PHIL 1200 CU Boulder Discrimination and Disidentification Essay Evaluative Commentary. Due in 2 hours. Prompt and Himma’s paper attached. No plagiarism, wi
PHIL 1200 CU Boulder Discrimination and Disidentification Essay Evaluative Commentary. Due in 2 hours. Prompt and Himma’s paper attached. No plagiarism, will check. Discrimination and Disidentification: The Fair-Start Defense of Affirmative Action
Author(s): Kenneth Einar Himma
Source: Journal of Business Ethics, Vol. 30, No. 3 (Apr., 2001), pp. 277-289
Published by: Springer
Stable URL: https://www.jstor.org/stable/25074498
Accessed: 01-03-2020 20:42 UTC
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Discrimination and Disidentification:
The Fair-Start Defense
of Affirmative Action Kenneth Einar Himma
ABSTRACT. The Fair-Start Defense justifies affir
mative action preferences as a response to harms
1. Does affirmative action violate a right?
caused by race- and sex-based discrimination. Rather
than base a justification for preferences on the tradi
tional appeal to self-esteem, I argue they are justified
in virtue of the effects institutional discrimination
The U.S. experiment with affirmative action
has on the goals and aspirations of its victims. In
particular, I argue that institutional discrimination
puts women and blacks at an unfair competitive
disadvantage by causing academic disidentification.
Affirmative action is justified as a means of negating
this unfair disadvantage.
According to the Fair-Start Defense (FSD),
affirmative action is justified as a response to
harms caused by institutional sexism and racism.
On this line of defense, institutional discrimina
tion harms the self-esteem of females and blacks
and inhibits their academic achievement relative
to that of white males. Preferences are justified
as a means of ensuring a “fair start” for females
and blacks by negating unfair competitive advan
tages that accrue to white males from such
harms.
FSD was initially supported by empirical
research, but recent studies seem to refute FSD
by showing there is little relationship between
self-esteem and academic achievement. Instead of
focusing on the effects of discrimination on self
esteem, I argue that preferences are justified as a
response to the effects of institutional discrimi
nation on the aspirations of women and blacks.1
began shortly after the Civil Rights Act of 1964
prohibited race- and sex-based discrimination in
education and employment when President
Johnson required federal contractors to develop
“goals and timetables” for employing a workforce
that reflects the racial makeup of the community.
Subsequently, many colleges and universities
attempted to increase minority representation by
admitting female and minority applicants over
white male applicants with higher test scores.
The first Supreme Court decisions addressing
affirmative action accepted its basic rationale. In
the landmark Bakke decision, for example, the
court held that preferences may be used, when
necessary, to achieve a diverse educational
environment.2 Likewise, in the Fullilove decision,
the court held that the federal government may
use racial classifications to remedy past discrim
ination.3
More recent decisions, however, suggest
increasing discomfort with preferences. In City
of Richmond v. Croson, the court held that state
and local governments may not use racial classi
fications as a remedial device.4 Then, in Adarand
Constructors v. Pena, the court held that affirma
tive action measures would be evaluated under
the difficult “strict scrutiny” standard: to pass
constitutional muster, preferences must be
necessary to achieve a compelling state interest
and narrowly tailored to achieve that interest.5
Public opposition to preferences has also
Kenneth Einar Himma has published numerous articles in
legal philosophy and applied ethics.
emerged, culminating in two successful initiative
campaigns to ban race- and sex-based preferences
in the public sector. In 1996, California voters
passed Proposition 209, which provides that
?? Journal of Business Ethics 30: 277-289, 2001.
r ? 2001 Kluwer Academic Publishers. Printed in the Netherlands.
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278 Kenneth Einar Himma
“[t]he state shall not discriminate against, or grant
preferential treatment to, any individual or group
on the basis of race, sex, color, ethnicity, or
national origin in the operation of public
employment, public education, or public con
tracting.” Two years later, Washington voters
passed Initiative 200, which was modeled after
California’s Proposition 209.
What typically motivates opposition to affir
mative action is a conviction that race- and
As a practical matter, employers often choose
among qualified candidates on the basis of
subjective characteristics unrelated to job per
formance, and there is nothing obviously illegit
imate about such practices. In a system of private
property, a person may dispose of her property
as she sees fit so long as she does not cause
unjustifiable harm to others. Thus, other things
being equal, a person may sell her property, trade
it for services, or give it away outright.
This implies a property owner has consider
sex-based preferences discriminate against white
males and deny them positions to which they are
morally entitled. On this view, preferences violate
two moral principles: (1) every person has a right
property. Insofar as such freedom extends to the
employment context, a property owner, either
to be free of discrimination (the Nondiscrimi
directly or indirectly through an agent, has
nation Principle); and (2) the most qualified
applicant for an educational/employment position
has a right to the position (the Merit Principle).
Affirmative action defenders often respond by
citing the beneficial consequences of affirmative
action,6 but this line of argument implicitly
concedes the dispositive point to opponents. As
Ronald Dworkin has shown, a right can be
outweighed by another right, but never by
consequences: “[t]he claim that citizens have a
right to free speech . . . impl[ies] that it would
be wrong for the Government to stop them from
speaking, even when the Government believes
that what they will say will cause more harm than
good.”7 Thus, if preferences violate a right, they
are wrong no matter what their consequences
might be.
Nevertheless, the Nondiscrimination and
Merit Principles are both problematic. To begin
able freedom to enter into contracts regarding her
considerable latitude with respect to employment
decisions. Of course, there is a strong incentive
for an employer to hire the most qualified appli
cant: in most instances, a business cannot survive
unless it offers a quality product at a competi
tive price. Hiring the best candidate is in the
employer’s best interest inasmuch as it increases
the likelihood of success in the marketplace. But
a business owner is not usually morally obligated
to do what she can to ensure the competitive
quality of her business.8 To the extent that an
owner’s property rights entitle her to close the
business at will, they would also allow consider
able latitude in making hiring decisions.9 Thus,
the most qualified applicant has no right to be
hired.10
The Nondiscrimination Principle fares no
better. The word “discriminate” means “to make
a clear distinction; distinguish; differentiate.” By
definition, then, every hiring and admission
with, there are many morally permissible reasons
for hiring other than the most qualified candi
date. Suppose two white males, John and Tom,
apply for a cashier position. Performance tests
show the only difference between them is that
Tom completes each transaction a little faster and
discriminates against law students who do not.
But notwithstanding that such a policy is “dis
is hence slightly more qualified. If the most
criminatory,” it is justified as a means of ensuring
qualified person has a right to the job, it is wrong
to hire John. But suppose that during the inter
view John establishes a better rapport with the
employer than Tom. As a result, the employer
likes John more ? though he also likes Tom quite
that the firm employs only the most talented,
hardest-working attorneys.
a bit. Even if the employer has no on-the-job
contact with cashiers, she would do no wrong by
hiring John.
decision that distinguishes two people involves
discrimination. For example, a law firm that hires
only law students who graduate cum laude
One might concede there is no general right
of nondiscrimination, but argue there is a right
not to be discriminated against on the basis of
race and sex.11 But even this claim is too strong.
Discrimination on the basis of a belief that one
race or sex is inferior to another is wrong because
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Discrimination and Disidentification 279
it violates the moral right to equal respect. When
character and abilities are relevant, a person
has a right to be judged on her character and
abilities, and not on a stereotype. Nevertheless,
some race- and sex-based discrimination is clearly
permissible. It is legitimate for a director to insist
that a black character be played by a black
performer – even though, strictly speaking, the
director’s preference involves racial discrimina
tion. It is likewise legitimate to publicly fund an
education program that teaches women how to
examine themselves for breast cancer.12
Whether any type of race- or sex-based
discrimination violates a right of some kind,
then, seems to depend on the motivation or
rationale. What morally distinguishes, for
example, a law requiring separate bathrooms in
public accommodations for blacks and whites
from a law requiring separate bathrooms in public
accommodations for men and women has to do
with the motivation. The latter law is permissible
because its motivation is to protect legitimate
privacy interests. The former, though identical
in structure to the latter, is impermissible because
the only plausible motivation for such a require
ment is grounded in racist stereotypes. If this
is correct, preferences can be justified by
articulating a morally legitimate motivation or
rationale.
2. The fair-start defense of preferences
Many theorists attempt to justify race- and sex
based preferences as a response to the psycho
logical effects of discrimination on blacks and
women. The general outlines of this approach
were first suggested in Brown v. Board of Education.
In Brown, the court struck down race-based
segregation in public schools on the ground that
it diminishes the self-esteem of black children:
“To separate [black children] from others of
similar age and qualifications solely because of
their race generates a feeling of inferiority as to
their status in the community that may affect
their hearts and minds in a way unlikely ever to
be undone.”13
The Brown court relied on a study by Kenneth
Clark in which black and white children were
shown two dolls that were identical except for
their color. When asked to indicate which doll
was better, the vast majority of white and black
children chose the white doll.14 Clark concluded
that racism harms black children by causing
diminished self-esteem. On the basis of such
studies, the Brown court struck down school
segregation laws on the ground that segregation
places black children at a competitive disadvan
tage by inhibiting their ability to learn:
Segregation of white and colored children in public
schools has a detrimental effect upon the colored
children. . . . [F]or the policy of separating the
races is usually interpreted as denoting the inferi
ority of the negro group. A sense of inferiority
affects the motivation of a child to learn.
Segregation with the sanction of law, therefore, has
a tendency to [inhibit] the educational and mental
development of negro children.15
A similar argument is often made with respect
to the effects of sexism on self-esteem in women.
Early on, girls are taught that the traits they are
expected to develop are of less value than those
boys are expected to develop:
[I]t is an indisputable fact that once a girl develops
an understanding of language, it is definitely com
municated to her that she is less significant than
boys. A girl may have learned of this simply by
the absence of strong, autonomous, competent
female figures in the male-dominated world of
culture and society. . . . Within her family she may
have learned she was insignificant by the way her
family listened more attentively during dinner
conversation to males than females, or the way her
brothers were encouraged to take their ideas and
career plans seriously while the girls were told it
really didn’t matter what they did.16
On this line of reasoning, sexism harms girls in
the same way racism harms black children: it
diminishes the capacity to learn by reducing self
esteem.
Affirmative action defenders conclude that
preferences are justified as a morally legitimate
response to the harms caused by institutional
discrimination to self-esteem. One popular
strategy has been to argue that race- and sex
based preferences are justified as a means of
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280 Kenneth Einar Himma
compensation.17 Proponents argue that hiring
preferences are morally required as compensation
for harm to self-esteem caused by institutional
discrimination. This argument relies on the
following principle of compensatory justice:
(PCJ): One person A is morally obligated to com
pensate another person B for any harm to B caused
by A’s culpable conduct.
The problem with PCJ is that the person
burdened by the preference is usually not indi
vidually culpable for the harms caused by
example, an upper-class black girl will have far
better educational opportunities than those of a
lower-class white boy. As a result, it is true that
an upper-class black female, even in a racist and
sexist society, is more likely to achieve her
potential than a poor white male. But it is also
true that, in such a society, a poor white male
receives a head start over a black female because
of his race and sex. In such cases, the advantages
of whiteness are not enough to overcome the
disadvantages of poverty, but it is still true that
institutional racism confers upon a poor white
child an undeserved competitive advantage over
institutional racism or sexism to the beneficiary
black children.
of the preference.18 In the typical case, one
According to FSD, then, it is not the purpose
of affirmative action to compensate a person for
the competitive disadvantage caused by institu
tional racism and sexism; rather the purpose is to
negate the competitive advantages that unfairly
accrue to white males as a result of racism and
person B receives a preference at the expense of
a white male A with no prior contact with B.
In such instances, PCJ does not apply because
PCJ imputes a duty of compensation only to
persons causally responsible for the harms. While
A has benefited from discrimination in general
and from discrimination against B in particular,
PCJ does not impute a duty of compensation to A
because A did not cause the harm to B. Indeed,
if PCJ is the only relevant principle, A can com
plain that giving a preference to B at A’s expense
is wrong because it is unfair to exact compensa
tion from A for harms caused by other persons.19
In contrast to compensation-based justifica
tions, FSD is based on a rationale that does not
presuppose individual fault or guilt on the part
of white males. To the extent that institutional
discrimination causes harm to self-esteem and
thereby makes it more difficult for blacks and
sexism. Here the footrace metaphor comes into
play. Suppose a sprinter mistakes a car backfiring
for the starter’s pistol and begins a fraction of a
second before the gun is fired. The runner places
second in a field of ten sprinters. Even though
the sprinter is not culpable for the false start, it
would be unfair to the other runners ? including
the sprinter who placed first ? to allow her to
benefit from the head start. For this reason, it is
permissible to disqualify the sprinter who got
the head start or, if possible, reduce her time by
a quantity corresponding to the advantage
produced by the head start. According to FSD,
it would be unfair to allow white males to benefit
women to achieve their potential, it provides
white males with an undeserved competitive
from the unfair competitive advantages they
accrue as a result of institutional racism and
advantage. Now this is not to say that all, or even
most, blacks and women suffer from deficits in
self-esteem.20 Indeed, many blacks and women
the sprinter to benefit from her false start. Thus,
go on to achieve at a level that is beyond the
reach of the vast majority of white males. But it
is also true that every successful black person and
woman has to confront institutional obstacles that
white males do not have to confront.
Thus, on this line of reasoning, every white
male has an undeserved competitive advantage in
the form of a head start over every black and
every woman. Of course, this advantage will
often be counterbalanced by other factors. For
sexism ? just as it is would be unfair to allow
affirmative action is permissible to negate such
advantages.
FSD has a number of significant elements
worth noting. First, it does not presuppose that
white males are either individually or collectively
culpable for institutional discrimination. Second,
FSD addresses only one class of injury, namely
that which causes a competitive disadvantage of
some kind. If injury to self-esteem does not result
in competitive disadvantage (as may arguably be
true of discrimination against, for example, gay
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Discrimination and Disidentification 281
persons), FSD would not justify measures
addressing that injury. Third, FSD justifies only
those measures that operate to negate the com
petitive disadvantage; it will not justify measures,
for example, that seek to compensate a person for
such harm. Fourth, FSD justifies measures
addressing only competitive disadvantages that
are unfair because caused by a morally wrongful
institutional practice. The idea is that the state is
obligated to ensure the conditions of a fair start
in a competitive market economy.
This last element of FSD has one important
employer would do no moral wrong, other things
being equal, to give a preference to a woman to
negate an unfair competitive advantage. But FSD
does not, in and of itself, imply the stronger
conclusion that a private employer is morally
obligated to give such preferences. That it is
permissible, other things being equal, to take
some measure to remedy an instance of unfair
ness does not imply that it is obligatory to do so.
A child born to wealthy parents, for example, has
many unearned educational opportunities not
advantage over other arguments for affirmative
action: it allows the affirmative action supporter
available to a child born to poor parents. But the
unfairness of allowing a wealthy child to benefit
from this unearned competitive advantage does
to counter the charge that preferences are unfair
not give rise to a m…
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