Monday, August 13, 2007 • 11:47 AM Comments (7)

Comparative Reflections on Affirmative Action

posted by Dan Gordon

When I agreed to write about affirmative action for The Public Humanist, I realized quickly that the big challenge was to present this hot issue in a humanistic way. What does it mean to write about a political controversy as a humanist?

Karl Marx said that the point is not to interpret the world but to change it (Theses on Feuerbach, no. 11). I don’t agree with that. The important thing is to better one’s understanding. Any change that occurs through humanistic reflection comes indirectly, from the new interpretations of reality it supplies, not from pursuing change for its own sake.

Taking a humanistic approach to affirmative action means representing the whole debate about the issue, not choosing sides that have already been taken inside the debate. The true humanist tries to deepen the public’s understanding by removing issues from their conventional polemical setting and exploring them in unexpected frameworks.

In the humanities we have many different methods of interpretation, but I will offer just one here: the comparative method.

Baron Montesquieu, the French nobleman who wrote The Spirit of the Laws (1748) said that the capacity to compare was the greatest faculty of the human mind. Another profound comparative thinker, Alexis de Tocqueville, author of Democracy in America (2 vols., 1835-1840), said, “The mind can gain clarity only through comparison.”

Comparison can be local or global. Locally, I observe a remarkable divergence here in the town of Amherst. UMass, the big public university where I teach, has no affirmative action for student admissions; Amherst College, a small elite private college, does have affirmative action. This is a paradox. If affirmative action is supposed to compensate for past injustices, such as slavery, then shouldn’t our public institutions be at the forefront of atoning for our collective sins?

This paradox comes out of our constitutional system. The amendments to the Constitution that were added shortly after the Civil War, amendments designed to ban slavery and racial discrimination, applied to state governments, not to private institutions. That’s because racial inequality had been implemented through state law that classified people on the basis of color. Today, the standard argument against affirmative action is that it’s a form of reverse discrimination—it continues governmental classification of people on the basis of race. Our constitutional law is basically indifferent to whether private organizations do this, but it will not permit state institutions to impose a rigid scheme of racial classification on people, even to help minorities. Hence, you will find that the most vigorous forms of affirmative action in universities today are done in private universities. Public institutions may practice affirmative action within limits. But since it’s not entirely clear what these limits are—When does legitimate affirmative action become unlawful racial profiling?—many state universities avoid the risk of being sued for racial discrimination by not practicing affirmative action at all.

This is a stark contrast to other countries where affirmative action, if it’s practiced at all, is supervised by the state, not private organizations. So I turn now from local comparison to international comparison. There are some democratic countries that practice affirmative action; and these usually modify their constitutions in order to make it clear that affirmative action is going to be an exception to the general principles of equality and non-discrimination. The Constitution thus carves out a niche for affirmative action. Then there are other democratic countries whose constitutions do not explicitly approve of affirmative action; these countries generally reject affirmative action vehemently as a plain violation of the spirit of equality. The curious thing is that the U.S. is in between. Affirmative action is not mentioned in the Constitution, but in the landmark 1986 Bakke case, the Supreme Court established that while “quotas” are illegal, certain types of preference for minority groups are nevertheless compatible with the Constitution. This is a hybrid situation. Our highest authority, the text of the Constitution, doesn’t lend itself easily to affirmative action. In fact, affirmative action looks like a violation of the Fourteenth Amendment, which speaks of “equal protection of the laws.” But our most respected interpreter of the document, the Supreme Court, says affirmative action is okay, sometimes.

A great example of a nation whose constitution explicitly advocates affirmative action is India. Article 14 of India’s Constitution seems to be based on the Fourteenth Amendment of our text. The Indian document says, “The State shall not deny to any person equality before the law or the equal protection of the laws.” Article 15 prohibits discrimination on the basis of religion, race, caste, and sex. However, an extra clause in this article says, “Nothing in this article?shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.” So there it is—affirmative action, right in the Constitution. Clearly, the framers of the text realized that the document’s general emphasis on equality and non-discrimination would tend to make affirmative action illegal. So they folded into the document an affirmative-action caveat.

A great example of a nation whose constitution does not endorse affirmative action is France. Article 2 of the French document says, “France is an indivisible, secular, democratic, and social Republic. It ensures the equality of all citizens before the law, without distinction as to origin, race, or religion.” In France, there is a very wide consensus that this precludes affirmative action on the basis of race. In fact, in France it is illegal for the government to categorize people according to their racial or ethnic origins. Censuses cannot collect information on ancestry. French statistics are forbidden to have any references concerning ethnic membership.”

Though the French are against affirmative action on the basis of race, they’ve recently become enthusiastic about affirmative action for females running for political office. The political parties are now required to slate a certain number of females as their candidates in elections. This policy is known as “parity.” Recognizing that this is a kind of affirmative action, and that it looks inconsistent with the principle of non-discrimination, the French dampened the contradiction by amending their Constitution. In 1999, they added a phrase to the Constitution stating that the law shall favor women’s “access” to electoral offices.

In sum, nations generally perceive affirmative action as a conceptual problem in relationship to equality—because it is outside the norm of equality. If they want to practice affirmative action anyway, they establish in their constitutions that affirmative action is going to be an exception to the general rule of equal treatment. The U.S. lacks this constitutional source of authority for affirmative action. I believe this explains why there is so much philosophical agony over the legitimacy of affirmative action in our country, and why even supporters of affirmative action often seem confused about how to articulate the rationale for affirmative action. In the Bakke case, the distinction between working with a quota system and merely giving a minority extra points in the competitive process is not clear. After all, both involve classifying people on the basis of race. Also, the justices who supported affirmative action in the case had entirely different conceptions of how it can be squared with the principle of non-discrimination. Some perceived affirmative action as a remedy for past discrimination. But others refused to take this approach and spoke instead of “diversity” as the goal of affirmative action. The Bakke case actually contains six separate judicial opinions. Many commentators have observed that they don’t overlap in a manner that signals a clear majority among the justices. More recent affirmative cases, instead of resolving this confusion, have only demonstrated the ongoing lack of consensus.

The American approach to affirmative action is fractured between literal readers of the Constitution who oppose affirmative action, and social reformers who defend affirmative action but do not agree even among themselves on how to square racial preferences with the Equal Protection clause of the Fourteenth Amendment. Our entire discourse on affirmative action is pained by this contradiction between our constitutional text and our efforts to reform society in pragmatic ways. The result is that we have a social ideal (to have more minorities in our universities) that public educational institutions are afraid to act upon, for fear of violating our political ideals (equality as defined in the Constitution). From a comparative viewpoint, this is a really odd state of affairs. The appropriate remedy, in light of this analysis, may well be to discontinue affirmative action in all public institutions until we agree that affirmative action is important to enough to deserve a mention in our Constitution.

--Daniel Gordon, Professor of History, UMass Amherst

Comments (7)
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Affirmative action is not only a constitutional problem, it's a social problem because it sows the seeds of resentment. A better, albeit longer term, way to compensate for slavery and other racial indignities of the past is to direct sufficient resources into minority communities to improve educational outcomes, provide jobs, and make the accumulation of financial, social and cultural assets possible. Thinking back on Mark Santow's post of Aug 2, we need a New New Deal and a reaffirmation of democratic liberalism.
Posted by David Tebaldi on 8.13.07 at 11:20
We've all been happily unanimous, for the most part, with past posts. But I'm actually in serious disagreement with a bunch of this, so let me add a critical voice. I think before comparison can work well, we have to ask if comparison is possible at all, given the genuinely unique character of racism and racial inequality in the U.S., starting with the particular role played in the transatlantic slave-trade to abolition of slavery to the absence of colonial shadows to Jim Crow to the civil rights movement to get my drift. All those things that aren't like France or India at all. I guess I'm reluctant to do the comparison thing here, except at the most general level - how some people have constitutional phrasing that, if it were our constitution, would make pro-affirmative action work easier. I can get behind rewriting our constitution. I'm not its biggest fan. But it's a big, big social experiment, I think, to just give up preferential hiring while waiting for such a political revolution. In the interest of conceptual clarity, there is this misphrase or mixed-concept: "Today, the standard argument against affirmative action is that it?s a form of reverse discrimination?it continues governmental classification of people on the basis of race." (from paragraph seven) Classification is not discrimination in the sense meant by the phrase "reverse discrimination." Reverse discrimination means the moral sense of discrimination, deeming one group or another less worthy or wholly unworthy. Classification is dividing up types according to various criteria, in this case, largely according to skin color and national background. Classification doesn't necessarily lead to moral discrimination. The fact that a person is "black" or "hispanic" or "pacific islander" says just that; we work it over with social/cultural stuff to make it mean much more than that, really. Abolishing categories like those would attempt to erase painful, but hugely meaningful, histories of millions upon millions of people. It would mean important cultural jewels disappear - a world where "what did I do to be so black and so blue?" mean nothing... To pretend like those categories don't describe something is a form of liberalism - what you can call "colorblind racism" - to which I can't subscribe. Not at all. I don't think you're proposing that, I'm just sayin'... For me, the frustrating thing about our discourse - perhaps it is inevitably like this - on affirmative action is this: we keep looping it through the constitution, as if principles of justice necessarily flow through constitutional strictures. But our constitution isn't made for exigencies like repairing the materiality of racial injustice. It is good for changing, say, Jim Crow laws, but pretty unhelpful for dealing with the massive material injustice said laws left in their wake. Our constitution was written by white men for white men, which, for me, doesn't discredit it. Instead, that by-for insight tells us something of the limits of liberal languages of equality. Justice for these sorts of crimes, crimes as enduring as slavery-segregation-racism, has to be extra-constitutional. Here, the language of exceptionality is important. Racial discrimination is an exceptional case, and so shouldn't flow through what is an exceptionless conception of rights and value in the constitution. I get that, the constitution thing. We need ideals. And they're noble ideals. Isn't justice always, or nearly so, just like this? When justice concerns distribution (and it does in this case; the crime isn't thinking alone, it's about cash), it can't, by its very nature, follow something like a constitutional set of principles. For me, this gets around the daunting (though compelling!) proposal to redo the constitution. David, I find your reply really troubling and, in the end, guided by some icky principles. We can't let the possibility of resentment structure our policy-making and thinking. If we did that, nothing would ever change. That's an icky principle. The troubling thing or two...well, first, there is the odd idea that white people don't have hostility toward black people already. I fail to see how "resentment" is anything other than par for the course, a course whose stroke count, so to speak, won't change without some major interventions. Second, I can't quite understand how you distinguish "direct[ing] sufficient resources into minority communities to improve..." from affirmative-action principles. Affirmative action policies at universities improves education, provides jobs, and, with those jobs, infuses black communities with all sorts of financial, social, and cultural assets. Is it worth asking if black communities want more government in their lives, a la the New New Deal fantasies? The government has been pretty vicious for centuries, so that's a big, big sell. And it's a sell, for sure.
Posted by John Drabinski on 8.13.07 at 14:48
I'm not sure what an "icky" principle is, but it sounds like something I would not want to be guided by. Whether we like it or not, we have to take into account the impact of any social policy on all those affected by it; not just on the intended beneficiaries. One of the problems with affirmative action (which I support despite its flaws) is that the people who benefit from it are not the same people who directly suffered from past discrimination (indeed, many if not most beneficiaries are relatively privileged), and those who are harmed by it are not the same people who inflicted the discrimination. It is in a very basic sense unfair, and that is why it breeds resentment. I don't see how investing in our inner cities -- providing meaningful work, day care, health care; improving public schools, pre-school, after school; encouraging home ownership; nurturing entrepreneurism -- raises any of the problems associated with what we think of as affirmative action. Affirmative action, preferential admissions/hiring, this is a zero sum game. For every gainer there is a loser. My "solution" is a simple application of the Rawlsian principle of justice. Inequalities in the distribution of social goods are only acceptable when they benefit the least advantaged members of society. There are no losers. Just imagine the good that could have been done with the estimated trillion dollars this government is going to end up spending on the war in Iraq.
Posted by David Tebaldi on 8.15.07 at 8:23
Thanks for your response, David. The ickiness of the principle is this: making decisions based on how those disadvantaged or ignored by the decision might react. I call it icky in part to be silly, but also because it feels like dragging the waste produced by policy into what is for me the real question: is this good and right? Or not? If we go with what I find icky and you find necessary consideration, well, then why not note the resentment of African-Americans when affirmative action has been and continues to be scaled back? At that point, we're really choosing which ickiness we're willing to live with. Whether or not affirmative action is "fair" and "just" is part of the debate. I don't think one can honestly call it "in a basic sense unfair." That's one side of the debate. My point about distribution of public directing funds into black communities, you take from another, right? That plays on the principle underlying affirmative action: there is something exigent about the effects of racism and we ought to shift all sorts of things around to battle it, whether those things are government expeditures or school admissions or hiring. I don't see problems with any of these. But I wonder if you can call the principle of affirmative action "in a basic sense unfair" and then talk about preferential spending on the government's behalf, done on racial terms alone (with a dose of class, I guess), without evoking the same basic sense. That was my point or claim. On your third paragraph: excellent point about the "no losers" aspect of distribution of social goods, except, of course, that you are advocating for racially specified and targeted expenditures. In a Rawlsian thought experiment, this is all a-ok. In a world of (at least at the level of collective mentality, if not sometimes reality) scarcity of governmental resources (tax cuts, anyone? groan), targeting one means losing out from the perspective of another. I'd posit that the very idea of hiring is a zero-sum game. One person gets hired. Everyone else doesn't. Affirmative-action is just a small part of that, really, and in that sense is playing by the logic and rules of the very idea of hiring. Especially in a world without full employment. Lastly, hey, the War in Iraq is bad in so many senses. From "our" perspective in the U.S., I constantly ask that same question. That's a lot of money. A lot of kids going to college. Getting new textbooks. Etc. Those are my thoughts. Thanks for engaging...this is a really complex discussion, no doubt.
Posted by John Drabinski on 8.15.07 at 9:23
We have this wonderful almost magical system of government where we can spend a gazillion dollars to address what a handful of nation-builders, militarists, and corporatists see as an urgent need without taking money away from anyone (except future generations, but who cares about them? they don't vote). Indeed, we can actually REDUCE taxes for the wealthiest Americans, INCREASE corporate welfare (think of the prescription drug bill, the ag bill), build bridges to NOWHERE and still spend a trillion dollars on a military and political debacle. Like I said, no losers. What a world.
Posted by David Tebaldi on 8.15.07 at 10:12
We have this wonderful almost magical system of government where we can spend a gazillion dollars to address what a handful of nation-builders, militarists, and corporatists see as an urgent need without taking money away from anyone (except future generations, but who cares about them? they don't vote). Indeed, we can actually REDUCE taxes for the wealthiest Americans, INCREASE corporate welfare (think of the prescription drug bill, the ag bill), build bridges to NOWHERE and still spend a trillion dollars on a military and political debacle. Like I said, no losers. What a world.
Posted by David Tebaldi on 8.15.07 at 10:12

I think you make fair points (not that I agree with all of them, but they're fair), but I have to say that I find your tone off-putting in the way that I find a lot of affirmative action proponents' tone off-putting.

I get little sense from you, for instance, that can even understand why affirmative action intuitively seems unfair to many people, why, for instance, David said that it was "in a basic sense unfair."

Not that you should concede the point that it's unfair, but rather that affirmative action proponents have been losing rhetorical ground for some time, I'd aruge, in part because they've had a hard time conceding anything (e.g. that it vexes the constitution, that it can be invidious in a way that other political remedies for inequality and unfairness aren't, that it's a pretty imprecise tool for remedying past or present discrimination, etc.)

I have mixed feelings about affirmative action. I certainly believe, for instance, that our nation has a responsibility for its history of slavery, segregation and racism, and affirmative action could be one means of taking responsibility. At the same time, I'm unpersuaded by the diversity argument that seems to be the preferred rationale for contemporary advocates of affirmative action, and i'm also deeply skeptical of the good intentions of most of the conservatives who are most publicly criticizing affirmative actions (most of them seem to be not-so-subtly pandering to racism)

Perhaps the thing I feel most comfortable pronouncing is that affirmative action is a deeply imperfect solution to a very real problem, and we should acknowledge both its imperfections and the fact that it's insufficient, morally, to rail against affirmative action without delivering on meaningful alternative solutions to the problems that it's meant to help remedy.
Posted by Dan Oppenheimer on 8.22.07 at 11:22



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