because doing so produces good consequences, then affirmative actions programs ought to be justifiable on the same grounds.(11) This criticism overlooks the fact that discriminating between candidates on the basis of their qualifications is justified by the fact that it distinguishes between factors relevant to the ultimate (and rationally justifiable) goal of producing competent practitioners, whereas preferential treatment is in conflict with that goal. To the extent that the goal is rationally defensible, affirmative action is not. It has, e.g., been argued that the presence of black and Hispanic faculty members "effectively serves to discredit the idea that scholarship and academic excellence are the sole province of white faculty,"(12) but it is not the raison d'etre of an educational institution to prove anything by way of their admissions and hiring procedures about the relative abilities (intellectual or otherwise) of society's subgroups.

Insofar as utilitarianism rests on cost/benefit analyses, it is not enough to show that certain benefits accrue from preferential hiring; one must also show that: (1) other means won't produce even better results;(13) (2) whatever benefits may accrue will not be outweighed by concomitant harms; and (3) no moral principles trumping utilitarian considerations have been violated. Can we, e.g., be certain that whatever benefits might accrue from preferential treatment would outweigh the benefits of everyone believing (with good reason) that their credentials have been judged in an impartial manner? (One approach might be to have all indications of a person's race, gender, etc. removed from his or her application, as has been done in some New York schools which managed to produce a number of Nobel prize winners, while still maintaining a diverse student body, though not diverse in a proportionate manner.)

What might be the negative consequences of placing preference above merit? Might not one argue that preferential treatment in effect says to majority members, "It makes little sense for you to try your hardest to excel, since even if you do so, you may be passed over for someone less qualified," and says to minority members, "You don't need to do your best, since you may be chosen anyway." Moreover, both minority and majority persons are likely to question whether minority persons attained their status on the basis of their own merits. If so, then instead of overcoming stereotypes, affirmative action is likely to reinforce them. No less a figure than Frederick Douglass (who achieved some measure of prominence without benefit of an affirmative action program) opposed what he called "special efforts" for freedmen, because "promoting an image of blacks as privileged wards of the state might sustain prejudices."(14) Recent studies seem to confirm Douglass' fears.

Minority Members Broaden a School's Intellectual Horizon. A common reason for advocating racial or ethnic diversity is predicated on the assumption that members of such groups are likely to hold views different from those of the majority. Years ago, Wasserstrom advanced the notion that: "minority group persons (and especially academicians) will tend to define conventional intellectual problems in new and different ways and will tend to perceive more easily unnoticed assumptions that otherwise would have gone unexamined and unchallenged."(15) One might argue that the notion that one may be expected to hold a certain or different viewpoint because of his or her race, gender, etc., is itself prejudicial. And is it necessary to note that "new and different" is not equivalent to "better" or "valid"? Isn't that the mentality that allowed Leonard Jeffries and his ilk, with their distinction between "ice people" and "sun people," to obtain faculty positions at otherwise respectable academic institutions? Moreover, as Celia Wolf-Devine has pointed out, there does seem to be a certain measure of hypocrisy in this putative concern with diversity: "Those faculty members and students who are most vocal in their support for affirmative action would not be satisfied with the appointment of large numbers of women who thought like Phyllis Schlafly or of black people who thought like Clarence Thomas. They are concerned to advance a particular cultural and political program...." (16) When Clarence Thomas was appointed to the Supreme Court, the attitude among some was that Thomas is an "Oreo," i.e., someone with black skin and stereotypically white (i.e., conservative) ideas - what white supremacists typically refer to as a "race traitor."(17) (Similarly perceived Asians have been called "bananas.") When black journalists questioned facts surrounding the Tawana Brawley case, they were confronted by angry supporters who called them "Uncle Toms" and "traitors."(18) This suggests that for some persons, it is not merely diversity of race, gender or ideology which is being sought, but rather a specific ideology, preferably embodied by someone of the correct hue. Thomas and James Meredith have had invitations to speak rescinded on more than one occasion. Meredith, who nearly died from a shotgun blast, was prevented from speaking at Collins College in Virginia by the black student alliance because he had previously delivered a speech in which he had supported traditional family values and hard work.(19)

The real issue would seem not to be diversity as such, but whether a specific way of being different would be likely to add something of value which could not be obtained in some other, preferable way - which is why it makes little sense to claim that diversity as such is desirable and which is also why I must disagree with Judge Tobriner, who wrote in dissent in the Bakke case: "given the race and ethnic background of the great majority of the students admitted by the medical schools, minority applicants possess a distinct qualification for medical school simply by virtue of their ability to enhance the diversity of the student body."(20) I had always been under the impression that the purpose of a medical school was to produce the most competent physicians possible, not to produce a racially and ethnically enhanced student body.

Affirmative Action Is Productive of Social Health. Stanley Fish presents an argument from analogy for the view that affirmative action cannot be equated with reverse racism because it does not intend to discriminate:

"Reverse Racism is a cogent description of affirmative action only if one considers the cancer of racism to be morally and medically indistinguishable from the therapy we apply to it. A cancer is an invasion of the body's equilibrium, and so is chemotherapy; but we do not decline to fight the disease because the medicine we employ is also disruptive of normal functioning. Strong illness, strong remedy: the formula is as appropriate to the health of the body politic as it is to that of the body proper."(21)

Let me see if I have Professor Fish's logic down pat here: Cancer is to the body as unjust representation is to the body politic. Since we are willing to save the body by means of such disruptive procedures as chemotherapy, we ought (if we wish to be consistent) tolerate disruptions to the body politic (such as reverse discrimination) in order to save it. A few questions about this (excuse me) fishy argument: Doesn't it beg the question of whether some alternative to affirmative action might exist which is less disruptive to the body politic? Will the body politic die without affirmative action? Is undergoing reverse discrimination voluntary, like undergoing chemotherapy? How similar is proportionate representation to the body's equilibrium? Does it make sense to compare social forces to the body's equilibrium (some would say, statistically normal functioning), which, unlike social policy, is determined in large part by nature?

Aside from the fact that the existence of cancer is not in itself a moral issue, as is the distribution of society's goods and opportunities, justice plays no role whatsoever in the case of utilitarian based oncological treatment: the disease and the remedy belong to one individual. The analogy with chemotherapy is, however, apt in one respect: like chemotherapy, affirmative action has seriously negative side effects, including reverse discrimination. As with toxic therapies, one must also wonder in the case of affirmative action whether the intended cure is worse than the disease.

THE DEONTOLOGICAL ARGUMENT: Affirmative Action as Compensation

Alternatively, one might defend affirmative action by means of a deontological argument, saying, e.g., that regardless of what future results might be produced by preferential hiring, it is something owed certain groups of persons because of past wrongs suffered by them. Such a backward-looking view argues for preferential treatment as a matter of principle. But the principle of compensatory justice, if it is to mean anything at all, must apply equally to everyone - which is to say (inter alia) that if one group is to be compensated for harms which society has either inflicted on it or tolerated, then every such group must be so compensated. "The guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal."(22)

A number of deontological defenses of affirmative action rely upon analogies. One of the most famous of these was that proposed by President Johnson: "You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, 'you are free to compete with all the others,' and still justly believe that you have been completely fair."(23) This analogy presupposes that all runners are equally motivated to reach the finish line as quickly as possible. Moreover, if the purpose of holding a race is to make it as exciting as possible, then it would make perfect sense to handicap the runners. On the other hand, if the purpose of the race were to discover which runner has the greatest likelihood of victory at the Olympic Games, then handicapping the runners would make little sense. So, much depends upon how one conceives of the race's purpose. Since it would be nice to win at the Olympic Games, we would want to provide as much opportunity as possible for the greatest number of our citizens to achieve excellence in running. Assuming that we have not thus far been able to achieve that worthy goal to our complete satisfaction, how should we proceed in selecting our team members? Should they be chosen to enhance the team's diversity? Incidentally, there was more to President Johnson's commencement speech at Howard University which one rarely hears mentioned: "The family is the cornerstone of our society. More than any other force it shapes the attitude, the hopes, the ambitions, and the values of the child. And when the family collapses it is the children that are usually damaged. When it happens on a massive scale the community itself is crippled."(24)

Jews and Asians are groups which have historically suffered discrimination - few are aware of the virulence suffered by Asians early in the 20th century - but their being tremendously over-represented in the most selective schools today does not imply that they are not deserving of preferences on compensatory grounds, since had they never been discriminated against earlier in the century, they might be even more over-represented than they currently are, and a common justification given for preferences is that one should consider how minorities would have been represented had they never been discriminated against.(25) Of course the really interesting and important question is: Why are under-represented groups under-represented?

If discrimination and oppression over long periods of time were sufficient in themselves to cause under-representation and academic failure, then Jews should by all reason be the most under-represented and academically worst group throughout the world. But what matters is not merely whether a group is discriminated against, but also how that group responds to the discrimination. When one is faced with obstacles, a range of choices is available. One might, e.g., use the discrimination as a convenient excuse to explain one's own lack of incentive and/or failures. Or, one might regard the discrimination as a challenge to be met and overcome. This issue has been articulated in terms of self-help and victimhood since the days of the conflict between Booker T. Washington and W.E.B. Du Bois. Today, such black writers as William Raspberry and Glenn Loury hold that opportunities exist despite discrimination and that blacks have too often failed to avail themselves of those opportunities, while Christopher Edley (in a rare and unfortunate charge of moral turpitude against the opposition) claims that: "people magnify the self-help and personal-responsibility message out of all proportion when for other reasons they want to take themselves off the hook, or want to curb the ambitions and dim the vision of public institutions and progressive political leaders."(26) Cornel West similarly levels a personal attack on opponents of affirmative action who "fail to see the subtle (and not-so-subtle) white supremacist sensibilities [!], behind their 'color-blind' perspectives on affirmative action."(27) But whether opponents of affirmative action are motivated by a desire to get themselves off the hook or by white supremacist sensibilities has nothing to do with the merits of their arguments, and I, as one who has taught at a predominantly black college and supports anti-racist organizations, resent such slurs. Are we to believe that the numerous black intellectuals who oppose affirmative action are white supremacists in disguise? Derrick Bell calls them people who "look black, but think white" and Lani Guinier distinguishes between blacks who are "psychologically black" and those who are not. Evidently, the audacious nature of such presumptions to judge who is essentially and not merely apparently black is lost on these benightedly self-avowed anti-racists. The black Republican U.S. Representative, J.C. Watts, is quoted as saying: "Many in the black community believe you have to think and act a certain way. But I'm 41 years old and I can think for myself."(28)

The argument from compensation rests on a metaphor which views justice as a balance, suggesting that in the past the balance was tilted in favor of members of certain groups and against members of other groups, and that (compensatory) justice would consist in "tilting the scales" in the opposite direction until equality is established. This position is much concerned with equality (qua proportionate representation) as an end, yet is willing to tolerate unequal (discriminatory) treatment as a means to that end. But if it was wrong to tilt the balance against one group, is it not wrong to do so against other groups? Moreover, in order to insure justice, would it not be necessary to know whether and how the persons on opposing sides of the "balance" were involved in the production of the injustice which is to be rectified? For if it becomes necessary to deprive some to compensate others, the issue of reverse discrimination arises.

A commonly presented deontological argument holds that certain institutions have traditionally been biased against blacks and others so as to disadvantage them in numerous respects; hence there would be nothing unjust in rearranging institutions so as to favor (to some extent) the least advantaged in society by way of compensation. As Tom Beauchamp writes: "Considerations of compensatory justice and utility are conjointly of sufficient weight in contemporary society to neutralize and overcome the quite proper presumption of immorality in the case of some policies productive of reverse discrimination,"(29) but isn't it a bit presumptuous to think that this is the sort of thing that can be "weighed"?

Like Beauchamp, Judith Thomson has responded to the charge of reverse discrimination by suggesting that although preferential treatment requires some white males to reduce their job opportunities, that "is something the community takes away from [white males] in order that it may make amends."(30) It seems a bit odd for Thomson to adopt this view, given that her famous article on abortion suggests that it is wrong for a third party (viz., the government) to force a woman to make the sacrifice of carrying a pregnancy to term, even if she bears some responsibility for her pregnancy. She suggests that while it would be nice for a woman to do so, such a decision would be supererogatory on her part, as she never granted the fetus a right to the use of her body - as if one's only obligations were contractual. Even if the fetus has a right to life, she holds, that is a right limited by the woman's right to her body qua her property. Yet she has no difficulty with the government requiring white men to sacrifice positions where they bear no personal responsibility for the economic disadvantages of others and have no contractual obligations to the beneficiaries of their sacrifice. When did any group in this society receive the right to be proportionately represented? The only relevant right is that of not suffering unjustifiable discrimination.

Much has been said about the breakdown of the family in this regard. According to Robert Woodson, Jr, the black president of the National Center for Neighborhood Enterprise: "research reveals that 22 percent of children from one parent families will be in poverty for seven years or more, compared with two percent from two parent families."(31) In considering the breakdown of the family, some conservative writers fail to consider the impact of recent changes in the U.S. economy, which have contributed to this breakdown by requiring both parents to work, thereby increasing stress. The rate of violent crime and illegitimacy was lower in the past, however, even during times of severe poverty and more virulent racist violence, which is why it is difficult to accept Alphonse Pinkney's claim that "When black people deviate disproportionately from the norms of society, such behavior must be explained as resulting from the social environment."(32) Given the privacy issues involved, the contribution which government can make is severely limited in this regard. While a child whose parents are neglectful - and neglect, after all, is a matter of both degree and kind - is eo ipso disadvantaged, it is not clear what role (if any) society ought to assume toward such parents.

Economic changes have in recent years favored the better educated and historical factors also play some role in determining present socioeconomic conditions. Few people are aware of the role of blacks in commerce early in the 20th century.(33) Historical factors also play a role: Whereas Jews were restricted by the medieval Church largely to money-lending, thus paving the way for a number of banking dynasties such as the Rothschilds, blacks were restricted to menial jobs. And whereas social policies in anti-Semitic Europe served to strengthen family ties among Jews, the black family - once strong - has been decimated by welfare programs which reward the absence of a father. (70% of incarcerated men were raised without a father.)

Affirmative action would seem to presuppose the unproblematic nature of the notion "disadvantaged." Precisely what conditions are to count as disadvantage?(34) Surely it is less rational to be concerned with economic disadvantage once it has occurred, than to attend to the sources of such disadvantage. The road to professional school begins in the cradle, with parents who care about their child's prospects, but some trends have been unfortunate: The illegitimacy rate among black Americans was 26% in 1965, whereas the rate today is 68% and climbing. In inner cities, the figure is typically in excess of 80%. Only 6% of black children born in 1980 will live with both parents through age 18, according to some projections, compared to 80% of black children who had intact, two-parent families during slavery.(35) A black schoolteacher in Boston says: "the problem with the schools is in the homes. We have too many kids raising kids, their siblings and border teenage pregnancy babies."(36)

Another interesting issue has to do with who qualifies for affirmative action. A Mallard Fillmore cartoon depicts a man who is a stereotype of a tweed-clad intellectual stating that "Jews are minorities but they're not, you know, 'minorities'!" Are biracial persons deserving of affirmative action? Do they perhaps deserve only half the consideration of someone who is entirely black? I am reminded of the case of Groucho Marx, who was not permitted to join a swim club because he was Jewish. He informed the club that his son was half Jewish, and asked whether it would be okay for his son to go into the pool up to his waist. Moreover, the sorts of racial categories used to determine the presence or absence of diversity are often gross categories. Why should a Cuban person consider an institution to be diverse if there are numerous Mexicans present but no Cubans? There is also a question as to whether a group's conception of itself or the dominant conception of racial and ethnic groups of society at large should determine affirmative action policy: "For example, if an individual of Filipino heritage identifies most closely with other Filipino Americans but feels little affinity with Japanese or Chinese Americans, is that person 'Asian' in a way that contributes to a school's goal of promoting diversity?"(37) Most persons classified as Hispanic by affirmative action programs classify themselves as white. (38)

One legitimate approach to disproportionate representation is that of the Nativity School in the Roxbury section of Boston, which seeks to educate some of the most disadvantaged black boys from the inner city (black females perform much better academically). Many graduates of this middle school are eventually admitted to prestigious preparatory schools. A recent report in the Boston Globe notes the following: Officials of the Nativity School credit most of their success to discipline, commitment to small class sizes, and parental involvement. Parents are required to participate in the upkeep of the school. Most parents and students have chores to perform before school begins at 10 a.m. Although classes end at 3: 10 p.m., every student is required to stay until 5 p.m. for enrichment courses in athletics and the arts. After a break for dinner, about two-thirds of the students choose to return for evening study with a one-on-one volunteer between 7 and 9 p.m. Few of the teachers (many of whom are volunteers) have been trained by teacher colleges, nor are they certified. Students who are not trying hard enough may be asked to leave, and if parents don't show up enough, the same may happen. Parents must sign a contract promising attendance at 10 parent-teacher meetings, school cleanings, car pools, and other programs. One mother said of the school: "they start developing gentlemen out of the kids. It's wonderful." The names of students sent to detention are mentioned publicly. Some boys said that they hate being named publicly so much that it has inspired them to do their homework well. This approach has the obvious advantage of not only increasing the presence of blacks in quality schools, but doing so in a way which increases the likelihood of their merited success. Note one surprising fact mentioned in the article: "Surprisingly, there isn't a long waiting list."(39)

Compensation and the Moral Relevance of Race

In response to the charge that compensation must be race-and gender-neutral in order to be just, one commentator suggests that because race was long treated as a "morally relevant" factor for purposes of discriminating against certain groups, it is legitimate to regard it as a "morally relevant" factor for purposes of compensation, and thus, it is permissible to discriminate against certain groups such as white males.(40) Stated in this manner, the prejudicial character of the argument is made clear, as the essence of racism and sexism consists in making race and gender relevant criteria in the way persons are treated in those cases where they are not relevant.(41) Suppose that a number of KKK members murder a group of blacks because for them, blackness is morally relevant (i.e., relevant to the way blacks deserve to be treated). As a result, a number of whites who know nothing of the crime unwittingly benefit from it by receiving the jobs previously held by the blacks. Do the whites thereby owe blacks (or members of the victims' families) a debt? Has the whiteness of the whites now become morally relevant? The argument implies that since the crime was committed in the erroneous belief that the victims' race was morally relevant (i.e., race was the decisive criterion in determining how the blacks were treated), the race of the beneficiaries may likewise be considered morally relevant. But one is clearly not justified in making race relevant to the rectification of a crime because of the crime's being motivated by unjust considerations of race.

The operative principle here has been termed the "principle of illicit advantage": although a certain white male may have done nothing to bring about his position of advantage, nonetheless his advantage is attributable to something done by other white males. Hence in depriving some white males to benefit minorities, we are merely restoring to the minorities what would have been theirs had there never been the original discrimination. The net effect is to benefit a certain number of group members as proxy for an entire group by depriving certain members of another group as proxy for that group.

The problem here can be seen by following the logic of affirmative action to its conclusion. Consider that according to Department of Justice figures, in 1993 there were 1.4 million crimes involving interracial violence nationwide. Eighty-five percent of them were committed by blacks against whites, despite the fact that blacks comprise only about 12% of the population. A white is 50 times more likely to be the victim of a violent crime committed by a black person than is a black by a white.(42) (Similar statistics hold for interracial rape.) Why should the principles of affirmative action not be applied in such instances? Granted, most black men do not take advantage of their capacity for violence (just as most white men do not take advantage of their capacity to discriminate - assuming that they have such a capacity), but the impressive disparity in numbers raises the question of why whites as a group should not be able to demand some form of compensation from blacks as a group. Or is it that justice (and our tradition of tort law) rightly demand that we punish only those individuals who can be shown to be guilty of an offense and compensate only those individuals who can be shown to have been victimized?

Not only race, but many other characteristics considered "morally relevant" in the past were used to discriminate; hence on this argument an incalculable number of people would be entitled to compensation.(43) Might not women argue that because they had no say in the selection of our government until relatively recently, they have thereby been disadvantaged and are thus deserving of compensation? One of the difficulties here is that some inequities are considered as such only in retrospect. Slavery was of course ubiquitous until attacked by a dead white European male, Jean Bodin, and later, the Quakers. Until roughly thirty years ago, most women were content to occupy the roles of homemaker and mother, and indeed, many still are content with those roles. As is well known, however, the parceling of such roles according to gender came under sharp criticism, such that for those who consider the traditional roles inequitable, it seems clear that women had suffered severe deprivation of opportunities. Even if we agree that these were serious injustices, it does not follow that compensation is possible or desirable, as in some cases the cost of making compensation may hurt those being compensated more than it helps them; e.g., if compensating large numbers of people were so expensive as to seriously damage the overall economy. That is to say, from the fact that compensation is deserved it does not follow that it ought to be rendered.

Affirmative Action Is Just Because it Does Not Intend to Exclude. One of the claims made by a number of proponents of affirmative action (which recalls the Catholic doctrine of "double effect") is that affirmative action cannot be regarded as unjust, as it does not seek to disenfranchise anyone and any negative result is unintended: for Nagel, "the aim of the practice is only to benefit blacks, and not to exclude whites,"(44) while for Kennedy, any resulting exclusion is merely "an incidental consequence of addressing a compelling societal need."(45) Richard Wasserstrom argues that while affirmative action discriminates, it differs from traditional discrimination, in that the latter sort was "part of a larger social universe which ... concentrated power in the hands of white male individuals," whereas quotas that favor minorities "do not add to an already overabundant supply of resources and opportunities" to certain dominant groups.(46) Hence affirmative action is held to be disanalogous to racism, as it is discriminating to include whereas traditional forms of discrimination were intended to exclude. This position was upheld in the Bakke case by Justices Brennan, White, Marshall, and Blackmun:

"Government may take race into account when it acts not to demean or insult any racial group, but to remedy disadvantages cast on minorities by past racial prejudice.... [T]here is absolutely no basis for concluding that Bakke's rejection as a result of Davis's use of racial preference will affect him throughout his life in the same way as the segregation of the Negro school children in Brown I would have affected them.... The Davis program ... compensates applicants, who it is uncontested are fully qualified to study medicine, for educational disadvantages which it was reasonable to conclude were a product of state-fostered discrimination. Once admitted, the students must satisfy the same degree requirements as regularly admitted students; they are taught by the same faculty in the same classes; and their performance is evaluated by the same standards by which regularly admitted students are judged."(47)

Consider these points individually:

(1) Race can be "taken into account" so long as one's intentions are to provide remedies rather than to demean. But even if we assume that the desired remedies will in fact be brought about, suppose that there are other unintended, negative results which counterbalance those remedies. Moreover, the phrase "taken into account" is quite elastic in the sense that race may be taken into account to differing degrees and in different ways. This allows for considerable latitude in making admission decisions.

Recall that we are dealing with a zero-sum game in which inclusion implies exclusion. Imagine that Smith decides to help some people he likes in his neighborhood. He therefore steals some property from others (whom he does not know and has nothing against) which he gives to his favored neighbors. Smith's action was not directed at persons on the basis of race, etc., nor was it meant to harm those from whom he stole, but solely to help the recipients. It was only as a byproduct of Smith's actions that some lost their property. Are we to assume that what Smith did was just? If discrimination is undertaken for (putatively) worthy ends, does that justify it? Note that while some proponents of affirmative action argue that it is justifiable to exclude white males on the grounds that it does not intentionally exclude them, they are nevertheless unwilling to overlook the exclusion of others on the same grounds, as when positions are obtained through an old boys' network. If affirmative action is justified by virtue of the fact that it does not intend to exclude, then we can just as well argue that athletes and children of alumni have been preferred, not out of an intention to exclude anyone, but rather out of an intention to bolster the solvency of an institution - solvency being more critical to an institution than diversity. What matters, of course, is not the fact that affirmative action is not intended to exclude members of one group, but rather that advance knowledge exists that exclusion will be the result, hence making it avoidable. There are two obvious objections to my analogy:

(a) Whereas the persons from whom Smith stole were entitled to their property, no applicant for a position (some have claimed) is entitled to that position. This raises a fundamental question: What (if anything) entitles one to a position? One can acknowledge that the sorts of discrimination suffered by minorities were worse than that suffered by someone who is denied a position by affirmative action without having to accept anything at all about who is entitled to what. My argument is not that there are no differences between invidious discrimination and affirmative action; it is that affirmative action is sufficiently and relevantly similar to traditional discrimination that it must be regarded as unjustifiable.

(b) My analogy does not postulate that the persons from whom Smith steals have more than their rightful share, such that Smith would have justification for redistributing the property. But by what right does the community deprive one (relatively advantaged) innocent party to compensate another (relatively disadvantaged) innocent party, especially if one is uncertain as to whether the parties are unfairly advantaged or not? Even if (some) white males have benefitted by virtue of the disadvantaging of certain other groups, most white males are nevertheless innocent in the sense that they were not responsible for the fact that they have been so benefitted. If someone is robbed, and I serendipitously stumble across a twenty dollar bill which was inadvertently left on the ground, then I am not guilty of having deprived the victim, yet I must return the money to the victim (if known). But in such a case if I do return the money, I am no worse off than before my find, whereas in the case of preferential treatment I do suffer a deprivation if a position toward which I worked is given to someone of lesser qualifications. Perhaps more importantly, the benefits which might have been given to the more competent practitioner also constitute a deprivation to others. In the case of the robbery, both the victimized and benefitted parties are identifiable, as is the precise amount lost by the victim. In the case of preferential treatment, by contrast, the situation is infinitely murkier.

(2) Bakke's rejection will not harm him to the extent that others have been or will be harmed in the absence of preferences. How relevant is this, and under which circumstances could such a principle be applicable? Suppose of two students (imagine them as members of various racial groups) one has a family to support and grew up in an economically disadvantaged environment but performs in a substandard way relative to the other student. Should the poor student receive any sort of special consideration because of a family history of poverty? Must this principle be applied only in a race-based context?

(3) Applicants in need of preferences are or should be determined to be underqualified by virtue of state-fostered discrimination. Is any attempt made and is it in fact possible to determine whether a given applicant is in need of preferential treatment as a result of state-fostered discrimination? Should we simply assume that this is true?

(4) All admittees must meet the same standards to graduate. Of these four claims, only this one is relevant to my concern with the future competence of admittees. Clearly, if this claim is true, then my concerns about the competence of graduates should be alleviated. The Justices are clearly arguing that preferences are acceptable when deciding who should be admitted, but not acceptable when it comes to evaluating the competence of those same students. So what they are saying is that disadvantaged persons should be given a special preference to prove their abilities, but if unable to compete on the proverbial "level playing field," should receive no further preference. (This is analogous to arguing for equal opportunity, but against equal results). However, according to Boston journalist Bob Zelnick:

"A critique of Harvard medical school's practices in the New England Journal of Medicine chronicled the erosion of standards at Harvard following the school's decision to reserve 20 percent of each medical school class for minorities. First, required science courses were dropped when it became clear that minorities fared poorly in them. Next, a pass-fail rating system replaced the traditional letter grades. Then, simply passing the national medical boards was determined to be adequate for satisfactory performance at Harvard. When minorities failed in disproportionate numbers they were given five opportunities to pass, and when this proved insufficient, the provision was waived altogether."(48)

Again, if discrimination has been largely "built into" many of our social institutions, why should not society as a whole make reparations, rather than asking a limited number of individuals to bear the entire burden of compensation? Here the question arises as to the parameters of responsibility: Do the descendants of those African tribal chieftains who sold other Africans to European slave traders owe anything to the descendants of the slaves?(49) (On a trip to Africa, Maya Angelou once wondered whether any of the people she saw about her were descended from Africans who sold her ancestors into slavery.(50)) What of the descendants of those blacks who held slaves in America?(51) Do all white Americans benefit from discrimination against non-whites? To the same degree and in the same way? Is all discrimination deserving of the same type of compensation? And what of the many other groups which might be deserving of compensation?

Walter Feinberg holds that the fact that blacks alone were brought to America as slaves puts them in a special category, claiming that whatever suffering European immigrants experienced, they most likely would not have come to America if they had known that the probability of their being slaves was comparable to that of blacks.(52) Of course Rwandans, Bosnians, Jews, Cambodians and many others have lived under the constant threat of death, and if one's choice were between the threat of being murdered and that of being kept alive as a slave possessing monetary value and the hope of eventual freedom, it is not at all clear to me that one would not prefer to be enslaved. Nor is it necessarily true that Africans brought to America as slaves would not have been enslaved or killed in tribal warfare in Africa had they not been sold to European traders by fellow Africans. While it is possible that those blacks brought to America as slaves would have been better off had that never happened, it certainly seems true that their descendants are better off in America than had their ancestors never been brought to this continent. Of course the fair comparison here is that between the actual condition of blacks in America today as opposed to what their condition would have been had they been free of the sorts of discrimination and oppression historically faced by black people in this nation. With how much confidence can we answer that question? After all, not all immigrant groups from Europe have achieved the same level of economic success, nor have all subgroups of blacks. Feinberg further claims that all whites have benefitted economically as a result of slavery, but offers no evidence to support this.

PROPORTIONALITY

The view that disproportionate representation implies discrimination means that we must be willing to accept that in a discrimination-free society, each subgroup would be proportionally represented in each and every type of position. Albert Mosley argues for this point of view: "Because the existing distribution of benefits and burdens between blacks and whites and men and women is not natural ... and because it is in part a product of current laws and practices having discriminatory effects, it is not decisive if some whites and men are disadvantaged as a result."(53) Not decisive for Mosley, perhaps, but how do we determine whether or not an existing distribution of benefits and burdens is "natural" - whatever "natural" means here? (Mosley probably has in mind the unknowable counterfactual situation of what representation would have been like had there never been any form of discrimination. Preferential policies have been defended on these grounds in a number of legal cases.(54)) What is being said to white males, effectively, is that had justice prevailed these many years, then you would have had to compete against minorities who would have prevailed in fair competition. Needless to say, there is not and could not be any evidence to support this claim. In addition, justice would require that the same principle be applicable in a range of situations. People who could not afford to go to a supposedly superior school might claim that their economic situation would have been better but for their inability to attend such a school.

Proponents of affirmative action give much attention to the ways in which unintentional bias can explain disproportionate representation, but little to the statistical differences in group behaviors which also might explain those differences, nor do they have much to say about over-representation among minorities with a history of having suffered discrimination.(55) (One might have thought that the phenomenon of over-representation would offer clues to the reasons for under-representation, especially given that the over-represented groups have themselves been objects of discrimination.) If a good deal of disproportion can be explained through social phenomena not attributable to any sort of discrimination - intentional or unintentional, individual or institutional - then it cannot be assumed that in the absence of discrimination there would have been proportionate representation. Ethnographic studies show that wide disparities in the behavior of groups are ubiquitous.(56) One's culture has an influence on many factors which affect the likelihood of economic success: the age at which one marries (thus influencing the average age of a group), the average number of children one has, divorce rate, alcoholism rate, etc. Under-represented minorities tend, e.g., to read relatively little to their children. One would think it obvious, e.g., that if a certain group of children is forced to endure a relatively inferior education, and their parents do not care enough about that fact to act upon it, then even in the absence of any other form of discrimination, members of that group will be under-represented in positions which require a solid education. Given an under-represented group of persons, some of that group will be under-represented because of discrimination, others because of lack of ability and/or lack of motivation, etc.(57)

About two decades ago, I was a substitute teacher for one day at Belmont High School, near Boston. While having lunch with some of the regular teachers, one lamented the fact that so many Jewish families had left Belmont. He related that those parents had attended the PTA meetings regularly and took an active interest in their children's education, but that other parents simply did not take as much of an interest, and that as a result , the educational standards had fallen. When parents' expectations are low, it becomes difficult for teachers to maintain high expectations.(58) What should be done about this?

In response to the point that one cannot rightfully infer the presence of discrimination merely from disproportionate representation, Gertrude Ezorsky writes:

"Suppose both political conservatives and blacks are 'under-represented' on a university faculty. Surely the context of under-representation for each group is relevantly different. Because of the devastating impact of overt and institutional racism, blacks are disproportionately excluded from desirable employment and positions of power throughout society. No relevantly similar context exists for political conservatives."(59)

But it is not necessary to posit racism in order to explain the breadth of black under-representation, since a lack of academic preparedness would explain at least some of the under-representation in all vocations which require such preparation. While the prevailing ideology holds that as a matter of equality (i.e., fairness) all persons deserve the same opportunities to discover and develop their abilities (so that in the long term they will be able to rise to the highest possible level on the economic ladder), so many factors which society cannot control influence one's development, that for the most part one simply cannot determine whether an individual might have developed differently within a different milieu.

How can one know whether differences in representation in a given group are the result of discrimination or of other factors? A few years ago I determined that the female membership figure of the American Philosophical Association was 18.7%. By contrast, that of the American Psychological Association was 55% and that of the Modern Language Association, 43.4%. One might infer from these figures that those persons who hire philosophy faculty are biased against women. Or does this difference reflect the fact that women consider (rightly or wrongly) that their chances of professional success are greater in English and psychology? Or again, perhaps women find study of philosophy less attractive than study of psychology or English for some reason and bias is not a significant factor. Again, the number of blacks who major in sociology is far greater than the number who major in the hard sciences, while the case is just the opposite for Asians. And of course scientists are more highly paid than are sociologists.

One difficulty which seems to be ignored in discussions by proponents of affirmative action is the fact that if currently under-represented groups are brought up to parity, it follows that the presence of currently over-represented groups will have to be reduced. Mosley considers it to be "speculative to assume that races would be represented in every area in proportion to their proportion of the general population. But because it is impossible to reasonably predict what that distribution would have been absent racial discrimination, it is not mere speculation but morally fair practice to assume that it would have been the same as the proportion in the general population."(60) But how do we explain that: "Americans of Japanese, Chinese, and Korean descent are the most 'over-represented' groups in higher education: fewer than 2 percent of the national population and well over 10 percent of the student bodies in our most selective schools (14 percent at Harvard, 20 percent at MIT, 21 percent at Cal Tech, 25 percent at Berkeley in 1987-88)."(61) While Jews constitute less than one percent of the world population, they received more than 21 percent of the Nobel Prizes awarded between 1901 and 1995, despite anti-Semitism earlier in the century. Moreover, Asian-Americans and whites are seven times more likely than blacks and Chicanos to enroll once admitted to a school.(62) Thomas Sowell discovered that the income of West Indian blacks (whose ancestors were also slaves) was 94 percent of the U.S. national average while the income of American-born blacks was only 62 percent of the national average(63) and that "Blacks in the United States have faced more hostility and discrimination than blacks in Latin America.... However, Brazil has larger black-white disparities in income than does the United States."(64) Such facts throw into question the charge that discrimination is the sole or primary reason for the relatively low income of American-born blacks. To explain these differences in terms of cultural traditions, etc., merely pushes the question back one notch: what explains those differences?

In sum, we are told on the one hand to celebrate and respect diversity, but on the other hand affirmative action presupposes a dearth of diversity among subgroups within society in terms of those behavioral patterns which would influence the degree to which they are represented in various positions. Perhaps the underlying motive here is the belief that if we are (in some sense) all equal, then we must all be fundamentally the same; i.e., a descriptive conclusion is drawn from a normative premise.

MISCELLANEOUS ARGUMENTS

When I have questioned minority students about their views concerning the preferential hiring of faculty, their response has been along these lines: "I am paying a lot of money to attend this school, and I want to have the best teachers available, regardless of their race and gender." Administrators seem not to be listening, however. (Perhaps that is because their offices have not been occupied by militants or their school threatened with funding cutbacks.) Below, I consider some arguments dealing with the concept of merit.

Even many university administrators who favor affirmative action admit that the downside of this policy is lowered standards.(65) I happen to know of cases where academic standards have been lowered for the sake of minority students (contrary to the assumption of Supreme Court Justice Brennan, who defended preferences in the Bakke decision on the grounds that admittees will have to meet the same standards as everyone else), which is just what one would expect in an age when schools think of their students as customers who must not be alienated, no matter what.(66) James L. Robinson, a black professor of political science, writes: "During my academic days at Rutgers University, I saw the down side of affirmative action admissions standards. Rutgers wanted to admit black students and in doing so lowered its standards.... I had black students in my classes who could neither read college level books nor write essay examinations.... How could I conduct a class at the college level without failing most of the black students?"(67) Presented in theory as a case for "leveling the playing field" for all, affirmative action often turns out in practice to be a case of lowering the basket for some.(68)

Opponents of Affirmative Action Are Hypocritical. A number of writers have charged that the notion of meritocracy cannot be taken seriously by blacks for the simple reason that it is rarely practiced by whites, even when dealing with other whites. Echoing an oft-reiterated concern of affirmative action proponents, Randall Kennedy, a black law professor at Harvard, writes that: "many black beneficiaries of affirmative action view claims of meritocracy with skepticism."(69) Such skepticism is certainly understandable in many cases, though by no means in all, for the notion of meritocracy is an ideal. To reject an ideal because it is at times violated is to throw out the baby with the bath water: abusus non tollit usum. To the extent that the charge is true, the problem lies not with the ideal of merit, but with the persons who fail to act in accordance with it. In addition, even if merit as an ideal were adhered to only rarely, that would not mean that affirmative action is just(ifiable).

Note too that if merit cannot be taken seriously because it is not consistently practiced, then presumably the same might be said of equality, freedom and other such ideals, and one does in fact see a willingness to compromise on the ideal of equality nowadays, as, e.g., in the attempt to establish legislation which prescribes extra penalties for crimes which are racially motivated. But if murder, e.g., is worse when racially motivated, then it must be less bad when not racially motivated. Is it really worse if X murders someone because he does not like their color than if he murders someone because he wants their money? Another example of justifying the application of non-impartial standards was recently used in a judicial context: Police were investigating a report of shots in Boston at about 3 a.m. when they saw a car speeding with its lights off. They arrested the black driver after finding a gun on the car floor with a spent shell casing and ammunition. The man had prior convictions on minor drug possession charges and several motor vehicle offenses. He pled guilty to the charge of being in possession of a firearm. The judge handed down a controversially light sentence on the grounds that the man's past convictions were for fairly minor motor vehicle offenses and because as a black man, he had probably been stopped more often than a white man would have been for such crimes as driving with a suspended license. No testimony was given as to whether or why he had in fact been stopped in the past.(70) If this man were now to commit a violent crime, can the judge be held liable?

Proponents of affirmative action often note that there was never much of a concern about athletes, children of alumni, etc., lowering the standards of a university -- a fact they sometimes point to as evidence of crypto-racism. That it is not uncommon for persons to be admitted to universities on the basis of donations made by their parents or athletic prowess is, admittedly, an unfortunate fact of life. Such practices are inconsistent with a policy based strictly on an individual's accomplishments, and would most likely be unnecessary were we living in a time and place which valued education to the degree that it should be valued. Henry Rosovsky, Dean of Faculty at Harvard University, writes that traditional preferences such as athletic scholarships and legacies are justifiable "only in terms of the cultivation of loyalty within groups that are vital for the future well-being of any institution. Private universities depend on alumni financial donations and other forms of support to ensure continued or rising levels of economic and intellectual prosperity. There is some relationship between the school's wealth and its quality, and the bulk of that wealth consists of gifts made by graduates."(71) Thus, a portion of the wealth attributable to the university's having educated its graduates returns to the institution to perpetuate the process. Moreover, the gap in credentials between legacy children and regular admittees is considerably less than that between blacks and regular admittees.(72) There is also a significant difference between admissions in the case of undergraduate and graduate schools: the student who is passed over in favor of a lesser qualified student in the case of an undergraduate school has a better chance of finding another position than would be the case with graduate admissions.

Merit Cannot be Determined Exactly. Another criticism of judging strictly by merit holds that it is impossible to determine precisely the abilities of candidates: "A notion of merit that asks us to line people up in order of ability assumes it is possible to determine the best with exactitude."(73) But surely no claim for infallibility or exactitude is being made by proponents of merit, merely the holding out of hope that one will be able to maximize the likelihood of choosing those candidates most likely to benefit from - and contribute to - an institution. In deciding which of the available minority candidates to choose from within an affirmative action program, there is presumably some notion of merit at work also. Hence any difficulties associated with the concept of merit are not averted by the introduction of preferential programs. And if, as some proponents argue, traditional selection criteria deserve to be scrapped due to the difficulties of weighing the merits of one student against those of another, how much assurance of exactitude can we have in weighing considerations of compensatory justice and utility against the consequences of reverse discrimination?

Qualifications Are Diverse. Numerous authors argue that the orthodox understanding of merit should be broadened. But will broadening our notion of merit to include considerations other than accomplishment increase or decrease the likelihood of determining the most desirable (meritorious?) candidate with exactitude? Lawrence and Matsuda write: "Among the several flaws in [the assumption that merit can be determined exactly] is the reality [sic] that in almost all human endeavors there is a range of valuable talents.... A good crew for a wilderness trip, for example, might include a seasoned guide, a good storyteller, a paramedic, and a talented cook."(74) How well does this analogy apply to university admissions? While a wilderness trip may indeed benefit from a diversity of talents, it also requires a unity of purpose. Despite their different talents, all those on the trip must, e.g., be physically capable of, and motivated toward, making it. Similarly, students ought to be capable and motivated so that they can be reasonably assured of completing their journey through college. It has, however, been documented that among many of today's black youth there is a pervasive notion that to strive after academic excellence is to "buy into" the ideals of white society.(75) John McWhorter relates that in the late 1960s, black kids started teasing other black kids who liked school as "acting white."(76) Now precisely how one is to combat that attitude (or whether one has the right to do so) is a question I have not seen addressed.

As I write this, I have a number of students who are simply unprepared to do college work. Some are foreigners whose English prevents them from achieving at a level which they otherwise might achieve. Who is helped by permitting such students into the class? Those students? Their classmates? The school as a whole? Persons who might have been better equipped to benefit from the class, but who were rejected for the sake of a diverse student body? Although it is often claimed that those receiving preferences are only slightly less well qualified than those not selected, according to Stephen Thernstrom, Winthrop Professor of History at Harvard University:

"the preferences given to black applicants at highly selective colleges are enormous. Schools at which the average white or Asian student has SAT scores in the top 3 percent to 4 percent of all test-takers are accepting black students with average scores at the 75th percentile, as well as lower high school grade-point averages.... [A] high proportion of the black students graduate. But a quarter of them did not collect their diplomas at the college in which they first enrolled, and 21 percent never earned a degree at all. Their dropout rate was 3.3 times that of their white classmates.... African Americans at the most prestigious schools were 4.2 times more likely than whites to end up with no degree.... No racial preferences are given in state bar examinations, however, and the results there suggest that racial double standards in admissions do not remedy the educational deficiencies that led to their adoption. Over the past two decades, between 57 percent and 70 percent of the blacks who took the New York and California bar exams each year failed, as compared with 18 to 27 percent of whites. A massive study of national data found that 43 percent of the blacks preferentially admitted to law schools in 1991 either failed to graduate or did not pass the bar exam with as many as six tries over three years."(77)

Is this not a waste of resources which might have been put to better use by placing students into institutions where they might have a better chance of succeeding or by placing greater emphasis upon remedial programs?

The analogy of the wilderness trip also breaks down in another respect: while the guide, storyteller and others each contribute something to the journey, those contributions are not all of equal importance. The storyteller is of less critical importance than the paramedic. Similarly, in the case of a university, not all ways of being different are of equal importance to the overarching goal of the institution. The term "diversity" has become something of a mantra. But why is diversity preferable to nondiversity? Clearly, as a general rule the number of people who contribute to a project, the greater the likelihood that good ideas will be presented; i.e., by increasing the quantity of ideas one is likely to increase the quality. But there are limitations to this truth - it presupposes that excellent ideas are equally distributed amongst all groups and that those persons whose job it is to distinguish better from worse ideas are competent to perform that task. Proponents of diversity may be committing the same error which James Fitzjames Stephen imputed to John Stuart Mill - confusing the proposition that "variety is good with the proposition that goodness is various." Perhaps the attraction of diversity as a justification for affirmative action lies in the fact that if diversity is an unqualified good, then not only minorities will benefit from affirmative action, thus making diversity becomes a selling point for everyone.

Fairness and Merit as Relative. Like Tien, Stanley Fish has argued at length that: "merit and fairness will have different meanings in relation to different assumptions and background conditions." (78) To make his point, Fish refers to the movie, "How to Succeed in Business Without Really Trying." In that film, Robert Morse works in a mailroom and his co-worker happens to be the boss's nephew. One of the two is to be elevated to the position of mailroom head, and the man who is to make the decision announces: "I've been told to choose the new head of the mailroom on merit alone." The boss's nephew responds, "That's not fair!" The nephew, according to Fish, operates on the assumption that being the boss's nephew is part of his merit. Fish concludes that:

"One would not be able to adjudicate the dispute because the opposing arguments rest upon radically opposed presuppositions about what is desirable, possible, and even real.... The boss's nephew ... would accuse the newcomer of undermining traditional family values..; the newcomer would announce that he came to expose the hollowness of the old order, of a desiccated ancien régime undergirded by little more than moldy custom and unearned privilege."(79)

Having once had an argument with a neo-Nazi, I can certainly agree that not all disputes can be successfully adjudicated. It must be assumed in advance that one is dealing with a rational human being; i.e., one who is capable of identifying relevant evidence as relevant and willing to adjust one's views in accordance with it. Note that if the nephew had believed that his work was the most meritorious, there would have been no reason for him to object to the stated criterion. The nephew might have been asked, "In what way does your family relationship to the boss qualify you to operate the mailroom?" That the owner of the company is entitled to give the position to whomever he pleases is true by virtue of his ownership, but it does not follow that the person to whom he gives it merits the position by virtue of his ability (competence) to perform the job effectively. Why Fish cannot draw this simple distinction is beyond me. It is not clear in this case that the nephew considers his relation to the owner to be a matter of merit rather than simple desert. The meaning of words is indeed elastic, but not infinitely so - the nephew may use words in any way he pleases, but there is still a difference between sophistry and philosophy. Fish (like MacIntyre) assumes that radically opposed presuppositions cannot be bridged, but does the existence of radically opposed presuppositions signify an unbridgeable conflict, or is it that when a conflict proves to be unbridgeable, we conclude that it is based on radically opposed (unbridgeable?) presuppositions?

Fish further holds that: "A policy of fairness that was fair to everyone could be devised only if everyone's interests and perspectives were the same; but if everyone were the same ... there would be no problem because there would be no politics and the question of fairness would never arise."(80) One might have thought the point of developing a policy of fairness was precisely to mediate competing interests and perspectives. Fish seems to postulate a dichotomy here: either one has access to transcendent truths by virtue of possessing a god's-eye view, or we are forever embattled due to our having incommensurable perspectives. The ramifications of this view for practice would seem to be considerable. What would be its relevance to the judicial system? Imagine that a criminal steals an old woman's purse and knocks her down, injuring her. Presumably, the criminal and his victim would have quite different opinions concerning what would constitute a fair punishment, given that their interests would be different. Imprisonment deprives the criminal of his freedom, while at the same time increasing for would-be victims the freedom of movement which accompanies a sense of security. I fail to see how any punishment could be considered non-arbitrary on the basis of Fish's view. Also, the phrase "fair to everyone" is ambiguous, as it can mean either "objectively fair" or "perceived as fair." And why is fairness determined by perspectives and interests without considering desert?

Since Qualifications Are Undeserved, So Are the Benefits That Flow from Them. On the matter of desert, Wasserstrom revisits an argument first propounded by Rawls:

"Most of what are regarded as the decisive characteristics for higher education have a great deal to do with things over which the individual has neither control nor responsibility: such things as home environment, socioeconomic class of parents, and of course the quality of the primary and secondary schools attended. Since individuals do not deserve having had any of these things vis-à-vis other individuals, they do not, for the most part, deserve their qualifications. And since they do not deserve their abilities they do not in any strong sense deserve to be admitted because of their abilities."(81)

First, class is not as much a factor as is often assumed. Black students whose parents have a high income barely match low income Asians on the SAT.(82) Secondly, leaving aside the question of whether it is necessary to be qualified in a "strong sense" in order to deserve admission, this view assumes that in order to deserve X, you must deserve whatever enabled you to acquire X. Does this follow? Suppose I find some money on the street which I use to purchase a book. Does it makes sense to say that I do not deserve the book because I did not deserve the money? It is difficult if not impossible to determine how much of a person's abilities (or lack thereof) is due to environmental opportunity, natural ability, cultural background, and how much to hard work at self-improvement - in short, how much to things over which one does or does not have control. In the case of having worked hard to achieve some desirable goal, one clearly can be said to deserve both a measure of praise and recognition of one's dedication as a virtuous character trait; in the case of native talent, one may deserve a position not because of one's efforts, but simply because of what it permits one to offer. We may be appreciative of such persons without being admiring. (Of course it is rare that native talent without hard work is sufficient to make one noteworthy.)

As an amateur pianist, I know that concert artists typically begin as a child prodigy (i.e., by virtue of native talent) and must practice on average eight hours a day, seven days a week over a period of many years in order to develop and refine their talent. Now clearly they were not the cause of their being prodigies, but that is irrelevant to the fact that any of them is far more deserving of a position as professor of piano or of a concert engagement than I. In enumerating things over which one has no control, Wasserstrom conspicuously omits native talent - does he think we are born as a tabula rasa? Ronald Dworkin writes: "Color bars and Jewish quotas were not fair because they made race or religion relevant or because they fixed on qualities beyond individual control. It is true that blacks or Jews do not choose to be blacks or Jews. But it is also true that those who score low in aptitude or admissions tests do not choose their level of intelligence."(83) Presumably, we are supposed to conclude that since it would be wrong to discriminate against Jews and blacks, given that they "do not choose to be blacks or Jews," it would be equally wrong to discriminate against those who score low in aptitude, as they "do not choose their level of intelligence." But the fact that a lack of intelligence is undeserved does not imply that it is unjust, unless we presuppose that the cosmos was supposed to parcel out all abilities in equal measure to everyone. (Thomas Nagel speaks oddly of "the great injustice of the smart and the dumb."(84)) One's abilities are not a function only of inborn traits and environmental influences; it is simply untrue that one is wholly without responsibility for one's abilities. Moreover, some traits over which we have no control (e.g., race, gender) are not relevant to desert, while others (e.g., native ability) are. If I understand Dworkin correctly, he is implying that it would be wrong to exclude a person who is lacking in ability if they are not responsible for that lack of ability. This is somewhat vague. I may lack an ability either because I was born without talent to develop, because I was too lazy to develop my talent, or because I was deprived of any opportunity to develop my latent talents. Perhaps Dworkin has the latter sort of case in mind. Then again, he speaks of intelligence, something we normally think of as inborn, so I am not sure.

Wasserstrom similarly claims that: "there is no reason to think that there is any strong sense of 'desert' in which it is correct to say that the most qualified deserve anything."(85) For example, the best qualified tennis player, according to Wasserstrom, does not ipso facto deserve the use of a court.(86) But public tennis courts are intended for everyone's recreational purposes, regardless of one's level of expertise. Both poor and excellent players can obtain the benefits of exercise and pleasure from playing. So long as it is not one's intention to become an expert player, how well one performs is irrelevant. The purpose of professional schools, however, is to maximize expertise, so the issue of merit is relevant in this instance. Here the activity is (ideally) undertaken for the sake of others, whereas recreational activities are undertaken for one's own sake. (I say "ideally" because as Plato noted in the Republic, professions are practiced both for the sake of the practitioner and the patient, but the moral practitioner makes his own interests subservient to those of the patient.)

A similar case to that of our fictitious tennis courts is related by Stephen Carter, a black law professor at Yale:

"In 1988 ,. . . members of the Michigan legislature argued that they could tell from the numbers that the Detroit Symphony Orchestra was not doing all it could to attract black classical musicians. Only discrimination, it seems, was a possible explanation for the fact that the orchestra employs only one full-time black performer. Never mind that an entirely blind screening process was used to hire musicians; never mind that out of 5,000 orchestra bound musicians at the nation's top twenty-five conservatories, only 100 were black, of whom a normal distribution would predict that perhaps a fifth - twenty - were good enough to play in a major orchestra. The Detroit Symphony might have been the most racist institution in the world or the most racially benevolent one, but the statistics do not hold the answer."(87)

In response, Edley argues that: "What at least some people in the Michigan legislature may have believed was that the Detroit Symphony is supposed to be an exercise in community and in heterogeneous participation in culture as well as in good music making."(88) Of course the Detroit Symphony is a professional organization and there are many amateur symphonies whose purpose has as much to do with community as with good music making. So, as with the tennis court, the primary question which needs to be answered here is whether we are trying to constitute as outstanding an orchestra as possible, or should that goal be compromised in every case for the sake of community? Edley further notes that: "accepting the facts as Carter gives them to us, there's nothing wrong with legislators saying, 'We understand there are only a hundred African-American musicians in the qualified pool, but our objection is that the Symphony doesn't seem to be doing anything to expand the pool - to work with promising inner-city kids in hopes that someday a few of them can compete'."(89) But if it turns out that few whites and Asians are producing hiphop recordings, should we be concerned? If blacks on average prefer jazz, rap, rhythm and blues, etc. to classical music, is this something we need to worry about?

CRITIQUE OF TESTING

Critics of tests such as the SAT like to point out that such tests are biased in favor of those from educated white families: "Statistical studies have suggested that test scores reflect income and socioeconomic status."(90) But how is this a criticism? It may just as well be that income and socioeconomic status reflect test scores. Of course the tests favor those who have had a good education, which in many instances is to say, those who can afford a good education. But this is hardly a criticism of the tests; if anything, it is a criticism of some schools and possibly of parents who do not demand a better education for their children. (Recall the fact that the Nativity School had only a short waiting list.) And can we assume that everyone who does poorly on the SAT can attribute that fact to their having had a poor education?

Wasserstrom also claims that: "To admit the best qualified students to law school .. is primarily to admit those who have the greatest chance of scoring the highest grades.... This says little ... except perhaps that these students are the easiest for the faculty to teach."(91) But the fact that certain students are "easiest to teach" would seem to say something quite relevant about their deserving to be in school, i.e., about their likelihood of achieving a high level of competence.

Related to this claim is another charge made in recent years, viz., that tests are biased in favor of those whose backgrounds are similar to those who devise the tests. Wasserstrom imputes to Robert Havighurst the notion (reminiscent of a well-known aphorism of Xenophanes) that "if lions were to devise intelligence tests, lions would very likely turn out on those tests to be the smartest of the animals in the animal kingdom."(92) This line of thought has led to the notion that culture-specific tests ought to be devised for those who underperform on the regular ones. In other words, the problem isn't with the person (or his or her background), but with the test. But to continue the metaphor: if white males are the lions, then even on these lion-devised tests some lions nevertheless prove to be much more capable than others, not to mention that certain groups of "non-lions" outperform the lions. Historically, Jews and Asians have outperformed others, though I am unaware of any charge that the tests are biased in favor of these groups.(93) The black scholar Thomas Sowell notes: "That Jews earn far higher incomes than Hispanics in the United States might be taken as evidence that anti-Hispanic bias is stronger than anti-Semitism -- if one followed the logic of the civil rights vision. But this explanation is considerably weakened by the greater prosperity of Jews than Hispanics in Hispanic countries throughout Latin America."(94) Arthur Ashe writes: "'Cultural bias' is the phrase of choice for nationalistic blacks when their philosophy collides with the basic demands of education. If whites do better, then the test must be culturally biased. No one raises this question when the children of poor immigrants from Southeast Asia outclass native-born Americans in scholastics."(95) FFinally, if under-represented groups are being held down due to bias in tests, this suggests that over-represented groups are benefitting by virtue of the same bias, which implies that these over-represented groups are the beneficiaries of some nefarious conspiracy.95a

Although when the history of American blacks is discussed, slavery is often regarded as the defining moment in that history, it has long seemed to me (mainly on the basis of readings in anthropology) that deprivation of freedom and economic opportunity did not in fact constitute the defining moment of black history in America; rather, it was cultural deprivation.(96) The slaves' native religions, languages, customs, etc., were proscribed, while at the same time they were forbidden to adopt the culture into which they were forcibly introduced, thereby stripping them of all identity other than mere color. In most Southern states it was a crime to educate a slave and later, blacks were systematically subjected to inferior educations. Many inequities which affirmative action is meant to address amount to a continuing legacy of this. Thus, black history in America tended to prevent black persons from becoming an educationally oriented culture, and one might therefore argue (as would I) that society owes blacks a special debt in this regard, such as special attention to the quality of education in predominantly black communities. It is difficult to justify the Pentagon receiving more money than it asks for, while schools crumble physically and intellectually.(97) Society continues to be despicably lax in its educational disadvantaging of minorities. I refer to the distribution of taxes to school systems, such that students in wealthy communities receive educations superior to students in poorer communities. Unfortunately, impoverished communities lack the sort of lobbying clout of General Electric. There can be no pretense of equal opportunity so long as such inequities continue.

Perhaps the most important question here is whether the SAT test keeps minorities out of college. An article in Education Week states:

"[F]ar from being biased against minority students, standardized admissions tests consistently predict higher levels of academic performance than most blacks actually achieve," say William G. Bowen and Derek Bok in their recent book, The Shape of the River.... ("Book Cites Benefits of Race-Based College Admissions," Sept. 16, 1999.) Educational researcher Robert L. Linn made a similar statement in a 1983 paper. This well-established finding undermines the claim that removing SAT requirements would be effective in boosting the enrollment of well-prepared black and Latino students.(98)

ROLE MODELS

According to Leslie Francis: "The argument that minority and women faculty are important as role models is based partially on the claim that they will encourage students to follow in their footsteps. But it is also based on the claim that they are likely to be more sensitive to the learning styles and values of different kinds of students."(99) My initial reaction upon reading this was one of self-pity. I recalled how every one of my elementary school teachers had been an elderly woman; thus, it appears that I was deprived of teachers who may have been more sensitive to my (young male) "learning style." Later, in high school, there were a few male teachers, but alas, they were gay. Again, role model deprivation for a straight guy like myself. The more I reflect on this, the more cheated I begin to feel. As for the claim that students will be encouraged to follow in the footsteps of teachers (dare we say) like themselves, I have consistently warned white male students who have expressed an interest in philosophy against following in my footsteps. (Recently, I mentioned to the secretary of the Tufts University philosophy department that I no longer bother to apply for teaching positions, as I am a white male. Her response: "I know what you mean.") Carol M. Swain, a black professor of Law and Political Science at Vanderbilt writes:

"Too many minority youth, I suspect, are being told by well-meaning people to believe that they need role models that look like them before they can realistically aspire to a particular job or skills level. If Tiger Woods had shared such a view about golf, we might never have heard of him. (Throughout his youth, we learned, Jack Nicklaus, a blond-headed white man, was the person he aspired to emulate.)...
I believe that the role model justification for racial preferences is perhaps the weakest and most problematic of all. Other things being equal, role models of one's own race may have advantages over others, but 'other things' are rarely equal. What is true is that young people need guidance, nurturance, and encouragement from qualified and caring adults to take an active interest in their future. The race of the mentor role model seems to me to be of secondary importance, if it is of any importance at all."
(100)

Francis examines in great detail the myriad of ways in which unintentional discrimination "may" (a small but very important word here) take place. I would suggest that a similar analysis ought to be applied to the ways in which human beings acquire the sorts of abilities which would entitle them to (or at least justify their receiving) desirable positions, since if it is the case that voluntary forces are at work, which in effect "track" people in different life directions, then this is something that would need to be considered when examining the merits of preferential programs. Francis questions the very purpose of a university and thereby questions whether the traditional criteria for faculty selection are justifiable:

"Suppose we say that faculty should be capable of enhancing learning at the highest level. Does this mean a focus on research, teaching or both? Does it mean research in fields as traditionally defined, or in newer fields such as feminist theory, critical legal studies or international political economy? Does it mean graduate teaching, undergraduate teaching, or teaching nontraditional students? Different abilities are relevant to these different purposes. Race or sex may be closely linked with these abilities."(101)

At this point, I must confess that I am lost. Nowhere does Francis make a case that race or sex may be "closely linked with these abilities." Nor do I see why one should assume they would be. Shall we assume that older teachers will do better with older students? Will handicapped teachers do a better job with handicapped students? Will black researchers necessarily be better at researching the black community or teaching black students?

CONCLUSION

In this article I have suggested that (1) those arguments in favor of preferential treatment examined above are weak or raise more questions than they answer, and that (2) society ought to be concerned with rectifying past and present inequalities which are rooted in the socioeconomic system (such as the distribution of funds to school systems), but that our ideal of gender- and race-neutrality ought not to be abandoned (at least not in the selection of candidates whose future performance may have serious consequences for others). "The problem," writes journalist William Raspberry, "is how to correct for America's racist history while maintaining a sense of present-day fairness."(102) Raspberry has it quite right in my view. External factors which have prevented blacks from achieving what they otherwise might achieve are inferior education, poorly conceived social programs and discrimination. Discrimination can be fought, e.g., by the use of testers such as those mentioned early in this paper. Those whose task it is to select from among a pool of such applicants must consider first which applicant will ultimately prove to be the most competent practitioner, scholar, etc., from among those applying. This is, admittedly, far from an easy task, but there are certainly indicators - however imperfect - upon which one can rely.

NOTES

1. In Francis J. Beckwith and Todd E. Jones, eds, Affirmative Action: Social Justice or Reverse Discrimination? (Amherst, NY: Prometheus, 1997), p. 231.

2. Chiang-Lin Tien, Chancellor of the University of California at Berkeley, was quoted as saying that it is possible for his university to achieve "excellence through diversity." When asked what that slogan means, he dodged: "Excellence is very subjective ... different people have different views." Asked whether the notion of excellence in his slogan referred to the traditional understanding of a single measure of excellence, Tien said: "Excellence is not absolutely standard. You have to judge excellence within the social and economic environment. These environments are changing. What we mean by excellence today could be very different from what we will mean 15 years from now." Had Plato included such a vapid response in his dialogues, one can easily imagine Tien being portrayed as a sophist whose definition of excellence ironically embodies non-excellence (and, one might say - paraphrasing Arendt - the evil of banality), despite the fact that his own position requires an understanding of excellence if it requires anything. Suppose that Tien had instead been asked whether he considered his university to be excellent. How likely is it that he would have said, "Excellence is very subjective"? Quotes from Angela Browne-Miller, Shameful Admissions: The Losing Battle to Serve Everyone in Our Universities (San Francisco: Jossey-Bass, 1996), p. 203; 205.

3. Francis J. Beckwith, and Todd E. Jones, eds. Affirmative Action: Social Justice or Reverse Discrimination? (Amherst, NY: Prometheus, 1997), p. 40.

4. Mildred Garcia, ed. Affirmative Action's Testament of Hope: Strategies for a New Era in Higher Education (Albany: SUNY, 1997), p. 4.

5. I include as "innocent" persons who are recipients of certain advantages over which they had no control. Thus, a child born into a family whose wealth allows him to attend Choate and Harvard is clearly advantaged over the average inner city child, but is nonetheless innocent and can be unjustly harmed by reverse discrimination. None of this says anything about what society owes the inner city child by virtue of his or her disadvantaged condition.

6. Michel Rosenfeld, Affirmative Action and Justice: A Philosophical and Constitutional Inquiry (New Haven: Yale UP, 1993), p. 108.

7. In the case of many of the professions, there is in principle no upper limit to one's level of achievement. One may even revolutionize one's field, whereas in the case of manual labor, e.g., it is usually necessary only that one possess a certain minimal level of competence; hence a stronger case can be made for preferential treatment in those instances where merit is of less critical importance.

8. In the Bakke Case, the Washington state attorney general, Slade Gorton, held that the University could give special preference to targeted minority applicants because there was a compelling state interest in overcoming the consequences of centuries of racial and ethnic discrimination. One could question this argument first, by asking whether such a compelling state interest exists (I agree that it does) and secondly, whether the sort of program maintained by the University would both effectively and fairly address that interest (I will argue that it does not).

9. One study, however, showed that whites' perceptions of blacks' moral character is influenced by whether whites believe blacks are receiving special preferences. Darien A. McWhirter, The End of Affirmative Action: Where Do We Go from Here? (NY: Birch Lane, 1996), p. 72.

10. Rosenfeld, Affirmative Action and Justice, p. 99.

11. Wasserstrom, "A Defense of Programs of Preferential Treatment," in Jan Narveson, ed., Moral Issues (New York: Oxford University Press, 1983), p. 395, f.

12. Valora Washington and William Harvey, Affirmative Rhetoric, Negative Action (Washington: George Washington UP, 1989), p. 3.

13. A number of law clerks in the Bakke case noted in their bench memos that defenders of the U.C. Davis program offered no alternatives to that program which might serve to increase racial diversity. See Howard Ball, The Bakke Case: Race, Education and Affirmative Action (Lawrence, KA: U. of Kansas, 2000), p 90, f.

14. Philip S. Foner, ed., The Life and Writings of Frederick Douglass (New York: International, 1955), pp. 280-81; 67-68.

15. "The University and the Case for Preferential Treatment," in William T. Blackstone and Robert D. Heslep, eds., Social Justice and Preferential Treatment (Athens, GA: University of Georgia Press, 1978), p. 26.

16. Celia Wolf-Devine, Diversity and Community in the Academy, p. 38. Ann Hartle writes: "Differences of sex, race, and ethnic background do not guarantee differences in intellectual perspective. On the contrary, while diversity of appearances is pursued as the highest academic value, diversity of thought is avoided and discouraged." "Who 'Counts' on Campus?," in Steven Cahn, Affirmative Action and the University: A Philosophical Inquiry (Philadelphia: Temple UP, 1993), p. 133. Numerous studies have shown that professors in the humanities and social sciences are overwhelmingly liberal by their own description. Moreover, since minorities tend to be overwhelmingly liberal, affirmative action in effect "stacks the deck" in favor of a left-wing professoriate.

17. "Hecklers in the ornate lobby of the Peabody Hotel were making placards branding Thomas as a traitor." Boston Globe, July 30, 1998, p. A18. In some cases threats on lives have been made: "How do you have the audacity to sit up here and support white America? You should be happy that you are walking out of here alive, because there are brothers that are tired of people selling out. And you better watch your back." Los Angeles Times, May 31, 1998.

18. Joseph G. Conti and Brad Stetson, Challenging the Civil Rights Establishment: Profiles of a New Black Vanguard (Westport, CT: Praeger, 1993), p. 22.

19. Conti, Challenging the Civil Rights Establishment, p. 86.

20. Quoted in Michael W. Combs and John Gruhl, eds., Affirmative Action: Theory, Analysis, and Prospects (Jefferson, N.C. : McFarland & Co., 1986), p. 27. Bakke v. Regents of the University of California, 18 Cal. 3d. 34 4(1976):83.

21. "Reverse Racism, or How the Pot Got to Call the Kettle Black." The Atlantic (November, 1993).

22. Justice Lewis Powell in the Bakke case, quoted in Nieli, p. 199.

23. "To Fulfill These Rights" in Beckwith, p. 57.

24. "To Fulfill These Rights" in Beckwith, p. 61.

25. See, e.g., Rosenfeld, p. 288.

26. Edley, p. 116.

27. "Affirmative Action in Context," in George Curry, ed., The Affirmative Action Debate (Reading, MA: Addison Wesley, 1996), p. 34. I would tend to agree that many opponents of affirmative action do not do enough on the ground to aid minorities. One exception is the conservative activist and attorney, Clint Bolick, who does pro bono work for the poor. Bolick, author of The Affirmative Action Fraud, sued to knock down laws that prevented the operating of small businesses in minority communities. His Institute for Justice helped win a legal battle that allowed 15,000 poor children in Milwaukee to use public vouchers to attend parochial schools, despite opposition from the NAACP, civil liberties groups and teachers' unions. Bolick had black parents on his side: the Milwaukee Community Journal, a black newspaper, found that 90 percent of black parents supported the voucher program. The Wisconsin Supreme Court ruled that the 15,000 mostly black, poor kids could use public vouchers to attend parochial schools (Atlanta Journal, October 6, 1998). According to Newsweek, black students from private and parochial schools score higher on standardized tests than those from public schools (Sept. 14, 1998, p. 65). But since blacks are generally poorer than whites, they are less able to afford such private schools. Significantly, more demanding courses were correlated with higher scores.

28. Boston Globe, Jan. 4, 1998, p. A1.

29. Tom L. Beauchamp, "The Justification of Reverse Discrimination," in William T. Blackstone and Robert D. Heslep, eds., Social Justice and Preferential Treatment (Athens: University of Georgia Press, 1977), p. 90.

30. Judith Jarvis Thomson, "Preferential Hiring," in Steven M. Cahn, ed., The Affirmative Action Debate (New York: Routledge, 1995), p. 60. The same point is made by Naomi Zack, Thinking About Race (Belmont, CA: Wadsworth, 1998), p. 54f.

31. Zelnick, Backfire, p. 7.

32. Alphonse Pinkney, Black Americans (Englewood Cliffs, NJ: Prentice Hall, 1987), p. 148

33. See Lawrence Otis Graham, Our Kind of People: Inside America's Black Upper Class (NY: HarperCollins, 1999); J. S. Butler, Entrepreneurship and Self-Help Among Black Americans: A Reconsideration of Race and Economics (NY: SUNY, 1991); Willard B. Gatewood, Aristocrats of Color (Bloomington, IN: Indiana UP, 1990), which contains an extensive bibliography.

34. The Small Business Act, 72 Stat. 384 defines "socially disadvantaged individuals" as "those who have been subjected to racial or ethnic prejudice or cultural bias because of their identity as a member of a group without regard to their individual qualities," 8(a)(5), 15 U.S.C. 637(a)(5).

35. See William Tucker, "All in the Family," in John Arthur and Amy Shapiro, eds., Color Class Identity (Boulder, CO: Westview, 1996), p. 129.

36. Quoted in Browne-Miller, p. 9.

37. Miranda Oshige McGowan, "Diversity of What?," in Robert Post, ed., Race and Representation (NY: Zone, 1998), p. 240.

38. McGowan, "Diversity of What?," in Robert Post, Race and Representation, p. 244.

39. Boston Globe, Nov. 1, 1998. For further information on such schools, see "Outstanding High Schools," in U.S. News and World Report, Jan. 18, 1999.

40. James Nickel, "Discrimination and Morally Relevant Characteristics," in B. Gross, ed., Reverse Discrimination (Buffalo: Prometheus, 1977), pp. 286-93. As Christopher Edley makes the point: "those who embrace color blindness, objecting to any race-based targeting, refuse to look back and see that because yesterday was non-neutral, tomorrow must be non-neutral in order to right the balance." Not All Black and White, p. 86. However, this is not an argument for any particular method of dealing with disproportion in a non-neutral manner.

41. In some situations, one's race or gender may be relevant to whether one ought to be given a position; e.g., we might prefer a woman for the role of Juliet even if her acting ability is somewhat less than that of an available male actor. But such cases are relatively rare.

42. David Horowitz, "Hate Crimes Go Both Ways," in Salon Magazine (10/26/98): http://www.salonmagazine.com/news/col/horo/1998/10/26horo.html

43. In point of fact, a vast number of Americans have taken legal steps to deal with their grievances, which explains why America has 281 lawyers per 100,000 citizens, while Japan has 11 per 100,000. Examples of grievances include: the claim that gambling with other people's money is a handicap; a young man is killed while driving a car he stole, and his parents sue the proprietor of the parking lot for not having taken steps to prevent such thefts; McDonald's is sued for not providing seating large enough for a man with a 60-inch girth; a 640 pound contractor demands to be classified as a minority-group bidder (even though he cannot visit job sites and falls through wooden steps). All this information can be found in Charles Sykes, A Nation of Victims (New York: St. Martin's 1992), pp. 3-10; 14.

44. Thomas Nagel, "Equal Treatment and Compensatory Discrimination," in Marshall Cohen, et.al., eds., Equality and Preferential Treatment (Princeton, NJ: Princeton UP, 1977), p. 16.

45. Randall Kennedy, "Persuasion and Distrust" in Nieli, p. 54. Those excluded do not consider it incidental to their lives. For discussion of its impact, see Frederick Lynch, Invisible Victims: White Males and the Crisis of Affirmative Action (New York : Greenwood Press, 1989).

46. Richard Wasserstrom, "A Defense of Programs of Preferential Treatment," in Jan Narveson, ed. Moral Matters (NY: Oxford UP, 1983), p. 394. First published in the UCLA Law Review, 1977. In the Marco deFunis case, Judge Lloyd Shorett of the Washington Superior Court for King County upheld deFunis' claim that he been denied equal protection of the law when denied admission to the University of Washington Law School. The University appealed to the Washington Supreme Court and by a vote of 6 to 2, the Court reversed Shorett's order. The majority argued that positive or benign discrimination is not invidious discrimination, which is barred by the 14th Amendment; hence Bakke was not denied his rights under the Fourteenth Amendment. See Howard Ball, The Bakke Case: Race, Education and Affirmative Action (Lawrence, KS: Univ. Press of Kansas, 2000), p. 27.

47. Quoted in Robinson, p. 207.

48. Bob Zelnick, Backfire (Washington: Regnery, 1996), p. 151. A parallel example: "In New York City, where the last examination for promotion to police sergeant was passed by 10.1 per cent of whites, 4.4 per cent of Hispanics, but only 1.7 percent of blacks, the city has agreed to scrap the test and promote its quota of blacks. The test, they say, is illegally discriminatory since fewer blacks passed...." Glenn Loury, "Beyond Civil Rights," in Russell Nieli, ed., Racial Preference and Racial Justice (Washington: Ethics and Public Policy Center, 1991), p. 448. Of course the test is discriminatory; every test aims at discriminating between those who are more capable of a given task and those who are less so.

49. "[N]early every African shipped overseas had first been enslaved by other Africans." James McPherson, quoted in Jim Sleeper, Liberal Racism (New York : Viking, 1997), p. 107. See also Roland Oliver, The African Experience (NY: HarperCollins, 1993).

50. Cited in Jim Sleeper, Liberal Racism (NY: Penguin, 1997), p. 107.

51. See Larry Koger, Black Slaveowners (Columbia, SC: U. of South Carolina, 1985).

52. Walter Feinberg, On Higher Ground: Education and the Case for Affirmative (NY: Teachers College Press, 1997), p. 58.

53. Albert G. Mosley, and Nicholas Capaldi. Affirmative Action: Social Justice or Unfair Preference? (Lanham, MD: Rowman and Littlefield, 1996), p. 51. According to John Arthur: "since we have no reason to believe that differences in performance can be explained by factors other than history, equal results are a good benchmark by which to measure progress made toward genuine equality." The Unfinished Constitution (Belmont, CA: Wadsworth), p. 238. The same argument is given by R. Fiscus in The Constitutional Logic of Affirmative Action (Durham, NC: Duke UP, 1992), p. 180.

54. Relevant cases include: Rios v. Enterprise Association Steamfitters Local 698 (1984); Millken v. Bradley (1974).

55. See, e.g., Ellen Winner and Jim Nuzzo, "Gifted Students Need Help, Too." Boston Globe, Jan. 4, 1998.

56. Thomas Sowell, Preferential Policies, p. 132 and his "Weber and Bakke, and the Presuppositions of 'Affirmative Action'," in W.E. Block and M.A. Walker, eds., Discrimination, Affirmative Action and Equal Opportunity (Vancouver: The Fraser Institute, 1981).

57. James Comer, a professor of child psychiatry at Yale University thinks blacks often undermine their own development. When he was a student half a century ago, recalls Comer, the black community "supported and expected high achievement." He would like to see that spirit renewed. Newsweek, Sept. 14, 1998, p. 65.

58. I strongly recommend William Damon, Higher Expectations (NY: Free Press, 1996).

59. Gertrude Ezorsky, Racism and Justice (Ithaca: Cornell UP, 1991), p. 56. Bernard Boxill makes the same argument in his Blacks and Social Justice (Totowa, NJ: Rowman and Allanheld, 1984), p. 156f.

60. Mosley, p. 47. My emphasis.

61. Rosovsky, p. 67, n.1.

62. Browne-Miller, p. 72.

63. Conti, p. 102.

64. http://www.tsowell.com/sp061898.html

65. Browne-Miller, p. 155.

66. This attitude is reflected in the use of course evaluations by students. For an excellent overview of the effect of evaluations on academia, see letters written to the Chronicle of Higher Education by professors describing their experiences at: http://chronicle.com/colloquy/98/evaluation/01.htm.

67. James L. Robinson, Racism or Attitude?: The Ongoing Struggle for Black Liberation and Self-Esteem (NY: Insight, 1995), p. 74f.

68. Bowen and Bok find that all black applicants with combined SAT scores of 1500 or better were admitted to top colleges, but only about 60 percent of similarly qualified white students were admitted. Also, 75 percent of black students with SATs of 1200-1249 were admitted, as compared with only 25 percent of their white counterparts. Finally, about 40 percent of whites with SAT scores of 1500 or better were rejected while 75 percent of blacks with (much lower) SAT scores of 1250-1299 were accepted. William G. Bowen and Derek Bok, The Shape of the River (Princeton UP, 1998), p. 27.

69. Nieli, p. 51.

70. Boston Globe, Dec. 20, 1998.

71. Henry Rosovsky, The University (NY: W.W. Norton, 1990), p. 64.

72. Zelnick, p. 147. Among applicants with combined SATs of 1100-1199, 22 percent of all legacies were accepted, versus 18 percent of all white applicants but 40 percent of all black candidates. At combined SAT levels of 1300 or greater, 60 percent of legacies are admitted, 70 percent of blacks are admitted, and 24 percent of all non-legacies are admitted. Bok and Bowen, The Shape of the River, p. 28.

73. Charles R. Lawrence III and Mari J. Matsuda, We Won't Go Back: Making the Case for Affirmative Action (Boston: Houghton Mifflin, 1997), p. 100.

74. Lawrence, p. 100. "Traditional criteria may be poor measures of skills or may be based on controversial views about the purposes of the university.... Criteria other than traditional ones may be relevant if we view the university as multifaceted or if we think that corrective measures are sometimes justified." Leslie Pickering Francis in Cahn, Affirmative Action and the University, p. 37.

75. For more information on this, see Dinesh D'Souza, The End of Racism (NY: Free Press, 1995), pp. 499-502.

76. John H. McWhorter, Authentically Black: Essays for the Black Silent Majority (Gotham Books, 2003), p. 142.

77. The Washington Post, December 14, 1998, p. A23.

78. Stanley Fish, There's No Such Thing As Free Speech: And It's a Good Thing, Too (Oxford UP, 1994), p. 4.

79. Fish, p. 6.

80. Fish, p. 12.

81. Ibid., p. 320. This argument was formulated earlier by John Rawls in A Theory of Justice (Harvard UP, 1971), pp. 101-4. Rawls concludes that since no one really deserves whatever allows them to achieve, it must be just to redistribute the fruits of those achievements. But if the individual bearer of such qualities has no right to them, why should society at large?

82. Andrew Hacker, Two Nations: Black and White, Separate, Hostile, Unequal. NY: Ballantine, 1992), p. 146.

83. Ronald Dworkin, "Are Quotas Unfair?," in Nieli, p. 187. The view is also held by Joel Feinberg, Social Philosophy (Englewood Cliffs, NJ: Prentice Hall, 1973), pp. 112-17.

84. In Marshall Cohen, et. al., eds., Equality and Preferential Treatment, Princeton UP, 1977), p. 17.

85. Wasserstrom, "A Defense of Programs of Preferential Treatment," p. 396.

86. Lawrence offers a parallel argument, p. 104.

87. Quoted in Christopher Edley, Not All Black and White: Affirmative Action and American Values (NY: Hill and Wang, 1996,) p. 110.

88. Edley, p. 110.

89. Edley, p. 111.

90. Francis, p. 37; Lawrence, p. 99.

91. Wasserstrom, "A Defense of Programs of Preferential Treatment," p. 319.

92. Wasserstrom, "The University and the Case for Preferential Treatment," @ p. 20f. American Philosophical Quarterly (April 1976), 13(2): 165-170.

93. Stanford sociology professor Stanford M. Dornbusch found that Asian American males spent an average of 11.7 hours per week doing homework, while the white males in his study spent an average of 8.6 hours. See John Bunzel and Jeffrey Au, "The Asian Difference," in Nieli, p. 465. On how affirmative action has resulted in caps on Asian-American admissions, see Jayjia Hsia, "Limits of Affirmative Action: Asian American Access to Higher Education" in Donald Altshiller, ed., Affirmative Action (New York: H.W. Wilson, 1991), pp.76-95.

94. Sowell, "From Equal Opportunity to Affirmative Action," @ p. 107 .

95. Arthur Ashe, Days of Grace: A Memoir (Ballantine, 1994), p. 150. "Differences in scores cannot be attributed to predictive bias in the tests. Indeed, predictions made using test scores and high school grades actually overstate the later performance of blacks relative to whites. Compared to whites with the same test scores, blacks on average underperform in college, in graduate schools, and on some measures of job performance.... Extensive study of the causes of this phenomenon is needed, which has been inhibited by understandable sensitivity surrounding discussions of racial differences and academic achievement." Robert Klitgaard, Choosing Elites (NY: Basic Books, 1985), p. 176. Klitgaard is Associate Professor of Public Policy at Harvard.

95a. For a full discussion of this, see Daniel A. Farber and Suzanna Sherry, Beyond All Reason: The Radical Asault on Truth in American Law (NY: Oxford UP, 1997).

96. Not all black persons in America share a common history. Some were freed by the Emancipation Proclamation, others prior to that time, and still others have come from the West Indies. Those freed before the Proclamation "had a history, a culture and a set of values that continued to distinguish their descendants from other Negroes, well into the twentieth century." See Thomas Sowell, Ethnic America, (NY: Basic, 1983), p. 184. Wolf-Devine notes that: "Only 25 percent of free Southerners have any connection with slavery either through family ties or direct ownership"( p. 62).

97. I had long wondered why the black community did not make it a policy to sue communities which were providing inferior educations to their children, and recently the Boston Globe reported that minority public school students in New York have filed a discrimination suit for failing to provide qualified teachers and other essential services to schools with high minority enrollments.

98. Rebecca Zwick, "Backdoor Affirmative Action," http://www.edweek.org/ew/ewstory.cfm?slug=22zwick.h18. Zwick is professor of education at the University of California, Santa Barbara, and an associate editor of the Journal of Educational and Behavioral Statistics.

99. Francis, p. 31.

100. Carol M. Swain, The New White Nationalism in America: Its Challenge to Integration (Cambridge University Press 2002), p. 171. The recent book by sociologist Stephen Cole, Increasing Faculty Diversity: The Occupational Choices of High-Achieving Minority Students (Harvard U. Press), supports the view that the race of a student's teacher is irrelevant in order to serve as a role model.

101. Francis, p. 37.

102. St. Louis Post-Dispatch, April 28, 1991.