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APA Newsletters
Fall 1999
Volume 99, Number 1

Newsletter on Philosophy and the Black Experience

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APA ’98 Response to Prof. Louis Pojman’s "Why Affirmative Action Is Immoral"

Albert Mosley
Ohio University

In philosophical debates, opponents are typically expected to "go for the jugular," expose the fatal weaknesses of the alternative proposed, and undermine the arguments for it. However, from the beginning I have felt that such an attitude was inappropriate for the debate between Loius Pojman and myself. I am touched by his efforts as an active supporter of, and participant in, the 1960s struggle for civil rights, his service as a pastor to an urban black inner city church, and his belief in a sense of equal justice for all. Clearly, these are sentiments I support. To attempt to seriously undermine such an ally of the past and potential ally of the future seemed tragically inappropriate.

As I was about halfway through crafting my response to Pojman’s "Why Affirmstive Action is Immoral?" I learnt with great regret that he had suffered a stroke. This reinforced my initial inclinations to try and make our debate more than a winner-take-all type contest. I will follow the traditional pattern of pointing out what I consider to be the weaknesses in many of Pojman’s arguments. However, I believe each of us is attempting to make a serious effort to appreciate why the other is likely to continue supporting his position, notwithstanding the objections to it. In order to facilitate this, I have arranged the following in terms of Pojman’s (LP) claims and my (AM) responses.

LP1: In previous writings I have pointed out that other groups besides blacks have benefited from affirmative action. While I intended this to show that affirmative action was not just for blacks and women, Pojman nonetheless considered this to be part of the problem. If, he argues, all groups who have been harmed by past social actions were included, we would quickly exceed the total population. In only nine categories (blacks, women, hispanics, Native Americans, Asian Americans, the physically and mentally disabled, welfare recipients, the elderly, Italians in New York City), Pojman calculates that we already have 125 percent of the population qualifying for affirmative action. Where and when should it stop? People who have suffered child abuse may be more needy than poor whites or blacks. Shouldn’t we include them as well, Pojman asks? "The only group not on the list is that of white males. Are they, especially healthy, middle-class young white males, becoming the new ‘oppressed class’? Should we add them to our list?"¹

AM1: Professor Pojman needs to know that, no matter how many subgroups we distinguish in a whole, the sum of their percentages can never come to more than 100 percent. It is absurd to suggest that the groups deserving affirmative add up to 125 percent of the population. More important is the fact that, rather than being made into a new oppressed class, white males have themselves been a major beneficiary of affirmative action legislation. For example, requiring the open advertisement of employment and educational opportunities increased opportunities for white males who were not ‘insiders’. Prior to the accountability reports required by affirmative action measures, most jobs, including that as college professor, were filled by means of the ‘old buddy system’. Openings were communicated by word of mouth and decisions made on the basis of personal recommendations and evaluations. Requiring defensible procedures in the award of opportunities supported by government revenues reduced nepotism and cronyism, making opportunities available to a wider pool of white males. Because white males and females have the highest number of underutilized qualified people, we should not be surprised that they have comprised the largest number of beneficiaries.²

When Pojman facetiously suggests whether we shouldn’t include people who have suffered child abuse, he gives the impression that affirmative action is based on the principle that all injuries should be compensated by the state. But the notion that affirmative action is based on the idea of compensating people for any injury they may have suffered is false. I, as an example of a supporter of affirmative action, do not believe that every injury ought to be compensated by the state. Nor do I believe that individuals should be compensated simply because they belong to a group that has been harmed.

If a rock falls on the head of Mr. Jones, a man has been harmed. But not all men, as a group, have been harmed. And no arbitrary person, merely because he is a man, should expect to be hit on the head with a rock or share in whatever compensation might be owed to Mr. Jones. It is for this reason that victims of natural disasters, child abuse, and ‘bad genes’ are also not owed compensation. In none of these cases was their misfortune the responsibility of governmental action at the federal, state, and local levels.³

The Jones example is a red herring because it misdirects our attention from the kind of harm that, though suffered by a particular person, is aimed at affecting all members of a certain group. The rock that hits Jones in the head need not have been intended for a male. It may have simply fallen, without being aimed towards anybody at all, least of all a person who happens to be a male. On the other hand, the rock that landed on the head of an anonymous black person’s head during the Irish riots against the draft in 1863 would have been aimed at any black person’s head that offered a suitable target. In this sense, that particular black person’s being hurt by a rock was different from Jones being hurt by a rock. Every black person felt more vulnerable as a result of this black person’s injury, but every male need not have been threatened by Jones’ injury. Likewise, refusing a black person a job or a loan because of that person’s race harms that person, but it is also a harm directed at all black persons, informing them of the intention of the responsible agent to deny their attempt to gain the opportunities in question.⁴

LP2: Pojman advocates a "Universal Humanity Model of Justice" in which "We are all, first and foremost, children of God, brothers and sisters, not black or white or Hispanic." This model, he claims, is "color-blind and gender-blind."⁵

AM: But if Pojman recognizes "brothers and sisters," he cannot be gender blind. Clearly he is making a distinction on the basis of gender, even if he prefers not to recognize that he is making the distinction. What he is advocating is not gender and race blindness, but that gender and race not be used in making current decisions about who gets what opportunities. As has been often pointed out, the trouble with policies that advocate color and gender neutrality is that they tend to cover over the effects of covert racial and gender discrimination while prohibiting the overt use of those categories to correct for the effects of past and present discrimination. This becomes evident in Pojman’s ambivalent support for what he calls "Procedural Affirmative Action."

LP3: Procedural affirmative action "requires that special attention be given to insure that everything reasonable is done to recruit and support people who have hitherto been excluded from opportunities and positions, such as qualified minorities and women." While Pojman purports to support procedural affirmative action, he regrets that it "tends to slip into Preferential Affirmative Action."⁶

AM3: But this tendency is inherent in the problem of how even procedural affirmative action is to be possible if we are truly color and gender blind? If we are to take race and gender into account in attempting to recruit and support qualified minorities and women, then the question can no longer be whether it should be done but only how it should be done.

LP4: As examples of how it should be done, Pojman disparages the notion of disparate impact and the use of timetables and goals introduced by the Philadelphia Plan as decisive blows to the ‘color-blind’ ideal. Pojman’s ambivalence on whether anything ought to be done is again shown by his characterization of attempts to ensure that qualified blacks are given employment, educational, and investment opportunities as "a new form of racism—positive, benign preferential treatment."⁷

AM4: Does this mean that, for Pojman, the underutilization of blacks at the lowest levels of construction work (e.g., by requiring a recommendation by someone already on the job or a high school diploma) is not to be considered an illegitimate form of racial discrimination? If so, then his color blindness goes much further than opposing affirmative action and suggests an opposition to antidiscrimination laws in general. Is this Pojman’s position?

LP5: Pojman writes that several senators opposed the 1964 Civil Rights Act because they feared it might lead to preferential treatment for blacks.⁸

AM5: But he fails to point out that most of these senators were from southern states, voted in by constituencies that denied blacks the right to vote, the right to equal employment opportunities, and the right to an equal education. These constituencies were concerned that they not be required to compensate blacks for the past 350 years of exploitation, and fought to eliminate all provisions that might be used in that manner. These are exactly the claims Pojman recognizes to have the most merit, but which, in his view, fail nonetheless.

LP6: Pojman characterizes the "Compensation Argument" as follows: Because "historically blacks have been wronged and severely harmed, white society should compensate blacks for the injury caused them. Reverse discrimination in terms of preferential hiring, contracts, and scholarships seemed a fitting way to compensate for the past wrongs."

AM6: Pojman, by labeling race conscious measures as ‘preferential treatment and reverse discrimination’, implicitly assumes what he is supposed to establish: that barely qualified blacks are typically being given preference over superbly qualified whites, as an expression of a preference for blacks.⁹ By stressing the difference between the qualifications of typical black and white candidates, Pojman downplays the 350 years of differential treatment between blacks and whites that is the compensated.

LP7: Pojman finds that "Southern States with Jim Crow laws could be accused of unjustly harming blacks, but it is hard to see that the United States government, though sanctioning slavery before 1863 and Jim Crow laws in the South, was directly involved in doing so. Much of the harm done to blacks was the result of private discrimination, rather than state action."¹⁰

AM7: As a matter of historical fact, it was not just southern, but northern states as well that had Jim Crow laws and practices. As for the federal government, isn’t supporting slavery and Jim Crow laws and practices enough to be liable? Given the enormous power of the federal government, its practice of denying educational, employment, and investment opportunities to blacks magnified the effect of private discrimination.¹¹

LP8: Pojman objects that even if compensation is owed, affirmative action in employment and education might not be the best form of compensation; "The usual practice of a financial payment . . . seems more appropriate than giving a high level job to some unqualified, or only minimally qualified, who, speculatively, might have been better qualified had he not been subject to racial discrimination." Judith Jarvis Thompson argues that money will more easily slip through the hands of the undereducated, but skills acquired are a more lasting investment. While acknowledging that "this may be true," Pojman argues that "financial payments have the advantage of spreading the costs more justly through society, rather than burdening a new group of presumably innocent victims."

AM8: But this manner of spreading the costs is in the interests of the beneficiaries of the past, not the victims. In the long run, the victims will have less value from a cash payment than they would have from an investment in their human capital.

LP9: More importantly, Pojman holds that even if white males have benefited from past wrongs, "Sometimes a wrong cannot be compensated, and we just have to make the best of an imperfect world."¹²

AM9: One wonders why the converse isn’t also true: Sometimes we have to make the best of an imperfect solution, and compensate those who have been harmed by taxing innocent beneficiaries of that harm, some more than others.

LP10: Pojman concludes that affirmative action is immoral because "society has given people expectations that if they attain certain levels of excellence they will be rewarded appropriately and filling the most important positions with the best qualified is the best way to ensure efficiency."¹³

AM10: However, I am at a loss to understand why Pojman would conclude that policies are immoral which seek to honor the obligation to compensate victims of an egregious injury by the state. When a duty to compensate victims conflicts with a duty to reward excellence, why is it immoral to choose to honor the former rather than the latter?

Despite having pointed out these many problematic aspects of Professor Pojman’s arguments, I suspect that he might remain undeterred in defense of his position. More than likely, he would respond in kind, pointing out what he considers to be the many weaknesses in my defense of affirmative action. Considering that every position has its unanswered and unanswerable questions, its limitations and pitfalls, I am concerned that a strategy of claims and criticisms may get us nowhere.

To get somewhere, I believe we must first recognize that our positions involve considerations of more than a purely intellectual nature. We can see this in Pojman’s account of having been refused a position because a prospective department thought he was black when in fact he was white. In footnote 15 of his paper, Pojman writes:

"To get a sense of the injustice of treating white males, rather than blacks, as the oppressed class, consider the following letter to an unsuccessful white candidate:

Dear Mr. White,

We regret to inform you that your application for the position of assistant professor of philosophy at our university has been rejected. We want to thank you for your interest in our university. Please do not take this rejection personally or as an indication of contempt. We respect you very much and are most impressed by your credentials. You’ve graduated first in your class, spent five hard years getting your Ph.D., have won a graduate student teaching award, and have two publications in prestigious, peer-reviewed journals. Most impressive. In fact, based on your application and references, the committee wants you to know that you are the best scholar and teacher applying for the job. Unfortunately, our social goals, reflected in our Affirmative Action policy, which directs us to hire minimally qualified minorities and women in preference to white males, simply do not allow us to hire a white male at this time.

Sincerely Yours,

While he received no such letter, Pojman confides that such sentiments were communicated to him verbally when he was passed over for a position. Pojman argues that it is "disrespectful to hire Mr. Black over Mr. White when Mr. White is more qualified—on the grounds that Mr. Black’s parents were discriminated against or because the college wants black role models for black students."¹⁴ As with his disparagement of practices that have a disparate impact on underrepresented groups, Pojman shows no concern for how seemingly innocuous, ‘color-blind’ qualifications have concealed hidden biases that skew opportunities in the direction of one group rather than another. Moreover, he gives no reasons why the fact that B’s parents were discriminated against and that B needs black role models should be irrelevant to the admission and hiring choices made by the university. If B’s parents were denied admission on the basis of race and W’s parents were admitted on the basis of race, why is that not relevant now in choosing between B and W? Where B and W have equivalent profiles, Pojman has stated that it would be appropriate to use race as a tiebreaker. Should this occur, why must either party have been disrespected?

Pojman misrepresents policies that take race into consideration by posing them as a choice between a highly qualified white candidate and a minimally qualified black candidate. Instead, let us assume that I was the black philosopher that also applied for the job that Pojman had applied for. After teaching at HBCUs for twenty years, I was not as qualified nor as cheap as a newly minted Ph.D. with recent publications. Should I have gotten the job rather than Pojman? I think there are good reasons why I should have. Should I have gotten the job rather than the daughter of an impoverished coal miner? There are good reasons why I probably should not have, especially at a university in the middle of Appalachia.

Finally, let me address the perception by white males that they are being discriminated against. One of the best analogues of this is as follows: Suppose a parking lot has 100 parking spaces and there are 200 motorists looking for a parking space. If 5 percent of the population is disabled and one space is reserved for the disabled, then when the lot is full, 91–100 able-bodied motorists will see the spot reserved for the disabled as one that, were it not for the disability restriction, they might be occupying.¹⁵ Each of these able-bodied motorists might feel that they had been discriminated against because they were normal. But this feeling would be unwarranted because even if the restricted spot were made available to them, there would still be 91–100 able-bodied motorists without a parking space. The point of this example is to illustrate that, despite their intensity, not all feelings are warranted by the facts of the situation.¹⁶ This is especially apropos if the legislation reserving a space for the disabled also prohibited the parking lot attendant from reserving spaces for cronies.

In the end, I hope Professor Pojman is able to see that the peculiar history of blacks, Native Americans, Hispanics, and women in this country has created special social obligations to broaden opportunities for those groups. How to do this is a matter of circumstance. Unlike with my parking space example, it is my stated belief that neither race nor gender is a sufficient condition for being granted an opportunity, and that solutions to historical patterns of discrimination should be narrowly tailored to meet the exigencies of the situation.¹⁷

Notes

1. P. 13

2. LP objects, nonetheless, that, though whites may be the greatest beneficiaries of affirmatvive action, the percentage of whites that occupy such positions has decreased. For LP, that drop is the result of unfair preferences for minorities and women.

3. In an earlier paper, I distinguish between compensation as welfare and compensation as restitution. The state may provide insulin to diabetics to help compensate for their inability to produce insulin, but this is welfare, not restitution.

4. See my distinction between manifest and. latent harm in *

5. P. 1

6. P. 5

7. P. 5

8. P. 1

9. LP asks: "Should we hire (or admit into professional schools) minimally qualified AA candidates over better qualified candidates because they have suffered injustice as individuals or because they belong to a group that has suffered?" *

10. P. 6

11. Two minor claims and responses:

For LP, demands by blacks are not valid because they do not fit the exemplary pattern of compensation in tort law, where "we think of compensation as owed by a specific person A to another person B when A has wronged in a specific way C." But this ignores the treatment of corporations and nations as possible recipients of compensation, and ignores harms such as pollution which are not specific to specific individuals.

His third objection to the compensation argument is that tort law only allows payments to the victim, not to the descendants of the victim. But this is false. Tort law allows payment to the estate of the victim, even though the victim may no longer be alive.

12. P. 10

13. P. 10

14. P. 8

15. There would be 190 able bodied motorists. In their best scenario, 99 of them would get a spot and one would go to the disabled. This would leave 91 able-bodied motorists without spots. In their worst case scenario, all 10 disabled people would get a spot, leaving 90 of the able with spots and 100 of the able without spots.

16. Though Mr. A may feel jealous because Mrs. A is involved in an intense conversation with a handsome young man, his fear of losing his wife’s affection may be unwarranted. And that warrant is contingent on the facts of the situation.

17. Even in the parking lot example, being disabled is not a sufficient reason for occupying the reserved spot. One must also be using the parking space for the purpose of the lot.

How a remedy is tailored is again a matter to be determined by the circumstances. We can imagine, in a zero sum game, having to choose between LP and AM for a position of a lifeboat, and AM arguing that AM should get the option because society owes black people for slavery, segregation, and continuing racial discrimination. In such life-threatening situations, I would disagree with AM. But in less extreme cases, I would be more inclined to agree.

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APA Newsletters Fall 1999 Volume 99, Number 1

APA Newsletters
Fall 1999
Volume 99, Number 1