ARGUMENTS AGAINST AFFIRMATIVE ACTION

I. Arguments for AA from last time:	

A. Natural Rights Theory (Backward-Looking): AA as compensation for 
systematic, governmentally-condoned violations of Lockean rights.
B. (Forward-looking) consequentialist (utilitarian) arguments:
AA as necessary to advance such ends as (greater equality, a more diverse 
society, a workforce better trained to deal with an increasingly diverse society 
and international economy.
C. Contractualism.
1. AA as necessary to achieve fair equality of opportunity.  (To make life 
chances more closely match native talents.)
2. AA as necessary to prepare students to participate as equal citizens in 
political debate and decision-making.

II. The “simple” argument against AA.

1. It is unjust to discriminate against individuals because of their race.
2. AA discriminates against individuals because of their race.
3. Therefore, AA is unjust.

III. Problems with the “simple” argument.

A. As we ordinarily use the phrase ‘discriminate against,” is by definition unjust 
to discriminate against someone (on any basis that counts as “discrimination 
against”).  Consequently, simply to assert that discrimination on the basis of 
race is discrimination against is question-begging.
B. Suppose, we change the simple argument to: 
 1’.  It is unjust to discriminate on the basis of race.
	       2’.	 AA discriminates on the basis of race.
	       3’.	 Therefore, AA is unjust.
C. 1’, the leading premise, seems very plausible.  After all, isn’t racial 
discrimination what proponents of AA think is the injustice that, as they 
sometimes argue, calls for AA as compensation?  Doesn’t that make AA 
reverse discrimination?  And if so, how can two wrongs make a right?
D. How can proponents of AA respond to this line of argument?
1. It is question-begging to assert that discriminating on the basis of race is 
always unjust, since that is just the point at issue.
2. Moreover, what was unjust about the previous racial injustices to which 
AA responds is not that they taking race into account, but that they did so 
in a way that either
a. systematically subjugated,
b. excluded, 
c. or stigmatized (or some combination of these)
3. Does AA do any of these?
E. This suggests that critics of AA will have to buttress the “simple” argument.  
How might they do so?

IV. A promising strategy might be to consider various arguments that proponents 
have given for AA and argue that, not only do these not justify AA, but that, when 
combined with a more careful look at social, political, economic, and historical 
data, they can be shown to argue against AA.

V. For example, consider the backward-looking argument (what Scalia calls the 
“restorative argument”).

1. Blacks, as a group, have historically suffered substantial systematic 
violation of (Lockean) natural rights.
2. Victims of rights violations acquire a right to compensation.
3. AA programs are one way of fulfilling this right.

A. Scalia argues that taking this argument seriously would require us to:
1. Identify other groups who are also entitled to compensation for substantial 
systematic violation of rights.
2. Identify relative-responsibility of groups with current members for these 
violations and, consequently, the degree of obligation to provide 
compensation.
B. Such a “Restorative Justice Handicapping System” would then give each 
individual an AA score, either positive or negative.  And such a system, he 
argues, would be “thoroughly offensive.”  Assume for the moment this is 
correct.  Presently, we will consider what, if anything, would be offensive 
about such a system.

VI. How might proponents of AA respond to this argument?  They might argue that 
the argument does not generalize in the ways that Scalia proposes.

A. As regards the first point (V.A.1), they might argue that forced emigration, 
slavery, the “social death” (and political death) of deprivation of the status of 
citizen, and the more violent remnants of slavery in our society, make the case 
of race different.  
B. As regards the second point (V.A.2), they might argue that we shouldn’t think 
of the obligation to compensate as borne by the descendents of individual 
perpetrators, but rather by the society as a whole.

VII. One reply that critics of AA might make to these responses is that even if they 
work in theory, they don’t in practice, since:

A. As Sowell claims, it is politically difficult to keep AA narrowly 
circumscribed.  Historically (and viewed internationally) AA programs tend 
to expand in scope, to take in more groups.
B. AA programs tend to be viewed as an attempt to make descendants of the 
perpetrators compensate descendants of the victims—reverse stigma.  

VIII. Now consider forward-looking arguments.  Here critics of AA argue that:

A. AA fails to have the good consequences that are claimed on its behalf.
B. AA has further, unintended bad consequences.

IX. As regards the claimed benefits of AA, critics argue:

A. Blacks who are most disadvantaged have not been helped (even superficially) 
by AA.  Indeed, they have been hurt.  The growth of the black underclass was 
coincident with growth in AA.
B. Even blacks who appear to benefit by AA, don’t get real educational benefits.
1. The educational system does not hold them to the same standards, 
so they are less likely to hold themselves to these standards.
2. They  are, on average, placed in educational environments that are 
inappropriate for their level of skills and preparation.

X. Moreover, critics argue that AA also has the following bad consequences.

A. It creates a “spoils system,” in which groups contend for benefits rather than 
individuals being evaluated on their merits.
B. It adds to group conflict.
C. It creates increasing cynicism, as academic decisions are believed to be driven 
by politics.
D. It undermines the initiative of both those who benefit and those who don’t.
E. It perpetuates ways of categorizing people, including the very concept of race, 
which are inherently unjust.
F. It