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 United States today, such pro­grams may reasonably be viewed as potentially valuable, effective means by which to achieve admirable and significant social ideals of equal­ity and integration.