Against Fairness

by Asma, Stephen T.

  Supreme Court Justice Sonia Sotomayor almost failed to get confirmed in 2009 because she had the nerve (or naïveté) to state, in an earlier speech, an obvious fact: a Latina may be in a better position to empathize with non-whites who come before her bench. She claimed in a 2001 speech that her minority status helped her to better empathize with people in her courtroom. Her affiliation, in other words—not her nemocentrism—helped her to be a better judge. This claim was quickly twisted around by political enemies to mean that Sotomayor was racist against whites. She had apparently sinned against the facade of fairness neutrality.

  American politics is loaded with tribalism masquerading as fairness. Liberals who supported President Obama often did so on the grounds that they were restoring fairness to an imbalanced preferential system. Obama himself argued, as part of his 2008 campaign, that he would take back Washington from the special interests, lobbyists, and patronage culture. Egalitarianism was the official rhetoric. However, in 2011 the Center for Public Integrity discovered that donors to Obama’s 2008 campaign (usually “bundlers” who aggregated fund-raising) were rewarded with administration jobs. Over two hundred of these supporters were given ambassadorships, policy advisor jobs, or other placements in federal agencies like the Department of Justice, the Federal Communications Commission, and so on. Consequently a new group of people has power and access to more power.

  Now, my own response to this is to yawn—what could be more unsurprising?—but also to use it as an example of reasonable favoritism. I think it is fine that Obama has staffed his administration with supporters. It helps him achieve his political goals, it provides him with fresh perspective from his constituency, and it both ensures and rewards loyalty. Presidents Bush and Clinton did the same thing before Obama. In party politics the contest is always preferential and tribal, but it is amusing to watch liberals deny their own tribalism. When the other guy has power, it is unfair cronyism. But when you yourself have power, it is disinterested egalitarian justice.

  Affi rmative Action and Favoritism

  The lingo of fairness has obscured a more interesting conversation about favoritism and group interaction—how do and how should the many contesting tribal groups fraternize? This is especially pressing in pluralistic societies like the United States. Many theorists debate whether the assimilation (melting-pot) model or the multiculturalism (bento-box) model fits best with the American egalitarian ideology. The melting-pot model celebrates the universal transcultural similarities of different groups, and the multiculturalism model celebrates the uniquely cultural differences between groups. I suspect that the melting-pot model is more resonant with egalitarian ideology, but since I’m not a big fan of that ideology, I tend to lean the other way. Without getting too mired in that debate, I should just situate my own pro-tribal view as more in tune with the multicultural position—in the sense that real social identity comes most strongly from very local bonds, rather than abstract universals. I recognize, of course, that tribal affiliation is a fluid and flexible relation. A Bostonian might feel very Catholic while visiting his Protestant friend in Alabama, and the two of them might feel very American when they visit their atheist friend in Paris, but all three of them might feel very Western when they take a trip to Vietnam. While this flexibility of affiliation is uncontroversial, my argument has been that affection or emotion is the glue of true tribal fidelity, and this places serious constraints on the expansion of favoritism. For example, even in cases where soldiers appear to fight and die for huge abstract tribes like “America,” further examination reveals the very local heart of their real motivation—the parents back home, the sweetheart, the newborn daughter, the little bungalow neighborhood, and so on. Laura Hillenbrand’s book Unbroken gives us a glimpse into the local bonds of affection that fueled World War II American soldiers as they fought overseas—or in the case of Louis Zamperini (the subject of Unbroken), as they languished in prisoner of war camps. “On an October afternoon, Louie stepped out of an army car and stood on the lawn at 2028 Gramercy Avenue, looking at his parents’ house for the first time in more than three years. ‘This, this little home,’ he said, ‘was worth all of it.’”

  How should we view “affirmative action” after my rejection of the utopian grid of impartiality? Is my demotion of fairness, and promotion of favoritism, consonant with affirmative action? Are preferential hiring and education admissions cases of favoritism—and if so, do they create more equality and fairness or undermine these goals? And if they undermine egalitarian fairness, are they still defensible in a broader context of social ethics?

  President Lyndon B. Johnson signed Executive Order 11246, requiring equal employment opportunity, in 1965. It was aimed at governmental contractors, preventing them from discriminating along lines of “race, color, religion, sex, or national origin.” And it ordered contractors to “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, or national origin.” Shortly after Johnson’s order, colleges and universities nationwide began to adopt affirmative action. In a commencement speech that Johnson delivered at Howard University in 1965, he said, “You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, ‘you are free to compete with all the others,’ and still justly believe that you have been completely fair.”5

  Fig. 20. The architects of affirmative action, Lyndon B. Johnson (1908–1973) and John F. Kennedy (1917–1963). Drawing by Stephen Asma.

  Affirmative action seeks to ensure access to minorities who have been victims, historically, of discrimination. African Americans, for example, were profoundly disadvantaged by slavery and subsequent Jim Crow laws. Affirmative action introduced the restorative policy dictating that if two candidates come to a job interview (or university admission) with equal skills, the minority candidate should take precedence. But the policy often went further, preferring members of historically disadvantaged groups even when the representative persons were less skilled than other applicants. This was done on the grounds, purportedly, that such handicapping would eventually balance out the current lack of an even playing field.

  The irony of what happened next is similar to the legal development of anti-nepotism policies that we looked at in the previous chapter. The Equal Protection Clause of the Fourteenth Amendment, which was originally used to create affirmative action, was now used against subsequent applications of the policy. People who were bumped from schools and jobs because of an affirmative action program brought their own Equal Protection claims, challenging the constitutionality of the program—saying that since the basis of the discriminatory program (the affirmative action program) is race (because it let in blacks, for example, and it discriminated against the white challenger), strict scrutiny applies.6 What does this mean?

  Strict scrutiny is a part of a three-criteria standard of review—a set of conditions that justify an Equal Protection action. In short, the countersuits could not change the constitutionality of affirmative action (nothing short of a constitutional amendment can do that), but they created a much more onerous justification for exercising the program (it became much more difficult to argue a compelling state interest without explicit proof of past discrimination in the specific institution in question). This strict scrutiny has radically reduced the number of affirmative action cases in the courts today.

  In the context of public universities, then, we have seen a rolling back of affirmative action policies. This is somewhat predictable because the new burdensome standards of review apply to Equal Protection, and Equal Protection claims are leveled against the government, not the private sector. The law may bar discrimination in the private sphere on the basis of other rationales (e.g., the Commerce Clause, which was useful in the passage of Civil Rights legislation), but Equal Protection claims don’t apply. State schools are now free to take a laissez-faire approach to affirmative ac
tion, while many private schools are trying to sustain the preferential admission policies that ensure campus diversity.

  Some states like Michigan have even recently passed constitutional amendments that prohibit state agencies from operating affirmative action programs. When California did this a decade ago, it had swift and dramatic repercussions for university admissions. “Within little less than a decade, black enrollment in the freshman class at UCLA had dropped from 211 to 96 and at UC Berkeley from 258 to 140.”7 This is because the Scholastic Aptitude Test scores are very uneven when considered along ethnic demographics. Asians and whites score about the same in reading and writing, while Asians (581 points) rocket ahead in math (whites score 537). Mexican Americans score around 75–130 points below whites and Asians, and black students trail Mexican Americans by 20–40 points in all categories. The causes of these discrepancies are complex and need economic, political, and cultural solutions. But one thing is clear. If test-score merit alone became the criteria for American universities, then institutions of higher learning would quickly become overwhelmingly white and Asian—and probably, before too long, overwhelmingly Asian.

  When President Johnson first instituted affirmative action, one of the underlying purposes was reparation to the descendants of former slaves. African Americans who felt the sting of racism directly were helped by the policy. The goal of increased diversity, in schools and the workplace, was intimately connected to this reparation function of affirmative action, but that is no longer the case. In today’s America, many of the people who benefit from diversity policies are not disadvantaged African Americans, but Latinos, Indians, Africans, Vietnamese, Iranians, Pakistanis, Chinese, Koreans, and so on. Nowadays there is tremendous diversity on university campuses, so critics of affirmative action feel comfortable calling for termination of the policy. Many people argue that the policy has successfully balanced a previous imbalance (lack of diversity), and so what was once a fair preference has now evolved into an unfair preference.8

  Add to this perspective the argument by middle-and upper-class African Americans that we’ve outgrown affirmative action, and we see the policy slipping away in contemporary political conversation. President Obama, for example, has stated that his own privileged daughters don’t deserve affirmative action preferences.9 Instead, he argues, low-income students of all races should be given preferential treatment. At the same time, his own Department of Justice supported race-based admissions at a recent University of Texas case.10

  Suffice it to say, there is not only significant confusion around the role of affirmative action in our egalitarian culture, but also conflicting intuitions (in the same individual) about its role in the good society. A simple appeal to fairness does not help, since meritocratic rejection of the policy looks perfectly fair in correlating the skills of students with their deserts. But then again, preferential admittance also looks fair in the real world of imbalanced playing fields.11

  We also have a different complexion in the United States these days—different from when preferential racial policies first emerged. Not only is there more diverse immigrant color in the tribes of contemporary America, but also a new generation (or two) of racially mixed offspring. The intermediary shades—the two-tribe offspring, like my own son—are growing rapidly. When it comes to schools and other opportunities, I play the odds—like every other parent of mixed-race kids. If I can give him some advantage by marking him as “Chinese” on some application, I do it. If there seems an advantage to being marked white, I do it. Both designations are true, after all. The trouble in these days of quota lotteries and handicapping is that it is nigh impossible to figure out which racial designation will help and which will harm. If a school thinks there are too many whites admitted, then some minority status will be helpful for admittance. But Asian applicants frequently outperform other candidates and have to be discriminated against to keep them from overpopulating competitive programs.12

  Massaging institutional systems to the advantage of your own tribe is, of course, an old and ubiquitous story. Economist Thomas Sowell argues, however, that the history of affirmative action policies in India, Sri Lanka, Nigeria, and Malaysia reveals a series of worrisome consequences.13 First, affirmative action encourages non-preferred groups and individuals to redesignate themselves as preferred (victim) groups, in order to take advantage of the preferred group policies. Secondly, Sowell—himself African American—claims that affirmative action policies often benefit the most fortunate of the preferred group (e.g., wealthy people of color) rather than the less fortunate. And Sowell also argues that such policies reduce incentives for both preferred and non-preferred groups to do their best. Preferred groups don’t have to work hard, according to Sowell, and non-preferred groups will not be rewarded when they do.

  Those who oppose affirmative action usually do so on the grounds that it goes beyond mere equal opportunity and thereby spoils our merit-based systems of excellence. Conservatives and libertarians rely on the notion of fairness that says: Merit deserves more. And of course this merit-based fairness vies against the liberal notion of fairness as “equal shares” or “equal outcomes.” My idea of tribal favoritism, as a unit of ethical value and action, comes to this old two-party fight like a prickly independent. Where do my allegiance circles of favoritism fit in this fight over fairness?

  First, it’s important to point out, as I’ve done repeatedly throughout this book, that fairness—even as an ideal—is not robust enough to handle our big ethical challenges. It’s like bringing an accountant, armed with a ledger, to the front lines of a war zone, asking him to sort out the trouble. Larger moral frameworks, like the good of the commonwealth, are more helpful than egalitarian grids. Understanding the moral health of the nation, for example, is not all that different from understanding the health of an individual. As I discussed in chapter 3, understanding and solving moral problems is similar to a physician taking a medical history (with all the idiosyncrasies, anomalies, and exceptions). When we switch from the egalitarian grid to this unique, historically sensitive approach, we find room for harm-reduction responses to troubled organs in the social body.

  Using this approach of commonwealth good, we can recognize that some groups have been disadvantaged by historical abuses and need remedial measures. This is not a question of fairness or even equality per se, but the health and wellbeing of the social organism. To continue my medical analogy, if I have been abusing my lower back at work for years, then my vertebral alignment may become compromised, my other back muscles may try to overcompensate and become damaged, my hip may go out, and my ability to walk and work might unravel.

  Is it that much different to point out that a social group—having been abused for many years—can become the catalyst for a cascade of social ills, if we fail to pursue healthy amelioration? Helping people get educations and jobs, for example, also reduces crime, just like helping people improve fitness also reduces health care costs. In our analogy, it will probably be good for the lower back and eventually the whole body if new strengthening exercises and greater burden is placed temporarily on the stomach muscles. “No fair!” cry the stomach muscles. “Get over it,” responds the physician. Fairness is not the point.14 And notice, after our dismissal of the fairness criterion, that we are not left mute or helpless when trying to harmonize the competing tribal interests of biological and social bodies.

  So, then, how do we evaluate affirmative action after we’ve stopped trying to force it into an unnatural fit with egalitarian philosophy? First, let’s respond to the criticism that such policies lead non-preferred groups and individuals to redesignate themselves as preferred (victim) groups, in order to take advantage of the preferred group policies. Well, to be frank, I fail to see the problem here. Yes, I will try to get my son designated as Chinese if it bestows some advantage on him—white if that works better, maybe even Latino if I can figure out how to do it. I’ll also try to make him tall (by stuffing him with nutritious food), and later in
life he may choose to wear thick-heeled shoes to “redesignate” himself as taller (and thereby attain significant advantages). Some people try to redesignate themselves as attractive (by means both cosmetic and surgical), and many people try to get others to categorize them as smart (sometimes a preferred group) or even dumb (also sometimes a preferred group). Still others will use slightly different versions of their names, or even rename themselves, when they perceive that certain ethnic names will get preference. The only moral jeopardy I see here is possible deception, but there are myriad forms of changeable identity representation that do not constitute fraud. More importantly, my argument has consistently placed the ethics of family loyalty over universal maxims (whether biblical or Kantian), so even lying to strangers to advantage kin is not a major sin in my book.

  What about the criticism that affirmative action policies often benefit the most fortunate of the preferred group (e.g., wealthy people of color) rather than the less fortunate? Here is a situation where history matters, in our physician case-history approach to social ethics. If race-based preferences were healthy in the early days of affirmative action, but they’re now failing to reach the truly disadvantaged, then it’s time to retool the policy along the lines of class rather than race. When our black president tells us that the time has come to shift preferences from race to class, we should take the suggestion seriously.

  Lastly, how do we respond to the criticism that preferential policies reduce incentives for both preferred and non-preferred groups to do their best? People won’t work hard if they get handouts, according to Thomas Sowell. Like other free-market proselytizers, Sowell assumes that there is some higher good above the level of citizen happiness—something like nation-state status—and that this geopolitical status (as innovators, world leaders, with technological or economic superiority) trumps any happiness and prosperity of its welfare citizenry (who will, supposedly, grow fat and lazy as lotus eaters). This might be true, though I doubt it.