All Commentary
Sunday, March 1, 1992

What Does Affirmative Action Affirm?

Ms. McElroy is the editor of Freedom, Feminism, and the State (Cato Institute, 1982), which has been republished as a university text by Holmes and Meier.

Recently I learned that a friend of mine had been passed over for tenure at an Ivy League school. This was surprising to me. He had been teaching at the university for several years and was immensely popular, not only with the students but also within the department. With a book and several journal articles to his credit, his qualifications were in good order. So what was the problem?

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 will be no place for them in academia.

I hope he is overstating the case. But I understand 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 any individual with respect to his compensation, terms, or privileges of employment because of such individual’s race, color, religion, sex or national origin.”

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 German-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 contradiction 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.F.R. 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 overcome the effects of past or present barriers to equal employment opportunity.” (Dana Shilling, Redress for Success)

These are the words. They mean that, if a company realizes it has been discriminating, it should remedy the situation. On ethical grounds, most of us would agree; although many of us would question the wisdom of enforcing the policy by law.

The Spirit of Affirmative Action

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 wish to acknowledge the truth of affirmative action’s main claim: Historically, women have been the victims of 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 whatever pittance they were allowed to earn. During the 20th century, the legal barriers confronting women fell, one by one. Certainly there are vestiges 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 championed. 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 cultural turbulence of the 1960s. Sixties reformers demanded far more than the removal of legal barriers based on sex or race; they called for equal access to the basics of life, such as adequate housing and food. Access to the basics was presented as the right of every American.

The fact that the law allocated these goods only to specific classes of 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 assuring equal access to such consumer goods as education 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 continued 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 measures include a whole range of special steps designed to overcome the consequences of past and present discrimination. These include compensatory and remedial training, validations of tests and criteria for jobs or university admission, the development by employers of recruiting 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 requirements? Because the costs of swimming against affirmative action can be very high. Although preferential 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 discrimination case against the University of Minnesota, attorneys’ fees came to $1,475,000. The successful plaintiff later abandoned academia to become a lawyer.

The Justification for 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 openly discriminates on the basis of sex? Fundamentally, 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 will be 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 confirmation 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 innocent 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 fall into two categories: First, the people receiving compensation 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 injustice 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 accident 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 employers, white men as a class, and taxpayers—are not the ones who committed the injustice. Overwhelmingly, the perpetrators, like the victims, are dead. And I do not believe that guilt can be inherited. Herbert Deane in his book Justice—Compensatory and Distributive states this objection 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 championed? Social equality? Economic equality? Equality before the law?

The relevant question is: When does a difference 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 particular, 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 access to political power. This focuses on the individual and his or her relationship to the state. But equality promoted by affirmative action demands equal access of women or minorities to wealth and opportunity. This focuses on classes of people and their relationship to other classes, or to society in general. These two concepts 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 Rockefeller is considered as much a victim of society (or white males) as the poorest black woman.

Moreover, the equality demanded by affirmative action destroys what has been one of America’s traditional safeguards of freedom—the protection of the peaceful individual against intrusion by the state. In the name of social justice, virtually all conduct is open to regulation by the government. 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 compete 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 color 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 will practice being angry and indignant, in preparation for the next time a feminist acquaintance 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 discrimination, viciousness, and sloppy thinking. It is the sort of policy that gives feminism a bad name.

  • Wendy McElroy is the author of over a dozen books on individualist feminism and libertarian history. Her upcoming book, "The Satoshi Revolution," applies the concepts of classical liberalism to cryptocurrency. She has been published by such diverse venues as Penn State to Penthouse, FEE to Marie Claire.