Affirmative action is often implemented as a way of making redress to victims of past injustices. But critics of this practice have launched a three-pronged assault against it. Firstly, they point out that beneficiaries of preferential policies tend not to benefit to the same extent as they were harmed by past injustices. Secondly, when its defenders point to the wider benefits of affirmative action , critics maintain that such ends could never be sufficiently weighty to permit violating equal (...) treatment. And, thirdly, critics dispute whether the alleged benefits of affirmative action really ensue. I argue this three-pronged assault is flawed at the conceptual level. Firstly, it operates with an impoverished conception of redress. When X wrongs Y, X does not make exhaustive redress to Y by compensating Y for the harm Y suffered due to X’s wrong action. Redress also requires rectification of the wrong: X must put right the wrong done to Y by making adequate amends. While the means of compensation are determined by the extent of the harm for which compensation is due, the adequacy of amends for a wrong is less tightly controlled by the nature of the wrong. So, secondly, it is perfectly right that the choice of amends be informed by the prospect of wider benefits. Whether, thirdly, these benefits are in fact in prospect in the case of affirmative action is an empirical question which philosophy cannot answer. (shrink)

My paper addresses a topic--the implications of Rawls's justice as fairness for affirmative action--that has received remarkably little attention from Rawls's major interpreters. The only extended treatments of it that are in print are over a quarter-century old, and they bear scarcely any relationship to Rawls's own nonideal theorizing. Following Christine Korsgaard's lead, I work through the implications of Rawls's nonideal theory and show what it entails for affirmative action: viz. that under nonideal conditions, aggressive forms of formal (...) equality of opportunity (e.g., sensitivity training, outreach efforts, external monitoring and enforcement) and compensating support (e.g., special fellowship programs, childcare facilities, mentoring, co-op opportunities, etc.) can be justified, but that "hard" and even "soft" quotas are difficult to defend under any conditions. I conclude the paper by exploring the implications of these surprising results for contemporary liberalism more broadly and for constitutional law and public policy. (shrink)

Affirmative action programs are not justified by compensatory justice. They place a disproportionate burden on white-male applicants. White-male applicants do not owe compensation because they committed a relevant wrongdoing or because they benefitted from another’s wrongdoing. They did not commit a relevant wrongdoing. Receipt of an unjust benefit, when unavoidable and mixed with hard work, does not justify a duty to compensate a victim of the injustice. Thus, the compensatory-justice argument for affirmative action fails.

Affirmative action has been a particularly contentious policy issue that has polarised contributions to the debate. Over recent times in most western countries, support for affirmative action has, however, been largely snuffed out or beaten into retreat and replaced by the concept of ‹diversity management’. Thus, any contemporary study that examines the development of affirmative action would suggest that its opponents have won the battle. Nonetheless, this article argues that because the battle has been won on dubious (...) ethical grounds it is important that we do not allow affirmative action to sink unnoticed. This article explores and challenges the ethical and philosophical underpinnings of opponents’ views and finds their cases against affirmative action are not ethically sound. The article concludes there are strong ethical grounds for those organisations which seek to do well, to reassert affirmative action programmes in the global efforts to eradicate systemic discrimination and disadvantage. (shrink)

Affirmative action refers to positive steps taken to hire persons from groups previously and presently discriminated against. Considerable evidence indicates that this discrimination is intractable and cannot be eliminated by the enforcement of laws. Numerical goals and quotas are justified if and only if they are necessary to overcome the discriminatory effects that could not otherwise be eliminated with reasonable efficiency. Many past as well as present policies are justified in this way.

In this paper I respond to Robert Taylor's argument that a Rawlsian framework does not support strong affirmative action programs. The paper makes three main arguments. The first disputes Taylor's claim that strong AA would not be needed in ideal conditions. Private racial discrimination, I suggest, might still exist in such conditions, so strong AA might be needed there. The second challenges Taylor's claims that pure procedural justice constrains Rawlsian nonideal theory. I argue that this rests on a fetishizing (...) of pure procedural justice that is absent from Rawls's work. I also show that a revised formulation of Taylor's concern here also fails. My third argument makes a positive Rawlsian case for strong AA in nonideal conditions that builds on a Taylor concession. Taylor suggests that the goal of nonideal theory is to create a world in which ideal theory can be applied. My argument begins by showing that another permissible goal of Rawlsian nonideal theory is to ameliorate injustice. I then argue that Rawls's contractualist framework supports the strongest forms of AA when category 3 interventions are blocked. (shrink)

In the context of state educational institutions, young white males are owed a duty to respect their interest or desert tokens. Not all white males have waived this duty since many white males have not performed the relevant types of culpable wrongdoing. Merely having benefitted from an unjust injury act or being a member of a community that owe a debt of compensation to racial minorities and women are not sufficient grounds to override the duty owed to the white male. (...) Since the three most plausible attempts to provide a compensatory justice justification for strong affirmative action programs at state educational institutions fail, I conclude that the following is false. (1) Other things being equal, a state educational institution may choose to hire a less qualified candidate over a more qualified candidate because the weight given to the race or gender of the less qualified candidate relates to the elimination of a debt of compensatory justice. Hence, unless strong affirmative action programs at state educational institutions can be justified by reference to some other value, such as the value of diversity, the state ought to eliminate such programs. (shrink)

While equal opportunity for all candidates is widely recognized as a goal within academia, the implementation of specific procedures to achieve equality has resulted in vehement disputes regarding both the means and ends. To encourage a reexamination of this issue, Cahn asked three prominent American social philosophers-Leslie Pickering Francis, Robert L. Simon, and Lawrence C. Becker-who hold divergent views about affirmative action, to write extended essays presenting their views. Twenty-two other philosophers then respond to these three principal essays. While (...) no consensus is reached, the resulting clash of reasoned judgments will serve to revitalize the issues raised by affirmative action. Author note: Steven M. Cahn is Professor of Philosophy and former Provost and Vice President for Academic Affairs at the Graduate Center of the City University of New York. He has published numerous other books, including Morality, Responsibility, and the University. (shrink)

Though the common sense defense of affirmative action (or employment equity) appeals to principles of restitution, philosophers have tried to defend it in other ways. In contrast, I defend it by appealing to the notion of restitution, arguing (1) that alternative attempts to justify affirmative action fail; and (2) that ordinary affirmative action programs need to be supplemented and amended in keeping with the principles this suggests.

ABSTRACT This article attempts to show that affirmative action can be supported by the doctrine of double effect which recognises distinctions between desired and unintended effects such that the responsibility for acts falls on the side of the former rather than the latter. With this doctrine it may also be seen why affirmative action programmes cannot be simply equated with numerical quota systems, nor can they be called discriminatory, at least not under the definition of discrimination utilised.

One popular criticism of affirmative action is that it discriminates against those who would otherwise have been offered jobs without it. This objection must rely on the non- consequentialist distinction between what we do and what we merely allow to claim that doing nothing merely allows people to be harmed by the discrimination of others, while preferential programs actively harm those left out. It fails since the present effects of past discrimination result from social arrangements which result from (...) class='Hi'>actions of ours. We can be responsible for the effects of past discrimination, even without having discriminated, if we are responsible for that discrimination having those effects. (shrink)

A common concern regarding affirmative action is that it sanctions the selection of candidates whose qualifications are not the best overall and that this is inefficient or unjust or both. I argue that this concern is misguided, since there is no independent concern regarding qualifications with respect to the moral status of affirmative action. The only sense in which qualifications are not morally arbitrary—and the only sense in which there is a reason to select the most qualified candidate—is (...) purely instrumental to the promotion of moral values whose fundamental concern is not qualifications. (shrink)

This essay is about the moral and political justification of affirmative action programs in the United States. Both legally and politically, many of these programs are under attack, though they remain ubiquitous. The concern of this essay, however, is not with what the law says but with what it should say. The main argument advanced in this essay concludes that most of the controversial affirmative action programs are unjustified. It proceeds in a way that avoids dependence on controversial (...) theories of justice or morality. My intention is to produce an argument that is persuasive across a broad ideological spectrum, extending even to those who believe that justice requires these very programs. Though the main focus of the essay is on affirmative action, in the course of making the case that these programs are illegitimate, I shall defend some principles about the conditions under which it is appropriate for the state to impose on civil society the demands of justice. These principles have broader implications for a normative theory of social change in democratic societies. (shrink)

I defend impact-based accounts of institutional racism against the criticism that they are over-inclusive. If having a negative impact on non-whites suffices to make an institution racist, too many institutions (including institutions whose affirmative action policies inadvertently harm its intended beneficiaries) would count as racist. To address this challenge, I consider a further necessary condition for these institutions to count as racist—they must stand in a particular relation to racist ideology. I argue that, on the impact-based model, institutions are (...) racist if they have a negative racial impact AND this impact is legitimized by racist ideology. Racist ideologies limit social criticism of and collective action against institutions that have a negative racial impact, and in so doing, lend stability to systems of racial domination. (shrink)

Affirmative action is standardly pursued in relation to admissions to prestigious universities, in hiring for prestigious jobs, and when it comes to being elected to parliament. Central to these forms of affirmative action is that they have to do with competitive goods. A good is competitive when, if we improve A’s chances of getting the good, we reduce B’s chances of obtaining the good. I call this Competitive Affirmative Action. I distinguish this from Non-competitive Affirmative Action. (...) The latter has to do with non-competitive goods, e.g., being granted early parole or freedom from arbitrary arrest. I argue that some of the most prominent objections against affirmative action—in particular, the reverse discrimination objection and the merit objection—speak less against Non-competitive Affirmative Action. And that some of the most prominent arguments in favor of affirmative action, insofar as they justify Competitive Affirmative Action, also justify Non-competitive Affirmative Action. (shrink)

CHAPTER INTRODUCTION This study is in the form of Policy Research in the area of Foundations in Higher Education. The issue of affirmative action is both ...

There is widespread agreement among both supporters and opponents that affirmative action either must not violate any principle of equal opportunity or procedural justice, or if it does, it may do so only given current extenuating circumstances. Many believe that affirmative action is morally problematic, only justified to the extent that it brings us closer to the time when we will no longer need it. In other words, those that support affirmative action believe it is acceptable in (...) nonideal theory, but not ideal theory. This paper argues that affirmative action is entirely compatible with equal opportunity and procedural justice and would be even in an ideal world. I defend a new analysis of Rawlsian procedural justice according to which it is permissible to interfere in the outcomes of procedures, and thus I show that affirmative action is not morally problematic in the way that many have supposed. (shrink)

In this paper, I attempt to show in clear terms what I believe to be the inconsistencies inherent in adopting affirmative action as a proper philosophy for remedying the gender imbalance in contemporary African societies. I have also gestured towards the fact that apart from the issues involved in adopting affirmative action as a principle, the concept quite ironically further widens the gap it is meant to seal. In the spirit of the conversational tradition of African philosophy, I (...) excavate and interrogate a theory of equality that speaks to an indigenous Efik concept of equality. Thus, as a conversational response to the inadequacies of Affirmative Action, I have in this paper adopted ukém philosophy along with its principles of ówó and ikíkè, as an alternative model or tool for combating the ills of gender inequality. Keywords: Affirmative Action, African Philosophy, Discrimination, Gender, Ikíkè, Ukém. (shrink)

This article examines the legal arguments that may lead the Supreme Court to overrule precedent and strike down affirmative action in university admissions. Given the critical importance of a diverse physician workforce for our Nation’s health care system, the potential reversal of affirmative action admission programs in medical schools may have severe negative consequences. This article discusses the implications for health care should the Court issue an opinion restricting or eliminating affirmative action in higher education.

Choice often proceeds in two stages: We construct a shortlist on the basis of limited and uncertain information about the options and then reduce this uncertainty by examining the shortlist in greater detail. The goal is to do well when making a final choice from the option set. I argue that we cannot realise this goal by constructing a ranking over the options at shortlisting stage which determines of each option whether it is more or less worthy of being included (...) in a shortlist. This is relevant to the 2010 UK Equality Act. The Act requires that shortlists be constructed on grounds of candidate rankings and affirmative action is only permissible for equally qualified candidates. This is misguided: Shortlisting candidates with lower expected qualifications but higher variance may raise the chance of finding an exceptionally strong candidate. If it does, then shortlisting such candidates would make eminent business sense and there is nothing unfair about it. This observation opens up room for including more underrepresented candidates with protected characteristics, as they are more likely to display greater variance in the selector’s credence functions at shortlisting stage. (shrink)

A significant body of evidence shows that law schools and many elite colleges use large admissions preferences based on race, and other evidence strongly suggests that large preferences can undermine student achievement in law school and undergraduate science majors, thus producing highly counterproductive effects. This article draws on available evidence to examine the use of racial preferences in medical school admissions, and finds strong reasons for concern about the effects and effectiveness of current affirmative action efforts. The author calls (...) for better data and careful investigation of several identified patterns. (shrink)

In order to dismantle the racial and social hierarchy that is the legacy of apartheid, South Africa has followed the lead of Western liberal democracies andappropriated the discourse of affirmative action. This paper argues that current affirmative action policy fails in significant ways because it paradoxically ignores the concrete social and historical conditions of race and racism in South Africa and simply aims to normalize competition among abstract individuals by using a principle of racial neutrality The author argues (...) that social justice will only be achieved in South Africa in a context of deliberative democracy, where effective affirmative action aims at social cooperation, full participation of non-whites in decision-making, and the elimination of race as a relevant social category. (shrink)

This article investigates the hitherto under-examined relations between affirmative action, paternalism and respect. We provide three main arguments. First, we argue that affirmative action initiatives are typically paternalistic and thus disrespectful towards those intended beneficiaries who oppose the initiatives in question. Second, we argue that not introducing affirmative action can also be disrespectful towards these potential beneficiaries because such inaction involves a failure to adequately recognize their moral worth. Third, we argue that the paternalistic disrespect involved in (...) affirmative action is alleviated when the potential beneficiaries’ preferences against such initiatives are adaptive. We conclude that although there is a relevant sense in which paternalistic affirmative action is disrespectful, it may well be more disrespectful not to pursue such policies. (shrink)

I defend affirmative action on the ground that it increases certain people’s ability to exercise their basic liberties, rather than because it rectifies injustice in the narrow context of educational admission procedures. I present this justification using a Rawlsian contractualist framework to forge a “nonideal principle of justice.” Drawing on social science, I argue that this principle supports affirmative-action policies like those in the contemporary U.S., and blocks the objection that such policies are unfair. In closing, I show (...) how my account can be used to refine some features of contemporary affirmative-action policies, and I reflect more generally on the value of nonideal principles of justice for tackling exigent topics. (shrink)

This article provides a framework for comparing meritocratic and affirmative action admissions policies. The context of the analysis is admissions to public universities; admission rules are evaluated as part of the public investment problem faced by a state government. Meritocratic and affirmative admissions policies are compared in terms of their effects on the level and distribution of human capital. I argue that (a) meritocratic admissions are not necessarily efficient and (b) affirmative action policies may be efficiency enhancing (...) relative to meritocratic ones. Both these claims, as well as their negations, depend on features of individual behavior for which there is little empirical evidence. The implications of this absence of evidence are then explored, with a focus on policy evaluation when equality and efficiency are both desiderata. I argue that standard statistical decision theoretic approaches do not apply to the affirmative action case, even if equality and efficiency are rendered commensurable based on a scalar payoff function. In this context, I suggest that a presumption for equality-enhancing policies leads to support for affirmative action, but I emphasize the contingent nature of this conclusion. Key Words: affirmative action • meritocracy • college admissions • efficiency. (shrink)

While affirmative action programs exist for a number of groups, little serious consideration has been given to the establishment of such programs for gay men and lesbians. This essay argues that many of the conditions that justify current affirmative action programs would also justify their extension to gay people, both in terms of compensation for injuries suffered and in terms of benefit to both individuals and society generally. It is argued that anti-discrimination policies are hard to enforce and, (...) in any case, would be inadequate to redress many of the wrongs suffered by gays and lesbians. It is concluded that programs favoring gay visibility are morally justified. (shrink)

The “diversity” framework the Supreme Court has imposed on affirmative action weakens its justice import in theory and practice. The increasing alignment of wealth with attendance at selective institutions betokens a diminishing quality of student at those institutions. So some of the perceived advantages of affirmative action rely on an increasingly false sense of the quality differences between more and less highly-ranked institutions. Aligning those rankings with the quality of student (and quality of instruction at the different kinds (...) of institution) would have the net effect of benefiting black and Latino students as a group. More generally, improving the quality of education and the standing of less selective higher education institutions is an urgent racial educational justice challenge of the current moment, from which affirmative action diverts attention. (shrink)

This chapter contains sections titled: Forward‐looking Arguments Backward‐looking Arguments.

This article is about the potential justification for deploying some form of affirmative action (AA) in the context of healthcare, and in particular in relation to the pandemic. We call this Affirmative Action in healthcare Resource Allocation (AARA). Specifically, we aim to investigate whether the rationale and justifications for using prioritization policies based on race in education and employment apply in a healthcare setting, and in particular to the COVID-19 pandemic. We concentrate in this article on vaccines and (...) ventilators because these are both highly scarce resources in the pandemic, and there has been a need to develop policies for allocating them. However, as will become clear, the ethical considerations relating to them may diverge. We first set out two rationales for AAs and what they might entail in a healthcare setting. We then consider some disanalogies between AA and AARA, as well as the different implications of AARA for allocating ventilators as opposed to vaccines. Finally, we consider some of the practical ways in which AARA could be implemented, and conclude by responding to some key objections. (shrink)

Rival applied ethicists have constructed arguments for and against affirmative action independently of Rawls’s theory of justice. Those arguments do not resolve the dispute about affirmative action. I reformulate them with the use of Rawls’s theory of justice and conclude that the reformulated arguments do not resolve the dispute about affirmative action either. Therefore, Rawls’s theory of justice is not useful in resolving the dispute about affirmative action. This point applies to affirmative action in science, (...) contrary to what some writers suggest. (shrink)

This paper examines four major arguments advanced by opponents of race and gender conscious affirmative action and rebuts them on the basis of moral considerations. It is clear that the problem of past racial/gender discrimination has not disappeared; its effects linger, resulting in a wide disparity in opportunities and attainments between minorities/women and whites/males. Affirmative action, although not the perfect solution, is by far the most viable method of redressing the effects of past discrimination. Thus it cannot be (...) dismissed lightly by way of arguing for mere colorblindness. (shrink)

To explore the limits of quantification as a form of rationalization, we examine a rare case of dequantification: race-based affirmative action in undergraduate admissions at the University of Michigan. Michigan adopted a policy of holistically reviewing undergraduate applications in 2003, after the US Supreme Court ruled unconstitutional its points-based admissions policy. Using archival and ethnographic data, we trace the adoption, evolution, and undoing of Michigan’s quantified system of admissions decision-making between 1964 and 2004. In a context in which opponents (...) of the system had legal avenues to engage a powerful outside authority, we argue that three internal features of the University’s quantified admissions policy contributed to its demise: its transparency, the instability of the categories it quantified, and the existence of qualitative alternatives. Our analysis challenges the presumed durability and inevitability of quantification by identifying its vulnerabilities and suggests that quantification should be understood as a matter of degree rather than a simple binary. (shrink)

This chapter contains sections titled: Affirmative Action and Prejudice The Talented Tenth Objections.

In A Theory of Justice, John Rawls presents a method of determining how a just society would allocate its "primary goods"-that is, those things any rational person would desire, such as opportunities, liberties, rights, wealth, and the bases of self-respect. Rawls' method of adopting the "Original Position" is supposed to yield a "fair" way of distributing such goods. A just society would also have the need to figure out how the victims of injustice ought to be compensated, since history suggests (...) that social contracts are likely to be violated. This paper is an attempt to determine the remedial measures that would be selected using Rawls' method. I contend that only two of the three most widely used "affirmative action" policies would be acceptable, viewed from the Original Position. I also sketch another compensatory policy that would pass Rawls' fairness test. (shrink)

Affirmative action continues to divide. My aim in this article is to present participants in the debate with a new distinction, namely one between negative and positive affirmative action. Whereas positive affirmative action has to do with certain goods, such as a place at a prestigious university or a job at a prestigious company, negative affirmative action has to do with certain bads, such as a firing or a sentence. I then argue that some of the (...) most prominent arguments in favor of affirmative action speak at least as much in favor of negative as positive affirmative action. At the same time, at least one of the most prominent arguments put forward against affirmative action speaks less against negative affirmative action. Thus, the article should redraw the battle lines in the affirmative action debate. (shrink)

Physical attractiveness is highly valued in our society and impacts a variety of decisions made by organizations. Generally speaking, research findings suggest that the more attractive the person, the greater the likelihood of favorable employment-related decisions. It follows then, that those considered physically unattractive will suffer adversely in some employment-related decisional contexts — decisions that may prevent them from achieving the good life. Until recently, discrimination against unattractive people has been considered nothing more than a moral or ethical issue. However, (...) with the introduction of the Americans with Disabilities Act (ADA) of 1990, attractiveness as an employment-related criteria may become a legal issue. In this essay, we propose that the history of social and legal trends, coupled with uncertainties and ambiguities within the ADA, represents a possible expansion of protection for physically unattractive people. (shrink)