The notion that institutions should treat members of underrepresented identity groups more favourably or hold them to lower standards is inconsistent with the principles of equal treatment and non-discrimination. It also undermines individual autonomy by making people’s group identity more important than their qualities as individuals. Yet it has become increasingly commonplace for institutions to offer jobs and other opportunities preferentially to people based on their group identities. For example, many of the programmes for students currently offered by Goldman Sachs are reserved for women, members of the LGBT community and individuals “who identify as Black or Hispanic/Latinx.”
Logical and Moral Flaws
Positive discrimination or affirmative action policies are usually intended to be temporary—to be discontinued once all relevant demographics are represented in proportion to their percentages in the population. This approach, however, suffers from a fundamental flaw, as Thomas Sowell points out in a book describing his empirical research results, Affirmative Action around the World:
The uneven representation that is regarded as a special deviation to be corrected is pervasive across the most disparate societies … Any “temporary” policy whose duration is defined by the goal of achieving something that has never been achieved before, anywhere in the world, could more fittingly be characterized as eternal.
The end goal of preferential policies is therefore unattainable. It is also based on the false assumption that disproportionate representation is necessarily caused by discriminatory treatment. There are other potential causes: any given group is bound to differ on average from any other group—in a variety of ways, and for a variety of different reasons, including average group differences in skills, attitudes or behaviour. Moreover, differences between individuals are always greater than average differences between groups. Therefore, to artificially increase or reduce individuals’ opportunities on the basis of their group identities is both illogical and morally dubious. The goal of ensuring that groups are equally represented cannot justify the arbitrarily unequal treatment of individuals.
Nor does it make moral sense to fight supposed discrimination with more discrimination: two wrongs don’t make a right. Yet this is precisely the approach advocated by Ibram X. Kendi, who writes, in How to Be an Antiracist, “The only remedy to past discrimination is present discrimination. The only remedy to present discrimination is future discrimination.”
Affirmative action policies also raise legal concerns. In the US, for example, the controversy over affirmative action largely revolves around the question of whether it is constitutional—and, apparently, it is not. The equal protection clause that is part of the fourteenth amendment to the Constitution reads: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States … nor deny to any person within its jurisdiction the equal protection of the laws.”
Furthermore, Title VII of the 1964 Civil Rights Act, which focuses on equal employment opportunities, prohibits “any preference, limitation, specification, or discrimination, based on race, color, religion, sex, or national origin,” while Title VI provides, “No person in the United States shall … be subjected to discrimination under any program or activity receiving Federal financial assistance.” This provision applies to private colleges that receive federal funding. Yet race-conscious admissions policies—for instance at Harvard—tend to get a pass.
How did affirmative action take root in America despite these laws? The short answer is, gradually. When, in 1961, President John F. Kennedy called for “affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin,” the phrase “affirmative action” did not yet imply preferential treatment based on identity: Kennedy’s statement advocated equal, not preferential treatment.
By contrast, Kennedy’s successor, President Lyndon B. Johnson, did not believe that, in 1965, equal treatment was the way forward: “You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, ‘You are free to compete with all the others,’ and still justly believe that you have been completely fair.” Still, it wasn’t until the next US president, Richard Nixon, put forward his 1969 Philadelphia Plan that the goal of implementing hiring policies aimed at increasing minority representation was formalised under the banner of affirmative action.
Since then, the US Supreme Court has several times considered the constitutionality of affirmative action, particularly with regard to student admissions policies in higher education. In the landmark case of Grutter v. Bollinger (2003), the court deemed “race-conscious admissions policies” constitutional as long as they were “narrowly tailored … to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.” And, of course, they had to be temporary: “The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”
Given the flawed reasoning behind preferential policies and the fact that they pursue an unattainable goal, it is hardly surprising that they seldom produce the desired results, often hurting the very people they purport to help, while reducing opportunities for others. Race-conscious college admissions policies are a case in point. While such policies have increased the percentage of black and Hispanic students (at the expense of applicants from other groups), these students are “earning credentials at a much lower rate than white and Asian students do,” according to Inside Higher Ed. Part of the problem seems to be that, when racial preferences override meritocratic criteria, the supposed beneficiaries of these preferences are often placed in competition with better qualified classmates—they are mismatched—and are thus set up for failure.
Sowell has identified several other negative consequences of positive discrimination. He notes, for example, that identity preferences create disincentives: they can motivate both favoured and disfavoured groups to reduce their efforts: “the former because working to their fullest capacity is unnecessary and the latter because working to their fullest capacity can prove futile.” In addition, telling whole demographics that they are inherently disadvantaged can be demoralising. Furthermore, Sowell points out, “cooperation and collaboration can be compromised by group preferences.” For instance, being thought of as an affirmative action hire can cast doubt on one’s professional achievements and deter potential associates. (Charles Murray has put the point more baldly: “Affirmative action perpetuates racial condescension.”) For society, this is a lose-lose game.
Among the most undesirable consequences associated with preferential treatment, according to Sowell, are “social losses due to intergroup resentments”—which tear at the social fabric. He attributes such resentments, not to “the intergroup transfer of benefits” per se, but rather to “the basis of such transfers.” He writes, “Among Americans especially, the idea that some are to be treated as ‘more equal than others’ is galling.” Today, opposing preferential treatment for identity groups is often misrepresented as an anti-civil rights stance. However, Sowell notes, “it was after the civil rights movement itself began to move away from this concept of equal treatment of all individuals and toward a concept of equalized outcomes for groups that a backlash against affirmative action set in and grew for years.”
Affirmative action policies are currently legal in all but nine US states. Similar policies have been implemented in many other countries, with the apparent approval of the United Nations Human Rights Committee:
The principle of equality sometimes requires States parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant … Such action may involve granting for a time to the part of the population concerned certain preferential treatment in specific matters as compared with the rest of the population.
However, just because it is legal, under certain circumstances, to discriminate based on immutable characteristics such as race or sex doesn’t mean that it’s socially beneficial to do so. The question is, what kind of society do we want to live in: one in which such characteristics define and divide us, or one in which they are irrelevant? If we choose the latter, then identity-based preferential treatment policies are, at best, an unnecessary detour, and, at worst, a recipe for retrogression. Therefore, rather than ignore these policies’ flaws, failures and negative consequences, policymakers should abandon the illusion that unequal treatment can create equality and acknowledge that unequal outcomes can and do result from treatment that is fair.