The controversy over affirmative action seems to pose a choice between two unpalatable alternatives. Endorsing race or ethnic conscious programs may further legitimize these characteristics as means to apportion benefits and burdens in American society. Opponents of preferential treatment in higher education assert that the Fourteenth Amendment's guarantee of equal protection is unequivocal. Page 32 begins here benefit. Moreover, they argue, the 1964 Civil Rights Act requires that individual, not group- based, attributes be the only permissible factor when governmental or private goods or opportunities are dispersed.
Opponents also invoke policy arguments.
Preferences tend to reward the most advantaged members of the targeted groups while hurting the least advantaged members of the nonpreferred groups, creating an unjust form of compensation. Preferences also stigmatize minorities as inferior since they may be seen to succeed not through merit but through gift. Supporters of affirmative action argue that the Fourteenth Amendment and the Civil Rights Act permit carefully tailored programs designed to overcome systemic discrimination. They further assert that preferential treatment produces significant social benefits that outweigh the harm inflicted on the supposed victims of reverse discrimination. It preserves social peace by establishing society's sensitivity to the plight of its minority citizens.