Mr. Chairman and Members of the Committee:
Good morning. My name is Carl Cohen; I am a professor of philosophy at the University of Michigan, in Ann Arbor. I am grateful for the opportunity to express my vigorous support for the Equal Opportunity Act of 1995, and to present, in the few minutes at my disposal, the essence of the argument against preference by ethnic group. A list of references on this topic - in law reviews and elsewhere - has been submitted to the Committee for your convenience.
The object of The Equal Opportunity Act of 1995 is to prohibit our Federal Government from giving preference based on race or on sex - and to prohibit the Government from requiring or encouraging others to give such preference. Why in the world would any fair-minded person object to that? Surely there is no ground for complaint if our government does not discriminate! But many well intentioned people do complain, struggling to retain group preferences - some because they seek to engineer a redistribution of goods to match the proportions of the races and the sexes, and some because they think that such preferences give compensation for past injuries. Reasons of both kinds are deeply mistaken. The moral case against group preference - whether in the form of quotas, or goals and timetables, or numerical targets, or whatever - is overwhelming.
The Constitutional case against it, resting upon the Due Process Clause of the 5th Amendment addressed to the government of the United States, and the Equal Protection Clause of the 14th Amendment addressed to the several states, I leave to the lawyers; you know it well.
But underlying these clauses of our Constitution, Mr. Chairman, and underlying also the unambiguous language of the Civil Rights Act of 1964, there lies a moral foundation - a universal understanding of right conduct that does not depend upon the words of any clause or statute, but stems directly from our recognition of the moral equality of persons, and the obligation - certainly the obligation of democratic governments - to treat persons equally.
Here is the nub of it: to give favor to males or to females, to whites or to blacks or to persons of any color, because of their sex or color, is morally wrong because doing so is intrinsically unfair. Color, nationality, sex are not attributes that entitle anyone to more (or less) of the good things of life, or to any special favor (or disfavor). When in the past whites or males did receive such preference that was deeply wrong; it is no less wrong now when the colors or sexes are reversed. Justice Thurgood Marshall long ago made it clear that the plain words of Federal law "proscribe racial discrimination ... against whites on the same terms as racial discrimination against non-whites." [McDonald v. Santa Fe Trail Transportation Co. (1976) 427 U.S. 273, at 280] Equality applies to all.
But what of those who have been badly hurt by earlier racial discrimination; do they not deserve to be compensated? Yes; persons may indeed be entitled to remedy for unlawful injury done to them because they were black or brown or female. We give such remedy, rightly - but it is the injury for which remedy is given, not the skin color or sex. There is all the difference in the world between compensation for injury and preference by race.
When preference is naked - given flatly by skin color or by sex -- the inevitable result is the award of advantages to some who deserve no advantage, and the imposition of burdens upon some who deserve no burden. Most often those who benefit did not suffer the wrong for which 'compensation' is supposedly being given; those who are disadvantaged by the preference most often did not do any wrong whatever, and certainly not that earlier wrong to a minority group for which the preference is alleged redress.
The oppression of blacks and some other minorities in our country has been grievous, a stain on our history; no honest person will deny that. But the notion that that we can redress that historical grievance by giving preference now to persons in the same racial or sexual group as those earlier wronged is a mistake, a blunder. It supposes that rights are possessed by groups, and that therefore advantages given to some minority group now can be payment for earlier injuries to other members of that minority. But moral entitlements are not held by groups. Whites as a group do not have rights; blacks as a group do not have rights; Rights are possessed by persons, individual human persons. And when persons are entitled to be made whole for some injury earlier done to them, the duty owed is not to members of their race or sex or nationality, not to their group, but to them as individuals. The effort to defend preference as group compensation fails because it fundamentally misconceives the relation between wrongs and remedies.
Does this mean that affirmative action must be abandoned? That depends upon what is meant by affirmative action, of course. In its original sense, affirmative action was intended to insure the elimination of racially discriminatory practices - that is the sensepin which the phrase is used in the Civil Rights Act of 1964 - and there is nothing in the Bill before us that would hinder that honorable aim. But if by affirmative action one means (as most Americans now do mean) preferential devices designed to bring about redistribution of the good things of life to match ethnic proportions in the population, affirmative action in that sense must be rejected - because the preferences it employs are inconsistent with the equal treatment of all persons. No sound principles, constitutional or moral, justify discriminating by race or sex to achieve some pre-determined numerical distribution of goods. This defense of preference fails for the same reason all other defenses of preference fail: it contravenes the equal treatment of individual persons that fair process demands.
This principle of equal treatment is the moral foundation upon which the Equal Protection Clause of the 14th Amendment ultimately rests; our Supreme Court has repeatedly emphasized that the rights guaranteed by that clause are individual rights, the rights of persons ["No state shall ... deny to any person and not the rights of groups. And that is why, Mr. Chairman, every program relying upon naked preference by race or sex, whether in the form of set-asides in the award of contracts, or bonuses for hiring persons of certain colors, or extra credit to bidders in the competition for broadcast licenses, or additional consideration in competitive employment, or promotion, or admission systems -all such preferences - and whether defended as compensatory or as redistributive - must be unjust.
Some will reply: "It9s easy for you, a white inale, to say 'No more preference' after you and yours have enjoyed so much preference over the generations. But the tables are turned now and you get a taste of your own medicine. We were oppressed yesterday, so we are entitled to advantage today; it9s your turn to pay."'
The anger is understandable, but the reasoning is bad. Racial and sexual vindictiveness, like preference itself, is the product of 11groupthink" - the confused conviction that one group has an entitlement,, another group a debt; again supposing that racial or sexual groups are the bearers of rights. It is that very blunder that led us, long ago, to the evils flowing from categorization by race, differential treatment by race. It was wrong then and it is wrong now. We cannot bring those evils to an end by rejuvenating that practice with new beneficiaries and new victims. The only way the injustice of racial discrimination will be brought to an end is through a national determination, morally resolute and backed by law where that is appropriate, never again to give preference by race or color or sex. We do not, we cannot right the wrongs of times past by engaging now in the same invidious practices that engendered those wrongs. Justice Scalia [in City of Richmond v. Croson (1989) 488 U.S. 469, at 524.1 put it succinctly: "Where injustice is the game, turnabout is not fair play."
The truth of this moral principle has been recognized by virtually every great statesman of recent times. Nelson Mandela has said it forcefully: color of skin is not relevant in public affairs. Martin Luther King said it beautifully: in a decent society what counts is not the color of our skin but "the content of our character." Racial or sexual preference makes it impossible to deal with individuals as thepersons they truly are, but instead obliges us to treat them first as members of their group. It gives and takes on grounds having no genuine relevance to what is given or taken. It is inescapably unjust.
Let us seek to respond justly to injury, giving appropriate remedy where remedy is due, without regard to sex or color of skin. And let us see to it that our Federal Government, in its dealings with citizens and groups, is scrupulously impartial. The Equal Opportunity Act of 1995, by forbidding our Government to give racial or sexual preference or to require others to do so, cannot insure equal treatment in every sphere of course, but does surely move in the right direction.
The case against racial preference has another dimension, Mr. Chairman, which my limited time permits me to outline only very briefly. Beyond its unfairness, racial preference is injurious, counterproductive. And this in three contexts, quickly noted:
1),Preference corrupts and damages the instftutions thatpractice it. Where employees are appointed or promoted, or contracts let, on grounds not relevant to the work to be done, it is inevitable that the quality of work done will suffer. Minorities are most certainly not less qualified; but whenever we select on the basis of race, whether favoring minority or majority, we select stupidly and corrupt the process. Basketball players we would not dream of selecting to reflect racial proportions; we know very well what that would do to the quality of play. And to the retort: "But the players selected would still be qualified to play!" we would respond with laughter. All institutions must suffer similarly when race and sex illegitimately enter the appointment or admission or promotion process. 2) Preference corrupts the society at large. Resentment, produced by preference, is unavoidable and is already widespread; the product of resentment is distrust, and before long, hostility. The corrupting spiral leads eventually to ugly racial incidents, which in turn ignite the fires of racial hatred. Racial tension in our country today grows ever more pronounced; since the early 1970s, when racial preferences began in earnest, race relations have been going downhill. Racial antagonism has come to infect almost all of public life; we see it in our public schools and playgrounds, on our streets, in offices and in factories, even in legislatures. I have been teaching at The University of Michigan since 1955; I report to you what my students know well, and what all the talk about diversity and multiculturalism cannot hide: preferential affirmative action on our campus (as on many campuses around the nation) has driven race relations among us to a point lower than it has ever been. The story is long and complicated and has many variants, but the short of it is this: give preference by race and you create hostility by race. And for that we Americans are paying, and we will pay, a dreadful price.
3) Finally, preference is injurious to the ve?y persons it was supposed to assist. Individual members of minorities may benefit, of course - but the minority group is not helped, it is subverted when preference is given. Preference results inevitably in the appointment and admission of persons on grounds irrelevant to their duties or their studies. The manifest disparity in resultant performance is everywhere seen as the product of that preference, so that the nasty stereotypes of racial inferiority - which are not truel - are reinforced by the preferential devices that were supposed to give support to previously disadvantaged groups. If some demon had sought to concoct a scheme aimed at undermining the credentials of minority businessmen, minority professionals and students, to stigmatize them permanently and to humiliate them publicly, there could have been no more cruel or ingenious plan devised than the preferential affirmative action that is now rampant in our country.
Mr. Chairman, I express my thanks for the opportunity to outline here the moral case against preference. On these argumentative bones I have not had the time to put much flesh. But the case against preference by race and sex is truly compelling. Preference is wrong, intrinsically unjust, ethically confused. It is moreover socially counterproductive: damaging to those who practice it, injurious to the society in which it breeds, and above all cruelly hurtful to the minorities who were to have been helped by it. The Equal Opportunity Act of 1995 is one valuable step on the road to the elimination of naked racial preference.
References on the subject of racial and sexual preference; Books and essays by Carl Cohen
Books:
Naked Racial Preference. The Case Against Affirmative Action 1995, New York and London, Madison Books.
Essays:
"Naked Racial Preference"
Commentary, Vol 81, No 3; March 1986
"Discrimination and Reverse Discrimination" Law and Philosophy, Vol 5, p. 135, 1986
"Affirmative Action and the Rights of the Majority" in Minorities,
Charles Fried, ed., Dahlem Konferenzen, Springer Verlag, New York,
Berlin, 1983
"Affirmative Action in Medical School Admissions" in Troubling Problems in Medical Ethics,
New York, Alan R. Liss, 1981
"Equality, Diversity and Good Faith"
Wayne Law Review, Vol 26, No. 4; July, 1980
"Justice Debased: The Weber Decision"
Commentary, Vol 68, No. 3, pp. 43 -53; September, 1979
"Why Racial Preference Is Illegal and Immoral"
Commentary, Vol 57, Nol. 6, pp. 40 - 52; June, 1979.
"Race and the Equal Protection of the Laws"
Lincoln Law Review, Vol. X, Nol 2, Fall, 1977
"Who Are Equals"
National Forum, Vol. 58, No. 1; Winter, 1978
"Racial Preference is Dyniamite"
The Chronicle of Higher Education, Vol X11, No. 1; May 2,1977.
"Ethnic Justice, Individual Rights"
The Chronicle of Higher Education Vol Xii, No. 1: March 1, 1976
"Honorable Ends, Unsavory Means: Preferential Admission in Higher Education" The Civil Liberties Review, Vol 2, Nol. 2; Spring, 1975
"Race and the Constitution"
The Nation, Vol. 220, No. 5; February 8, 1975
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