Reverse discrimination | Making Sense of Affirmative Action | Oxford ...

Abstract
This chapter argues that there simply is no cogent objection to affirmative action based on the fact that, by its very nature, it is a form of unjust discrimination. The core of the chapter’s argument can be stated in the form of a dilemma: Either affirmative action amounts to discrimination in a generic sense, or it amounts to discrimination in some more specific sense, e.g., unjust differential treatment of people because of their membership of different socially salient groups. If the former, then it is true that affirmative action involves discrimination, but discrimination in a generic sense is not morally objectionable. If the latter, it is not the case that all forms of affirmative action involve discrimination in this sense. Thus, affirmative action is not unjust discrimination—so-called reverse discrimination—per se.
1. Introduction
In this and the following four chapters, I assess five of the most common objections to affirmative action. Chapter 3 scrutinized a discrimination-focused argument in favor of affirmative action (the discrimination mitigation argument). This argument was based on the claim that affirmative action eliminates or mitigates the negative effects of discrimination. In the present chapter I scrutinize a discrimination-based argument against affirmative action. This argument—the reverse discrimination objection—is premised on the claim that affirmative action itself is a form of wrongful discrimination—often called “reverse discrimination.”
The reverse discrimination objection differs from the mitigation argument not only in terms of the fact that it is an objection to affirmative action. While the mitigation argument appeals to the presumed contingent effects of affirmative action, the reverse discrimination appeals to a putatively necessary feature of affirmative action, to wit, that it is discriminatory.1 Hence, in one way the reverse discrimination objection has a greater scope than the mitigation argument, since it applies to all cases of affirmative action.2 Still, the two arguments are compatible in the following sense. One might think that affirmative action reduces discrimination in the long run even though reverse discrimination is in itself a wrongful form of discrimination. Whether its advocates infer from the reverse discrimination objection that affirmative action is morally impermissible all things considered depends on a number of factors, e.g., how effective they believe affirmative action is in reducing discrimination and whether they think that there is an absolute deontological constraint against invidious discrimination.
Arguably, the reverse discrimination objection is the most common objection to affirmative action. Sidney Hook (2002, 227) writes: “If X and Y are competing for a post, my decision to hire X is in the nature of the case a decision not to hire Y. And if my decision is based on X’s sex or race, and not on merit, then it is a case of racial or sexual discrimination against Y, which is morally wrong.” Similarly, Carl Cohen (Cohen and Sterba 2003, 25) submits:
The principle of equality certainly entails at least this: It is wrong, always and everywhere, to give special advantages to any group simply on the basis of physical characteristics that have no relevance to the award given or to the burden imposed. To give or to take on the basis of skin color is manifestly unfair . . . What is today loosely called “affirmative action” sticks in our craw because it fails to respect that plain lesson . . . Blacks and whites are equals, as blondes and brunettes are equals, as Catholics and Jews are equals, as Americans of every ancestry are equal. No matter who the beneficiaries may be or who the victims, preference on the basis of race is morally wrong. [Cp. Pojman 2014, 439]
Consider, finally, a related argument from a legal context. Explaining why a race-sensitive scheme aiming at racial integration is unconstitutional, Chief Justice John G. Roberts of the US Supreme Court submits: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race” (Parents Involved in Community Schools v. Seattle School District No. 1; cp. Suk 2017, 404).
It is easy to have some sympathy for the sentiment which underpins the reverse discrimination objection. Take, for instance, race discrimination. Prior to 1964, US citizens were treated perspicuously differently by public institutions, etc. on the basis of how they were classified racially, and to us today that seems very offensive. Yet at some level, this is the kind of differential treatment which is reintroduced when, say, quotas are set aside for certain racial groups. Thus, the very same objectionable feature which makes pre–Civil Rights Act discrimination appear wrong seems to be an inherent feature of affirmative action. Or, at any rate, something like that is what the reverse discrimination objection contends (cp. Sabbagh 2007, 13). Moreover, stories about how being racially classified in a certain way under affirmative action programs becomes crucial to applicants’ prospects seems troubling and undignified.3 Finally, initially at least, many oppose racial profiling partly for a reason similar to the one at play in the reverse discrimination objection, i.e., that the state should not treat citizens differently on the basis of race.4 Still, in this chapter I shall argue that the reverse discrimination objection is flawed.
Section 2 critically assesses Cohen’s version of the reverse discrimination objection, which is grounded in a claim about the moral equality of all human beings. Section 3 discusses a simpler version of the reverse discrimination objection—one which does not derive the non-instrumental wrongness of discrimination as a conclusion from an argument appealing to an independent moral principle, but one which simply asserts it as a premise. Section 4 surveys a number of accounts of what makes standard, i.e., non-reverse, discrimination unjust and asks whether these accounts apply to affirmative action. Section 5 probes the suggestion that affirmative action must be in some way unjust, since in an ideal situation there would be neither standard discrimination nor reverse discrimination. Section 6 concludes.
2. The equal moral status objection
In this section I focus on Carl Cohen’s version of the reverse discrimination objection (henceforth: the equal moral status objection) (Cohen and Sterba 2003, 23–25):
Anything that violates people’s entitlement to equal treatment is unjust.
6.
Thus, affirmative action is unjust.
Because most people think the principle of moral equality of people is moral bedrock, this argument is rooted in what many deem to be a fundamental moral principle. Hence, if it goes through, the objection seems forceful against affirmative action.
Before assessing the objection, let me offer a few clarifying remarks about it. First, the equal moral status objection does not conclude that affirmative action is always morally impermissible. As most non-absolutists about justice concur, it is sometimes morally permissible to do what is unjust in light of countervailing moral considerations. Obviously, however, Cohen thinks that countervailing considerations are hardly ever morally decisive, at least with regard to affirmative action on the basis of race, since he thinks that race-based affirmative action has very bad effects overall (Cohen and Sterba 2003, 109–180).
Second, the entitlement to equal treatment is not an entitlement to identical treatment. Identical treatment is neither a necessary nor a sufficient condition of the non-violation of an entitlement to equal treatment.6 If the state spends more medical resources on people who are ill than on people who are not, it does not treat ill and healthy people identically. Yet it does not treat them unequally in a way that violates any of their entitlements simply in virtue of their being one another’s moral equals. Hence, identical treatment is not necessary for non-violation of the entitlement to equal treatment. Similarly, if the state treats law-abiding citizens identically to racist serial killers, it arguably violates an entitlement to equal treatment. Hence, identical treatment is not sufficient for non-violation of the entitlement to being treated equally. These two points will turn out to be crucial in my assessment of the argument.
In assessing the equal moral status objection, I will basically accept the truth of the principle of moral equality, i.e., Premise 1. Also, I accept the general principle that if something violates people’s entitlements, then it is unjust, and thus I also accept the more specific principle expressed by Premise 5. My main problem lies with the three other premises of the argument.
Let me start with Premise 4, i.e., that affirmative action is a form of discrimination. Is this true?7 To answer that question, it is necessary to start out with a brief note on the concept of discrimination. As we saw in Chapter 3.2, there are various concepts of discrimination. Whether affirmative action amounts to discrimination depends in part on which of these concepts we have in mind, and it is not clear that there is any sense of “discrimination” which is congenial to the soundness of the moral equality objection. For instance, on a moralized conception of discrimination, “discrimination” is unjust differential treatment of individuals on the basis of their membership of socially salient groups. Hence, given that we understand “discrimination” in this way to assert the truth of Premise 4, we would need to know that affirmative action is unjust. But that is precisely what the equal moral status objection is supposed to show. Hence, to assert Premise 4 amounts to begging the question. Similarly, it is undeniably true that affirmative action involves discrimination in the generic sense. But discrimination in the generic sense does not violate anyone’s entitlements and, thus, Premise 3 would be false on this reading of “discrimination.”
This last problem points to a related problem with the equal moral status objection; to wit, that there is no way to understand “entitlement to equal treatment” such that Premises 1 to 4 are all true. Hence, the argument rests on equivocation. To acknowledge this problem, think of how we need to understand what it is to violate “an entitlement to equal treatment” for it to be true that any form of discrimination is a violation of that entitlement. Consider age discrimination, i.e., giving preference to younger patients over older patients in relation to prioritizing scarce health care resources.8 Whether such differential treatment is unjust or not, it seems clear that to the extent that it is unjust, this is not because it is a violation of the principle of moral equality and, thus, not a violation of people’s entitlement to equal treatment, when so grounded. Other things being equal, older people have enjoyed more worthwhile life years than young people and, therefore, one might plausibly deny not recognizing their equal moral status when one gives priority to people who are worse off in the relevant respect. Hence, if the relevant differential treatment is discrimination, then not all forms of discrimination violate people’s entitlement to equal treatment, i.e., Premise 3 is false. Also, if giving priority to younger patients amounts to violating the entitlement to equal treatment of older patients, then, given the principle of moral equality, Premise 2 is false.
To avoid this, we could assert that the principle of moral equality implies an entitlement to equal chances such that doctors violate the principle of equal entitlement when they give priority to the 20-year-old over the octogenarian when they cannot save both and the former has enjoyed much less worthwhile life than the octogenarian. But in that case, I would reject Premise 1, i.e., the principle of moral equality, since I am more confident in doctors not violating any entitlements in the pertinent case than in the principle of moral equality.9
Finally, we might say that precisely because this form of differential treatment involved in age-based health care triage does not violate the principle of moral equality, it is not a form of discrimination. But then there seems to be nothing to prevent friends of affirmative action from denying on a similar ground that affirmative action is a form of discrimination, i.e., deny Premise 4. They can say that just like age-based health care provision involves treating people differently on the basis of certain characteristics, so does affirmative action. And, like in the health care case, this is not unjust and, thus, does not amount to discrimination unless special reasons apply, and, so they might continue, they apply neither in the case of age-based health care provision nor in the case of affirmative action. I conclude that we must reject Cohen’s equal moral status objection.
3. The simple objection
In light of my discussion, one might give up the attempt to connect the putative injustice of affirmative action with the moral equality principle. Instead, one might tie affirmative action to the view that certain forms of differential treatment—call them invidious discrimination—are unjust and add that affirmative action is a form of invidious discrimination. Hence, here is what I shall refer to as the simple objection:
Treating people worse than others simply because they have certain morally irrelevant properties is invidious discrimination.
9.
Invidious discrimination is unjust.
10.
Thus, affirmative action is unjust.
Unlike the moral status argument, the simple objection does not rest on any problematic views about equal treatment or about the equal moral status of all persons. It does not posit that affirmative action is discrimination and that discrimination per se is non-instrumentally wrong because it has some other wrong-making feature, i.e., that it violates moral equality. Rather, it argues that affirmative action is invidious discrimination and that invidious discrimination has certain injustice-making features. Moreover, unlike the former argument, it is consistent with not all forms of discrimination—e.g., age discrimination—being unjust. It simply appeals to the weaker and uncontroversial claim that at least invidious discrimination—say, most forms of discrimination on the basis of race, gender, religion, etc.—is unjust. In any case, I shall simply grant Premise 9.11
However, influential as the simple objection is, it is ultimately indefensible, and it is instructive to see why. A defender of affirmative action is most likely to attack Premise 7 by denying that affirmative action is to treat some people worse than others simply because they have certain morally irrelevant properties.12 She might say that, e.g., in defense of affirmative action in favor of African Americans, that the reason they are treated differently from others is not simply because they are African American. Rather, they are being treated favorably because, say, being African American is a very reliable indicator of having faced certain unjust obstacles—a property which, unlike the property of being African American, surely is morally relevant (cp. Cohen and Sterba 2003, 321; Nickel 2002, 4).13 In support of this claim, she might add that if African Americans did not face such obstacles, she would not support affirmative action in their favor. Moreover, many proponents of affirmative action see affirmative action as a temporary measure that ceases to be justified once the relevant unjust structures which the measures address have been eliminated.14 Thus, it cannot be fundamentally in virtue of being African American that someone is entitled to benefit from affirmative action. If it were, the reason supporting affirmative action would still apply in the situation where African Americans no longer face unjust obstacles. A defender of affirmative action might also note that the operative premise here is not that African Americans face certain unjust obstacles qua African Americans. The operative premise is that they as individuals face certain unjust obstacles full stop. Hence, if there are members of other groups that have been subjected to similar or worse unjust disadvantages, affirmative action for their sake is morally justified too.15
It seems a nonstarter for an advocate of the simple objection to deny directly the present criticism of Premise 7. Instead she might point to the fact that even in the case of many forms of invidious discrimination, it is rarely fundamentally because the discriminatees have the relevant morally arbitrary features on the basis of which they are being treated disadvantageously, e.g., fundamentally it is not because some people have the morally irrelevant property of being a member of a certain minority that they are being treated disadvantageously. Rather, it is because, say stereotypically, being a member of that group is seen as a proxy for having certain negative properties, e.g., being more likely to turn up late to work, which are morally relevant for how someone should be treated (cp. Bayles 2002, 9).16 Perhaps sometimes discriminators are insincere when they claim they do not think that the property of belonging to the relevant minority in itself is that which justifies disadvantageous treatment. However, this is neither here nor there, since the proponent of the simple objection might say that this shows that she can do with a weaker version of Premise 7:
7*. Affirmative action involves treating some people worse than others because they have certain morally irrelevant properties.
7* is weaker than 1 because it omits “simply,” i.e., it does not assert that affirmative action involves treating people worse than others simply and solely because they have certain morally irrelevant properties. This move, however, will not save the simple objection from defeat because now friends of affirmative objection might object to Premise 8, which, in order to preserve the entailment once Premise 7 is revised, must also be revised by omitting “simply”:
8*. Treating people worse than others because they have certain morally irrelevant properties is invidious discrimination.
Suppose that, in the attempt to stop violent crime involving the use of weapons, the police are more inclined to stop and frisk young males than old ladies. This involves treating some worse than others on the basis of whether they have the morally irrelevant property of being a young male.17 But it does not involve doing so simply because these people are young males. The motivating thought behind the differential treatment is the statistical fact that young males are more likely to carry guns that they might use in violent crime than are old women.18 Should the statistics change in the future, then the police would revise their behavior. Hence, in engaging in the relevant kind of profiling, the police are not engaged in invidious discrimination against young men (cp. Lippert-Rasmussen 2007; 2013, 272–301).
To summarize the argument in this section: As the simple objection is initially stated, Premise 7 is false. However, we can weaken it, and its successor premise, i.e., 7*, seems true. However, now the argument is no longer valid, and we must revise Premise 8 too. However, the version of Premise 8, i.e., 8*, that restores validity is false—sometimes differential treatment based on the use of use of morally irrelevant properties as proxies does not amount to invidious discrimination. I infer that while the simple objection is indeed a simple one, it is not a sound one.
4. Affirmative action and what makes discrimination unjust
In this section I want to step back from specific versions of the reverse discrimination objection, i.e., the more specific grounds on the basis of which it is held that affirmative action in itself is a form of unjust discrimination, to reflect on how one could respond to reverse discrimination objections to affirmative action in general.
The spirit of the reverse discrimination objection is that reverse discrimination is unjust for the same reason standard discrimination is unjust. In the previous section, we looked at a simple version of that thought—namely, one according to which differential, disadvantageous treatment on the basis of membership of socially salient groups is non-instrumentally unjust. I argued that this version of the objection holds little promise. In Section 2, I looked at a more complex version of the reverse discrimination objection, to wit, one according to which affirmative action is indirectly wrong. That is, it is wrong because reverse discrimination is a form of discrimination and discrimination in general violates the principle of moral equality. I argued that this indirect version of the reverse discrimination objection was not sustainable either. However, there are other variants of the indirect reverse discrimination objection which I have not addressed. Assessments of those versions can thus usefully start by asking its advocates why they think that discrimination is unjust and then consider whether these reasons apply to affirmative action.
There are at least four main accounts of what makes discrimination unjust.19 One important type of account suggests that discrimination is unjust because of the objectionable mental state of the discriminator (cp. Lippert-Rasmussen 2013, 103–189). For instance, Larry Alexander (1992, 160–161) thinks that certain kinds of discrimination are wrongful because of the disrespectful, false beliefs about the inferior moral status of discriminatees that motivate discriminators. Others think that discrimination motivated by hatred is wrongful (Arneson 2006, 779). And yet others think that (harmful) discrimination is wrongful when motivated by “prejudice or contempt” (Dworkin 2002a, 108; cp. Cavanagh 2002, 166; Dworkin 2002b, 123).20
It is hard to see that this kind of account of the injustice of discrimination can support the reverse discrimination objection. Affirmative action can be, and generally is, motivated by entirely commendable mental states and certainly not by disrespectful and false beliefs about moral inferiority, by hatred, or prejudice or contempt. Admittedly, there could be deviant cases where such mental states are behind an affirmative action scheme and, assuming the correctness of the relevant mental state-based account of the injustice of discrimination, in those instances affirmative action is unjust for the same reason as standard discrimination is. However, none of this will amount to an objection to affirmative action per se. Interestingly, in effect Cohen (Cohen and Sterba 2003, 46) concedes this and in his response to this observation he falls back to the discredited, simple reverse discrimination objection: “Race preference, even when its aims are honorable, is one form of deliberate racial discrimination” (cp. Hook 2002, 227; Kennedy 2013; Newton 1995; cp. Dworkin 2000), and, as we have seen, Cohen thinks deliberate racial discrimination (even when honorably motivated) is non-instrumentally wrong.
A second type of account appeals to the harmful effects of discrimination, e.g., that some people find that their lives go less well because they are excluded from attractive positions or stigmatized (Lippert-Rasmussen 2006; 2013, 153–189; Chapter 9). No doubt, like any other policy, affirmative action is harmful to some people, e.g., typically those who are not selected and who would have been selected in its absence. However, this has to be weighed against the benefits others receive because they are selected and would not have been so in the absence of affirmative action (cp. Beauchamp 2002, 215). Moreover, it is not a logical truth that, taking a broader view of benefits and harms, affirmative action hiring involves a zero-sum game (pace Hook 2002, 227). For instance, a company that adopts an affirmative action program might generate more profits and thus be able to hire more—perhaps those who were rejected because of the affirmative action program and additional majority applicants as well. For these two reasons, at most harm-based accounts show that some forms of discrimination, reverse or non-reverse, are wrong—those that in the relevant way are harmful overall—and hence cannot be pressed into service for the reverse discrimination objection, which aims to show that affirmative action as such is unjust.
Three, some think discrimination is unjust because it is unfair. On this view, the question is whether reverse discrimination is unfair in the same way as standard discrimination, and crucial here is, of course, what we think counts as unfairness. If, for instance, we flesh out fairness in terms of equality of opportunity, the present question comes down to whether affirmative action increases inequality of opportunity. If my arguments in Chapter 4 are sound, many forms of affirmative action reduce unjust inequality of opportunity and, thus, the answer is no. If, alternatively, fairness amounts to selection by merit, again it is not clear that we can sustain the reverse discrimination argument. As I shall argue in Chapter 12, not only are there plausible ways of understanding merit such that affirmative action is compatible with selection on the basis of merit (cp. Warren 1977), but also merit otherwise construed is not a constraint on justice.
A fourth and final account of the injustice of discrimination appeals to the objective meaning of discriminatory acts. Deborah Hellman (2008), for instance, contends that discriminatory acts are wrongful when their objective meaning consists of a denial of the equal moral worth of the discriminatees. Clearly, this account cannot sustain the reverse discrimination objection, because the objective meaning of affirmative action clearly is not that beneficiaries are somehow superior, moral status-wise, to others (cp. Dworkin 2002b, 121; cp. Chapter 7.5).21 That being said, it is less clear that affirmative action might not have other and objectionable objective meanings than those that Hellman’s account addresses, e.g., that beneficiaries are somehow less inherently talented than others (cp. Chapter 9; Anderson 2010, 141). However, even if that is the case, I am not sure that this can ground a claim to the effect that affirmative action is unjust because the objective meaning—or at least one of its objective meanings—is somehow disrespectful to the beneficiaries of affirmative action.22 After all, the objectionableness of such objective meanings—which on Hellman’s account is lesser than the objectionableness of the objective meaning of the sort of discrimination she has in mind—must be weighed against whatever benefits affirmative action provides for those who are denigrated in this way such that, overall, it might be unclear that they have a complaint of justice against affirmative action. I conclude that none of the main accounts of what makes discrimination wrong supports the claim that affirmative action is wrongful in the same way as standard discrimination.
5. Affirmative action in an ideal world?
For all I have said here, there remains a worry about the reverse discrimination objection. Under ideal circumstances, there would be no discrimination and, accordingly, there would be no point in affirmative action (cp. Chapter 1.8). If no one invidiously discriminates against anyone, then there is little point in giving preference to members of certain socially salient groups. Indeed, under such circumstances affirmative action might be unjust. But cannot one then infer that, in one respect at least, it is a bad thing to have affirmative action under the non-ideal circumstances under which we live?
I have three responses to this worry. First, there could be some point in having some forms of affirmative action even in a world without invidious discrimination. Take for instance the considerations about role models (Chapter 5) and diversity (Chapter 6). These might favor giving preference to certain groups even if everyone complies fully with the demands of morality. That is, members of different socially salient groups might, for permissible reasons, choose differently, and as a result thereof there might be professions where they are seriously underrepresented and where, for role model- and diversity-related reasons, it makes good sense to seek to promote their representation.
In response, some might concede that some forms of affirmative action might be justified even under ideal circumstances. However, they might retort that most forms of affirmative action are remedial in the sense that they address the unjust actions of some and, thus, that the rationale for most forms of affirmative action would be absent under ideal circumstances (cp. Beauchamp 2002, 209; Dworkin 2002a, 104–105). This is where my second response is relevant.
While it might be tempting to infer from the fact that something is absent under ideal circumstances that its presence under non-ideal circumstances is bad in one respect, this inference is fallacious.23 Take the aspect of truth-telling in a broad sense, which comprises informing one’s interlocutor of all relevant facts. Under ideal circumstances, everyone would inform his or her interlocutors of all relevant facts. Suppose that not everyone does so, and that I am dealing with someone who generally does not inform me of relevant facts in ways that are often harmful to me. Under this condition, it is at least an open question whether there is anything bad about my not informing my interlocutor of all relevant facts. For instance, in not doing so, arguably, I am not treating my interlocutor unfairly. In assessing this claim, it is important to keep in mind that the relevant contrasting case is not the ideal case, where everyone informs her interlocutors of all relevant facts. Rather, the relevant contrasting case is one in which I inform my interlocutor of all relevant facts and he or she does not reciprocate. In making this comparison, I am inclined to say that it is not in itself bad that I am not maximally informative. Similarly, even assuming that under ideal circumstances we would all, say, be gender- and color-blind, it does not follow that under non-ideal circumstances, where many are not gender- and color-blind in ways that are morally bad, that all forms of being gender- or color-conscious are in one way non-instrumentally bad. Hence, even if it were true that under ideal circumstances affirmative action would be absent, it does not follow that there is anything bad about introducing affirmative action under non-ideal circumstances, where the alternative to doing so is not ideal circumstances, but simply non-ideal circumstances without affirmative action (cp. Anderson 2010, 155–179).
My third and final response is that, as presented here, even if one can infer the moral badness of some practice from its absence under ideal circumstances, this still does not get us quite to the conclusion of the reverse discrimination argument—that reverse discrimination is unjust. Many people think that justice is a weighty moral consideration that, generally, trumps other moral considerations (Rawls 1999, 3). In saying that reverse discrimination is in one way morally bad, one implies no such thing. Indeed, the present worry leaves entirely open whether, all things considered, affirmative action is morally justified in view of its possible good effects—something which is a much weaker claim than the one friends of the reverse objection normally want to make, viz., the quotations cited in the introduction to this chapter.
6. Conclusion
In view of my arguments above, I conclude that the reverse discrimination objection is flawed. There simply is no objection to affirmative action based on the fact that, by its very nature, it is a form of unjust discrimination. My argument can be stated in the form of a dilemma: Either affirmative action amounts to discrimination in a generic sense or it amounts to discrimination in some more specific sense, e.g., unjust differential treatment of people because of their membership of different socially salient groups. If the former, then it is true that affirmative action involves discrimination, but discrimination in a generic sense is not morally objectionable, let alone unjust. If the latter, it is not the case that all forms of affirmative action involve discrimination in this sense. With regard to the claim that affirmative action is discrimination because it amounts to unjust differential treatment on the basis of membership of certain socially salient groups, it is worth noting that it would render the reverse discrimination objection question-begging to assert that affirmative action is discriminatory in this sense.
Admittedly, all this is neither to say that affirmative action is never unjust nor to say that particular instances of affirmative action might not amount to unjust discrimination. Nor is it to say that affirmative action is in no way morally objectionable. However, these comparatively modest claims are much weaker than the sweeping conclusion of the reverse discrimination objection.
In a last attempt to give some credit to the spirit of the reverse discrimination objection, I described and resisted the inference from the fact that affirmative action would not exist under ideal circumstances to the claim that, thus, even under non-ideal circumstances it must somehow be morally bad (even if morally justified all things considered). All in all, this chapter noticeably simplifies the task of assessing affirmative action since it implies that we can simply disregard one very common form of objection to affirmative action.
I do not discuss the contingent objection to affirmative action, which says that, whether or not it is discriminatory in itself, it results in more discrimination, e.g., because of how it renders group identities more salient (cp. Sabbagh 2007, 88). While some make this argument, it is much less common than the reverse discrimination objection.
In another sense, however, it need not be a stronger objection. Some of the positive effects of affirmative action could be so morally weighty that it is morally required despite being discriminatory and, thus, in itself unjust.
For the record, I believe that, typically, racial profiling is quite different, morally speaking, from affirmative action and that the features that make many cases of racial profiling wrongful are absent in the case of affirmative action. For instance, affirmative action does not exacerbate any preexisting injustice (cp. Mogensen 2017, 2; see also Section 4).
Cohen might only endorse a narrower version of this premise, which says that any discrimination by governments and employers violates people’s entitlement to equal treatment. I set aside this complication.
“The principle of equality does not require that all be treated identically” (Cohen and Sterba 2003, 23; Cohen 2002, 96; cp. Dworkin 1985, 205–206). Apparently, Cohen thinks that race is a special case and that the case of racial groups treating their members as equals requires not treating them differently on the basis of their being members of different racial groups: “Classification by race for the distribution of goods or opportunities is intrinsically odious, always invidious, and morally impermissible, no matter how laudable the goals in view” (Cohen 2002, 98). It is unclear why he, so it appears, does not hold the same view about gender, sexuality, etc.
By “discrimination,” proponents of the reverse discrimination objection have in mind direct discrimination. Suppose that, to our surprise, it turns out that a certain selection procedure adopted for completely different reasons in fact was the one which we would have selected had we looked for a strong affirmative action selection procedure. One could suggest that this procedure amounts to indirect reverse discrimination. However, it seems clear that Cohen is not objecting to indirect discrimination, but simply to direct discrimination on the basis of race, i.e., cases where one’s motivating reason for treating members of different racial groups differently is their (ascribed) race.
On one occasion, Cohen suggests that at least in cases involving rectification of past injustices, not all forms of differential treatment on the basis of racial membership violate an entitlement to equal treatment (Cohen 2003, 79). But, first, if this is so, then Premise 3 is false. Second, one might reasonably ask why, if the moral importance of rectifying past injustices can render racial preference compatible with entitlement to equal treatment, other moral aims might not have a similar power.
You might disagree with me about this particular case. However, if so, you might find other cases to be more persuasive, e.g., statistical discrimination by police against young males in relation to fighting violent crime. If the commitment to moral equality implies an entitlement not to be subjected to increased police scrutiny on account of being a young male, then I think this casts more doubt on the relevant principle of moral equality than on the justifiability of statistical discrimination.
Alternatively, they might attack the view that the properties on the basis of which affirmative action involves differential treatment are morally irrelevant. While this move has some merits—e.g., for any putatively morally irrelevant property, it is possible to imagine circumstances under which the relevant properties should make a difference to how people are treated (cp. Singer 1983, 310 on selection of actors playing blacks living in Harlem; cp. Boonin 2011, 184)—the basic problem with this move is that it is unavailable to many proponents of affirmative action, who would assert that in the case of discrimination that is non-affirmative action related, it does involve treating people on the basis of morally arbitrary properties in a way that is objectionable.
I take it that “simply because of” denotes the fundamental feature in virtue of which the relevant group ought to enjoy affirmative action. The qualification “fundamental” rules out features which are relevant only because they are proxies of other features which in turn are fundamentally relevant (cp. Nickel 2002, 21).
One might doubt that this is the whole truth in typical cases of invidious discrimination (cp. Nickel 2002, 22–23). Why do, say, some racists believe that members of racial minorities are more likely than members of the racial majority to have certain negative and morally relevant characteristics? Presumably, often it is the case that they hold this belief; hold no comparable beliefs about racial majority members having the relevant negative properties; and yet they have available to them equally bad/good evidence for the different racial groups having the relevant negative properties (cp. Chapter 9.4). In such cases, there is a sense in which racists treat racial minority people differently simply because they are racial minority people.
Perhaps being a young male is not a morally irrelevant property because it is a good proxy for engaging in certain kinds of criminal activities. But, if so, presumably, race is not a morally irrelevant property either because, in a racist society, race tends to be a good proxy for a wide range of different morally relevant properties, e.g., having been unjustly disadvantaged.
Cp. Sterba (Cohen and Sterba 2003, 224) who argues that affirmative action, unlike old-style racial discrimination, is not based on “contempt and loathing” for those whom it involves treating disadvantageously.
Some combine the mental state account with one or more of the other three accounts I mention here. Dworkin, for instance, thinks that a person has a right not to “suffer because he is a member of a group thought less worthy of respect, as a group, than other groups” (Dworkin 2002a, 112).
One reason why affirmative action is not discriminatory in Hellman’s sense is that, typically, affirmative action is defended as a temporary measure. If so, the case for affirmative action cannot plausibly rest on any claims about the inferior moral status of majority people treated disadvantageously by affirmative action schemes (cp. the discussion of Premise 1 in the previous section).
This fallacy is related to what is sometimes called the fallacy of the second best; to wit, the assumption that what is second best must be maximally similar to what is best (consistent with its still being different from what is best).