Book Reviews What Is "Affirmative Action”? FAIR GAME? INEQUALITY AND AFFIRMATIVE ACTION. By John C. Livingston.† San Francisco: W.H. Freeman and Company, 1979. Pp. xvi, 281. $12.95. Reviewed by Carl Cohen* Moral and legal disputes in the sphere of affirmative action, often between parties equally honorable and equally passionate, are intensified by mutual misunderstanding. The ambiguities of that pervasive phrase, “affirmative action," contribute to these misunderstandings. My object in this essay is three-fold: I aim first to explicate the concept of affirmative action, sorting out notions that have been unhappily conflated. I will then illustrate the intellectual confusion resulting from this conflation by examining the account of affirmative action given by John C. Livingston in a new book, Fair Game? Inequality and Affirmative Action. Finally, I will explore the underlying errors, sociological and moral, that promote widespread theoretical jumble in this arena. The quest for justice is advanced by greater precision in the use of categories, and by greater refinement in the formulation of principles. Difficult issues may thus become somewhat more tractable; unresolved conflicts may at least then be better understood. L A concept of “race consciousness" that is acceptable to the moral sensibilities of all parties is a good place to begin. If American society were to become color-blind, permanently and resolutely, in matters of public policy, most would think that splendid. But that cannot be, now, because of the historical legacy of racial oppression. Great and pro † Professor of Government. California State University. Sacramento. Professor of Philosophy in the Residential College, the University of Michigan. A.B. 1951, University of Miami; M.A. 1952, University of Illinois, Ph.D. 1955. University of Čalifornia. Los Angeles. 1. J. LIVINGSTOn. Fair Game? INEQUALITY and AFFIRMATIVE ACTION (1979) (hereinafter cited by page number only). Texas Law Review Vol. 58:845, 1980 longed injury has been done on the basis of race. In our own lifetimes, yesterday and even today, Americans have been injured because they are black, or yellow, or brown. When the race of the victim has been the ground of the injury, some consciousness of race seems an inescapable necessity in providing redress to those victims. In this sense race consciousness is essential for justice; without it we are unable to do what is right because we are blinded to what has been done wrong. II. Does race consciousness, in this morally unobjectionable spirit, necessarily involve racial preference? Here the seeds of ambiguity are sown. "Yes and no," one is tempted to reply. We may be obliged (morally or legally) to give preference to a certain class of persons that must be defined, partly even if not wholly, by race. In that sense our answer will be yes; race consciousness leads to racial preference. On the other hand, every such obligation (moral or legal) stems from some damage done to real persons; the consequent obligatory preference to those damaged is not preference given them because of their race. It is an instrument of redress for injury, the proper recipients of that redress being identified partly by race because the injury in question was triggered by race, but identified also and more fundamentally as the persons injured in such-and-such ways. The preference today is a moral consequence of the injury yesterday, there is and should be no preference because of race. In this sense our answer must be no; race consciousness is not racial preference, and certainly does not entail preference on the basis of race. This distinction between race consciousness and racial preference, whatever words we choose to express it, is profoundly important. The failure to make it lies at the root of much sore confusion about the nature of affirmative action, and therefore about what is and what is not justly done under that rubric. The distinction has been drawn very carefully by some federal courts. In Chance v. Board of Examiners, for example, an affirmative action plan, devised to give remedy to school employees within a school system that had previously discriminated on grounds of race, was thoughtfully upheld. The court held, however, that the justice of that remedy depended critically upon the nature and source of the earlier injury that had required it. A minority worker may be entitled to preferential treatment now in view of the damage his employers have earlier done, "not because he is Black, but because, and 2 534 F.2d 993 (2d Cir. 1976), cert. denied, 431 U.S. 965 (1977). 84-280 0-83-39 Affirmative Action only to the extent that, he has been discriminated against."3 The same point is made in Franks v. Bowman Transportation Co., in which the known victims of racial discrimination by a firm in the private sector were held entitled, as a remedy, to the places in the seniority lists of that company that would have been theirs if they had not been so victimized. Only in that way could they be made whole, and the group that bears the burden of the race conscious remedy loses no more than advantages they were not entitled to in the first place. The distinction is put eloquently in a decision of the United States Court of Appeals for the Fifth Circuit: If employees who have been arbitrarily favored are deprived of The law to which the appellate court here refers is Title VII of the Civil Rights Act, which declares it unlawful for any employer "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. " Much more than technical legal judgments are involved here. The Civil Rights Act sought to make precise and explicit the universal demand for equal treatment under law. When the appellate court goes on to distinguish between race conscious remedy (as described above) which is consistent with this demand, and bald racial preference which is not, it explicates 3. Id. at 999 (emphasis added). 4. 424 U.S. 747 (1976). 5. Weber v. Kaiser Aluminum & Chem. Corp., 563 F.2d 216. 225 (5th Cir. 1977) (Gee. J.) (emphasis in original), rev'd sub nom. United Steelworkers v. Weber, 443 U.S. 193 (1979). The rationale of Justice Brennan's opinion reversing the circuit and district courts was explicitly narrow: “We need not today define in detail the line of demarcation between permissible and impermissible affirmative action plans. It suffices to hold that the challenged Kaiser-USWA affirmative action plan fails on the permissible side of the line." 443 U.S. at 208. The majority opinion makes no reference to Judge Gee's language as quoted above in the text, its only square holding was that "Title VII's prohibition...against racial discrimination does not condemn all private, voluntary. race-conscious affirmative action plans." Id. Arguably, then, the opinion does not undercut this key distinction. 6. 42 U.S.C. § 2000e-2(a)(1) (1976) (emphasis added). Texas Law Review Vol. 58:845, 1980 not merely the sense of the law, but a very widely shared sense of justice. When does a race conscious practice go beyond permissible remedy to impermissible favoritism? When it gives some deliberate advantage to a class of persons who had not been injured by the racial discrimination the practice in question was designed to remedy. The remedial device then misfires; it gives advantage to some sheerly "on the basis of race," because these persons happen to be of the same racial or ethnic group as were some others who were injured in times past. This, indeed, is "racial preference," and that phrase is wisely reserved for cases of this kind-for if we use that expression loosely, applying it also to clearly justifiable remedies, we sacrifice the verbal tools needed to distinguish the just from the unjust introduction of race consciousness. To the question asked above (does race consciousness necessarily involve racial preference?) the correct answer is therefore not "yes and no" but simply "no." Morally appropriate race conscious practices do not entail preference by race in the strict sense-and it is precisely this strict sense of racial preference that is our target when we condemn racial “discrimination." We do not use this word meaning that racial differences must never be discriminated; clearly they must be in just those circumstances in which race appropriately figures in the definition of the class of beneficiaries of justified redress. We do mean by this word that no individual should get less (or more) than he would otherwise get, of goods or opportunities, only because of his race. In forbidding favoritism to members of one sex over the other simply on the basis of sex, the Supreme Court in City of Los Angeles v. Manhart' emphasized the same point. Any questionable practice may be put to "the simple test of whether the evidence shows treatment of a person in a manner which but for the person's sex would be different.'" Any practice that does not pass this test (unless specifically exempted by the Equal Pay Act) "constitutes discrimination and is unlawful." The Manhart Court went on to the core of the matter. The statute [Title VII of the Civil Rights Act] makes it unlawful "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national 7. 435 U.S. 702 (1978). 8. Id. at 711 (quoting Developments in the Law--Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv. L. Rev. 1109, 1170 (1971)). 9. 29 U.S.C. § 206(d) (1976). 10. 435 U.S. at 711. Affirmative Action origin." The statute's focus on the individual is unambiguous. It precludes treatment of individuals as simply components of a racial, religious, sexual, or national class. . . . Even a true generalization about the class is an insufficient reason for disqualifying an individual to whom the generalization does not apply." In sum: Any individual who is disadvantaged (or advantaged) simply because of his membership in any such class is the victim (or the beneficiary) of precisely the sort of discrimination we condemn and forbid. Programs that implement racial preference, in the strict sense of that term as described above, have precisely that result. III Now we can return to “affirmative action." Clearly, this phrase can be used to refer to practices that do, and to practices that do not, involve racial preference in the strict sense. This helps to account for the fact that while affirmative action programs had a very honorable genesis, they now have a very bad aroma in some contexts. In government, in private employment, and in higher education, affirmative action programs were initiated by just and sensitive persons who saw that a long history of racially discriminatory conduct must have consequences that will not soon be eliminated if all consciousness of race is suddenly erased. Equal treatment is the right principle. But the refined application of that principle requires the equal treatment of equals. Those who have suffered the damage of racial discrimination in education or employment are not the equals of those who have not, for the purpose of determining equal treatment in those spheres. We must treat equals equally, to be sure. We must also take deliberate steps, affirmative steps, to ensure that unequals are treated unequally, to adjust our practices so that they are fair in the light of the real circumstances of those upon whom the practices bear. We are rightly called upon, therefore, not simply to give equal opportunities to all, regardless of their race, but to take affirmative action to ensure that persons deserving special attention receive that attention. Affirmative action to remedy injury done by racial discrimination is compensatory in spirit, and justly so.12 Affirmative steps, deliberate attention, may be needed not only to provide deserved remedy, but to ensure that treatment intended to be 11. Id. at 708 (citation omitted) (emphasis in original). 12 This is exactly the sense in which the phrase "affirmative action” is used in the Civil Rights Act. The statute carefully provides that a court, after having found some practice to be unlawful discrimination, may enjoin it and also may "order such affirmative action as may be appropriate." 42 U.S.C. § 2000e-5(g) (1976). |