SHER. Reverse Discrimination, The Future, And the Past

Reverse Discrimination, the Future, and the PastAuthor(s): George SherReviewed work(s):Source: Ethics, Vol. 90, No. 1 (Oct., 1979), pp. 81-87Published by: The University of Chicago PressStable URL: http://www.jstor.org/stable/2380502 .Accessed: 02/12/2012 13:49

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SYMPOSIUM ON REVERSE DISCRIMINATION

Reverse Discrimination, the Future, and the Past

George Sher

There exist in our society some groups whose members, in the past, were discriminatorily denied jobs, admission to educational institutions, and other goods; and many people believe that members of these groups should be given special preference in these areas now. Although the groups most often mentioned in this connection are blacks and women, the current affirmative action guidelines list also American Indians and Alaskan natives, certain Asians and Pacific Islanders, and persons of Hispanic background; and I suspect that most proponents of a policy of reverse discrimination which follows group lines would want it to apply to these groups as well. For simplicity, I will use the term "minority" to designate all the groups except women for which preference is advo- cated. Because the areas in which preference is urged are so closely related to those in which the initial discrimination took place, it is natural to view the proponents of reverse discrimination as arguing not merely that it will improve the lot of the current group members, but rather that in doing so it will compensate for the earlier discrimination. To the extent that the argument for reverse discrimination is a compensatory one, that argument will involve an essential reference to the unjust ac- tions of the past, and so will be fundamentally backward-looking.

Although explicitly backward-looking justifications of reverse discrimination are common enough, they have tended to call forth an equally common objection. Put simply, the objection is that the current beneficiaries of reverse discrimination are not often the same persons as those who were harmed by the original discrimination, and those who now bear the burden of reverse discrimination are seldom the same persons as those who practiced the original discrimination. Because of this, reverse discrimination is said to be both irrelevant to the aim of compensating for past injustices and unfair to those whose superior qualifications are bypassed. To meet this objection, the backward- looking defender of reverse discrimination may elaborate his position in

Ethics 90 (October 1979): 81-87 ? 1979 by The University of Chicago. 0014-1704/80/9001-0004$00.75

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82 Ethics October 1979

one of three ways. He may hold either that (1) every woman and minority group member has suffered and every nonminority male has ben- efited at least indirectly from the effects of past discrimination;' or that (2) the entities to be compensated are not individuals at all but rather the groups to which the initial victims belonged;2 or that (3) we should extend preference not to every woman and minority group member but rather only to those group members who have actually suffered from past discrimination.3 However, (1) and (2) raise obvious and well-known difficulties in their turn,4 and (3) represents what many regard as an intolerable weakening of the original thesis.

In light of these difficulties, some defenders of reverse discrimination have attempted to justify that practice in what appears to be a different way altogether. On the alternative justification they propose, the aim of reverse discrimination is not to compensate anyone for any harm caused by past wrongdoing, but rather simply to promote certain highly desirable forms of social change. Although the details of this account have tended to vary, its fundamental thrust is that reverse discrimination is a necessary tool for improving the socioeconomic position of minorities and for providing role-models for both members of minority groups and women, and that these results are in turn essential steps toward bringing the present and future members of these groups into society's mainstream. The fundamental point is that reverse discrimination should be seen not primarily as redressing past wrongs, but rather simply as breaking what would otherwise be an endlessly continuing cycle of poverty and subservience. Since the latter aim seems compelling independently of any historical considerations, a strong policy of preferential treatment for all members of the affected groups is said to be justified in a purely forward-looking way.5

1. Judith Jarvis Thomson, "Preferential Hiring," Philosophy and Public Affairs 2 (1973): 381; and Allison Jaggar, "Relaxing the Limits on Preferential Hiring," Social Theory and Practice 4 (1977): 231.

2. Paul W. Taylor, "Reverse Discrimination and Compensatory Justice," Analysis 33 (1973): 177-82; and Michael D. Bayles, "Reparations to Wronged Groups," ibid., pp. 182-84.

3. George Sher, "Justifying Reverse Discrimination in Employment," Philosophy and Public Affairs 4 (1975): 159-70; and Alan H. Goldman, "Limits to the Justification of Reverse Discrimination," Social Theory and Practice 3 (1975): 289-306.

4. For discussion of these difficulties, see George Sher, "Groups and Justice," Ethics 87 (1977): 174-81; and Robert Simon, "Preferential Hiring: A Reply to Judith Jarvis Thom- son," Philosophy and Public Affairs 3 (1974): 312-20.

5. For versions of the forward-looking approach, see Ronald Dworkin, Taking Rights Seriously (Cambridge, Mass.: Harvard University Press, 1977), pp. 223-39; Thomas Nagel, "Equal Treatment and Compensatory Discrimination,"Philosophy andPublic Affairs 2 (1973): 348-63; Irving Thalberg, "Reverse Discrimination and the Future," Philosophical Forum 5 1973-74): 294-308; and Richard Wasserstrom, "The University and the Case for Pref- erential Treatment," American Philosophical Quarterly 13 (1976): 165-70. For additional discussion, see Richard Wasserstrom, "Racism, Sexism, and Preferential Treatment: An Approach to the Topics," UCLA Law Review 24 (1977): 581-622.


provaRessaltat1. INDIRECT BENEFIT OF THE MAYORITY.2. THE GROUP SHOULD BE COMPENSATED3. ONLY THOSE WHO WHERE HARMED IN THE FIRST PLACE SHOULD BE COMPENSATED.

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Sher Reverse Discrimination 83

It must be conceded that a genuinely forward-looking justification of reverse discrimination would avoid the need to establish what must be the extremely complicated causal connections between past wrongs and the current positions of particular individuals. However, the advantage gained here may be more apparent than real; for in place of this task, the forward-looking justification will face the equally difficult challenge of marshalling enough detailed social scientific evidence to show that reverse discrimination would indeed disrupt the relevant cycles of disadvantage, and that no other, fairer way of doing so would be as effective. Moreover, even if such empirical evidence could be mustered, a deeper difficulty with the forward-looking approach to reverse discrimination would remain. If that approach is to be genuinely acceptable, then the disruption of the relevant cycles of disadvantage will itself have to be called for by some independently grounded and forward- looking moral principle. However, although the principles of utility and equality have both been invoked in this connection, I shall argue in what follows that neither of them could plausibly be said to justify a policy with just the effects that reverse discrimination is claimed to have. If this contention is correct, then the forward-looking approach to reverse discrimination will be considerably more problematic than it first appears to be.

Let us begin by examining the appeal to utility. In its most basic form, a utilitarian defense of reverse discrimination will consist simply of the claim that interrupting the ongoing cycles of disadvantage would bring more overall benefit than allowing those cycles to continue; while a more sophisticated version will supplement this utility claim with a further argument that qualifications of the traditional sort do not themselves confer any right to a contested good.6 Assuming that the relevant factual claims are correct, such utilitarian arguments may appear to offer a quick and decisive justification for a sustained policy of reverse discrimination. However, a closer look reveals that on either formula- tion, the utilitarian defense is vulnerable to a simple but serious objection. Put briefly, the objection is that if it is acceptable to discriminate in

favor of minorities and women when doing so maximizes utility, then it is hard to see why it should not also be acceptable to discriminate against minorities and women when that policy maximizes utility. However, the possibility that racial, ethnic, or sexual discrimination might be legitimate is surely not one that any defender of reverse discrimination could accept.

The force of this objection has not been lost on the utilitarian defenders of reverse discrimination. One of these defenders, Thomas Nagel, has attempted to rebut the objection by contending that racial and sexual discrimination, unlike reverse discrimination, "has no social

6. See Wasserstrom, "The University and the Case for Preferential Treatment," and Dworkin.


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advantages and attaches a sense of reduced worth to a feature with which people are born."7 Moreover, another utilitarian defender, Ronald Dworkin, has attempted to bolster the utilitarian defense by distinguishing between two sorts of preferences. According to Dworkin: "The preferences of an individual for the consequences of a particular policy may be seen to reflect, on further analysis, either apersonal preference for his own enjoyment of some goods or opportunities, or an external preference for the assignment of goods and opportunities to others, or both."8 To whatever extent a utility claim rests on external preferences, it will tie someone's chances of satisfaction to "the respect or affection [others] have for him or for his way of life,"9 and so will not be legitimate. Thus, since utilitarian arguments for racial (and, we may add, ethnic and sexual) discrimination are evidently based on just such external preferences while utilitarian arguments for reverse discrimination are not, Dworkin concludes that we may safely accept the latter arguments without being forced to accept the former also.

Nagel and Dworkin have both attempted to show how the utilitarian can avoid the charge that his principle cuts two ways. However, even if we accept both Nagel's empirical claim and Dworkin's distinction between personal and external preferences, it will remain doubtful whether either has successfully answered the difficulty. What Nagel and Dworkin have shown is that no legitimate utilitarian argument can justify a policy of racial, ethnic, or sexual discrimination under the conditions which now prevail. However, it is one thing to show this, and quite another to show that no legitimate utilitarian argument could justify such discrimination under any circumstances at all. As far as I can see, Nagel has offered us no reason to believe that there could never be alternative circumstances in which racial, ethnic, or sexual discrimination had social advantages which did outweigh the sense of reduced worth it produced; and neither, despite his bare assertion to the con- trary, has Dworkin produced any reason to suppose that such discrimination could never maximize the satisfaction of purely personal preferences. Because these possibilities still remain open, the utilitarian will still have to regard the wrongness of racial, ethnic, and sexual discrimination as fundamentally an empirical accident. However, this claim is precisely the one which the proponent of reverse discrimination will presumably be unwilling to accept. Because this is so, a viable forward- looking defense of reverse discrimination will evidently have to appeal to some principle other than that of mere utility.

The other main consequentialist principle that has been invoked to support reverse discrimination is the principle of equality. By breaking the existing cycles of disadvantage, reverse discrimination is said to be a way of eliminating the gaps which now separate the different races,

7. Nagel, p. 360. 8. Dworkin, p. 234. 9. Ibid., p. 235.


provaRessaltatPERSONAL AND EXTERNAL PREFERENCES.

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sexes, and ethnocultural groups, and so of promoting greater social equality.10 By thus appealing to the aim of equality, the defender of reverse discrimination can avoid the failure of generalization which viti- ates the utilitarian approach. However, by making such an appeal, he will raise a further problem in its turn. This further problem stems from the fact that even if he is committed to the ideal of equality among races, sexes, and other groups, the proponent of reverse discrimination must ex hypothesi continue to accept a framework of inequality among individuals. This acceptance of inequality follows directly from the nature of reverse discrimination itself. To practice reverse discrimination is just to award certain contested goods to women and minority group members in preference to other, more traditionally qualified claimants; and to award goods in this way is not to abolish, but merely to rearrange, the inequalities of distribution that now prevail. Moreover, since the goods to be awarded preferentially are themselves instrumental to the procur- ing of further goods, it is clear that any inequalities which are per- petuated by reverse discrimination must result in yet further inequalities. in the future. Because this is so, and because many other egalitarian strategies (for example, the direct redistribution of wealth) are likely not to have this consequence to the same degree, any egalitarian who argues for reverse discrimination will have to explain why we should stop at just the amount of equality which that practice would produce. If he cannot answer this question, then the egalitarian's refusal to tolerate racial, ethnic, and sexual inequalities will be flatly inconsistent with his willingness to tolerate the other inequalities which reverse discrimination perpetuates.

One possible way for the egalitarian proponent of reverse discrimination to defend his stopping point would be for him to maintain that more equality would indeed be desirable, but that no alternative strategy for achieving it is politically and economically feasible. If this claim were correct, then the egalitarian's willingness to settle for the amount of equality which can be achieved through reverse discrimination could be defended on pragmatic grounds. However, anyone who pursued this line would have to assume that reverse discrimination is in fact the most effective egalitarian strategy now available; and in light of the many possible alternative strategies and the open-ended time period which reverse discrimination is said to require to work its effects, this unproven factual assumption is even more problematical than the others already encountered. Perhaps because of this, few egalitarians have tried to defend reverse discrimination in this way." Instead, the prevailing egalitarian view appears to be that racial, ethnic, and sexual inequalities are somehow especially wrong, and so are especially deserving of eradi- cation. But how, exactly, is this further claim to be supported in its turn?

10. For such an approach, see Thalberg and Dworkin. 11. However, see Thalberg, pp. 306-7.


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provaRessaltatNO OTHER ALTERNATIVE IS ECONOMICALY AND POLITICALY FEASABLE.


One way of showing that continuing racial, ethnic, and sexual inequalities are worse than others would be to argue that the former inequalities deprive groups as well as individuals of equal shares of goods, and so violate the principle of equality twice over. However, to make this argument, one would have to presuppose that the relevant groups are themselves proper candidates for equal treatment; and this supposition seems no more supportable in a forward-looking context than it is in a backward-looking one. Moreover, neither could it be argued that at least racial and sexual inequalities are especially wrong because they are based on morally arbitrary or unchangeable characteristics; for if these inequalities are genuinely self-perpetuating, then they will persist independently of any future discriminatory acts, and so will not be based on any personal characteristics at all. In light of these facts, the only remotely plausible forward-looking way of showing that racial, ethnic, and sexual inequalities are especially wrong is to reinvoke Nagel's obser- vation that these inequalities, unlike others, are apt to lead to further inequalities of self-respect. A white who is poor and uneducated is not likely to despise himself for belonging to an inferior group, while even an affluent and well-educated black may think badly of himself because so many other blacks have occupied inferior positions; and something similar may hold, mutatis mutandis, for members of other minorities and women as well. We saw above that such observations do not rescue the utilitarian from the charge that his principle might sometimes justify racial, ethnic, or sexual discrimination. However, they may appear far more effective when they are marshalled to show that racial, ethnic, and sexual inequalities are decisively worse than others.

It must be acknowledged that any distributional inequality which leads to a further inequality in self-respect is ceteris paribus worse than one which does not. However, properly understood, this fact offers little comfort to the egalitarian defender of reverse discrimination. What that defender needs to show is that it is consistent to denounce whichever inequalities follow racial, ethnic, or sexual lines, while at the same time not denouncing those other inequalities which reverse discrimination inevitably perpetuates. However, the fact that racial, ethnic, and sexual inequalities are accompanied by further psychological inequalities while others are not simply does not yield this conclusion. At best, it shows only that the former inequalities would have first claim on our attention if we were forced to choose among inequalities-which, as we have seen, there is not good reason to think we are. It does not show, and no further argument could show, that any consistent egalitarian could ignore the import of the other inequalities altogether. Because this is so, the appeal to equality is in the end just as dubious as the previous appeal to utility.

We have now examined the two most common forward-looking defenses of reverse discrimination. Although there is plainly more to be said about each, we have seen enough to show that both are vulnerable to


provaRessaltatAFTER SOME TIME, THE INJUSTICE WILL BE EQUALLY DISTRIBUTED WITHIN THE DISCRIMINATED GROUP, BECAUSE EACH OF ITS MEMBERS WILL HAVE THE SAME CHANCE TO BE WORSE-OFF.

provaRessaltatWHY RELEVANT GROUPS ARE PROPER CANDIDATES FOR EQUAL TREATMENT.


what is at bottom the same objection. To the utilitarian defense, the objection is that it is merely a logical accident that the principle of utility now dictates practices which favor women and minority group members instead of nonminority males; while for the egalitarian defense, the difficulty is to explain why we should adopt a policy which equalizes only the positions of women and the specified minorities. Because neither forward-looking principle tells us why we should restrict our attention to the members of these groups, it is reasonable to seek the justification for this restriction in some further premise which has hitherto been suppressed. Moreover, given the context in which the whole discussion has taken place, the relevant suppressed premise is not difficult to find. Because the most salient fact about blacks, women, American Indians, Hispanics, etc., is just that they were so often discriminated against in the past, the suppressed reason for focusing attention on them now can hardly fail to be that they, unlike the others, are now deserving of compensation.

If this suggestion is correct, of course, then even those defenses of reverse discrimination which at first appear to be entirely forward- looking will in the end not be purely forward-looking at all. They will indeed be forward-looking to the extent that they attempt to justify reverse discrimination by claiming that it will maximize future utility or equality for women and members of the specified minorities; but their concentration on women and members of these minorities will itself be warranted by the fact that these persons' lack of goods or unequal status is likely to call for compensation if it does occur. They will indeed shift the emphasis from the amelioration of harms already done to pro- phylaxis to avoid future harms; but the future harms which they aim at avoiding will themselves be singled out by their immoral causal antece- dents. Because the scope of the proposed arguments will thus be de- termined by the demands created by past wrongs, the arguments in question will reach no further than those future persons who are genuinely in danger of suffering compensable harms. These persons will undoubtedly include many blacks and members of the other official minorities; but there is little reason to believe that they will include all the members of these groups. Moreover, to be consistent, we should also expect them to include a good many Italians, Jews, Slavs, and members of the various other groups which have suffered past discrimination, but which are not included in the official list. Because so many groups have been subjected to active discrimination, any attempt to single out the endangered future members of some few of them is likely to be quite arbitrary. All in all, therefore, the proposed arguments do not avoid, but rather actually extend, the crucial question of which individuals deserve compensation for past discrimination. 12

12. I am indebted to Alan Wertheimer for his helpful criticisms and suggestions.


provaRessaltatTHIS RESTRICTION MUST BE JUSTIFIED, OR ITS CONTEXT-DEPENDENT, INSOFAR IT PRESSUPOSE THAT WE CANNOT HELP ANY GROUP WITHOUT HARMING SOME OTHER.

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provaRessaltatWE NEED A DEFINITION OF ARBITRARY: BLACKS WERE SLAVES AND ITALIANS INMIGRANTS. IS IT WORSE TO DISCRIMINATE (i) A CITIZEN OR (ii) A SLAVE. (ii) ACCORDING TO OUR CURRENT MORAL PRINCIPLES; (i) ACCORDING TO THE ONGOING LAW.

Article Contentsp. 81p. 82p. 83p. 84p. 85p. 86p. 87

Issue Table of ContentsEthics, Vol. 90, No. 1 (Oct., 1979), pp. 1-158Front MatterOn Editing Ethics [pp. 1 - 6]Dueling and the Right to Life [pp. 7 - 26]The Homeric Version of the Minimal State [pp. 27 - 46]Prejudice as Prejudgment [pp. 47 - 57]Ought We to Try to Save Aborted Fetuses? [pp. 58 - 65]An Interpretation of Hume's Theory of the Place of Reason in Ethics and Politics [pp. 66 - 80]Symposium on Reverse DiscriminationReverse Discrimination, the Future, and the Past [pp. 81 - 87]Individual Rights and `Benign' Discrimination [pp. 88 - 97]Race and Class: The Basic Issue of the Bakke Case [pp. 97 - 114]

Discussions and Review EssaysPractical Principles [pp. 115 - 121]Ronald Dworkin and the Right to Liberty [pp. 121 - 130]Utility Maximizers and Cooperative Undertakings [pp. 130 - 141]

Fried on Rights and Moral Personality [pp. 141 - 156]Back Matter [pp. 157 - 158]

SHER. Reverse Discrimination, The Future, And the Past

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