Affirmative Action and Beyond: A Case for a Backward-Looking Gender- and Race-Based Policy


by Walter Feinberg - 1996

This article defends race- and gender-based affirmative action against recent attacks by liberals and conservatives. It argues that a need-based approach is not an adequate substitute for the present practice. It makes this argument by demonstrating that there are three independent moral foundations for a race and gender approach to affirmative action and that these are not adequately met by the need-based alternative.

Recent political changes in this country have in part been a response to a changing sense of moral obligation and a belief that the liberal agenda has moved beyond what many people can accept as a fair and just distribution of educational and occupational opportunities. One of the most promi­nent targets of this change has been the policy of affirmative action, a pol­icy that was enacted to aid members of specific groups to advance both in school and at work.

THE PROBLEM—RACE-BASED OR NEED-BASED AFFIRMATIVE ACTION

A number of people sympathetic to existing affirmative action practices are now willing to compromise with its critics by shifting from a race-and gender-based policy to a need-based one. There is obviously politi­cal pressure for such compromise, but the pressure is derived from a sense that the moral foundations for the present practice are shaky and that a morally more adequate policy is available—need-based affirmative action. Need-based affirmative action policies would no longer target minorities and women exclusively, but would instead extend the benefits of affirmative action to all talented poor people, including white males.1 As a result, affirmative action would become class- rather than race- or gender-sensitive.

Besides its anticipated political appeal, the moral attractiveness of this policy is that it fits many people's initial idea of fairness—that individuals should be given equal opportunity to advance independently of the deficits or benefits provided by their parents and without consideration to accidental characteristics, like race and gender. Yet moral ideas can be more complex than they initially seem and given the strong moral and political appeal that the need-based substitute carries, it is important to examine some of the considerations that support the present alternative before deciding that need alone will serve all of the morally legitimate functions of the present system. Hence in this article I reexamine what I take to be the moral foundations of the present practice and argue that a race and gender approach to affirmative action is not only morally defen­sible, but serves certain important ends that a need-based substitute could not serve.

In making this argument I am not rejecting the idea that need has a role to play in determining the distribution of educational and occupational benefits. I am only arguing that need alone does not address the moral foundation of the present policy. Moreover, the argument presented here should not be taken to suggest that the present policy does all that is morally required. Indeed, at the end of the article, I show that at least one of the most powerful reasons for a race-sensitive policy can be only partially addressed through affirmative action and that addressing this reason fully would require that affirmative action be folded into a more broadly based approach to the problem of inequity.

Affirmative action is a practice that profoundly affects education at all levels. It helps determine the racial and gender composition of faculties and it has an influence on the mixture of students in specific schools and on what these students are taught. It is an important factor in the determi­nation of successful candidates to colleges and professional schools and it has a role to play in the cultural climate of the school as a harassment-free work place. Nevertheless, in addressing the issue of whether the present policy should be exchanged for one that highlights need, it is necessary to view education and schooling as part of a continuum that includes the world of work as well. This broader focus is a part of the very strategy of affirmative action itself and any change that occurs in one institution, such as the schools, is expected to reverberate throughout others.

WHAT AFFIRMATIVE ACTION IS

Affirmative action began with Title VII of the Civil Rights Act of 1964, which prohibited discrimination on the basis of race and sex and which was later augmented by a number of executive orders that regulated federal contracts and set goals and timetables for hiring minorities. University admissions was not an immediate target of affirmative action, but it too has become one through litigation and through administrative interpretation of existing laws. Given the importance of colleges and universities in supplying and renewing the nation's managerial and professional labor force, the extension of affir­mation action enforcement to universities is perfectly reasonable. The actual exercise of affirmative action policy in the university can include many dif­ferent features, from the relatively uncontroversial concern to seek out women and minority candidates to apply for positions, to more controver­sial programs that seek to select or hire women or people of color as a way to increase their numbers within the student body and the faculty. This sometimes has been accomplished through establishing separate perfor­mance standards for women and minority applicants, such as when the mil­itary academies allow women to do certain exercise routines differently from men or when a law school grants admission to some African-Ameri­can applicants even though their scores are lower than some unsuccessful white applicants.

The purpose of affirmative action is to reduce discrimination and increase the number of minorities and women in the relevant positions. While there is obviously some overlap between economic status and group membership, the spotlight of affirmative action has not been aimed at the poor as such but at women and members of certain minority groups, some of whom are also poor. The reasons for this are complicated and constitute much of the subject matter of this article. However, the general idea is that past and pres­ent discrimination has been systematically exercised against members of these groups and has thus resulted in the underdevelopment and inade­quate utilization of talent. Many also believe that this discrimination is a vio­lation of the constitutional right to equal protection. Advocates of the pres­ent practices believe that people from these groups historically have been denied opportunities to develop their talent and to be admitted and hired on the basis of a fair competition. Thus race- and gender-based affirmative action is justified because it seeks to correct this distortion and to end the effects of past and continuing discrimination.

The present practice cuts across economic groups and holds that the effects of past acts of discrimination linger in the present for members of specific groups and that members of these targeted groups, no matter their present economic or social standing, continue to be denied reasonable ben­efits and social standing. Past discrimination has, under this interpretation, handicapped all members of the targeted groups—even some who may be relatively well off economically. Affirmative action seeks to remove impedi­ments caused by such discrimination and to enable members of these groups to advance as they might have done otherwise.

THE ROLE OF THE PRINCIPLE OF EQUALITY OF OPPORTUNITY

The ultimate purpose of affirmative action is to reestablish the elements of fair competition that are embedded in the ideal of equality of opportu­nity. Because historical discrimination and its lingering effects apply only to members of some groups and not to others, the application of the prin­ciple of equality of opportunity is usually circumscribed by affirmative action to members of these groups.2 Those outside the targeted groups may appeal to equal opportunity to justify individual claims to advance­ment and may even successfully sue to counter individual acts of discrimi­nation that blatantly favor individual women or minority members over a more qualified white man.

Nevertheless, the focus of the policy remains women, blacks, and members of groups that have suffered systematic acts of historical discrimination. It is in this sense that the policy of affirmative action differs from most policies that are concerned to advance the ideal of equality of opportunity and that have focused attention on the impedi­ments to advancement that arise because of economic need alone.

Because affirmative action is intended to correct for systematic discrim­ination against members of certain historically disadvantaged groups, it has not been, except in a limited sense, a need-based policy. For exam­ple, the spotlight of affirmative action might well shine on a college that eliminates women's gymnastics even though all team members come from professional and upper-middle-class homes. In contrast, it might allow a college to eliminate men's baseball even though all the members of the team come from a white lower-working-class background.

Need does come into play in an indirect way given that the groups that have been the focus of affirmative action contain many of society's most economically vulnerable individuals. Yet when affirmative action is applied to them it is not just because they are economically vulnerable, but because of the effects of historical and systematic acts of discrimina­tion. While there is a larger principle of equality of opportunity that lies behind the practice of affirmative action, it is the fact that this principle has been systematically violated for members of certain groups that moti­vates the narrow focus. It is in this sense that the present application of affirmative action is race- and gender-based rather than need-based.

A need-based policy would shift the focus of attention away from group membership and would instead illuminate individuals and their eco­nomic situation. Advocates of this change see it as forward-looking and as rewarding talented members of any group who are motivated to succeed. A need-based policy is not only seen as consistent with many people's idea of fairness; it is also viewed as consistent with their idea of democ­racy, because it serves to advance talented individuals regardless of the background or beliefs of their parents. Advocates argue that the present policy encourages a sense of victimization and entitlement.

AMPLIFICATION OF THE ARGUMENTS AGAINST PRESENT RACE- AND GENDER-BASED POLICY

The arguments against affirmative action are not new and most have been voiced in one way or another since the policy was formulated. However, in the last few years they have gained considerable ground politically as the economic stakes have been raised. The continuing erosion of the middle class and the significant increase in the percentage of families who have dropped below the poverty line (from 11.4 percent in 1973 to 18.5 percent in 1995)3 have created a more difficult climate for implementing affirmative action policy. Fewer people can assume that if they fail to get one decent job they will get the next one that comes along. Consider, for example, that temporary jobs account for 20 percent of all new positions, and that many of these jobs are in the professional areas—such as law, stock trading, and accounting—areas that have been frequent targets of affirmative action.4

The fact that many of the most profound causes of middle-class insecurity are beyond the control of any single person leads to a close scrutiny of more proximate factors, such as affirmative action hiring. The increasingly global­ized economy makes many once locally rooted firms accountable to a man­agement thousands of miles away, often in a different country. This distance reduces the level of local responsibility and sense of corporate citizenship.

The easy flow of capital from one area of the globe to another means that American labor competes at a disadvantage with global capital. Many jobs that were once secure because of an advantage gained by manufactur­ers who located close to their main markets now disappear almost overnight because modern means of transportation and communication have diminished the advantage. Yet the effects of globalization are not easily seen or controlled. The beneficiaries of affirmative action policy make for much easier targets than do international conglomerates creating a climate in which arguments against affirmative action are amplified, echoing off the walls created by changing global economics and resulting middle-class anxiety.

Although the arguments made against affirmative action have been amplified by present economic trends, the actual advances made by the targeted groups are quite mixed. Despite claims to the contrary, African Americans have yet to make significant advances in certain fields. Take, for example, a number of important professional fields: Whereas blacks repre­sent over 12 percent of the population in the United States, they comprise only 4.2 percent of the doctors, 3.3 percent of the lawyers, 5 percent of the university teachers, 3.7 percent of the engineers. The percentage of black lawyers and judges has risen from 1983 to 1993 by but one-tenth of 1 per­cent and the number of black college teachers rose by just four-tenths of 1 percent during the same period. Moreover, salary equity continues to be an elusive goal. The average salary of white women is 70.8 percent of the salary of white men; for black women the figure is 63.7 percent and for Hispanic women it is 53.9 percent.5 And the salaries of black and Hispanic men rela­tive to those of white men actually dropped between 1975 and 1993.6 More­over, while a smaller percentage of white men are in the active labor force now than in 1970, there has been a larger percentage drop for black males. However, the percentage for both black and white women has increased.7

Although affirmative action has not brought the level of redistribution that the present attacks on it might lead one to believe, it has resulted in important pockets of change. For example, the percentage of women lawyers and judges increased from a mere 3.8 percent in 1972 to 22.8 per­cent in 1993 and women faculty members rose from 28 percent in 1972 to 42.5 percent in 1993. Moreover, African-American representation within some trade and blue-collar groups has increased substantially. And while the percentage of black lawyers remained essentially the same from 1983 to 1993, that of black firefighters, police, and other protective services in the blue- or gray-collar sections has risen by almost 4 percent. Similarly, the percentage of African-American cashiers has increased during the same period by more than 3 percent.8 Thus the truth seems to be that affirma­tive action has made an impact in some areas for some groups but the record is spotty at best.

Progress in salary equity has also occurred in some areas. For example, the income gap between black and white married couples narrowed between 1979 to 1993.9 However, this kind of progress hardly suggests—especially given a shrinking percentage of married couples—that affirmative action has resulted in the kind of redistribution of income, status, or well-being that would explain the latest assault on these programs. If white males are threat­ened, it is likely that the downsizing of corporations in an increasingly glob­alized economy is the main reason. Affirmative action—while not the major source of the problem—serves as an easy target and the present economic climate helps to stimulate the search for alternatives to race- and gender-based affirmative action and amplifies the opposing arguments considerably.

CONSERVATIVE AND LIBERAL VARIETIES OF NEED-BASED AFFIRMATIVE ACTION

The need-based alternative to current affirmative action practices would change the focus of the program from one that seeks to open opportunities for women and members of certain minority groups to one that seeks to advance talented and motivated people from any group who may be held back because they are poor. This change has received support from both lib­erals and conservatives.10 Both object to certain aspects of the present system, such as granting preferences to children from professional families just because they happen to have a Hispanic surname while providing no such preferences to talented white children from poor families. Many liberals and conservatives alike see this as unfair and to the extent that choices of this kind are encouraged—as they are, for example, when Hispanic surnames are sim­ply counted as meeting affirmative action standards—it appears as if affirma­tive action policy is advantaging advantage and disadvantaging disadvantage.

Insofar as economic conservatives—those whose identity is defined by commitment to free-market practices—can allow for government interven­tion, the need-based approach is consistent with their basic ideology of promoting market efficiency. It allows the differences in educational attainment and income to remain while enabling ambitious and talented people from all groups to rise to the top. It also assures that deserving indi­viduals are not passed over simply because they are not members of some preferred group. Liberals and conservatives differ, however, in terms of the extent to which they want to define economic need in ways that would pro­tect some of the gains made by women and minorities.

Conservatives are generally not concerned about an unequal distribution of income, position, or status. The indifference is consistent with the gen­eral reluctance of the economic conservative to advance government regu­lation of private industry. It is thought that market factors alone are suffi­cient to correct for inadequate selection and that companies that overlook talented women or racial minorities will, in the long run, suffer competi­tive disadvantage and will lose out to companies that hire from the entire pool of talent regardless of race and gender. Government interference in the market is said to exact an important cost in terms of allowing ineffi­cient companies to survive. Moreover, government intervention exacts a high administrative cost, which in the long run makes American business less efficient in the world marketplace."

In the case of gender inequality, this indifference is also consistent with the cultural conservative's commitment to the ideal of the "traditional" two-parent family with the mother at home raising the children and the father working outside of the home to support them. Given these two com­mitments—the one to an ideal market, the other to an ideal family— inequalities are seen as acceptable differences within the market or as rea­sonable pressure to return to the norm of the traditional family.

The actual consequences of need-based policies that do not attend in any way to the present racial distribution of positions would be especially severe on African Americans and would result in a significant decrease in the number admitted to colleges and universities.

The Scholastic Assessment Test, . . . despite its many imperfections, still provides a rough measure of academic preparation. In 1993 approximately 14 percent of the 1,044,465 high school seniors who took the test came from families having incomes below $20,000.
Among the white students in this presumably disadvantaged group, the average score was 872 out of a possible 1,600 while Hispanic students averaged 725 and the black figure was 693.12

The results of a change from a race-based policy to a need-based policy would clearly be to redirect some of the resources presently being spent on African Americans to white males. Of course, given the larger percentages of poor people among the ranks of presently targeted groups, it is reason­ able to expect that white males would still have a comparably smaller per­centage of their numbers receiving benefits. Nevertheless, given the size of the group, it is certain that a significant portion of present benefits would be shifted away from those who presently are eligible to receive them. More­over, the shift from a race- to a need-based policy would have a multiplying effect. It would not only reduce the number of African Americans admitted to competitive undergraduate colleges, but it would reduce even more the number of successful applicants to graduate and professional schools.13

One of the differences between the conservative and the liberal approaches to need-based affirmative action is that the liberal does worry about its implications for racial distribution. Some liberals argue that any reasonably sensitive indicator of a student's level of disadvantage would yield a higher relative proportion of blacks. Kahlenberg, for example, advances a complicated rating scheme that would advance college appli­cants partly on the basis of a score on a disability index that would include parental income, education, and occupation as well as the quality of the applicant's secondary education, neighborhood, and family structure.14 The more disadvantaged an applicant is in these areas, the more points would be granted as a way to offset lower scores on admissions tests. Such a system is proposed as a way to offset unfair disadvantages. Kahlenberg argues that this scheme would probably not result in significantly fewer African Americans' being chosen for positions. The implication that we are supposed to draw is that under this scheme African Americans would not lose out in terms of numbers admitted, and that handicaps provided for disadvantages would actually result in a higher level of talent being repre­sented in our nation's colleges and universities.

Whether this prediction would prove accurate is difficult to say. How­ever, given the premise of the need-based alternative, one must wonder why liberals would still be concerned with the effects of such a policy on blacks or any other group. If the problem is the underrepresentation of the disadvantaged as such, rather than the black or female disadvantaged, why worry about a particular group of disadvantaged people? It would seem that we really should be concerned only about whether talented and motivated but disadvantaged applicants are receiving a fair shot at admissions and not whether successful applicants are black, white, women, men, short, fat, thin, or tall. Given the basic premise of the argument—that the problem is the disadvantaged as such—the conservatives have the day. Even test bias is not to be judged on the basis of whether some racial groups score at the same proportions as the majority. If our concern is the disadvantaged as such, and if we believe that present college curriculum and grading policy are appro­priate and impartial—issues the liberal proposals have not contested—then a test is biased only if it incorrectly predicts ultimate performance.

Kahlenberg and other liberals who seek class-based affirmative action appear to be hedging their bets—a shift from race to class will not, they argue, really disadvantage race.15 But why would they hedge unless they thought that race presents—as I believe it does—a very special kind of dis­advantage? Without such an assumption, the conservative critic could effectively point out that the liberal advocates of class-based affirmative action have decided beforehand which groups should be represented at the higher level and that, given this decision, they are simply trying to make it more acceptable to the white male population. Yet, the conserva­tive might continue, if the aim is fairness and if we are truly open to the question regarding the cause of disadvantage, why worry beforehand about whether a certain racial distribution results? Liberals who see merit in switching from a race- to a class-based form of affirmative action have yet to address this question.

SOME DIFFERENCES BETWEEN THE TWO APPROACHES TO AFFIRMATIVE ACTION

The need-based alternative presupposes that the only legitimate function of affirmative action is to correct inequities in the marketplace that arise because some talented women and some talented men from many differ­ent racial and ethnic groups are not well positioned to take advantage of educational opportunities and to develop their talents. Those who advance a need-based view believe that every legitimate goal that is presently served by the race- and gender-based approach also can be served by the need-based approach—talented but poor and underachieving women and minority members will be identified and educated. However, they also believe that it will do more because it will also advance poor and talented white men. Yet this approach overstates the case in a number of important ways and misses some of the noneconomic factors that affirmative action, as it is presently practiced, is intended to meet. The situation of women provides a strong illustration of the limits of an affirmative action policy that is rooted solely in economic need.

ECONOMICS   VERSUS   CULTURE

Although raised in the same families as their brothers, women have been systematically placed in positions with less status and authority. This sug­gests that economic disadvantage is not the only roadblock to achieve­ment. The reduced level of opportunity for women is grounded in cultural and educational factors as much as it is in economic factors. Indeed, these three elements reinforce each other in the sense that what may begin as a cultural or educational difference results in an economic difference that in turn reinforces the ways in which women are treated both culturally and educationally.

It is certainly quite possible for one to accept the view that the primary goal of affirmative action is to correct inefficiencies in the market that result from misplacement of talented people without accepting the belief that the only cause of undeveloped talent is an economic one. This has been one of the focal points of a race- and gender-based approach that is largely overlooked by the need-based alternative.

MERIT VERSUS   STANDING

Another difference between the two approaches is that while both stress the importance of individual merit, the present practice seeks in addition to effect a cultural and psychological change that goes well beyond the benefits awarded to the successful individual applicants. Hence attention is focused on those who share certain "innate" characteristics—color or sex—and who, because of these characteristics, have been assigned reduced social standing. Because this reduced standing has negatively affected the aspirations of many and has frequently defined "normal" insti­tutional practice, a systematic effort is needed to effect the desired change. Targeted assignment and selection is a way to educate the larger public about what should count as standing and to help all members of the stigma­tized groups think differently about themselves. Unlike a need-based approach, which functions to eliminate the one characteristic that is shared by all of those who are selected (poverty) and to separate those cho­sen from those not chosen, a race- and gender-based approach selects peo­ple on the basis of features that will persist even after a change in educational and economic status has occurred. It is believed that the change in status can serve as a reminder that such characteristics should not be taken as a sign of reduced ability or competence.

FORWARD- VERSUS   BACKWARD-LOOKING   PERSPECTIVES

Finally, those who argue for a need-based policy of affirmative action do so from what they see as a forward-looking perspective. Their goal is to advance the idea of equal opportunity and to reduce inefficiencies in the economic system by assuring that talented applicants are not overlooked because of their economic situation. Certainly the present practice also advances forward-looking consequences since any policy that finds and cul­tivates talent will increase the chances that society as a whole will also bene­fit. However, the present policy largely limits its search for this talent to certain groups on the grounds that it has a special obligation to members of these groups as a result of past acts of discrimination. Thus whereas a need-based program is driven primarily by a vision of the future economic benefits to the society, a race- and gender-based program is partly con­cerned with a debt that is owed to members of certain groups. Insofar as the effects are forward-looking they are so within a framework that brings specific groups into relief.

For example, to the advocates of a race- and gender-based approach, it will not do simply to toss a coin to determine the educational benefits of two equally talented, equally poor students when one belongs to a group with a long history of discrimination and the other is, say, a child of recent immigrants. Indeed, equal talent may be an unnecessarily high standard in many cases where affirmative action is called for. This is because some­times affirmative action may involve a debt to a group of people whereas the selection of the most talented person among any and all applicants is best understood as a future investment for society at large. The moral force of this difference is well understood and is expressed, for example, when veterans are given certain preferences in exchange for a service rendered to their country.

Affirmative action in certain cases should ideally be thought of as a part of a special obligation owed to members of certain groups. In these cases, to the extent that it is an investment, it is so within the confines of specific aggrieved groups. Advocates of this ideal would agree that affirmative action should be forward-looking in the sense that wherever a choice is available society should seek to pay its debt in a way that will advance a rel­evant social interest. However, they would emphasize that society should seek to pay its debts. This means that to the extent that debt is involved, affirmative action must involve a group-specific policy. In these cases the aim of affirmative action should not be to maximize interests in general, but to serve the specific interests of members of the aggrieved group.

Thus there are three primary reasons for a race- and gender-based approach to affirmative action that a need-based approach fails to meet. The first is to correct inefficiencies in the system resulting from unfair treatment. In this case the need-based approach wrongly assumes that eco­nomic barriers should be given exclusive consideration.

The second reason for the present practice involves the educational and motivational benefits that may be served by advancing members of pre­viously excluded groups into positions of authority and power. In this case the need-based approach fails to address the issue of stigmatized groups.

The third reason involves the issue of a social debt and the presumption that society, in its treatment of certain people, has incurred unusual obli­gations. The need-based approach fails here because it views affirmative action only in terms of a social investment. That the need-based substitute does not address these reasons very well should be an important factor in weighing its merits and demerits. However, before deciding whether the present approach should be maintained, there are some specific objections to the race- and gender-based alternative that must be addressed.

ARGUMENTS   FOR   SHIFTING   FROM   RACE-   AND GENDER-BASED   AFFIRMATIVE   ACTION   TO NEED-BASED AFFIRMATIVE   ACTION

In addition to the belief that the present policy encourages a sense of vic­timization, there are additional arguments against existing practices and in favor of shifting the spotlight of affirmative action from racial and gender categories to economic ones. The first of these is that the focus on groups is inconsistent with the American tradition and leads to a misguided con­ception of group, as opposed to individual, rights. This, if carried to its log­ical conclusion, would ultimately serve to Balkanize the nation.

For example, Nathan Glazer argues that affirmative action violates the fundamental American consensus arrived at with the voting rights act of the 1960s that America is to be a union of "states and free individuals, not a nation of politically defined ethnic groups." He believes that affirmative action negates the principle that "all citizens would have equal rights [and that] no group would be considered subordinate to another."16 Glazer's objection is based on the belief that affirmative action rests on a recogni­tion of groups as rights-bearing entities and that this recognition endan­gers the principle of individual rights. The objection raises two issues that I will return to in a subsequent section but that are useful to mention here. One of these is whether affirmative action is correctly characterized when it is depicted as a group right. The second is whether group rights can ever be justified, and, if so, under what circumstances.

A second argument against affirmative action holds that those who are helped the most by affirmative action targets have been hurt the least by past discrimination. As Goldman puts it:

Those with Ph.D.'s or other professional qualifications, who will bene­fit from the policy by being awarded jobs are not those members of the groups in question who have been appreciably harmed by such dis­crimination. . . . [Moreover] reverse discrimination . . . cannot consti­tute reasonable compensation for past injustices toward members of minority groups or women. This is because the numerical goals are specified in terms of groups as a whole, while they nevertheless func­tion to benefit specific members of those groups. Further, the individ­uals benefited (for example, women just coming out of graduate school with Ph.D.'s) are generally those who have suffered least from prior discrimination.17

This is an argument with strong appeal to both the political Left and the political Right. The Left sometimes rejects affirmative action on the grounds that it can never resolve the real problem, which is the vast sea of poverty generated by a capitalist economic system. Hence, to the Left the problem is that the largest group of poor people never make it to the point where they might even be candidates for those positions that make affirma­tive action a relevant consideration. The Left has an important point and it is one that I will examine more closely when addressing the question of af­firmative action as payment of a historical debt. However, the all-or-nothing premise on which this evaluation of affirmative action is made is surely problematic.

The political Right finds the same argument attractive precisely because it supports its suspicion that affirmative action is unnecessary and serves to discriminate against white males in favor of often less-deserving women and blacks. Since a part of this argument has already been addressed in my treatment of economic and cultural barriers to advancement, I will not examine it in further detail. However it should be kept in mind that the argument that I am addressing in this article is not whether need should be a relevant consideration in the application of affirmative action princi­ples. It seems to me obvious that need has a legitimate place in considera­tions of social positions. My concern is considerably narrower. It is whether need-based affirmative action can serve as an adequate substitute for race- and gender-based policies, and in order to answer this question we must understand the multiple functions that can be used to justify the present policy.

A corollary to the above argument against affirmative action is that not only does affirmative action serve to advantage the least discriminated against members of the targeted groups, but it also serves to stigmatize all those women and minorities who are deserving and would have competed successfully anyway.18 This is an argument so commonly heard and yet st obviously problematic that I will treat it briefly here instead of coupling it to the other objections that must be examined in considerable detail.

The problem with this argument is that it begs the question and assumes what it sets out to prove. That is, it is an effective argument only if it is assumed that most remnants of discrimination have been eliminated and that few, if any, truly deserving candidates are now admitted under affirma­tive action standards.

Granted, many women and members of minority groups might not need affirmative action in order to be successful even in the real world with its remnants of discrimination. Granted too that the practice of affirmative action does allow many people to wrongly claim that every successful women or black succeeded only because of affirmative action. However, if affirmative action is truly a justified policy—that is, if those who are aided by it really do deserve the advantage it provides—then the stigma placed on both the real beneficiaries of affirmative action and on their somewhat more talented "look-alikes" who have advanced without the benefit of affir­mative action is wrong.

The issue should not be whether affirmative action is used to stigmatize people. It should be whether it does or does not help us to make good decisions regarding admission and hiring. If it does not do this, and at the same time confuses people about which women or which blacks are quali­fied, then there is a real problem with affirmative action itself. If, however, affirmative action does contribute to better decisions, then the stigma should be blamed not on affirmative action but on an overall misunder­standing that the public may have of its goals and effects. If this is the case, the solution is not to eliminate affirmative action, or to alter its focus, but to do a better job of educating people about the purpose of the practice.

The problem with those who argue against affirmative action from the standpoint of stigmatization is that they rarely address the nature of the standards that would tell whether affirmative action results in inferior appointments and hiring. My own sense is that affirmative action has widened the considerations used to determine successful applicants. For example, there is greater concern about the ability of managers and pro­fessionals to relate to a diverse work force and group of clients. In widen­ing the standards there may be loosening of technical prerequisites in some instances, such as push-ups for women at West Point. However, it is just as likely that in forcing a wider net to be spread among white males as well as women and people of color, even technical standards have been raised in many instances. In cases where technical prerequisites may have been lowered in order to accommodate other factors, the merits of the trade-off must be examined in terms of job performance. However, it should not be assumed offhand that to widen the considerations relevant to selection is the same as failing to contribute to better decisions.19

There is another argument that is closely related to the one claiming that affirmative action advantages the least disadvantaged. This one holds that those who must pay the price of affirmative action are those who have benefited least from the discriminatory practices that affirmative action is intended to address, and that many of these people had little if any involvement in the initial acts of discrimination. I will look closely at this argument in a subsequent section.

WHY AFFIRMATIVE   ACTION   IS   NOT A GROUP   RIGHT

There are two ways to think about a group right. In the first and strict sense of the term, the concept of a right is employed to advance or protect the position of a people who share a certain identity and the right is granted or denied to people because of that identity. Here rights are afforded to the group as a group and exercised by its members as a function of their mem­bership in that group. Because the right is granted to the group as such and held by individuals as long as they belong to that group, a group right often serves to increase the coherence of the group because it serves as a constant reminder to its members that their identity and their well-being are bound to their role as members of that group.20

A system of group rights places a strong burden on members within the group as well as on members outside to act in ways that recognize the group's integrity. Indeed, to leave the group may quite literally mean to lose one's identity, as is symbolized by the orthodox Jewish family who sits Shiva, a way of grieving for the dead, for the child who marries outside of the religion.

In a system of group rights, select privileges are given to individual mem­bers just because they belong to a certain group and others are denied for the same reason. While members exercise privileges, it is the group itself that holds the right to recognition. Individuals are recognized in terms of their status as members of the group. Hence, for example, individual Jews in the Middle Ages often had the right to lend money for interest until such time as they converted to Christianity, at which time they lost the right. They often did not have the right to hold public office while they were still Jews. However, this right might be gained by conversion to Christianity.

A strong notion of group rights—one that is backed by state power—can have a number of obnoxious features because the group is given the legal authority to control individual behavior in areas such as marriage, worship, dress, and work. In liberal societies, state power cannot legally support any­thing like this level of group rights, although individuals may not be for­bidden from voluntarily joining groups that would seek to exercise such control over them.21

The contrast between this strong system of group rights and the modern system is captured by the debate in the French assembly over the status of Jews and whether they were to remain classified as Jews or were to be con­sidered French citizens. Prior to the French Revolution, Jews had separate group status and were recognized, not as individuals or as citizens, but as Jews. When a vote on this issue was called in the national assembly in 1771, the argument for the disestablishment of the Jewish corporate existence was summed up by Clermont-Tonnerre: "One must refuse everything to the Jews as a nation, and give everything to the Jews as individuals. ... It should be repugnant to have ... a nation within a nation."22 The vote to change the status of Jews was, of course consonant with the rise of individu­alism and the idea that each citizen was to count as one person rather than as one member. Hence Jews were no longer a member of a separate rights-bearing group, but existed as individual French citizens who might or might not choose to associate with other Jews.

No one, of course, believes that affirmative action approaches anything like the system of group rights described above. However, this is often the specter that forms the background of concerns about the Balkanizing effects of race- and gender-based policy. The confusion between the kind of group status described above and the kind that is implied by affirmative action is best captured by distinguishing between a group right and a group-based right. The latter results when some people are wrongly denied the treatment that should be afforded to individual, rights-bearing citizens because of a characteristic that they all share. The characteristic may be blue eyes, black skin, small bones, or the physical apparatus needed to bear children. The people who have this characteristic may or may not share a lot of other things and they may or may not care about each other's wel­fare or think of themselves as sharing an identity. All of this is irrelevant to the claim that they all have.

While it is true that affirmative action exists in part to advance equality of opportunity for members of certain groups, it is wrong to think of it in its present form as a group right in the first sense of the term. It does not seek to advance the coherence or the status of one group over another— although it may use an existing sense of identification in terms of role models to enhance its effect—nor does it seek to provide recognition to members of one group over another. It does not give special group status. Rather, it uses group membership to identify and correct past acts of dis­crimination against individuals, acts that have resulted in inadequate edu­cational, economic, and social positioning.

AFFIRMATIVE   ACTION   CONFUSED   WITH   A   GROUP RIGHT: THE   STRATEGY OF   SIMULTANEITY

Affirmative action is sometimes mistaken for a group right because of what may usefully be called a strategy of simultaneity. This is a strategy that is intended to increase, without quotas, the percentage of a group's repre­sentation in a given field by opening up educational and employment opportunities on the one side and by developing motivation on the other. The idea behind the strategy is that opportunities and motivation are mutually reinforcing, such that by increasing opportunities for members of a group their motivation will improve and that as motivation improves more opportunities will become available. It is a policy that is intended to advance individuals' chances for fair treatment given underrepresentation resulting from historical discrimination suffered because of shared charac­teristics such as sex or skin color.

Simultaneity indicates policies that seek to increase the number of tar­geted minorities both within and between different fields at approximately the same time. It aims to change the cultural practices and self-conceptions that encourage discrimination or enable it to continue. The fact that some affirmative action policies are intended to lift the status of members of a group simultaneously should not be mistaken for the promotion of a group right. Simultaneity is a strategic move that is intended to have the effect of breaking institutional deadlock where the action of isolated deci­sion makers is unlikely to have the desired effect.

To see this point, consider the once long absence of African-American quarterbacks in the professional football leagues. It is hardly plausible that black players lacked the natural talent to play that position until a few years ago. It is more likely that the prejudice of players, coaches, and owners resulted in this exclusion. What is hard to understand is why the profit motive and the desire to win did not for so long override this prejudice at least among the poorer and least able teams.

One partial explanation has to do with institutional deadlock or what Carmichael and Hamilton call institutional racism.23 One can imagine a sit­uation in which at every level even a coach with the best of intentions would think that preparing a talented black child for quarterback would be a disservice because of the perception that the coaches at the next level would never put a black athlete in that position when there are white boys who can play it. This means, of course, that even a coach with the best of intentions at the next level of play (say high school) would have a double reason not to play a black at quarterback: first, because the coaches at the lower levels have not trained any talented black players for him to work with and second, because the coach at the next level (say college) has never played a black at quarterback. And, of course, this situation undoubt­edly has an effect on the inclinations of the athlete as well who "realisti­cally" wants to be trained for a slot where he has a chance of playing. Finally, there is an added effect on fans, who, seeing no black quarterbacks in the professional leagues, have the perception reinforced that blacks are not suited for leadership positions. Thus a culture is created and main­tained whereby, even if no one ever wished to discriminate, discriminatory practices are created and maintained.

Simultaneity is a strategic way to break such cycles. It is intended to affect the way in which members of targeted minorities think about their opportunities for a good life within established institutional structures and it is intended to change the way established institutions structure opportunities for minorities and women. For example, an otherwise bright girl may well decide not to pursue medical education if she is unable to associate womanhood with a medical career because she does not know of any female physicians. Similarly, even if the faculty wanted to increase the number of women in medicine, they would have difficulty doing so if girls, seeing few women physicians, have decided to pursue dif­ferent courses of study. Simultaneity seeks to break this impasse by work­ing on both ends at the same time. In this case it seeks ways to admit more women applicants into medical schools and into prestigious internships while also encouraging more girls to pursue a course of study that would lead to medical school. The increase in the numbers of female medical students and physicians over the last decade and a half is an indication that affirmative action can play a significant role in addressing historically generated inequalities.

Simultaneity says that certain kinds of roadblocks are rooted deep in historical and cultural practices and that special attempts must be made to remove them. It is a way to break those instances of underrepresentation that are the result of systematic and enforced past discrimination that have resulted in present cultural formations that continue to dis­criminate and reinforce reduced social standing. The policy is best understood not as reverse discrimination, as some critics have labeled it, but as a way to address historical and systematic acts of discrimination that have resulted in a collective level of competitive disadvantage or con­strained motivation.

GROUP-BASED   RIGHTS   AS   VIOLATION   OF INDIVIDUAL RIGHTS   OF   OTHERS

One objection to the policy of simultaneity is that even granting that the pol­icy does not function as a group right on the inside, it does so on the outside. In other words, although simultaneity does not necessarily serve to strengthen the coherence of targeted groups, it does serve to deny to those outside of the group certain benefits that are rightfully theirs as individuals. Hence, for example, the white male applicant to law school with good grades and strong test scores is turned down and a place is given to a black applicant with lower scores. This issue is addressed, with some success, by Ronald Dworkin in his consideration of the Bakke case. Dworkin sums up his argument:

Affirmative action programs seem to encourage, for example, a popu­lar misunderstanding which is that they assume that racial or ethnic groups are entitled to proportionate shares of opportunities, so that Italian or Polish ethnic minorities are, in theory, as entitled to their proportionate shares as blacks or Chicano or American Indians are entitled to the shares the present programs give them. That is a plain mistake: the programs are not based on the idea that those who are aided are entitled to aid, but only on the strategic hypothesis that helping them is now an effective way of attacking a national problem.24

For Dworkin, race is an acceptable factor to use in admission if doing so serves an important national goal and if the racial exclusion that results is not based, as it was with, for example, quotas against Jews and blacks, on the view that one race or group is inherently better than another.25 He notes, for example, that potential legal skill, as reflected in scores on a law school admissions test, is obviously an important consideration in making selections to law school since it is generally better for a country to have available the services of more rather than fewer competent lawyers. How­ever, skin color may also be relevant under certain circumstances, such as when there is an undersupply of adequately trained lawyers available to serve a given racial or ethnic group. For Dworkin, affirmative action rests on a perfectly reasonable guess that by admitting and training more black lawyers and doctors this problem of underrepresentation will be addressed.

What is important to notice about Dworkin's argument is that it directs extra resources to any group in which an undersupply of professional or other relevant talent or resources exists. The force of this argument is to show that test scores or other signs of ability do not, by themselves, entail a right to a position and it thus allows for flexible standards of admission and assignment. However, his argument needs refinement because it does not recognize the differential merits of the claims of equally needy groups.

The problem with Dworkin's argument is that it is indiscriminate with regard to what it counts as a national problem and therefore is not a strong justification for what he seeks to accomplish. Suppose that a new immigrant group is, along with African Americans, also underserved with regard to its professional talent in comparison to some national standard and suppose that special admissions could solve the problem. Given Dworkin's argument, members of this group would have the same claim on affirmative action resources as would members of underrepresented African-American communities. And this would be true even if they came to this country precisely because the quality of medical and legal services here is better than that available to them in their homeland.

Yet, even though there are very good humanitarian reasons for provid­ing adequate medical care to members of new immigrant groups, the implication that they should have an equal claim with blacks to affirmative action is surely wrong from a moral standpoint. The moral force of affirma­tive action for African Americans is not just that they are less well served by professional talent than other Americans, although this is a condition that we should worry about. Rather, the moral force behind affirmative action for African Americans is based to a very large degree on the historical rea­sons that led to their being underserved.

Dworkin is both right and wrong when he says that "the programs are not based on the idea that those who are aided are entitled to aid, but only on the strategic hypothesis that helping them is now an effective way of attack­ing a national problem."26 He is right in the sense that no one, even those students with the highest grades and scores, is entitled to become a doctor. One is entitled to a place in a medical school only if there is reason to believe that a publicly recognized need will be met. He is wrong if he also assumes that African Americans do not have a special claim on the health resources of this nation, a claim that includes but goes beyond need.

One final concern with Dworkin's article has to do with a possible impli­cation regarding the way in which individual members of different racial groups are to be assigned places in the medical system. While Dworkin is probably correct that educating more black professionals will probably result in some improvement in the professional talent available to inner-city areas, affirmative action is certainly not the most efficient way to serve this goal. If the primary goal is to increase the professional talent available to black people, then professional schools should give priority to appli­cants who agree to spend a reasonable number of years serving black peo­ple. It is likely that such a policy would give an advantage to African-Ameri­can applicants, but it would do so only if they had the desired motivation, not because they are black and not because that blackness has resulted in discrimination and reduced standing.27 While there is every reason to be in favor of a policy that seeks to select people who will serve underrepresented areas, it would be racist to expect that only those admitted under affirmative action should be obliged to do so.

AFFIRMATIVE   ACTION   AS   ADDRESSING A HISTORICAL   DEBT

For some people the moral basis of affirmative action involves more than addressing patterns of systematic discrimination and reduced standing. For Native and African Americans it also involves historical acts of such egre­gious nature that special obligations have been created for the larger soci­ety. These obligations are often confused with the other reasons for affir­mative action, but they are inadequately captured by the kinds of moral appeals that otherwise would be quite acceptable. For example, the fre­quently expressed concerns of liberal defenders of affirmative action to create a work force that reflects society at large is consistent with attempts to correct perceived distortions in the marketplace of talent but it does not signal the presence of a historical debt.

The same is true of President Clinton's rationale for affirmative action— that we must "take an extra effort to look for qualified candidates who could serve with distinction and make a contribution to this country."28 This argument does not suggest that there may be very different reasons why the talents of different individuals remain hidden and that such rea­sons are relevant in considering how such hidden talent should be acknowledged and treated. Nor is the problem of a debt fully captured by a feminist notion such as "silencing," which suggests that the problem could be adequately addressed simply by opening up avenues of communication and by giving those who have been silenced a voice.

In the cases that I am addressing, the task is not only to correct distor­tions in equal opportunity and to enable otherwise silenced voices to be heard. It is also to pay a debt that is owed as a result of unprecedented violation of human rights and liberties. Were such a debt to be widely acknowledged, as I will argue it should be, it would be clear that the problem with affirmative action is not that it offers too much, but that by itself it offers too little. The conclusion is not to eliminate affirmative action, a move that would clearly reduce the percentage of college-edu­cated people and professionals who come from these groups, but to aug­ment it in ways that would address very basic concerns of health, safety, and general education.

I am aware that to view affirmative action with regard to certain groups as a part of a historical debt goes against the tide of most respected think­ing on the matter and is in need of justification. However, the fact that affirmative action is not concerned about the underrepresentation of all groups in all areas—for example, the proportion of Italian CEOs—suggests that there is a prima facie recognition that members of different groups are positioned differently with regard to claims for assistance. The problem is not with the implicit recognition of the underlying moral intuition—that a debt is involved. Rather, it is in describing the debt in a way that it is acceptable to both liberals and conservatives. Liberals wrongly believe that to acknowledge such a debt involves acceptance of a group right. Conserva­tives such as Justice Scalia rightly reject the idea that present-day whites are guilty of a historical transgression, but then wrongly conclude that because historical guilt is absent, so too is a debt.

THE   CONTROVERSY OVER   THE   DEBT

Justice Scalia, one of the strongest opponents of affirmative action, is also one of the few to view it correctly in terms of a debt owed to certain mem­bers of our society. His opposition arises because he believes that the advantages provided to individuals from targeted groups by affirmative action policies are most often wrought from members of other groups who have not participated in the initial injustice and who were often in almost as vulnerable a position as those who receive its benefits. Justice Scalia expressed this objection forcefully:

My father came to this country when he was a teenager. Not only had he never profited from the sweat of any black man's brow, I don't think he had ever seen a black man. There are, of course, many white ethnic groups that came to this country in great numbers rela­tively late in its history—Italians, Jews, Poles—who not only took no part in, and derived no profit from, the major historical suppression of the currently acknowledged minority groups, but were, in fact, themselves the object of discrimination by the dominant Anglo-Saxon majority. To be sure, in relatively recent years some or all of these groups have been the beneficiaries of discrimination against blacks, or have themselves practiced discrimination, but to compare their racial debt . . . with that of those who plied the slave trade, and who maintained a formal caste system for many years thereafter, is to confuse a mountain with a molehill. Yet curiously enough, we find that in the system of restorative justice established by the Wisdoms and the Powells and the Whites, it is precisely these groups that do most of the restoring. It is they who, to a disproportionate degree, are the competitors with the urban blacks and Hispanics for jobs, housing, and education.29

Scalia is concerned whether anyone can be legitimately expected to pay the debt, but he quite openly suggests that, if anyone can be found who should pay it, there is indeed a debt to be paid. One of the questions he raises is why one might think that some groups that have been discrimi­nated against are owed a debt whereas others, also discriminated against, are not owed one.

The most important fact about the debt that is appropriate for address­ing through affirmative action is that it results from a forced, involuntary act that brings about serious and long-standing intergenerational disadvan­tages. Both sides of this are important. Many immigrant people suffered serious disadvantages when they came to this country in relation to individ­uals from other groups who were already here. However, these immigrants were not forced by anyone in this country to come here. They came because they believed that here they would be better off than they were in the home country. Clearly, many members of many groups were discriminated against once they arrived here, as Justice Scalia rightly points out, and it is still important from the point of view of fairness and equal opportunity that these discriminations, to the extent that they still exist, be removed. Nevertheless, they alone are not sufficient to warrant a policy of affirmative action and this is because of a second point.

The important point of comparison is not just that members of a group were discriminated against or even that in some individual cases the physical and emotional harm could have been initially equal between members of two different groups. Certainly the life of Boston Irish immigrants in the last century was a life of everyday degradation and humiliation. Indeed, the rem­nants of this discrimination remain in terms like "paddy wagon." Some mod­ern-day descendants of European immigrants may well feel like Scalia that the fact that both European immigrants and African Americans suffered dis­crimination creates an equivalency that therefore invalidates the special claims of the latter. An equally relevant consideration in terms of whether a certain group deserves special consideration is whether the discrimination here resulted in members of a group being worse off than they would have otherwise been had they chosen to remain in their native country.

Scalia wrongly assumes that the proper point of comparison is the initial treatment between different groups and that an equivalency is established by virtue of the fact that both groups suffered an initial moment of dis­crimination (although it is hard to see how anything could be comparable to slavery in its physical and spiritual degradation). However, the point of comparison is incomplete.

For example, with the exception of African and Native Americans, the discrimination against Irish immigrants may have been unmatched in the last century. Yet one reason that affirmative action is not an appropriate policy for Irish Americans is not just because they have now reached parity with other groups. It is also because, in addition to their voluntary immi­gration, their situation was still comparatively better here than it was in Ire­land where, in addition to crop failure, they had to cope with British occu­pation and brutality.30 It is not only the level of material degradation that affects the judgment about how well or how poorly members of one group faired in comparison to members of another. It is also the conditions under which they arrived in this country to begin with. To arrive as an involuntary slave in shackles, possibly with one's family destroyed and almost certainly with one's family ties severed, is already a condition of extreme physical and spiritual degradation.

Regardless of who it is to whom the debt is owed, Scalia believes that its costs are an unfair burden on the nondiscriminating immigrants, and because of this he believes that affirmative action itself is unfair. It forces payment from those who were not victimizers. The assumption that Scalia makes is that those who did not benefit directly from the initial act of dis­crimination are not obliged to compensate for it. Yet his conception of benefits is overly narrow, myopically focused on the individual, and con­fuses guilt and obligation. Certainly he is correct to suggest that his father should not be thought guilty because of slavery. However, this is not the same as saying that no obligation is owed.

Scalia's argument takes no account of the national capital that accrued as a result of the forced backbreaking labor of slaves, nor does he consider how such labor contributed to the eagerness of immigrants to come here. Certainly he and his father benefited from this labor and the question is whether, through this benefit, a debt is owed.31

Of course some people may have immigrated not because of anticipated material benefits—life for the settlers and immigrants was usually no pic­nic—but rather for the spiritual, social, or political freedom they felt awaited them in America. Yet this makes Scalia's argument even more dif­ficult to accept. Suppose that instead of slavery being assigned to mem­bers of a specific racial group, it were assigned on a random basis to immi­grants. Suppose that potential immigrants knew before leaving home they would be randomly assigned to positions in the new land and that some of them would be wrenched from their families, chained onto ocean ships where many would die, and arrive here as slaves. Suppose too that they knew that this number was not incidental but comprised about 15 percent of the overall American population and about 50 percent of the overall population in the southern states. Given this random assignment, it is hard to imagine that many European immigrants who chose voluntarily to come to America would still have taken the chance to do so—including Scalia's father.32

This is one reason why Scalia's argument does not have the moral force that he believes it has. To the extent that slave labor was needed to support the real—not some ideal—economy of the United States, we all benefit. All voluntary immigrants benefited—first because their ancestors' exemption (i.e., the fact that they could be assured that they would not wind up as slaves) was undoubtedly a factor in their decision to come here in the first place and second because they never had to carry the lower standing that being a descendant of a slave entailed.

However, Scalia's argument is only incidentally about benefits. It is first and foremost about obligations. Do those who benefitted from an earlier act of discrimination, even if not the perpetrators of that discrimination, have an obligation to those who were its victims? The crucial issue is what if any obligation the children of immigrants have when they or their ances­tors, who were once subject to discrimination, now stand as the beneficia­ries of the forced subjugation of others. Scalia seems to believe that they have none. I believe that he is wrong.

Granted, under some conditions the person who benefits from an act of discrimination does not owe a debt to the person who is discriminated against. I have just been turned down for a house because, unbeknownst to me, the landlord is anti-Semitic. You then come along and rent a house that otherwise would not have been available. You do not know of the ini­tial slur and had nothing to do with it. Clearly the landlord owes me some compensation if I can prove my case. However, your role is benign and you should not be the party providing me compensation. You are in a better position than you would have been had the discrimination not occurred, but this position does not make you liable.

However, the lack of an obligation to compensate in the above instance relates only to a legal context. To the extent that a landlord must pay for discrimination and to the extent that the market will bear it, the cost of that payment will be passed on to renters. There are benefits to those who exist as nonvictims and nonperpetrators within a climate of discrimination and there are certain costs involved to these same people when a price is paid by the perpetrator for past discrimination. Affirmative action is in part a way of estimating this cost and extracting compensation.

The moral obligation is considerably higher if you actually know about the initial discrimination and then act so as to take advantage of it. In such cases you are indeed liable for the benefits you receive at the expense of others. Moreover, you are liable even if you have also been the victim of discrimination or if your material condition is the same as or even worse than my material condition. This is obvious. One is not excused of armed robbery, say, because one is receiving food stamps.

Scalia is also wrong in his view that the discriminated-against offspring of an immigrant did not discriminate against the child of the slave. The color of trade unions and neighborhoods tells a very different story. True, there are many reasons why this discrimination was the expedient (per­haps even necessary from an individual standpoint) thing to do, but it was still discrimination.

Immigrants understood quite well that they were connected to a stream of opportunities that could be cashed in by future generations and that is precisely why many of them came to this country and endured the hard­ships involved in doing so.33 They were also aware that blacks were not a part of this stream, and, sadly, many times they fought to keep it this way.

In contrast to the benefits the immigrant could anticipate, at least over some generations, slaves were denied not only the right to earn and to vote, but also the right to have their intentions receive public standing, even when those intentions involved the disposal of the wealth they created. Moreover, their descendants had to continue to struggle for these basic emblems of public standing.34 To be the descendant of a slave is to be involved in a significantly reduced stream of intergenerational opportuni­ties and benefits as well as a degradation of everyday life.35 When contrasted with members of other groups who belong to the same generation, African Americans continue to experience the effects of reduced opportunities.36

There is something quite right about Scalia's concern that there is a prob­lem when we attempt to address these injustices, but it is important to be clear about what the nature of that problem is. The problem is not that compensa­tion is provided or that children of immigrants, even those who themselves have been victimized by discrimination, have an obligation to provide some of it. It is that the burden often falls unduly on the most disadvantaged of these groups, especially in the places where people of color have advanced,37 and that the burden is not adequately shared. Scalia's concern is best illustrated by a case in which, for example, 20,000 people benefit from a past injustice but only one white male blue-collar laborer is singled out to pay the cost.

Yet the situation is not quite as dire as Scalia seems to think and the courts have recognized this problem and have been reluctant to address past discrimination when the cost would fall unevenly on a single individual rather than on a more diverse and unspecified group. Thus, for example, the court has been more friendly to encouraging preferential hiring where many are denied and but one is chosen than it has been to accepting pref­erential firing where specific and identified individuals bear the cost of cor­recting generalized past discrimination.38

However, the fact remains, as Scalia correctly reminds us, that there is a certain cost to affirmative action policy to some individuals even if the spe­cific individual who is bearing that cost is not known. If race were not a con­sideration there are indeed instances in which, on the basis of grades and test scores, some other student would have been admitted to medical school or some other applicant would have gotten the job even when we comfort­ably do not know who that might have been.

Yet race is a consideration partly because it has operated across genera­tions to skew the present-day competition in a way that, without a vigorously enforced affirmative action policy, perpetuates a pattern of selection that has been directed against other individuals—in this case, African Ameri­cans—by historical and persistent patterns of discrimination. Thus without affirmative action it could be said that some present student would have been denied admission to medical school or some successful applicant would have failed to be admitted to college. And this would have been the case even though these students stand as victims of a long string of histori­cal discrimination.

What Scalia's objection suggests in the case of African Americans is not that race-based preferences are unjust—there are always many factors that tip the balance toward one rather than another applicant and race is appro­priate when attempting to correct the effects of past racial injustices. What Scalia's objection better points to is the need for the burden to be shared more widely.3'1 It is not an argument, as he seems to think, for rejecting the idea of affirmative action altogether nor does it adequately support his insinuation that there is no burden at all because there is no one single per­son who actually owes the debt. To share this burden more widely might mean, for example, a policy aimed at rectifying the full cultural, social, and economic damage that has arisen following the American holocaust that was slavery and the slave trade.

TO WHOM THE DEBT IS OWED: A RETURN TO THE QUESTION OF GROUP RIGHTS

Yet if Scalia is wrong about whether a debt is owed, there is still an issue regarding to whom the debt is owed. It is not immediately obvious that the debt for slavery is owed to the descendants of the slaves, since it was not they but their slave ancestors who were the target of the harm and who suf­fered the actual harm of slavery. Indeed, one avid defender of affirmative action rejects the idea that we owe present-day African Americans anything because of the harm that was done to their slave ancestors and he rejects this idea because he believes that it is a racist ground for offering the bene­fits of affirmative action.40 His argument is worth considering because it will help us to clarify the nature of the debt owed.

Fiscus argues against a justification of affirmative action on compensatory grounds because "to hold that descendants of the millions of blacks harmed throughout our history are entitled to compensation for the long-past injury of their ancestors is to violate the first principle of compensatory jus­tice—that recipients of compensation be the ones harmed."41 He rejects, as racist, an alternative idea that all blacks are equivalent to members of one family and therefore deserving of compensation. This rejection is based on his belief that such a notion

equates, legally and morally, individual black men and women with their racial identity. It says that race is more important than anything else in determining worth and responsibility—indeed, in determining basic identity. It is, in a word, racist.42

Similarly racist to him is the idea that the present "generation of whites should pay for the sins of earlier generations."43

Fiscus's alternative is to accept the assumption that talent is distributed equally among the races and, on the basis of this assumption, to view under-representation as a sign of injustice that must be corrected. The legal force of the argument then lies in the enforcement of the equal protection clause. "Distributive justice as a matter of equal protection requires that individuals be awarded the positions, advantages or benefits they would have been awarded under fair conditions."44 Under this view, whenever there are pro­portionately more whites in a position than are represented in the larger soci­ety, we have a probable instance of discrimination even if whites lay claim to those positions "using putatively more objective measures of merit."45

Whatever we may think about the racial distribution of talent—and there is good reason to think as Fiscus does that African Americans are usually placed lower than whites of equal innate ability46—this argument has many weaknesses. First, it fits any group that does not have its proportional share of positions and certainly serves to water down any special claim that blacks might have. Second, even if one does assume an equality of talent, there are other nondiscriminatory factors that may play a role in the distribution of positions.Different individual interest is one of these, as is the cultural capital of the family in relation to positions within the larger society. A family of musicians is more likely to produce musicians, even given equal innate musical talent, than a family of nonmusicians. To ignore these fac­tors or to believe that they require state action to "correct" is to impose a standard of uniformity on cultures that would be intolerable for all.

Moreover, since Fiscus rejects the idea that we should compensate for past injustices, it is hard to see, even if the present differences arose as the result of past discrimination, why present individuals should be expected to pay the price. He rejects this idea as racist when it comes to compen­satory justice, but it is hard to see why he should think it any less racist when applied to distributory justice. Unless he believes that there is some unfair historical basis for the way talent is presently expressed in grades and test scores, then surely it is racist to deny a position to a white person on the basis of some abstract assumption regarding equality.

Consider that Fiscus's argument begins at the point at which two individ­uals—one black and one white—have decided to compete for a given posi­tion. Yet much of the problem of representation comes well before the decision to compete and arises at the level of interest, motivation, self-con­cept, and the like. The fact is that many individuals do not enter the com­petition because, for a variety of reasons, they have been persuaded to pur­sue other, less competitive avenues.

Any reasonable affirmative action policy would surely want to address the problem at the level of motivation and interest as well as at the level of native ability. Motivation and interest, however, connect to a history in which what any present-day student may want for himself or herself is con­nected to what that student's parents and grandparents were allowed to want for themselves. Yet if we are barred from looking backward to find the reason for compensation, as Fiscus's argument suggests, then the fact that the difference between my present interest in law and your lack of interest in the same subject can be accounted for by the fact that racism barred your grandfather from pursuing a career that mine was encouraged to respect should be irrelevant.47

The priority that Fiscus's argument gives to talent across groups is indis­criminate in terms of cause and therefore provides too broad a criterion for the application of affirmative action principles. One need not believe that there must be an exact correlation between the distribution of talent and the distribution of positions in order to believe that a distribution is unjust. There are, as Dworkin correctly points out, many legitimate reasons for choosing one applicant over another and some of these are not exclu­sively related to talent in the more obvious sense.48

This is important to recognize for a number of reasons. One of these is that it blunts the relevance of research that reinforces racist assumptions and institutions (research that Fiscus's argument ironically encourages) by claiming to prove that the racial variations in IQ scores are due to genetic factors. A second is that it casts doubt on the morally questionable assump­tion that professional education and status are rewards for being born with high intelligence regardless of what one does with that status. One does not need to assume equality of talent in order to judge a distribution of positions unjust. All one needs to assume is that for most positions more than enough people possess an adequate amount of talent to do the job at a high level of competence, and that moral reasons for selecting some seg­ment of the adequately talented are being systematically ignored.

Finally, one need not be as concerned as Fiscus is about the reportedly racist assumption behind the idea that African Americans belong to a single group and that it is because of harm to past members of the group that they are owed compensation. To argue that someone is owed compensation because he or she possesses a certain trait in common with others—even membership in the same family—is not to claim that individuals are to be identified with that trait and only with that trait in each and every respect.

Suppose, for example, that I am told that I am one of but five living rela­tives of a recently deceased and very wealthy person and that each of the five, none of whom know each other, is entitled to a fifth of her estate. Given that none of us knew the other before this happy event, there is little reason to think that we have much in common or that we need to be treated the same in any respect other than that involving the liquidation of the estate. True, we belong to the same family, but that is probably a very incidental part of who we are, even though in this instance it is the sole determinant of what we are owed.

Without the reference point of slavery, it is hard to understand why we should pay more attention to the lingering causes of discrimination against blacks than the lingering causes of discrimination against immigrants. True, the lingering effects of discrimination against African Americans persist more intensely than discrimination against older immigrants, but it is not clear that this always holds with respect to discrimination against newer immigrants. Whatever the statistics of well-being between different groups may be, without the distinguishing experience of slavery, any differ­ence is one of degree, not of kind.

Fiscus objects to rooting the consideration back to slavery because he believes that doing so is racist, and while he is wrong in this objection, it is important to see in what way he is wrong. Earlier I noted that the point of comparison for the immigrant is the difference between how life might have been there and how it actually is here. I then noted that for the present-day African American, the parallel question might be how his or her condition might have been without the institution of slavery in comparison with what it actually is. For most immigrants the right answer is probably that life here is better in some important ways than it would have been there. Yet a critic could make a similar case for the great-grandchildren of slaves.

The critic could note that for any particular present-day African Ameri­can the right answer is not that his or her life would have been better with­out slavery. Rather, the right answer is that this particular life would not have been at all because of the simple biological fact that the genetic mate­rial and cultural experiences and historical events through which his or her identity is constituted would have been entirely different and that the person thought of as this individual simply would not have existed.49

Now this answer is problematic from a moral point of view only if one believes as I do that extra consideration is due to the descendant of the slave and that the slave's descendants have claims the child of the immi­grant does not have. It is problematic because it complicates the base of comparison and, given the assumption that living is better than not being born, suggests that slavery provides no harm—in a strict sense of that term—to the present-day descendants of slaves. Discrimination causes harm now.

Given this response, the question remains why should we think, as I do, that given two children, we owe more to the child whose great-great-grandfather was enslaved than we do to the one whose great-great-grandfather worked in a sweatshop and that we do so even if the great-great-grandchildren are presently in a similar material condition. After all, while not all of the wealth created by the latter was stolen, as it was in the case of the slave, a lot of it was.

Up to now I have treated the comparison between the immigrant and the slave as unproblematic, leaving it to moral intuition alone to decide that something more is owed to those whose ancestors were forced to come here compared with those who had a choice. Now I want to press those intuitions by asking: Why should the matter of whether immigration was forced or vol­untary matter to the grandchildren of the original sojourners? Indeed, if we say that the grandchild of one is better off here than he or she would have been if he or she had stayed in the original country, should we not say of the grandchild of the slave that he or she too is, at least, not worse off because of slavery than he or she would have been without it? My point is not that he or she is better off here than he or she would have been if the family had been permitted to say in Africa. To say this is to assume that without slavery every­thing would have remained the same—except better. Yet, as noted above, without slavery everything would have been different, including those who are now alive. Hence, it could be argued that in both cases—that of the immi­grant and that of the slave50—the original decision did not harm the descen­dants even though in one case the decision was a voluntary one and in the other it was made by others, first through kidnapping and second through enslavement. Granted, the descendant of the slave is probably less well off than the descendant of the immigrant, but so too are the descendants of newer immigrants less well off than descendants of older immigrants, as are possibly the descendants of some who remained in parts of Africa.

Certainly the fact that, say, the Polish American had an ancestor who chose to come to this country while the African American's ancestor was coerced into coming made a big difference to the ancestors themselves. However, why, one might ask, should it make a difference to their descen­dants if, in both cases, their descendants are better off than they would have been had the fate of their ancestors been different? True, the child of the Polish immigrant is better off than he or she would have been were it not for the institution of slavery, but then so too is the descendant of the slave. Or, to put it differently, why should we think—as I believe we should—that somehow discrimination against African Americans is differ­ent in kind—not just in duration or intensity—from discrimination against European immigrants?

A   DEBT   OWED   TO   THE   SLAVE

Fiscus is in fact quite right—we do not owe a debt to present individuals as compensation because of the harm done to their ancestors by slavery.51 How­ever, he is wrong to assume that no debt is owed to anyone. Rather, the debt is owed to the slave and, just as with a will, the debt to the slave is not can­celed once the slave has died or once slavery has ended. Fiscus, of course, would object: If the debt is owed to the slave, what sense does it make to pay the descendants of the slave? If I steal money from you, I have not paid my debt by compensating your brother or your neighbor. Why then should it be thought that I have paid it if I compensate your great-grandchild, or nephew, or your neighbor's great-great nephew or grandchild?

There are two answers to this question. The first is that as with any debt where the line of beneficiaries is blurred, one does the best one can, and in this case it is obvious that compensating the descendants of slaves in general is the best one can do to compensate any particular slave. Yet this answer tells us why descendants of slaves deserve compensation. It does not, to return to a point made earlier, say why they deserve to be compensated in a way that the descendants of immigrant wage laborers do not. After all, it could be argued that while it is true that slaves had all the fruits of their labor confiscated by others, immigrant wage earners had a lot of their labor confiscated. Hence while they may not have labored for as long or had as much of their labor stolen as did the slave, nevertheless the same principle holds.

WHY   COMPENSATION   IS   OWED   THE   DESCENDANT   OF SLAVES   AND   NOT   DESCENDANTS   OF   IMMIGRANTWAGE   EARNERS

A second answer to the question of why compensation is owed the descen­dant of the slave is that present-day descendants of slaves deserve compen­sation because the institution of slavery violated essential elements of col­lective and individual development52 and that this institution and those that followed it must be seen as accountable for many of the problems con­fronting the African-American community today.

The situation with immigrants is very different. While immigrant labor was exploited, immigrants were still allowed the autonomy to form intentions and to act on them, including intentions to have families and the expectation that these families would remain intact. Moreover, immigrants' inten­tions were usually publicly acknowledged and the fruits of their labor that remained after death were disposed of as they were willed. True, where severe exploitation existed, immigrant wage earners were only allowed to pass on a relatively small amount of what they may have legitimately felt they had a right to pass on. Nevertheless, the right to have intentions recognized and to be acted on through publicly sanctioned practices and institutions formed a framework for cultural empowerment that was not available to slaves. What this means in simple terms is that immigrants, while denied one kind of opportunity, were positioned so that subsequent generations could take advantage of other kinds of opportunities that came along and that this was not the case for the children and the grandchildren of slaves. Unlike the slave, the laborer never lost the right to pass on material wealth; he or she just lost a lot of the material wealth that might have been passed on—or at least some did sometimes. Nevertheless, a primary motivation allowed the immi­grant but not allowed the slave was the possibility for intergenerational advancement, and over time such advancement often did occur.

For the slave the situation was different. It was not first and foremost wealth that was stolen. Rather, the right to be considered the kind of being who could possess wealth was denied. There was, of course, a theft of mate­rial wealth—of the wealth created by sweat and blood. However, this was only a secondary loss since slaves were not allowed to be thought of as property owners. The first loss was the loss of public recognition as full human beings—a loss that involved the public denial of intentionality and of their right to have rights. (This loss is intensified because it occurs in the context of a society in which everyone else is supposed to be equal.) And this loss has cultural and intergenerational as well as individual signifi­cance, and continues to rupture social standing and well-being.

The loss is the rupture of a would-be string of meanings and intentions that, when reconstructed, extends from the initial victim to those individu­als in the present generation who are otherwise the beneficiaries of would-be stolen labor.53 The material wealth that was lost and the means for repayment is a stand-in, a token, for the spiritual theft that still cuts across generations. It is represented in a reduced status and in an attitude on the part of members of society, even many newer members, that material deprivation, as represented by lower levels of income, housing, education, and health, is a more natural, more acceptable, position for African Ameri­cans than it is for the rest of us. Affirmative action as it presently exists is, of course, an inadequate mechanism for correcting this loss. Its only advan­tage is that so far it is better than any other alternative on the table.

It is not just, or even primarily, the liberal principle of equality of oppor­tunity that was violated by slavery. It was the conservative and, even more, primary principle of the right to hold property and the right to pass it on to whomever one wants, a right that requires the social recognition of one's intentions. Yet the violation that was slavery goes deeper than the question of private property and its legitimacy. Women were also denied the right to own property in many instances, but they were not denied the right to allow their male offspring to own property. Moreover, had slavery occurred in a socialist society where all property was held in common by all citizens, the fact that slaves also were held in common would not mitigate the crime. That some people would be able to form and act on their inten­tions and to have their intentions publicly recognized and served while others would not be allowed to do so would constitute the same kind of cultural violation.54 What was therefore violated was not just this or that individual's rights, although this certainly is part of the violation. Nor was the violation just a violation of a specific right or set of rights—property, free speech. It was the right to be considered a person and to establish the material requirements required for flourishing across generations that belonging to an accepted cultural group entails.

To see the violation in terms of a culture instead of just in terms of individ­uals does not necessarily imply that all present-day African Americans are somehow the same or that their identity is exhausted or even confined by their racial identity, as Fiscus believes it does. Nor does it imply that all are only and exclusively a part of one culture and that is African-American cul­ture. Like everyone else, African Americans can belong to many different cul­tural groups and have many different beliefs. There is no essential paradigm to which all African Americans must conform. Yet it is not just as stand-ins for the object of the slaves' would-have-been-intentions that the claim for special consideration is made. The rupture of a culture has real consequences for people in terms of truncated expectations and opportunities both denied and overlooked and in terms of a general social attitude that accepts as part of the natural state of affairs lower levels of material well-being. Affirmative action— that is, race-based, backward-looking affirmative action—can be part of a strategy for repairing the rupture. It attempts to reconstruct the opportuni­ties to which intentions and expectations must be attached. It is less than ade­quate because it involves relatively few positions assigned to relatively few indi­viduals, and cannot serve as a substitute for the material benefits enjoyed by the rest of us as a result of a history that included the institution of slavery. Yet it surely should have a place in a policy of reconstruction.55

CONCLUSION: THE QUESTION OF NEED RECONSIDERED

Those who believe that the existing race- and gender-based affirmative action policy should be replaced by need-based considerations assume that existing affirmative action policy violates the principles of fairness and equal opportunity by advancing people because of certain accidents of birth. The argument in this article has shown that there are strong reasons to question this interpretation of existing practice and to be skeptical of proposals to replace it with a need-based program. However, to reject the idea that a blanket consideration of need can serve as a substitute for con­siderations of race and gender should not be taken as an argument that need is irrelevant and should have no place at all in considerations of merit. Need has a role to play, but it is not a solo one.56

The early stages of this research were funded in part by the Spencer Foundation. I am also greatly indebted to the Benton Center at the University of Chicago for providing the time for me to complete this work. I want to also express my appreciation to my colleagues at the Uni­versity of Illinois, James Anderson, Nick Burbules, Pradeep Dillon, Belden Fields, Jefferson McMahan, Deborah Merit, Ralph Page, and William Trent, as well as to David Blacker of Illinois State University, Eric Bredo from the University of Virginia, and Phil Jackson of the University of Chicago for their comments on early versions of this paper. A special apprecia­tion is due my assistant, Maria Seferian, for her help on the many versions of this paper. I want to also thank the faculty and students in the Department of Education at the University of Chicago and the University of Virginia for comments on earlier versions of this article.

Notes

1 As things presently stand, white males can bring antidiscrimination lawsuits. More­over, affirmative action as a policy to promote the advancement of underrepresented groups often serves to increase fairness for white men. For example, the requirement that universities must advertise widely for new positions instead of relying on the old boys' net­work has enabled many white male Ph.D.'s to become viable candidates for academic posi­tions that otherwise would have been closed to them.

2 There are exceptions, and some white men have sued their companies on grounds of systematic discrimination.

3     Chicago Tribune, August 24, 1995, section 1, p. 1.

4    Ibid., August 21, 1995, p. 8.

5     U.S. News and World Report, February 13, 1995, p. 35.

6 Ibid.—from 74.3 percent for black men in 1975 to 74 percent in 1993 for black men and from 72.1 percent for Hispanic men in 1975 to 64.8 percent in 1993.

7    Ibid.

8 U.S. Department of Commerce, Statistical Abstract of US 1994, 114th ed. (Washing­ton, D.C.: Government Printing Office, 1995), pp. 407-09. It should be mentioned that since the census does not actually break these figures down according to white ethnic groups it is hard to tell whether the gains at the low end are due to ethnics' competing bet­ter at the higher end or whether they are actually losing out to advances by blacks.

9     USA Today, February 23, 1995, p. 8A.

10    Dinesh D'Souza, Illiberal Education: The Politics of Race and Sex on Campus (New York: The Free Press, 1991), pp. 251-53.

11     Richard Alien Epstein, Simple Rules for a Complex World (Cambridge: Harvard Univer­sity Press, 1995).

12    Andrew Hacker, "Who Should Go to College," The New York Review of Books, May 11, 1995, p. 38.

13 For not only would one have to subtract from the pool those African-American stu­dents who would lose seats because of the turn from race to need, but one would also have to subtract those who, having completed undergraduate college, would not compete suc­cessfully for professional places under less flexible guidelines. This is illustrated by the admissions policies of the University of Texas that came under scrutiny in Hopwood v. Texas. In order to correct the lingering effects of past discrimination, the University of Texas law school decided to admit African and Mexican Americans in proportion to their graduation rates from Texas colleges—approximately 10 percent Mexican-American and 5 percent black. To achieve this goal, however, the law school has adjusted its standards sig­nificantly and the university lawyers conceded that without racial preferences very few of the targeted group would have been successful. Although an admissions policy that reached further into the white working class, as need-based preferences would presumably do, would probably reveal many more whites with lower scores, it would also dilute the number of successful applicants from some of the now targeted groups. Just how much dilution would occur at this second phase is difficult to say since the change in policy would limit spaces in undergraduate school to blacks who are more competitive.

14    Richard Kahlenberg, "Class, Not Race," The New Republic, April 3, 1995.

15    Ibid.

16 Nathan Glazer, "The Emergence of an American Ethnic Pattern," in From Different Shores: Perspectives on Race and Ethnicity in America, ed. Ronald Takaki (New York: Oxford University Press, 1994), pp. 11-23.

17 Alan H. Goldman, "Affirmative Action," in Equality and Preferential Treatment: A Phi­losophy and Public Affairs reader, ed. Marshall Cohen, Thomas Nagel, and Thomas Scanlon (Princeton: Princeton University Press, 1977), pp. 204—05.

18    Ibid., p. 202.

19 For example, in my interviews with the talent scout for a new Japanese automobile factory in the United States, I was told that mechanical ability tests were scored differently for men and women on the grounds that women were simply less likely to have had much experience with mechanical work, but that there was also little reason to think that those hired would not be able to learn the skills needed. See Walter Feinberg, Japan and the Pursuit of a New American Identity: Work and Education in a Multicultural Age (New York: Rout-ledge, 1993). Much of the same can be said of admission to professional schools. In medi­cine, for example, I have been told by the admissions director of a highly considered med­ical school that each year the school must turn down the equivalent of one fully qualified (on technical grounds) class.

20 Cohesion often develops for other reasons as well. For example, persecution may lead to a strong identity between people who otherwise disagree about many matters but who share a common enemy who denies them rights that are otherwise granted to mem­bers of the preferred group.

21 For a very good discussion of this see Will Kymlicka, Multicultural Citizenship (Oxford: Oxford University Press, 1995).

22 As quoted by Michael Walzer, "What Does It Mean to Be an 'American'?" Social Research 57 (Fall 1990): 609.

23 Stokely Carmichael and Charles Hamilton, Black Power (New York, Random House, 1967).

24 Ronald Dworkin, "Why Bakke Has No Case," The New York Review of Books, November 10, 1977, p. 12.

25    Ibid., p. 14.

26    Ibid., p. 12.

27 In Regents of the University of California v. Bakke 438 U.S. 265 1978 the court avoided addressing this issue in the consensus decision by Justice Powell.

28    As quoted in the New York Times, March 4, 1993, p. 9.

29 Antonin Scalia, "Commentary—The Disease as Cure," quoted in Ronald J. Fiscus, The Constitutional Logic of Affirmative Action (Durham: Duke University Press, 1992), p. 12.

30 Suppose, for example, that just prior to Kristallnacht a group of young German Jews, not believing the evidence and not wanting to leave Germany, were kidnapped by the Jewish authorities in Jerusalem with the intent of saving them from what was coming and that, as a result, they were saved. I do not believe the State of Israel would now owe them special consideration because they were forced to leave Germany. This is obviously an extreme case, but it is for this reason that I am reluctant to allow the fact of force alone to always be decisive.

31 Incidentally, it is immaterial to this point whether slave labor was the most efficient way to develop the country, a point that some economic historians like to dispute. If a more efficient alternative were available, then probably more people would have immigrated. The fruits of slave labor were, however, sufficient for those who actually did immigrate and it is the descendants of these people to whom the issue of the debt is relevant for addressing Scalia's claim. If a more efficient alternative had been utilized, we can assume that additional peo­ple would have taken advantage of it and immigrated. What is important is that slave labor was an efficient enough wealth producer to entice those who did immigrate to do so.

32 I am, of course providing a variation of John Rawls's original position here (A Theory of Justice [Cambridge: Harvard University Press, 1971]). Nevertheless, one might counter that the year of immigration is also blindly and randomly assigned and, allowing that as the year of emancipation recedes, and more generations are added to our random assign­ments, the chances of falling into a generation that permitted slavery and then of falling into one of the slave positions decreases, certainly it is possible that some brave souls might take their chances and make the wager for freedom—hoping for either a good position or a safe year. And they might do so reasoning that if they do not escape slavery, at least their children will be free. Yet if they also knew that their children and their children would, if they happened to be descended from slaves, remain stigmatized as a result of their ances­try, the wager would lose its appeal.

33 Oscar Handlin, The Uprooted: The Epic Story of the Great Migrations That Made the Ameri­can People (New York: Grosset and Dunlap, 1951), pp. 37-63. Granted, in many instances the choice was extremely limited given conditions at home, but it was a move that many saw as an opportunity.

34 Judith Sklar, American Citizenship: The Quest for Inclusion (Cambridge: Harvard Uni­versity Press, 1991), p. 3.

35 The reduced quality of everyday life is reflected in greater difficulty in renting and buying a home, higher prices asked for automobiles, slower service in stores, greater sur­veillance on the street, more frequent rejection of qualified job applicants. For a graphic depiction of this see Diane Sawyer's documentary "True Colors," "Prime Time Live." ABC, September 26, 1991.

36 See James Anderson et al., Brief of Amid Curiae, State of Missouri v. Jenkins, no. 93-1823, in the Supreme Court of the United States, October 1994, for a view of some of the continuing effects of such discrimination on school performance.

37 Blue-collar trade and service jobs and much less so in professional fields. See USA Today, February 23, 1995, p. 8A.

38 One exception to this is where companies have begun to correct a history of past discrimination and where seniority policies would result in layoffs for minorities who were recently hired to correct this history.

39 There are many ways to do this, but a general surtax on incomes over a certain mini­mum aimed at creating more professional programs and general support services for African Americans and members of other groups that meet certain criteria would certainly be a useful addition to existing policy and would distribute the burden more equitably.

40    Fiscus, Constitutional Logic of Affirmative Action.

41    Ibid., p. 10.

42    Ibid.

43    Ibid.

44    Ibid., p. 13.

45    Ibid.

46 To hold this one must also hold the reasonably sound view that IQ scores do not measure intelligence in any hard-wired way. See Walter Feinberg, Understanding Education (Cambridge: Cambridge University Press, 1983).

47 Of course it is not irrelevant in Fiscus's terms for accounting for our present differ­ence in attitude, but it is irrelevant in terms of describing the injustice of our situation.

48    Dworkin, "Why Bakke Has No Case."

49 I owe this example to my colleague Jefferson McMahan. Also, George Sher, "Ancient Wrongs and Modern Rights," Philosophy and Public Affairs 10 (1980): 3-17, makes the same point with regard to immigrants.

50    Ibid.

51     Fiscus, Constitutional Logic of Affirmative Action.

52 I am not denying here that some other cultures may have been violated as severely. For example, the culture of Native American groups was violated in a different way, but perhaps no less severely. However, the culture of traditional immigrant groups does not fit this mold.

53 "Would be" because the concept of theft, at least for the slave, did not apply in the legal sense and it is this that is the larger affront to morality than mere theft.

54    My appreciation to Jefferson McMahan for raising this consideration.

55 For example, an important complement to affirmative action policies in higher edu­cation might include the establishment of extended funding programs based on financial need. At a time when the main cause of declining black enrollment in and graduation from higher education is economic, affirmative action policies that fail to consider financial fac­tors are by themselves insufficient. See Niara Sudarkasa, "Black Enrollment in Higher Edu­cation: The Unfulfilled Promise of Equality," in The State of Black America, 1988, ed. Janet Dewart (New York: National Urban League, 1988), pp. 7-22.

56 For example, structural changes that have taken place over the better part of this cen­tury have served to reduced the opportunities for intergenerational mobility for the children of unskilled and semiskilled laborers, many of whom are recent immigrants. These structural changes, if not addressed, may well serve to create many of the same conditions that the pre­sent affirmative action policy has been designed to address, such as the mobility deadlock caused by the way in which lack of educational and economic opportunities reinforces certain social definitions and cultural practices that then serve to constrain motivation and opportu­nities, which in turn reduces educational and economic opportunities. Unlike the case of African Americans, there may not always be a strong argument that a historical debt is owed here and unlike women, members of these groups may not be spread among the different economic classes. However, to the extent that mobility for members of all groups is impor­tant, need is important. It is not a substitute for race and gender, but it is still a consideration.

Furthermore, affirmative action should be but one relatively small piece in addressing a much larger problem, a problem that included the considerable mobility that capital has gained within the last two decades and the relative immobility of labor, especially at the lower, less skilled levels. These are factors in the concerns that affirmative action seeks to address, and in the way in which affirmative action is received. Yet these problems require solutions that are international in scope and even harder to obtain.



Cite This Article as: Teachers College Record Volume 97 Number 3, 1996, p. 362-399
https://www.tcrecord.org ID Number: 1401, Date Accessed: 10/23/2021 1:54:13 AM

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