Affirmative Action: Beyond DiversityBy Owen M. Fiss
Wednesday, May 7 1997; Page A21
I count myself as a defender of affirmative action, most clearly as it applies to blacks. Yet both familiar rationales seem wanting. They were constructed in the 1970s and '80s to appeal to the broadest constituency, but they mask the real reasons for affirmative action and, in fact, render that policy vulnerable to the attacks it is now undergoing.
The diversity rationale seems shallow and lacking the compelling quality needed to justify the hardships created by preferential treatment. It has little appeal outside the university context for example, among production workers or guard-rail contractors. Even in the university, diversity seems an incomplete justification, since it doesn't provide any basis for choosing what kinds of diversity we should favor. Why, we are left to wonder, should we give a plus to blacks but not to members of religious groups that might be underrepresented?
The rationale of compensatory justice has the compelling quality lacking with diversity, but it falters because of the lack of identity between the victims of the wrongs committed and the recipients of the preferential treatment and between the perpetrators of those wrongs and the people who bear the cost of the remedy. Nor are we told why the compensation should take the form of preferential treatment.
Rather than thinking of affirmative action in terms of diversity or compensation, we should see it as a structural remedy for a structural problem: as a means of eradicating the caste structure that now mars our society and that has its roots in slavery and the segregation of Jim Crow. By giving blacks a greater share of the privileged positions of society, affirmative action improves the relative position of the group that lies at the bottom of the heap. It aims to end the racial ordering of American soci\ety.
The structural rationale is like the compensatory one inasmuch as it builds on history. But it does so in a markedly different way. In the structural one, slavery and Jim Crow are viewed not as the reasons for the remedy but instead as the causes of the social structure that needs to be changed. Affirmative action is concerned with the present, with eliminating any form of caste that exists in the here and now.
As such, affirmative action should extend not just to blacks but to any group currently subordinated in society. Even immigrants who only recently arrived in this country and did not suffer past wrongs at the hands of American society would be eligible for affirmative action if they constitute a subordinated group comparable to blacks. (Such a result would not be supported by the compensatory rationale.)
Even as a form of distributive, rather than compensatory, justice, affirmative action will work its own wrongs. For blacks who obtain the prized positions, doubts are created in the minds of some, including those who occupy high positions of power and prestige, as to whether they would be where they are without preferences. For rejected white applicants, there is the frustration of not being able to attend particular schools or obtain specific jobs. In addition, these applicants suffer a hurt that blacks know all too well the hurt that comes from being judged disfa\vorably on a criterion unrelated to individual merit and over which they have no control.
These grievances should never be forgotten nor trivialized, but they do not constitute a reason to turn away from affirmative action. In an imperfect world, a great transformation cannot be achieved without pain and sacrifice and even a certain measure of individual injustice. Surely this must be the great lesson of the American Civil War.
Asking for such sacrifices is an extraordinary request, and our capacity to make such a request depends on two conditions. One is that the cause involved is so noble and so worthy as to justify the suffering the remedy will inflict. The other is that there is no other way. To support affirmative action in the face of the individual wrongs that it will no doubt cause, we must believe, as Justice Blackmun once put it, that we cannot eradicate caste without the system of preferences that affirmation action entails that, ultimately, we cannot get beyond racism without taking race into account.
The writer is Sterling professor of law at Yale Law School.
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