Abstract
The defects in a compensatory justification for reverse discrimination are, as Tur argues, clear and crucial. That kind of justification yields the unacceptable consequences that innocent parties bear the cost of compensation while uninjured parties are compensated.1 It also raises the question whether a whole racial subclass of a society can be blamed for the wrongs done another racial subclass. Then there is the matter of the relation in time between an injury and its compensation. These problems all point to compensation as an inappropriate form of justification for reverse discrimination.
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Some of these issues are raised by others, for example by Owen M. Fiss (cited by Tur), `Groups and the Equal Protection Clause’, Philosophy and Public Affairs 5 (1975/6): 107–177; George Sher, `Justifying Reverse Discrimination in Employment’, Philosophy and Public Affairs 4 (1974/5): 159–70; Robert Simon, `Preferential Hiring: A Reply to Judith Jarvis Thomson’, Philosophy and Public Affairs 3 (1973/4): 312–320.
I use the term “bias” here partly because “discrimination” against someone is naturally understood as an expression of dislike or aversion, aversion to the characteristic which identifies a person as belonging to the group they do. But in the case of women it is often untrue that they are denied positions because of dislike or aversion. They may even be viewed with affection by those whose attitudes are biassed. They may, for instance, fail to achieve positions they aspire to because of a perception that they are not serious. This does not constitute discrimination on the basis of sex (which would plainly be wrong) but discrimination on the basis of seriousness (which would seem justifiable). What is at fault is a mistaken perception.
This point is made by Alan Goldman, `Affirmative Action’, Philosophy and Public Affairs 5 (1975/6): 178–195, at pp. 182ff.
Sher, for instance, sees reverse discrimination as a justified “way of neutralizing the present competitive disadvantage caused by those past privations and thus as a way of restoring equal access to those goods which society distributes competitively” (Sher, art. cit., p. 163).
This point is made by Goldman, art. cit., p. 187.
R. A. Wasserstrom, `Racism, Sexism and Preferential Treatment: An Approach to the Topics’, U.C.L.A. Law Review 24 (1977).
John Rawls, `Justice as Fairness’, Philosophical Review 67 (1958), p. 178.
J. Tussman and J. ten Broeck, `The Equal Protection of the Laws’, California Law Review 37 (1949), p. 344.
The Supreme Court has worried about which sex-related criteria justify differential treatment and which do not, for instance in Phillips v. Martin Marietta (400 US 542 (1971)),and in Diaz v. Pan American World Airways, Inc. (404 US 950, 92 S.Ct. 275 (1971)). While viewing such criteria with suspicion the Court has refused to consider sex a “suspect classification” as it considers race.
Among the important papers in this debate I refer the reader to J. J. Thomson, `Preferential Hiring’, Philosophy and Public Affairs 2 (1972/3): 364–384, along with those cited in the text.
G. Vlastos, `Justice and Equality’, in Social Justice, edited by R. Brandt (Englewood Cliffs, N.J.: Prentice-Hall, 1962), pp. 65, 69, 71.
Philosophy and Social Issues: Five Studies (Notre Dame, Ind.: University of Notre Dame Press, 1980), p. 73.
T. Nagel, `Equal Treatment and Compensatory Discrimination’, Philosophy and Public Affairs 2 (1972/3), p. 354.
Ronald Dworkin observes in his article `Why Bakke has no Case’ (New York Review of Books, Nov. 10, 1977) that college applicants are usually selected according to a variety of considerations, not all of them matters on which students can compete, and that the idea that admissions to graduate medical and law programs depends solely on “merit” is a myth. See in particular p. 12.
Second Treatise of Government,paragraph 95. I neglect Locke’s proviso partly because it was neglected by the tradition I am speaking about.
For a fuller discussion of the model and its failings, see my Equality and the Rights of Women (Ithaca, N.Y.: Cornell University Press, 1980), especially chapters 2, 3 and 6.
I neglect here the fact that Locke, who is a paramount atomist, thought it consistent with a justification of monarchy. My justification for doing so is that within the American tradition this juxtaposition seems an anomaly.
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© 1983 Springer Science+Business Media Dordrecht
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Wolgast, E.H. (1983). Is Reverse Discrimination Fair?. In: Stewart, M.A. (eds) Law, Morality and Rights. Synthese Library, vol 162. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-2049-6_16
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