Affirmative action is a term drawn from the American experience with racial discrimination. It refers to public policies and private efforts designed ostensibly to help individuals overcome the effects of past discrimination. As typically practiced in the United States and elsewhere, affirmative action usually involves preferential treatment for members of specified groups. Affirmative action practiced in that manner shares common ideological premises and goals, but often different rhetoric, with efforts to promote racial and ethnic diversity.
To understand the contemporary debate over affirmative action, one must have knowledge of competing concepts of equality and of the history of discrimination in America. The Declaration of Independence proclaimed that “All men are created equal.” The equality to which the Declaration refers is the fact that each person is equally possessed of certain inalienable rights, theirs by virtue of their birth, and thus each stands equal before the law.
The key attributes of that understanding of equality are universalism and individualism: All individuals should enjoy equality under law. As Thomas Paine argued, that principle is “plain and simple” for “where the rights of man are equal, every man must finally set the necessity of protecting the rights of others as the most effectual security for his own.”
Libertarians argue that such equal treatment by the law should be distinguished from equal outcomes. As F. A. Hayek points out, “From the fact that people are very different it follows that, if we treat them equally, the result must be inequality in their actual position, and that the only way to place them in an equal position would be to treat them differently.” That requires what Hayek calls “discriminatory coercion.” As Hayek observes, “Equality before the law and material equality are therefore not only different, but are in conflict with each other; and we can achieve either the one or the other, but not both at the same time.”
Libertarians have traditionally insisted that the principle of equality before the law must be absolute. In Thomas Paine’s words, “Whenever we depart from the principle of equal rights, or attempt any modification of it, we plunge into a labyrinth of difficulties from which there is no way out but by retreating. Where are we to stop? Or by what principle are we to find out the point to stop at, that shall discriminate between men of the same country, part of whom shall be free, and the rest not?”
Sadly, for a nation founded on the claim that “All men are created equal,” even the United States of America failed from the outset to honor the principles of equality under law. The institution of human slavery—the subjugation of individuals by making them the property of others—represents the most profound nullification of equality under law.
Hence, when the Civil War was won, the Reconstruction-era Congress, imbued with classical liberal ideals, not only abolished slavery (the 13th Amendment to the U.S. Constitution), but also passed the 14th Amendment, which provides that, “No State … shall deny to any person within its jurisdiction the equal protection of the laws.” Senator Jacob Howard, a principal author of the amendment, declared that its goal was to “abolish all class legislation and do away with the injustice of subjecting one caste of person to a code not applicable to another.” The authors of these amendments embraced equality of opportunity, not equality of result. Representative Benjamin Butler observed, “Equality—and I will embody it in a single phrase, as the true touchstone of civil liberty—is not that all men are equal, but that every man has the right to be the equal of every man if he can.”
Still, for the next century, governments across the United States engaged in discrimination in access to employment, business opportunities, education, voting, and public accommodations. Against blacks, those policies were called “Jim Crow Laws,” and these ostensibly were designed to achieve “separate but equal” opportunities. The separate but equal doctrine was upheld by the U.S. Supreme Court in Plessy v. Ferguson in 1896. State sanctioned discrimination also was visited on other groups, particularly women and Asian Americans.
Separate but equal finally was repudiated by the U.S. Supreme Court in 1954 in the case of Brown v. Board of Education. In 1963, President John F. Kennedy asked Congress “to make a commitment that it has not fully made in this century to the proposition that race has no place in American life or law.” Congress responded by enacting the Civil Rights Act of 1964, which forbade discrimination on the basis of race, color, national origin, sex, or religion in employment, education, housing, or public accommodations. The law’s sponsors were emphatic that it would not lead to preferential treatment.
Around the same time, the concept of affirmative action arose. As originally conceived, affirmative action would provide human resource investment for people who were disadvantaged by discrimination so that they could compete on a level playing field. As President Lyndon B. Johnson explained, for a person previously in shackles to win a race, it is not sufficient merely to remove the shackles.
Even with such efforts, equality under law did not, of course, produce equality in results. Therefore, some began to embrace equality of result as the definition of equality. “Equality can be measured. It can be turned into numbers,” proclaimed Jesse Jackson. Whitney Young was even more explicit, declaring that the “measure of equality has to be group achievement: when, in each group in our society, roughly the same proportion of people succeed or fail, then we will have true equality.”
The new definition of equality was implemented in public policy in two principal ways. Executive Order 11246, issued on September 28, 1965, instructed all federal agencies to engage in affirmative action, which was to be measured by “goals and timetables” expressed through racial percentages. Meanwhile, courts began measuring compliance with civil rights laws in terms of racial parity. Before long, governments at every level, along with colleges and private businesses, began implementing race and gender preferences. The 1978 U.S. Supreme Court decision in Regents of the University of California v. Bakke struck down the most explicit quotas, but left less-rigid preferences intact. Justice Harry Blackmun exemplified the prevailing ideology by declaring, “In order to get beyond racism, we must first take account of race. And in order to treat persons equally, we must first treat them differently.”
Race-based affirmative action fueled a predictable backlash among whites, Asians, and others passed over for employment, education, and contracting opportunities. Moreover, it left intact serious underlying problems, such as unequal educational opportunities, that contribute to racial disparities in income. For instance, the black/white educational gap actually widened in the 1990s, from 2.5 years at time of high school graduation to 4 years. Social scientist William Julius Wilson found that affirmative action benefits the most-advantaged members of preferred groups while leaving the problems of the truly disadvantaged unaddressed.
Starting in the mid-1980s, the U.S. Supreme Court began applying strict scrutiny to affirmative racial classifications and repeatedly struck them down in areas of public employment, contracting, and voting. In 1996, California voters enacted Proposition 209, the California Civil Rights Initiative, which abolished race and gender classifications in public employment, education, and contracting. Two years later, Washington State voters did the same. In California, following Proposition 209, and in Texas, where preferences in higher education were abolished by court order, a new form of affirmative action has been implemented based on disadvantage rather than race, designed to improve the ability of disadvantaged individuals to more effectively compete. A similar initiative, called “One Florida,” was implemented by Florida Governor Jeb Bush. Polls consistently find that most Americans support affirmative action, but oppose preferences. Those findings suggest that efforts to redefine affirmative action may reap public support.
Libertarians favor market institutions to eradicate racism and therefore tend to take a critical view of affirmative action when it is initiated by the government. In a system where economic incentives are allowed to work, libertarians believe that racist policies in the private sector will tend to disappear. For instance, refusing to hire blacks or women places the discriminator at a competitive disadvantage in the labor market, denying him a pool of talent to which he might otherwise have access. Only when discrimination is enshrined in law can discriminators indulge their irrational prejudices without economic penalty.
Unquestionably, competing conceptions of equality will persist. Libertarians argue that the only stable conception of equality, however, is equality under the law, because history teaches that serious racial and ethnic division—and ultimately inequality of results—are fostered by substituting legal guarantees of equality of results for equal treatment by the law.
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Originally published .