1 I I Is Affirmative Action Wrong?

2 Thomson’s Central Argument Judith Jarvis Thomson: “Preferential Hiring” In at least a certain range of cases, preferential hiring is not unjust, but rather morally permissible (and perhaps even obligatory), where preference is given to a black or to a female candidate over an equally qualified white or male candidate.

3 Some Difficulties with the Central Case Thomson’s central case is specifically one where several candidates have presented themselves for a job, and where all are equally qualified for that job, but where the hiring officer straightway declares for the black candidate (because he or she is black), or for the female candidate (because she is female). Given the central case that Thomson considers, there are clearly some difficulties on pragmatic or epistemic grounds for precisely how it is to be established that all of the candidates are “equally qualified”. Candidates for an academic post are considered on a number of grounds.

4 Some Difficulties with the Central Case (cont’d) Those who write letters of reference can be skewed by prejudice:  A black male may be down-graded in a letter from a white professor because of that professor’s dislike of, repulsion from, or desire to avoid contact with, the candidate.  A woman who is down-graded because she is a woman, however, is usually not down-graded because she is disliked, but because she is felt to be “not serious”.  “A teacher could not face himself in the mirror […] if he had down-graded anyone out of dislike; but a teacher can well face himself in the mirror if he down-grades someone out of a conviction that that person is not serious: after all, life is serious, and jobs and work, and who can take the unserious seriously? who pays attention to the dilettante?” (378)

5 Is Race or Sex a Qualification? Many who favor preferential hiring see race or sex as a qualification itself.  If this is, indeed, the case, then hiring which takes into consideration a candidate’s race or sex is merely a matter of who is best qualified for a post, and there is no issue of injustice or any other impropriety. So why would race or sex be thought to be a qualification?  Claim #1: Blacks learn better from a black instructor, and women learn better from a woman instructor (though this is heard more with regard to blacks than with regard to women).  Claim #2: What is wanted is role models, and as a result of the predominance of white males in academia, both black and female students suffer from constricting ambition. (Claim #2 may provide a reason for Claim #1)

6 Is Race or Sex a Qualification? (cont’d) Claim #1 might not be the sort of consideration that blacks or women will want to argue for. What if it turns out that whites and males learn better from whites and males? Claim #1 requires some evidence beyond the anecdotal, and there seems little to be had one way or the other. Claim #2, however, seems plainly true: black and women students do need role-models.  But do they need role models right there in the classroom?  And, if they do, is it the university’s job to provide them?  Surely, it university is not responsible for providing any service to its students which might be good for them, or even which they need, so why should the university be expected to provide role models for its students?

7 Benefits and the Public Sphere Public universities provide the most problematic grounds for preferential hiring because they are supported by public funds. “[N]o perfect stranger has a right to be given a benefit which is yours to dispose of; no perfect stranger even has a right to be given an equal chance at getting a benefit which is yours to dispose of. You not only needn’t give the benefit to the first perfect stranger who walks in and asks for it; you needn’t even give him a chance at it.” (380) Benefits: things which people would like to have, which would perhaps not merely please them, but improve their lives, but which they don’t actually need.

8 How D’Ya Like Them Apples? If I have some extra apples (They’re my apples, I grew them on my own lad, from my own trees.), and am prepared to give them away, word may get around. People may present themselves as candidate recipients.  I do not have to give them to the first candidate, or have candidates draw straws.  If they’re my apples, I can give them to whomever I like, on any grounds I choose, and yet violate no one’s rights. I treat no one unjustly.  None of the candidate recipients has a right to the benefit, or even to a chance at it.

9 How D’Ya Like Them Apples? (cont’d) We need to consider four caveats: 1.Some grounds for giving or refraining from giving are less respectable than others: I can act badly without thereby violating anyone’s rights or treating anyone unjustly. 2.Although I have a right to dispose of my apples as I wish, I have no right to harm or gratuitously hurt or offend. 3.If I advertise a first-come-first-served-till-supply-runs-out policy, then I cannot refuse the first five candidate recipients because they are black, or white. I have given them a right to a chance at the apples. 4.Some may say I don’t really—or fully—own the apples, even if I grew them on my own land, from my own trees. This seems wrong on its face, but we’ll deal with what is publicly owned later.

10 Is a Job a Benefit? It may be insisted that to give a man a job is not to give him a benefit, but rather something that he needs.  Granted, that people do need jobs, it does not seem clear that any candidate for a job in a university needs a job in a university.  “No one needs that work which would interest him most in all the whole world of work. Plenty of people have to make do with work they like less than other work—no economy is rich enough to provide everyone with the work he likes best of all—and I should think that this does not mean they lack something they need.” (381)  If a university job is a benefit (and not something needed), it is not a “pure” benefit (like an apple), but an “impure” one: a candidate will only be interested and satisfied if he actually does the work he is given an opportunity to do, and does it well.

11 The Eating Club Unlike the members of an eating club, the owners of a university have a responsibility not merely to themselves, but also to those who come to buy what it offers. A (privately-owned) university is normally expected to provide the best teachers it can afford. If it does otherwise, it does not act merely irrationally, but violates the rights of its student- customers. Of course, where the (private) university has to choose between equally qualified candidates, it violates no one’s rights by immediately declaring for the black or white candidate because he is black or white.

12 The Public Sphere, Again Most universities enjoy some public support, and moral issues can be affected by the extent of the burden carried by the public.  “[W]here a community pays the bills, the community owns the university.” If two members arrive at the eating club, and only one table is available, the waiter must randomly choose who gets seated. Likewise, if someone arrives at the eating club with an apple tart, the waiter must divide the tart among the diners equally. These cases suggest a principle of equal division, or equal chance, at some benefit available for distribution.

13 The Public Sphere, Again (cont’d) Likewise, we can view a community as jointly owned by its members, who therefore jointly own whatever the community owns (and, in particular, a public university). As such, each has a right at an equal share, or equal chance, at university jobs if a university job is a benefit. This said, there would seem to be cases where a member may (not unjustly) be deprived of this equal chance or equal share. The university’s students have rights to good teaching, which are surely stronger rights than any member’s right (if there is such a thing) to an equal chance at the job: the member’s right would be overridden, not violated. Perhaps there is some sense in which everyone has a right to “equal treatment”, and this is violated by preferential hiring, but what sort of right is this?

14 Debts and Gratitude Suppose our eating club has reason to be especially grateful to one of its members, Smith, who has done a series of very great favors for the club.  It seems we might, out of gratitude, and with no impropriety, provide Smith preferential treatment, say, in offering him the table, when he is one of two members who arrive when only one table is available. Likewise, if the club owes one of its members a debt (say, $1000 it borrowed from Dickenson), and the club comes into the possession of a $1000 painting, it seems it would be just to not randomize who gets the painting, but to offer it to Dickenson.

15 Debts and Gratitude (cont’d) “If we fail to do anything for Dickenson, we do him an injustice; if we fail to do anything for Smith, we do him no injustice—our failing is, not injustice, but ingratitude.” (385) Similarly, if there are two candidates for a civil service job, where A is a veteran, and B is not, it seems we allow for declaring for A straightway: the country owes him something.  Giving him preference is a not-unjust way in which part of that debt of gratitude can be paid.

16 Debts and Gratitude (cont’d) Granted that failing to make amends to someone we have wronged is not merely callousness, but injustice: a)Are the young blacks and women who are amongst the current applicants for university jobs the ones who were wronged? b)Did we, the current members of the community, wrong any blacks or women? c)What if the white male applicant for the job has never in any degree wronged any blacks or women? These objections seem wrong-headed: granted, none of the young candidates will have likely suffered major civil rights violations, but even young blacks and women have lived through down-grading for being black and female, or felt the consequences of down-grading for other blacks and women: lack of self-confidence and self-respect.

17 Debts and Gratitude (cont’d) “Perhaps justice doesn’t require making amends to them as well; but common decency certainly does.” (386) To fail to do so might not be injustice, but it is at least as great a failing as ingratitude. The white male candidate may not have done any wrong to blacks and women, but they have profited from the wrongs that the community did. “My concern has been only to show that the white male applicant’s right to an equal chance does not make it unjust to opt for a policy under which blacks and women are given preference.” (386)

18 Debts and Gratitude (cont’d) A policy that gives preferential hiring to black and female candidates does not ask the young white male applicant to make amends—it asks no one to give up a job that is already his: the job for which the white male competes isn’t his, but is the community’s, and it is the hiring officer who gives it to the black or woman in the community’s name. If there were some appropriate way in which the community could make amends to its blacks and women without depriving these whites or men of an equal right, then that would be preferable to a policy of preferential hiring. “But in fact the nature of the wrongs done is such as to make jobs the best and most suitable form of compensation.” (387)