The Case for Affirmative Action

The Case for Affirmative Action

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Affirmative action is a policy designed to counter historical and systematic discrimination by providing opportunities for groups subjected to discrimination, such as minorities and women, in areas like education and employment. The historical basis for this policy was formed by Franklin Roosevelt's Executive Order 8802 in 1941, which prohibited discrimination in the defense industry. The next step was John F. Kennedy's Executive Order 10925 in 1961, requiring government contractors to refrain from racial discrimination, and the passage of the Civil Rights Act, which ended discrimination based on race, color, and religion, set the stage for the implementation of affirmative action policies. In 1965, Lyndon B. Johnson issued Executive Order 11264, the first affirmative action order benefiting African Americans in companies with government contracts.

In the 1970s, affirmative action policies were expanded to include women and other minority groups. However, these policies faced legal challenges, notably the Regents of the University of California v. Bakke case in 1978, in which the U.S. Supreme Court ruled that racial quotas were unconstitutional but allowed race to be considered as one factor in admissions.

However, the philosophical and legal foundations of affirmative action must be sought in the views and thoughts of Ronald Dworkin (1931-2013), the American philosopher and legal scholar. Dworkin's justifications for affirmative action began with his article "Why Bakke Has No Case." During the University of California v. Bakke case, Allan Bakke, a white applicant, sued the University of California, Davis, arguing that its affirmative action program, which reserved 16 out of 100 seats for minority students, violated his legal rights.

In his article, Dworkin deemed Bakke's claim to be without merit, asserting that affirmative action programs do not violate the rights of white applicants. He believed that such programs are carried out with the aim of rectifying historical injustices and promoting racial diversity, which are legitimate and important goals. According to Dworkin, an individual's rights are only violated when exclusion is based on prejudice or contempt for a group, which was not the case here.

Thus, Dworkin defended affirmative action in university admissions for fields like medicine and law, viewing it as a potentially effective tool for achieving the desirable social goal of increasing the representation of Black people and other minorities in these professions. The important point is that his defense was based on social utility, not compensation for past discrimination, and he states that helping minorities through affirmative action effectively addresses a national problem.

The basis of Dworkin's philosophical justifications, like those of John Rawls, is formed on the rejection of the idea of intrinsic worth and desert. Both Dworkin and Rawls emphasize that race, like other individual characteristics such as intelligence, is not chosen by individuals but is arbitrarily shaped by features such as skin color, intelligence, the family one is born into, and so on. Therefore, to the extent that intelligence is a basis for merit, other factors can also serve as a basis for merit; hence, it is institutions that must fairly define merit and distribute benefits proportionally.

Nevertheless, Dworkin, similar to Rawls, believes that no policy can be justified if it violates individual rights. He examines whether affirmative action violates the rights of excluded white people and concludes that it does not. He says the belief in a conflict between social goals and individual rights is an intellectual mistake, and using race as a criterion is not unfair because race, like intelligence, is beyond an individual's control. Just as individuals do not choose their race, they also do not choose their intelligence or other characteristics typically considered in admissions.

Dworkin responds to arguments that affirmative action violates the right to be judged on merit by stating that merit is not a pre-determined matter but is context-dependent. For professions like law and medicine, traits such as intelligence may be a criterion of merit, but other traits, including race, can also be criteria of merit when they serve social goals. Thus, in certain contexts, being Black can be considered a merit.

As noted, Dworkin suggests that no one—whether Black or white, intelligent or not—is by default entitled to attend medical or law school. Admission should be based on institutional criteria designed to attract traits beneficial to the social good, not to reward merit. This view aligns with Rawls's perspective that individual advantages are arbitrarily distributed and that, pre-institutionally (i.e., before institutions set the criteria), individuals lack inherent merit.

A point worth pondering is why Dworkin does not refer to affirmative action as a compensatory measure for past discrimination and instead justifies his idea on utilitarian grounds?

Why affirmative action cannot be a form of compensation for past discrimination requires philosophical discussion. Both Dworkin and Rawls emphasize that merit is not intrinsic; in other words, individual capabilities are separate from the individual themselves because they are randomly distributed.

In the book Liberalism and the Limits of Justice, Michael Sandel critiques this interpretation of the person with the phrase "Disembodied subject"; that is, viewing the individual as an abstract entity, independent and detached from social, historical, and communal contexts. In other words, in the view of Rawls and Dworkin, the subject possesses capabilities that do not belong to them, and their distribution is neither just nor unjust. Therefore, if capabilities and talents are randomly distributed and do not belong to the individual themselves, allocating resources based on affirmative action cannot truly compensate for past injustices, because these allocations are based on traits over which the subject had no control. Instead of compensating for past injustices, these allocations are merely a redistribution of resources based on criteria arising from chance; in other words, today's affirmative action is the flip side of yesterday's negative discrimination.

On the other hand, Jonathan Haidt, a social psychologist, points out in his book, The Righteous Mind: Why Good People Are Divided by Politics and Religion, that affirmative action, by giving preference to specific groups, violates the principle of fairness. This is because affirmative action might benefit someone who was never actually discriminated against in the past, or harm someone who played no role in discriminating against the affected groups. In Justice as Fairness, Rawls prioritizes the right over the good; thus, even for the sake of a good, a right cannot be ignored, because it is an individual's right not to be held accountable for something in which they had no agency.

On this basis, it can be said that affirmative action as a measure to compensate for a violated right is not justifiable; therefore, Dworkin rightly does not base affirmative action on compensation but justifies it on the basis of social utility. Although this justification itself is not without problems.

Thus, Dworkin bases affirmative action on social utility, but what makes his view contradictory, given his emphasis on individual rights, is that he grounds it in utilitarianism—a principle criticized by Rawls and one that contradicts individual rights. Dworkin says affirmative action is not based on the condescending pity of disadvantaged groups, as if to say, "since you are Black, you have been admitted because you are Black," but rather on a rational calculation of social benefits. In this way, Dworkin's reliance on utilitarianism raises questions about the fundamental assumptions of social ownership and the use of individuals for social ends.

Once again, in the aforementioned book, Sandel addresses this issue and presents hypothetical examples based on the principles considered by Dworkin and Rawls. Sandel imagines two individuals, one rejected and the other admitted on the basis of affirmative action, and then sends each of them a letter as follows.

1) Dear Rejected Applicant: We regret to inform you that your application for admission has been rejected. Please understand that our decision in no way constitutes an insult to you. Your rejection does not signify contempt for you, nor does it mean we consider you any less worthy than those admitted by the standards of admission.

It is not your fault that society did not need your particular attributes at the time of your application. Those admitted in your place did not themselves deserve the position, nor are they worthy of praise for the factors that led to their admission. In any case, we are merely using them—and you—as instruments for a broader social purpose.

This news will likely disappoint you, in the sense that your hopes of enjoying the benefits given to those whose attributes match society's needs have been dashed. But this kind of disappointment occurs whenever individual preferences must give way to the preferences of society, and you should not be disheartened by the thought that your rejection in any way reflects upon your intrinsic moral worth. Rest assured that those admitted are, intrinsically, just as worthless as you are.

We sympathize with you, in the sense that it is a pity you did not possess the attributes society needed at the time of your application. We wish you better luck next time. Sincerely,...

2) Dear Admitted Applicant

We are delighted to inform you that your application for admission to the medical/law program has been accepted. This outcome is solely due to your possessing attributes that society currently needs, and your admission is for the purpose of utilizing your talents for the benefit of society.

It should be noted that this decision carries no burden of commendation or praise, for possessing the relevant attributes is, morally speaking, a matter of chance. You are fortunate to have applied at the right time with the right attributes; you will ultimately enjoy the benefits arising from being employed in this manner.

You, or more likely your parents, may be inclined to view this admission as a positive sign, based not only on innate talents but at least on your hard work and diligence in cultivating skills and overcoming obstacles to your success. But the assumption that you deserve praise even for your effort is equally mistaken, for your character, too, depends on various favorable circumstances for which you can claim no credit. Therefore, do not think that you have deserved this place. Sincerely,...

With these two exaggerated examples, Sandel is in fact criticizing the logic and philosophy upon which Dworkin has built affirmative action, and demonstrates that the defense of individual rights—or the way Rawls critiques utilitarianism—is in contradiction with what affirmative action is founded upon.

Thus, in summary, Dworkin's argument for basing affirmative action on social utility carries the flaw of treating the individual as a mere instrument for social benefits, and this contradicts the initial claim of the primacy of individual rights from a liberal perspective.

This is only one aspect of the matter; many questions of this kind can be raised:

- Is it morally acceptable to use individuals' inherent characteristics, such as race, to achieve broader social goals? - In what cases can individuals be used as a means to social ends, and what limitations should exist in this regard? - How should social bonds and individuals' responsibilities in society be defined so that affirmative action is justifiable? - How can affirmative action be distinguished from negative discrimination, and how can it be justified that affirmative action serves social justice? And what guarantee is there that today's affirmative action will not become tomorrow's negative discrimination? - Is the justification of affirmative action based on utilitarianism sufficient, or does it require other justifications? - How can a balance be struck between individual rights and social interests so that individual rights are not overlooked? - Should individual rights always take precedence over social interests, or are there cases where social interests can take priority? - How should merit and desert be defined in various contexts to be fair? In other words, who determines which merit serves the social interest? - Should merit be measured solely based on traditional criteria such as intelligence and individual abilities, or should other criteria also be considered?

All these questions mean that affirmative action cannot provide the necessary intellectual and logical foundations as it should. Today, the negative results of affirmative action are clearly visible in American society; one could even consider the emergence of figures like Trump as one of the results of affirmative action in American society, or the many instances evident in Hollywood today, such that affirmative action has become a kind of inescapable ideology in Hollywood films, as if the principle is to shove affirmative action in the viewer's face, rather than aesthetic, artistic, or even entertainment factors.

With these explanations, it seems that the thinking behind the category of affirmative action has set societies on nothing but a misguided path. The effort to combat prevalent discriminations in societies is commendable, but if the goal of these efforts is directed toward creating institutional frameworks that can make society blind to gender, racial, religious, and other differences, and base the criterion solely on the inherent merits of individuals, it will yield better results.