Richard Wasserstrom, “A Defense of Programs of Preferential Treatment”
Originally appeared as Part II of “Racism, Sexism, and Preferential Treatment,” 24 U.C.L.A. Law Review 581 (1977).
MANY JUSTIFICATIONS OF
PROGRAMS of preferential treatment depend upon the claim
that in one respect or another such programs have good consequences or
that they are effective means by which to bring about one desirable end, e.g.,
an integrated, equalitarian society. I mean by “programs of preferential
treatment” to refer to programs such as those at issue in the Bakke case—programs which set aside a certain
number of places (for example, in a law school) as to which members of minority
groups (for example, persons who are nonwhite or female) who possess certain
minimum qualifications (in terms of grades and test scores) may be preferred
for admission to those places over some members of the majority group who
possess higher qualifications (in terms of grades and test scores).
Many
criticisms of programs of preferential treatment claim that such programs, even
if effective, are unjustifiable because they are in some important sense unfair
or unjust. In this paper I present a limited defense of such programs by
showing that two of the chief arguments offered for the unfairness or
injustice of these programs do not work in the way or to the degree supposed by
critics of these programs.
The first argument is
this. Opponents of preferential treatment programs sometimes assert that
proponents of these programs are guilty of intellectual inconsistency, if not
racism or sexism. For, as is now readily acknowledged, at times past employers,
universities, and many other social institutions did have racial or sexual
quotas (when they did not practice overt racial or sexual exclusion), and many
of those who were most concerned to bring about the eradication of those
racial quotas are now untroubled by the new programs which reinstitute them.
And this, it claimed, is inconsistent. If it was wrong to take race or sex into
account when blacks and women were the objects of racial and sexual policies
and practices of exclusion, then it is wrong to take race or sex into account
when the objects of the policies have their race or sex reversed. Simple
considerations of intellectual consistency—of what it means to give racism or
sexism as a reason for condemning these social policies and practices—require
that what was a good reason then is still a good reason now.
The problem with this
argument is that despite appearances, there is no inconsistency involved in
holding both views. Even if contemporary preferential treatment programs which
contain quotas are wrong, they are not wrong for the reasons that made quotas
against blacks and women pernicious. The reason why is that
the social realities do make an enormous difference. The fundamental evil of
programs that discriminated against blacks or women was that these programs
were a part of a larger social universe which systematically maintained a
network of institutions which unjustifiably concentrated power, authority, and
goods in the hands of white male individuals, and which systematically
consigned blacks and women to subordinate positions in the society.
Whatever may be wrong with today’s
affirmative action programs and quota systems, it should be clear that the
evil, if any, is just not the same. Racial and sexual minorities do not
constitute the dominant social group. Nor is the conception of who is a fully
developed member of the moral and social community one of an individual who is
either female or black. Quotas which prefer women or blacks do not add to an
already relatively overabundant supply of resources and opportunities at the
disposal of members of these groups in the way in which the quotas of the past
did maintain and augment the overabundant supply of resources and
opportunities already available to white males.
The same point can be made in a
somewhat different way. Sometimes people say that what was wrong, for example,
with the system of racial discrimination in the South was that it took an
irrelevant characteristic, namely race, and used it systematically to allocate
social benefits and burdens of various sorts. The defect was the irrelevance of
the characteristic used—race—for that meant that individuals ended up being
treated in a manner that was arbitrary and capricious.
I do not think that was the central
flaw at all. Take, for instance, the most hideous of the practices, human
slavery. The primary thing that was wrong with the institution was not that the
particular individuals who were assigned the place of slaves were assigned
there arbitrarily because the assignment was made in virtue of an irrelevant
characteristic, their race. Rather, it seems to me that the primary thing that
was and is wrong with slavery is the practice itself—the fact of some
individuals being able to own other individuals and all that goes with that
practice. It would not matter by what criterion individuals were assigned;
human slavery would still be wrong. And the same can be said for most if not
all of the other discrete practices and institutions which comprised the system
of racial discrimination even after human slavery was abolished. The practices
were unjustifiable—they were
oppressive—and they would have been so no matter how the assignment of victims
had been made. What made it worse, still, was that the institutions and the
supporting ideology all interlocked to create a system of human oppression
whose effects on those living under it were as devastating as they were
unjustifiable.
Again, if there is anything wrong
with the programs of preferential treatment that have begun to flourish within
the past ten years, it should be evident that the social realities in respect
to the distribution of resources and opportunities make the difference. Apart
from everything else, there is simply no way in which all of these programs
taken together could plausibly be viewed as capable of relegating white males
to the kind of genuinely oppressive status characteristically bestowed upon
women and blacks by the dominant social institutions and ideology.
The second objection is that
preferential treatment programs are wrong because they take race or sex into
account rather than the only thing that does matter—that is, an individual’s
qualification. What all such programs have in common and what makes them all
objectionable, so this argument goes, is that they ignore the persons who are
more qualified by bestowing a preference on those who are less qualified in
virtue of their being black or female.
There are, I think, a number of
things wrong with this objection based on qualifications, and not the least of
them is that we do not live in a society in which there is even the serious
pretense of a qualification requirement for many jobs of substantial power and
authority. Would anyone claim, for example, that the persons who
comprise the judiciary are there because they are the most qualified lawyers or
the most qualified persons to be judges? Would anyone claim that Henry Ford II
is the head of the Ford Motor Company because he is the most qualified person
for the job? Part of what is wrong with even talking about qualifications and
merit is that the argument derives some of its force from the erroneous notion
that we would have a meritocracy were it not for programs of preferential
treatment. In fact, the higher one goes in terms of prestige, power and the
like, the less qualifications seem ever to be
decisive. It is only for certain jobs and certain places that qualifications
are used to do more than establish the possession of certain minimum
competencies.
But difficulties such as these to
one side, there are theoretical difficulties as well which cut much more deeply
into the argument about qualifications. To begin with, it is important to see
that there is a serious inconsistency present if the person who favors “pure
qualifications” does so on the ground that the most
qualified ought to be selected because this promotes maximum efficiency. Let us
suppose that the argument is that if we have the most qualified performing the
relevant tasks we will get those tasks done in the most economical and
efficient manner. There is nothing wrong in principle with arguments based upon
the good consequences that will flow from maintaining a social practice in a
certain way. But it is inconsistent for the opponent of preferential treatment
to attach much weight to qualifications on this ground, because it was an
analogous appeal to the good consequences that the opponent of preferential
treatment thought was wrong in the first place. That is to say, if the chief
thing to be said in favor of strict qualifications and preferring the most
qualified is that it is the most efficient way of getting things done, then we
are right back to an assessment of the different consequences that will flow
from different programs, and we are far removed from the considerations of
justice or fairness that were thought to weigh so heavily against these
programs.
It is important to note, too, that
qualifications—at least in the educational context—are
often not connected at all closely with any plausible conception of social
effectiveness. To admit the most qualified students to law school, for
example—given the way qualifications are now determined—is primarily to admit
those who have the greatest chance of scoring the highest grades at law school.
This says little about efficiency except perhaps that these students are the
easiest for the faculty to teach. However, since we know so little about what
constitutes being a good, or even successful lawyer, and even less about the
correlation between being a very good law student and being a very good
lawyer, we can hardly claim very confidently that the legal system will operate
more efficiently if we admit only the most qualified students to law school.
To be at all decisive, the argument
for qualifications must be that those who are the most qualified deserve to
receive the benefits (the job, the place in law school, etc.) because they are
the most qualified. The introduction of the concept of desert now makes it an
objection as to justice or fairness of the sort promised by the original
criticism of the programs. But now the problem is that there is no reason to
think that there is any strong sense of “desert” in which it is correct that
the most qualified deserve anything.
Let us consider more closely one
case, that of preferential treatment in respect to admission to college or
graduate school. There is a logical gap in the inference from the claim that a
person is most qualified to perform a task, e.g., to be a good student, to the
conclusion that he or she deserves to be admitted as a student. Of course,
those who deserve to be admitted should be admitted. But why do the most
qualified deserve anything? There is simply no necessary connection between
academic merit (in the sense of being most qualified) and deserving to be a
member of a student body. Suppose, for instance, that there is only one tennis
court in the community. Is it clear that the two best tennis players ought to
be the ones permitted to use it? Why not those who were there first? Or those who will enjoy playing the most? Or those who are
the worst and, therefore, need the greatest opportunity to practice? Or those who have the chance to play least frequently?
We might, of course, have a rule
that says that the best tennis players get to use the court before the others.
Under such a rule the best players would deserve the court more than the poorer
ones. But that is just to push the inquiry back one stage. Is there any reason
to think that we ought to have a rule giving good tennis players such a
preference? Indeed, the arguments that might be given for or against such a
rule are many and varied. And few if any of the arguments that might support
the rule would depend upon a connection between ability and desert.
Someone might reply, however, that
the most able students deserve to be admitted to the university because all of
their earlier schooling was a kind of competition, with university admission
being the prize awarded to the winners. They deserve to be admitted because
that is what the rule of the competition provides. In addition, it might be
argued, it would be unfair now to exclude them in favor of others, given the
reasonable expectations they developed about the way in which their industry
and performance would be rewarded. Minority-admission programs, which
inevitably prefer some who are less qualified over some who are more
qualified, all possess this flaw.
There are several problems with
this argument. The most substantial of them is that it is an empirically
implausible picture of our social world. Most of what are regarded as the decisive
characteristics for higher education have a great deal to do with things over
which the individual has neither control nor responsibility; such things as
home environment, socioeconomic class of parents, and, of course, the quality
of the primary and secondary schools attended. Since individuals do not deserve
having had any of these things vis-à-vis other individuals, they do not, for
the most part, deserve their qualifications. And since they do not deserve
their abilities they do not in any strong sense deserve to be admitted because
of their abilities.
To be sure, if there has been a
rule which connects, say, performance at high school with admission to college,
then there is a weak sense in which those who do well at high school deserve,
for that reason alone, to be admitted to college. In addition, if persons have
built up or relied upon their reasonable expectations concerning performance
and admission, they have a claim to be admitted on this ground as well. But it
is certainly not obvious that these claims of desert are any stronger or more
compelling than the competing claims based upon the needs of or advantages to
women or blacks from programs of preferential treatment. And as I have
indicated, all rule-based claims of desert are very weak unless and until the
rule which creates the claim is itself shown to be a justified one. Unless one
has a strong preference for the status quo, and unless one can defend that
preference, the practice within a system of allocating places in a certain way
does not go very far at all in showing that this is the right or the just way
to allocate those places in the future.
A proponent of programs of preferential treatment is not at all committed to the view that qualifications ought to be wholly irrelevant. He or she can agree that, given the existing structure of any institution, there is probably some minimal set of qualifications without which one cannot participate meaningfully within the institution. In addition, it can be granted that the qualifications of those involved will affect the way the institution works and the way it affects others in the society. And the consequences will vary depending upon the particular institution. But all of this only establishes that qualifications, in this sense, are relevant, not that they are decisive. This is wholly consistent with the claim that race or sex should today also be relevant when it comes to matters such as admission to college or law school. And that is all that any preferential treatment program—even one with the kind of quota used in the Bakke case—has ever tried to do.
I
have not attempted to establish that programs of preferential treatment are
right and desirable. There are empirical issues concerning the consequences of
these programs that I have not discussed, and certainly not settled. Nor, for
that matter, have I considered the argument that justice may permit, if not
require, these programs as a way to provide compensation or reparation for
injuries suffered in the recent as well as distant past, or as a way to remove
benefits that are undeservedly enjoyed by those of the dominant group. What I have tried to do is show that it is
wrong to think that programs of preferential treatment are objectionable in the
centrally important sense in which many past and present discriminatory
features of our society have been and are racist and sexist. The social
realities as to power and opportunity do make a fundamental difference. It is
also wrong to think that programs of preferential treatment could, therefore,
plausibly rest both on the view that such programs are not unfair to white
males (except in the weak, rule-dependent sense described above) and on the
view that it is unfair to continue the present set of unjust—often racist and
sexist—institutions that comprise the social reality. And the case for these
programs could rest as well on the proposition that, given the distribution of
power and influence in the