What Does Affirmative Action Affirm?

Radical feminist Eliza Toledo calls it “one of the most significant attacks on our rights.” Elizabeth Schroeder, associate director of the Southern California ACLU, worries that “it may become a wave, just like other attacks… maybe they [white males] are scared when they see qualified minorities and woman able to get jobs.”

What has sparked this concern? The attack on affirmative action.

In California, Assemblyman Bernie Richter has proposed a constitutional amendment to prohibit the state from giving preferential treatment to anyone in the public sector on the basis of race, sex, color, ethnicity, or national origin. The amendment has a lot of support; according to recent polls, the majority of Californians are disillusioned with affirmative action. If the measure passes the Assembly and the Senate, California voters will have the final say in a March 1996 vote. If it gets blocked—perhaps in the Assembly, where Speaker Willie Brown will crusade against it—it is likely to become a ballot initiative.

Jesse Jackson has already equated Gov. Pete Wilson’s support for the measure with the racism of former Alabama Gov. George Wallace. Many feminists attribute the movement to white male sexism. The State Legislature’s African-American Caucus chalks it up to racism. State Democrats charge Republicans with political opportunism.

The last accusation has some basis.

In Washington, leading Republicans suspect that Clinton’s civil-rights policies may be his lethal weakness. If congressional debate on anti-affirmative action legislation can be scheduled for next fall, the issue is certain to become an election flash point. If he continues to support preferential treatment for women and minorities, Clinton will risk alienating the Americans who resent such policies. On the other hand, backing away from affirmative action could hurt him among important elements in the Democratic power base, especially black voters. Republicans would be bumbling fools to miss such a golden chance.

But what of the charge of sexism? As a feminist-in-good-standing, I feel qualified to say: “This is balderdash, balderdash on stilts.” I will go one step further: in my opinion, those who are pro-women ought to be anti-affirmative action. They ought to applaud Sen. Phil Gramm when he has the chutzpah to declare, “We need free and fair competition. We need equal opportunity and unlimited opportunity for everybody. But we should not have special privileges.”

A feminist against affirmative action may seem like a strange spectacle. After all, the policy was ostensibly designed to encourage qualified women and minorities to apply for jobs and compete on a nondiscriminatory level. How could a reasonable feminist object to that?

Easily. And on several grounds.

But before doing so, it is important to draw a distinction. The affirmation action policies being debated today bear little resemblance to the original presidential directives issued in the mid-’60s. The words “affirmative action” were first officially used in Executive Order 11256, issued by President Johnson in September 1965. This order required businesses with government contracts to aggressively recruit women and minorities—as applicants for employment. From this pool of recruits, however, all applicants were to be judged on their merits.

The touchstone document of affirmative action, Title VII of the 1964 Civil Rights Act, states that it is unlawful for any employer:

1. 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.
2. to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise affect his status as an employee, because of such individual’s race, color, religion, sex or national origin.

Current affirmative action policies violate Title VII by requiring unofficial quotas, which can be filled only through preferential treatment. Thus, when White House Chief of Staff Leon Panetta claims that those who wish to eliminate preference are trying to “turn the clock back on civil rights,” he exposes his ignorance of Title VII’s wording. (Either that, or he is subtly complimenting his opponents for wanting to go back to the original intentions of the civil rights movement. But somehow I doubt that.) But whether we’re dealing with the original affirmative action policy or its Franken-incarnation, the point remains: preferential treatment harms women. Let me explain why.

Three fundamental arguments have been offered to justify employment privileges for women: (1) social good, (2) compensatory justice, and (3) the ideal of equality.

Social Good

The social good argument states that society will be enriched by advancing women. This justification is undermined by the fact that feminists generally concede that they would back the policy even if it lowered the overall good of society.

Which it certainly does. The most ominous side effect of affirmative action may be that it fosters the very evil it seeks to cure: prejudice against women. To fill their quotas, employers must hire unqualified women, promote women too quickly, or transfer them inappropriately to other departments. When these women fail, it is seen as confirmation of their inadequacy. Conversely, when competent women succeed on their own, it is assumed that they were coddled by preferential policies. Successful women used to be accused of sleeping their way to the top. Now, men can accuse them of being in bed with government.

And what of the men who are discriminated against? A February 12, 1995 AP report quoted San Francisco firefighter Ray Batz, who used to call himself a liberal Democrat:

I’ve watched my department become demoralized, downgraded, debased, demeaned. Everybody falls into one or even more than one protected class. That is, everybody except white males.

We’re hiring tiny women. Size is no longer a criterion for firefighters. [But diversity] doesn’t carry grandma down the stairs in the middle of the night.

Such resentment naturally translates into a heightened sexism. Affirmative action is fertile ground for the evil it ostensibly opposes. Perhaps this is inevitable for a policy that enshrines its own version of sexism into the legal system. Allocating jobs via a quota system rather than merit has disastrous long-term economic consequences. And it drives a wedge between individual worth and economic success.

Compensatory Justice

The second common justification for affirmative action is the argument from compensatory justice. This claims that anyone who injures an innocent person should compensate the injured party for the damage. This is reasonable enough.

But affirmative action goes much farther. It claims that descendants of injured parties should be compensated as well. After all, today’s women still live with the consequences of past discrimination. In essence, the state is to be used as a remedial historian, to right the wrongs of the past.

There are two basic objections to this position: first, most of the people receiving compensation are not the victims of discrimination; and second, most of the people paying the compensation are not the perpetrators.

Overwhelmingly, the perpetrators, like the victims, are dead. Herbert Deane, in his book Justice—Compensatory and Distributive, explains:

Present members of the 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.

Affirmative action does not even attempt to single out the heirs of victimized women. It lumps all women into a class, drawing no distinction between the privileged daughter of a Rockefeller and the direct descendant of a black slave. Nor does it attempt to identify those who actually discriminate. White males, as a class, are forced to accept collective guilt.

We are all victims and beneficiaries of our ancestors, not only economically, but physically, culturally—in virtually every aspect of who we are. This is not a matter for legal theory; it is an accident of nature. I was born into a lower-class working family that could not provide me with music lessons, hardcover books, and other niceties. On the other hand, I inherited the virtually indestructible good health of my Irish peasant ancestors. The circumstances of my birth were neither just nor unjust; they merely were. And where there is no injustice, how can there be compensation?

Women do themselves no favor by asking for privileges. That only strengthens the paternalism from which they suffered for so long.

The Ideal of Equality

The third common argument for affirmative action is based on the ideal of equality: women should be equal to men. But what sort of equality is being championed? Social? Economic? Legal?

Traditionally, in America, equality has meant equal treatment under the law and equal access to political power. This model focuses on the individual and her relationship to the state.

The equality promoted by affirmative action demands eaual access to wealth and opportunity. This model focuses on classes of people and their relationship to other classes, or to society in general.

These two concepts are incompatible. Affirmative action flies in the face of equal treatment under the law. And that is a right for which women have fought, and fought hard, for centuries. For most of the nineteenth century, women were excluded from universities and unions, barred from such professions as medicine, and—upon marriage—often lost all title to whatever pittance they were allowed to earn. When Susan B. Anthony and Elizabeth Cady Stanton battled to have women explicitly mentioned in the Constitution, it was in order to secure equal treatment under the law.

Affirmative action does nothing for women whose goal is legal equality. Affirmative action aims at socioeconomic equality. It calls for distributive justice.

Justice: Distributed and Free

During the social turbulence of the ’60s and ’70s, a political phrase gained popularity: “institutional discrimination.” This referred to institutional arrangements that excluded or hindered certain classes of people from participating in the distribution of power. Institutional discrimination is not the same as personal prejudice. For example, a company might decide to hire people from its community out of a sense of local pride. But the community might not contain any qualified women. Thus, from unbiased—and even laudable—motives, the company can distribute employment in a disproportionate manner. Good intentions and lack of prejudice are no defense against this charge.

At the heart of the issue is the question of how power—economic, social, and political—should be distributed throughout society. How is justice achieved?

To individualist feminists, like me, justice is not a matter of achieving a particular end-state, such as equality or non-discrimination. The individualist view of justice is means-oriented. That is, as long as a social situation is nonviolent and voluntary, it comes as close to justice as mortals can get. This may not produce the perfect society, but it’s the best that we can do.

By contrast, statist feminists have an ends-oriented concept of justice.

The end sought is socioeconomic equality for women. And virtually any means—including the use of force to regulate attitudes and peaceful behavior—is justified. This is why feminists who cry out against discrimination do not hesitate to use that tool in reverse if it serves their purpose.

There is a sad irony here. In the name of gender justice, feminists are crippling the surest safeguard women have ever had against discrimination: the free market. The marketplace tends to further the interests of women, not because it is an arena of justice, but because businessmen want to make a profit. Discrimination is costly: it alienates customers and reduces the pool of talented employees. In their pursuit of profits, employers tend to be blind to color and sex. The market is a great leveler of prejudice.

But to many feminists, the free market is a chaotic process—an anarchy of undirected preferences. How, they demand, can such unbridled chaos possibly produce a social good? They contrast the market with the ordered society proposed by social engineers, in which planners coordinate and channel individual behavior for the common good. This is a false dichotomy. The real alternative is not between chaos and order, but between two conflicting forms of order: one spontaneous, the other military.

Statist feminists wish to impose a military order in which individuals are organized into sexually correct ranks marching in orderly formation toward gender equality. The free market is under a comparative disadvantage; at first glance, it appears to be random, not orderly. But imagine this scenario. Floating near the clouds, you have a god’s-eye view of a flea market going on beneath you. People pour through the ad hoc aisles, grabbing at goods, bargaining with stall owners. The scene appears to be complete chaos.

What is really happening? A mass of people are spontaneously and independently pursuing their own self-interests. When arguments break out over goods, the conflicts are nonviolent and resolved privately. All sales occur because they benefit both parties. No one is harmed. What you are observing is an extremely sophisticated and intricate form of order that efficiently satisfies individual goals without violence.

The true choice in affirmative action is not between chaos and order, but between freedom and control.

The Prognosis

Affirmative action may well become the issue-from-hell for Democrats. Republicans have taken over the moral high ground and are staging a full frontal attack. Affirmative action looms as an election flash point in California. Court cases challenging preferential policies are pending in several states. And the Supreme Court is now inclined to frown on federal affirmative action, with Justices Rehnquist, O’Connor, Thomas, Kennedy, and Scalia likely to vote against it.

Democratic strategist Duane Garrett summed up his party’s attitude toward the affirmative action controversy this way: “Most Democrats I’ve talked to are just averting their eyes and hoping it goes away.” They can always hope.