What Does Affirmative Action Affirm? W. McElroy?

He explained it to me: He was a white male in a department that needed more visible women and minorities. Never mind that the woman hired had less experience and fewer credentials. Never mind that the university had been grooming him for the position. (Indeed, the department head couldn't even look him in the eye while breaking the news.) Never mind that my friend is now so embittered that he tells his male students to forget pursuing a degree in the humanities, because credentials and quality don't matter anymore. If they are white and male, he insists, there willbe no place for them in academia. I hope he is overstating the case. But I under stand his bitterness. It is difficult not to rail against unfairness when there is next to no recourse against it. If my friend were a woman, he could sue the university for unfair employment practices under Title VII of the Civil Rights Act of 1964. This section of the act states that it is unlawful for an employer "to fail or refuse to hire or discharge any individual, or otherwise to discriminate against Ms. McElroy is the editor of Freedom, Feminism, and the State (Cato Institute, 1982), which has been repub lished as a university text by Holmes and Meier.

any individual with respect to his compensation, terms, or privileges of employment because of such individual's race, color,religion, sex or nation alorigin." But to bring such a suit, he would have to belong to a class protected by Title VII-he would have to be a woman or a minority. As a male from Ger man-Irish ancestry, he isn't simply excluded from protection; he is, in fact, the person against whom protection is being offered. Why is this protection necessary? My friend has always been sex-blind when it comes to his students and colleagues. Why, then, do women have to be shielded from him? Because, it is argued, women have historically been discriminated against in employment. Since white males (as a class) have benefited from this injustice, they must now (as a class) bear the brunt of adjusting the balance. But something about this "class analysis" goes against the grain. It isn't merely that it negates any individual actions or responsibility; it is more that "discrimination in pursuit of equal treatment"

seems to violate our common sense. This contra diction leads wayward feminists, like me, to ask: What exactly is affirmative action? And what is being affirmed? Affirmative action has been defined as follows: "According to C.ER. 1608, [affirmative action] is reasonable action, taken on reasonable bases after reasonable self-scrutiny leading to a business's belief that it has practiced discrimination in the past, or has chosen its employees from a labor pool that was limited by racism or sexism. The EEOC dilates on this in 44 Federal Register 4422, saying that affirmative action is a policy chosen to overWHAT DOES AFFIRMATIVE ACTION AFFIRM? 97 come the effects of past or present barriers to equal employment opportunity." (Dana Shilling, Redressfor Success) These are the words. They mean that, if a com pany realizes it has been discriminating, it should remedy the situation. On ethical grounds, most of us would agree; although many of us would ques tion the wisdom of enforcing the policy by law.

The Spiritof AffirmativeAction The spirit of affirmative action seems different from its words, however. To understand this spirit it is necessary to examine the roots of the issue in the context of the feminist movement. First, I wishto acknowledge the truth of affirma tive action's main claim: Historically, women have been the victimsof discrimination. During the 19th century, they were excluded from universities and unions, barred from professions such as medicine, and-upon marriage-often lost all title to what ever pittance they were allowed to earn. During the 20th century, the legal barriers confronting women fell, one by one. Certainly there are ves tiges of legal inequality, but the instances are few-for example, women and men often receive different sentences for the same crime. The cry for affirmative action makes no sense if the goal is simply equal treatment before the law.

And, indeed, this is not the ideal being champi oned. Equal justice before the law and equal access to political power have long been entrenched as American ideals. Affirmative action introduces a new concept of equality-social equality. This concept became popular during the cultur al turbulence of the 1960s. Sixties reformers demanded far more than the removal of legal bar riers based on sex or race; they called for equal access to the basics of life, such as adequate hous ing and food. Access to the basics was presented as the right of every American. The fact that the law allocated these goods only to specificclassesof Americans-e.g., blacks-was justified on two grounds. First, it was argued, they were the victims of another class of Americans, predominantly white males. Second, only by assur ing equal access to such consumer goods as educa tion could the disadvantaged compete fairly with white males.

In essence, the '60s called for a primitive form of socio-economic equality. What of women in this new world? Although legal barriers to women had largely fallen, it was argued that the ill effects of history still impacted on modern women. The lingering injustice was especially blatant in the marketplace, which con tinued to undervalue women's work. The removal of legal barriers hadn't cured this exploitation; the institution of legal protection was required. It was necessary for the law to prefer women in order for the marketplace to treat them fairly. In her essay,"Affirmative Action: History of an Attempt to Realize Greater Equality," Mary C. Thornberry explained: Broadly speaking, affirmative action mea sures include a whole range of special steps designed to overcome the consequences of past and present discrimination. These include com pensatory and remedial training, validations of tests and criteria for jobs or university admis sion, the development by employers of recruit ing procedures aimed at women and minorities as well as other qualified applicants, provision of child care centers and remedial programs to remove handicaps in employment, and related measures to help the disadvantaged realize their potential. ... In order to overcome the effects of past practices which resulted in discrimination, companies must now seek out those who were formerly ignored.

Why should an employer accept these require ments? Because the costs of swimming against affirmative action can be very high. Although pref erential policies are not always mandated by law, they have been well established through judicial rulings. In 1980, for example, a court ordered the Ford Motor Company to give $13 million in back pay to women and minorities. Attorneys' fees alone can bankrupt a company. In a sex discrimi nation case against the University of Minnesota, attorneys' fees came to $1,475,000.The successful plaintiff later abandoned academia to become a lawyer. The Justificationfor Preferential Treatment Thus the marketplace, in self-defense, has adopted a de facto quota system that protects it against charges of discrimination. How, in the name of fairness, have we arrived at a system that 98 THE FREEMAN • MARCH 1992 openly discriminates on the basis of sex? Fun damentally, three arguments have been offered: 1) social good, 2) compensatory justice, and 3) the ideal of equality.

The social good, or utilitarian, argument states that society willbe enriched by advancing women. This is a relatively lightweight justification, since advocates of affirmative action generally concede that they would push equality even if it lowered the overall good of society. Moreover, it is easy to point out the disastrous long-term consequences to society of using a quota system rather than merit to allocate jobs. Affirmative action drives a wedge between individual worth and economic success. How does this benefit society? Indeed, affirmative action might well increase the very evil it seeks to cure: prejudice. In order to fill their quotas, employers will promote women too quickly or into inappropriate departments. When these women fail, it will be seen as confir mation of the inadequacy of their sex. When other women succeed on their own, it will be assumed that they were coddled by preferential policies.

And what of the men who are discriminated against? Their understandable resentment might well be translated into a heightened sexism-just as my friend's rejection has embittered him toward all of academia. The argument from compensatory justice claims that anyone who causes injury to an inno cent person should remedy the damage. The injured party should be compensated. Affirmative action goes one step farther, however. It claims that descendants of the injured parties deserve compensation as well. After all, the descendants (modern women) still live with the consequences of past discrimination. This is an argument for righting historical wrongs. My objections to correcting the past fallinto two categories: First, the people receiving compensa tion are not the victims.Second, the people paying compensation are not the perpetrators. Let us consider the first objection: The women who receive the fruits of affirmative action are not the same women who suffered through centuries of injustice. Human mortality assures us of this. To maintain, decades later, that the "fallout" of injus tice is also an actionable offense is to stretch the traditional conception of compensation to the breaking point.

In essence, to demand compensation for the great-grandchildren of social injustice is to confuse a commendable compassion with a legal claim.We are all victims or beneficiaries of our ancestors. But this is not a matter for legal theory; it is an acci dent of nature. In other words, it is neither just nor unjust; it merely is. Thus, the question becomes: If there is no injustice, how can there be a legal claim for compensation? Let's now turn to the second objection: Those who are made to pay compensation-the employ ers, white men as a class, and taxpayers-are not the ones who committed the injustice. Over whelmingly, the perpetrators, like the victims, are dead. And I do not believe that guilt can be inherited. Herbert Deane in his book Justice Compensatoryand Distributivestates this objec tion clearly: Present members of society are being asked to assume the responsibility not only for unjust acts in the present or the recent past in which they may have had no share, but also for acts of discrimination which were performed, long before they were born, and when their fathers and grandfathers may not have been Americans at all, but may have been suffering persecution and discrimination, for example, in Eastern Europe. We are, in other words, asked to accept the principle of collective guilt that is at least in part inherited from some of the ancestors of some contemporary Americans.

The third common argument for preferential treatment is a moral one, based on the ideal of equality. But what sort of equality is being cham pioned? Social equality? Economic equality? Equality before the law? The relevant question is: When does a differ ence between people become an inequality? If my hair is brown and yours is blonde, presumably this is a difference between us. But, if we live in South Africa and my skin is brown while yours is white, this is an inequality. Why? Because a normative judgment is attached to the difference. In particu lar, the South African government considers white-skinned people to be superior and grants them privileges under the law. This is inequality. Traditionally in America, equality is said to exist when people receive the same treatment under the law or have the same accessto political power.This focuses on the individual and his or her relation ship to the state. But equality promoted by affirWHAT DOES AFFIRMATIVE ACTION AFFIRM? 99 mative action demands equal access of women or minorities to wealth and opportunity. This focuses on classesof people and their relationship to other classes, or to society in general. These two con cepts of inequality are incompatible.

For example, in pursuit of equality, affirmative action takes no notice of the status of individuals within a given class, such as "man." Indeed, there is not even a distinction made between individual women. Thus, the privileged daughter of a Rocke feller is considered as much a victim of society (or white males) as the poorest black woman. Moreover, the equality demanded by affirma tive action destroys what has been one of Ameri ca's traditional safeguards of freedom-the pro tection of the peaceful individual against intrusion by the state. In the name of social justice, virtually all conduct is open to regulation by the govern ment. In the name of class equality, individuals lose their right to make their own decisions. There is an irony here. The best safeguard against discrimination of any kind is the very mechanism that affirmative action is destroying: the free market unhampered by state control. The free market tends to limit discrimination simply because discrimination costs money by alienating customers and reducing the pool from which trained personnel can be drawn.

My favorite example of how the free market limits discrimination comes from the civil rights movement in the '50s and '60s. In Montgomery, Alabama, a black woman was arrested for sitting in the front of a bus, rather than in the back. What responsibility did the bus company have for this injustice? For many years, bus companies in the south had refused to enforce laws that required them to discriminate against blacks. A customer was a customer. The company in Montgomery had been among those who refused to discriminate. Only when streetcar conductors began to be arrested for noncompliance did bus companies obey the law. The marketplace is no more just than the society in which it operates, but it does operate along different principles. Entrepreneurs com pete in the market to try to get customers and the best employees. Profits and losses are the bottom line. Thus, the free market tends to be blind to col or and sex. It is a great leveler of prejudice.

***** Unfortunately, theorizing can bring little solace to my friend, who is debating whether to abandon the one career that has meant anything to him. There is no encouragement I can give him. What he says is true: No matter how good he is or how much he cares, doors are slammed in his face because he is a white male. I cannot encourage him because I feel almost as outraged as he does. It makes me realize that I have been too polite. I think I willpractice being angry and indignant, in preparation for the next time a feminist acquain tance extols affirmative action. Someone has to get blunt and tell such feminists to put up or shut up about equality and suffering and justice. Because, so far, all I've seen of affirmative action is discrim ination, viciousness, and sloppy thinking. It is the sort of policy that givesfeminism a bad name. D The Mischief of Regulation T he modern conviction, the fruit of a thousand years of experience, is, that things in which the individual is the person directly interested, never go right but as they are left to his own discretion; and that any regulation of them by authority, except to protect the rights of others, is sure to be mischievous.

-JOHN STUART MILL, On the Subjectionof Women (1869) quoted in "Government Is Women's Enemy" by Sharon Presley and Lynn Kinsky, in Freedom,Feminism,and the State. IDEAS ON LIBERTY $ 100 The Gender Gap by Cynthia D. Lee and Dwight R. Lee A s of 1980, American women had pos sessed the right to vote for 60 years through the provisions of the 19th Amendment to the United States Constitution. 1 Until that year, women had voted in national elec tions much the same way men had voted. Begin ning in 1980,however, a phenomenon that became known as the gender gap appeared, when women voted for the Democratic Presidential candidate in noticeably larger percentages than men. Women's groups have applauded the gender gap as evidence that women are beginning to dis play the solidarity to assert themselves politically. Eleanor Smeal, past president of the National Organization for Women, writes in her book, Why and How Women Will Elect the Next Presi dent: "The 'women's vote,' a powerful new voting bloc, will make the difference in political contests.