FORMACIÓN DEL CERTIFICADO DE PROFESIONALIDAD MÓDULO FORMATIVO 1

The term ‘affirmative action’ originated in the USA under President Kennedy. Originally it was designed to ensure that employees and applicants for jobs with government contractors did not suffer discrimination. Within a year, however, ‘affirmative action’ was used to refer to policies aimed at compensating African-Americans for unjust racial discrimination, and at improving their opportunities to gain employment. An important implication of this shift was that affirmative action came to mean preferential treatment.

Preferential treatment was later extended to include women as well as other disadvantaged racial and ethnic groups. The arguments in favour of preferential treatment can be usefully classified as backward-looking and forward-looking. Backward-looking arguments rely on the claim that preferential treatment of women and disadvantaged racial minorities compensates these groups or the members for the discrimination and injustices they have suffered. Forward-looking arguments rely on their claim that preferential treatment of women and disadvantaged racial minorities will help to bring about a better society.

There has been much criticism of both types of argument. The most common accusation is that preferential treatment is reverse discrimination. Other criticisms are based around who exactly should be compensated, by what means and to what extent, and at whose cost. Finally, there is the fear of the unknown consequences of such action. Arguments have been forwarded to try and solve such difficulties, but the future of preferential treatment seems to lie in a combination of the two arguments.

1 Backward-looking arguments

In the USA, Native Americans and African-Americans are the best examples of disadvantaged racial minorities that have been treated unjustly. One kind of backward-looking argument claims that the members of these groups suffer from ongoing racial discrimination practised by the white majority, and also from the effects of past injustices that the nation practised against their parents and ancestors; that they therefore deserve to be

compensated; and that according them some preference over whites in the competition for jobs, promotions and places at universities is an appropriate way to give them the compensation they deserve. A second kind of

backward-looking argument adds that preferential treatment of Native Americans and African-Americans is also a way to compensate the groups to which they belong. Both kinds of arguments are extended with somewhat diminished force to justify preferential treatment of women and other racial minorities that have been unjustly discriminated against.

2 Forward-looking arguments

Forward-looking arguments for preferential treatment do not require that preferentially treated individuals be themselves the victims of injustice. They justify treating some individuals preferentially if this will help make society more efficient, and more likely to give equal consideration to the common interests of its members. For example, preferential treatment of women in fields like engineering may make society more efficient by encouraging women with engineering talent to develop and use it. Similarly, preferential admission of

African-Americans to medical school may help enable society if African-American doctors are more likely than white doctors to practise medicine in black ghettos where medical care is relatively scarce.

3 Criticisms of backward-looking arguments

The most general criticism of preferential treatment is that it is reverse discrimination. The implication is that preferential treatment is morally similar to the discrimination it is meant to compensate for. This implication is false. The discrimination preferential treatment is meant to compensate for is based on contempt for the interests or abilities of those discriminated against (see Discrimination). Preferential treatment is not based on such contempt. More specific criticisms of preferential treatment are directed at the backward-looking and forward-looking arguments.

Since backward-looking arguments for preferential treatment claim that it is required by compensatory justice, they presuppose a view of what compensatory justice requires. The most elementary requirement of compensatory justice is that those that deserve compensation must have been wrongly injured. Some critics of preferential

treatment object that it cannot be justified by compensatory justice because this is not usually the case. When directed against preferential treatment of African-Americans this objection is based on two grounds: an

underestimation of the effects of racial discrimination and prejudice; and a false inference based on the fact that the black middle-class beneficiaries of preferential treatment are probably less injured than blacks in the lower and under classes to the conclusion that the former are only slightly injured or not injured at all.

A more serious question concerns who should bear the costs of compensating the beneficiaries of preferential treatment. A plausible view is that the costs of compensating the victims of wrongful injury should be borne by those responsible for the wrongful injury. Many critics object that even if practically everyone in the society is at least indirectly responsible for wrongly injuring the beneficiaries of preferential treatment, the policies

implemented in its name usually seem to impose the heaviest costs on those least responsible. A similar objection can be raised if compensatory justice allows that the costs of compensating the victims of wrongful injury may have to be borne by the beneficiaries of the wrongful injury. The most troubling difficulty, however, is that we usually cannot know whether the beneficiaries of preferential treatment are getting the compensation they deserve. A plausible view of compensatory justice is that it requires that the wrongly injured persons be brought up to ‘the level of wealth and welfare that they would now have if they had not been disadvantaged’ (Nickel 1975: 536). On this account, beneficiaries are compensated presumably if compensatory justice secures them jobs and positions roughly similar to those they would have secured in the absence of injury. But preferential treatment does not obviously secure its beneficiaries the jobs and positions they would have recovered in the absense of injury. Consider, for example, the black beneficiaries of preferential treatment. If unjust racial discrimination had never happened, the conditions and prospects for blacks would be very different from what they are. For example, many more blacks, probably including the beneficiaries of preferential treatment, would be better qualified, and certainly many would be chosen for the jobs and places which preferential treatment secures. What is uncertain is that the black beneficiaries of preferential treatment would be the very ones chosen for these jobs and positions.

This difficulty is not insurmountable, but it has moved some advocates of backward-looking arguments of

preferential treatment to stress that the larger aim is to compensate unjustly treated groups. On this account, it does not matter that the individuals who get jobs and places as a result of preferential treatment may not be the ones who would get these jobs and places in the absence of injustice directed at the groups they belong to. What matters is that their getting such jobs and places is a way to compensate these groups. This shift in the backward-looking argument raises a number of questions. Even if the typical beneficiaries of preferential treatment have been unjustly treated, it does not follow that the groups to which they belong are owed compensation; not every group of unjustly treated individuals need be owed compensation over and above the compensation owed the individuals that compose it. Indeed, not every group of unjustly treated individuals is the kind of group that can claim

compensation. It is widely acknowledged that certain kinds of groups can claim compensation; nation states, firms and families are examples. But it is not obvious that the groups whose members benefit from typical programmes of preferential treatment are those kinds of groups. This difficulty can probably be resolved with respect to groups like African-Americans and Native Americans, groups that most resemble those that theorists acknowledge can meaningfully be owed compensation. Supposing this to be the case, this still leaves the difficulty of establishing the conditions that have to be satisfied to compensate such groups. Some theorists doubt that preferential treatment as standardly practised satisfies these conditions, given that it seems to contribute to the growing gap between the black middle-class and the black underclass (Wilson 1987). Presumably this objection can be met by redesigning present policies of preferential treatment. More general questions have been raised about the level of wealth and wellbeing preferentially treated groups would have to be brought to in order to be compensated. The assumption that this level is the level of flourishing groups in the society has been challenged on the ground that cultural differences between groups may explain most of the inequalities in their levels of wealth and wellbeing. However, even if this challenge is generally sound it does not defeat the claim that some preferentially treated groups deserve compensation.

4 Criticisms of forward-looking arguments

Forward-looking arguments do not have to resolve the difficult counterfactual problems that beset the backward-looking arguments. A common criticism of forward-looking arguments is that since they justify discriminating in favour of minorities and women when doing so maximizes utility, they must be committed to discriminating against women and minorities when doing so maximizes utility. This criticism is, however, largely

irrelevant because most advocates of the forward-looking arguments do not rely heavily on the supposition that preferential treatment maximizes utility; their more favoured supposition is that preferential treatment will enable society to give more equal consideration to the common interests of its members. The example given earlier concerning the treatment of women in fields such as engineering suggests the plausibility of this supposition. A frequent objection is that even if this supposition is plausible, preferential treatment is unjustified because it violates colour-blind or gender-blind principles. These principles forbid denying an individual a place, job or promotion on account of their colour or gender. They are plausibly implied by the equal opportunity principle, assuming that individuals have not previously been denied opportunities to acquire qualifications for places, jobs and promotions on account of their colour or gender. That assumption is false where preferential treatment is urged. However, although preferential treatment violates colour-blind and gender-blind principles it need not violate the equal opportunity principle. On the contrary it may help to implement that principle. For example, preferential admission of women in fields such as engineering may help society equalize opportunities by helping to break down stereotypes that falsely suggest that women cannot perform well in such fields. A deeper weakness of the objection is that it falsely assumes that the purpose of providing opportunities for places and jobs is to reward merit. In fact, the purpose of providing opportunities for places and jobs is to satisfy the needs and give equal consideration to the interests of members of the society. Meeting that purpose may require violating the colour-blind and gender-blind principles.

Further objections to the forward-looking arguments focus on the consequences of preferential treatment. One set of objections denies that it will have the good consequences its advocates predict. A crude example of this kind of objection is that we do not equalize the interests of the black poor in medical treatment by certifying unqualified blacks as doctors to treat them. A more serious objection denies that there is any good reason to suppose that black doctors are more likely than white doctors to work among the black poor. Another set of objections maintain that preferential treatment is likely to have some untoward consequences. Favourite arguments are that it will create the stereotype that women and minorities cannot succeed in competition with white males without special help, and that it will undermine the self-esteem and self-respect of those it sets out to benefit. These dangers seem most likely where the beneficiaries of preferential treatment misunderstand its rationale.

5 Conclusion

The case for preferential treatment remains highly controversial. Philosophers disagree about what its

consequences are likely to be, and about who has been injured enough to deserve it. More importantly, they also disagree about the requirements of compensatory justice, the demands of equality and the nature of the good society. The case for preferential treatment of such groups can only be strengthened by grounding it explicitly on well-argued answers to these philosophical questions.

See also: Equality; Justice

BERNARD BOXILL References and further reading

Boxill, B. (1992) Blacks and Social Justice, Lanham, MD: Rowman & Littlefield, revised edn.(Chapters 7 and 11 contain extended defences of affirmative action.)

Cahn, S. (1993) Affirmative Action and the University, Philadelphia, PA: Temple University Press.(A collection of recent, mainly critical, discussions of affirmative action in higher education.)

Chapman, J. (ed.) (1991) Compensatory Justice, New York: New York University Press.(Contains sophisticated discussions of compensatory justice.)

Dworkin, R. (1978) ‘Reverse Discrimination’, in Taking Rights Seriously, Cambridge, MA: Harvard University Press.(This essay is a famous interpretation of the forward-looking argument for affirmative action.)

Ezorsky, G. (1991) Racism and Justice, Ithaca, NY: Cornell University Press.(A recent persuasive defence of affirmative action.)

Hill, E., Jr (1991) ‘The Message of Affirmative Action’, in E.F. Paul, F.D. Miller and J. Paul (eds) Reassessing Civil Rights, Cambridge, MA: Harvard University Press.(Defends affirmative action in the university and

argues that it communicates a message to its beneficiaries, acknowledging that they have been wronged and welcoming them into the university.)

Lawson, P. (1992) The Underclass Question, Philadelphia, PA: Temple University Press.(In this collection, several African-American philosophers discuss a variety of recent criticisms of affirmative action.)

McGary, H. (1989) ‘Reparations, Self-Respect and Public Policy’, in D. Goldberg (ed.) Ethical Theory and Social Issues, Fort Worth, TX: Holt.(An excellent defence of backward-looking arguments for affirmative action.) Nickel, J.W. (1975) ‘Preferential Policies in Hiring and Admissions: A Jurisprudential Approach’, Columbia Law

Review 75 (April): 534-58.(Assesses the affirmative action debate from the point of view of the law.) Wilson, W.J. (1987) The Truly Disadvantaged, Chicago, IL: University of Chicago Press.(Contains arguments

that affirmative action rewards African-Americans who are already advantaged, and adds to the isolation of those who are truly disadvantaged.)