Tuesday, August 7, 2012

Affirmative Action & Reverse Discrimination - part 3

This is part three of an online debate about Affirmative Action which took place in 2010. To get all of the background information and start at the beginning click here.

Day 3 - the Final Arguments

Captain this could go on endlessly but I need once again to address some of your points:

Congress is comprised of elected officials. Blacks, muslims, etc. can not be elected if they don't run but there is nothing inherently discriminatory in the process. Once they get to congress, nothing in the way they function is inherently racist, sexist, etc.

I am not advocating reparations. My advocacy is for AA. Reparations confirms a willingness of our nations to provide redress as I have stated several times now.

You say there is no bad peace but I disagree since its not how its achieved - its how its maintained. Pax Romana was a bad peace for many. We can use several means to achieve a fair distribution of opportunity but how we maintain it is another question.

In the pennies analogy one can substitute you and your brother with classes of people. One class receives more than another and the only way to be fair is make up for the shortfall. Your argument that I must hurt you to be fair to your brother has been specifically address by the opinions of the court. I have said before and you have apparently ignored, that when the court rules on legality, it supports its position with opinions. The opinions address the social issues, fairness principles, justice, morality and philosophical foundations as well as legal precedence which support a court position. The court has said the advantaged group is NOT hurt when AA is applied. That is not a law - it is an opinion of the court in support of a procedure which was challenged as unconstitutional. In other words, many applications of AA do NOT violate anyone's natural or given rights and are thus justified as well as being fair.

AA does not give anyone moldy cake (allogorically). See paragraph above. It offers good cake and then selects who gets it.

Just to clarify, I did mention "each his due" because I think AA meets that very broad standard of justice but I will address a much more precise definition of justice later. (don't worry it will not be narrow or abusive - it will be one you have probably used yourself in LD).

John Rawls in the seminal work "A Theory of Justice" posits that if people existed behind a "veil of ignorance" they would not know their social class and so would choose for themselves a system or social contract which is uniquely fair and maximizes the advantage of all social classes. This is Rawls' "original position" in which the principles of justice are decided from behind a veil of ignorance. Rawls writes: "They are the principles that rational and free persons concerned to further their own interests would accept in an initial position of equality as defining the fundamentals of the terms of their association."
The original position is a hypothetical construct to illustrate the inate tendancies and qualities of humans being both altruistic and egotistic. Since Rawls argues a system that man would choose given the hypothetical situation, those resulting principles of justice are moral.

Rawls states men would choose two priciples of justice. First, "each person is to have an equal right to the most extensive scheme of equal basic liberties compatible with a similar scheme of liberties for others." This principle covers basic rights and liberties such as freedom of speech, the right to property, the right to life and liberty, etc. However Rawls limits his list to basic freedoms and holdings: "liberties not on the list, for example, the right to own certain kinds of property (e.g. means of production) and freedom of contract as understood by the doctrine of laissez-faire are not basic; and so they are not protected by the priority of the first principle."
Accroding to Rawls, the first principle is lexically prior to the second principle and so can not be violated by the second principle.

The second principle states: "Social and economic inequalities are to be arranged so that:
a) they are to be of the greatest benefit to the least-advantaged members of society (the difference principle).
b) offices and positions must be open to everyone under conditions of fair equality of opportunity"
Under this principle, Rawls establishes a somewhat egalitarian view but he allows inequalty only under the condition that it advantages the least well off in society. Rawls also says that one ought not be advantaged by arbitrary factors such as the family one is born in to and one is not entitled to advantage simply as a result of inborn talent.
In the second principle, Rawls requires that positions be distributed on merit but more importantly, that everyone must have the opportunity to acquire the skills under which are meritorious.

In the book "Groping Toward Utopia", Castagnera writes: "Rawls’ theory of justice requires the advantaged to help the disadvantaged under circumstances in which the disadvantaged benefit more than the advantaged do themselves.
The anthropological principles of enlightened self-interest and reciprocal altruism suggest that such policies are not necessarily unacceptable to the advantaged members of a society. Past public policies support this conclusion."
This idea was further upheld by the US Supreme Court in the Bakke case. In this case, Justice Brennan cited his opinion which established the rationale behind the decision. This further supports my contention that court is a does provide additional opinion to support the moral and just principles behind its decisions.
This is best explained by Stanford University:
"Brennan agreed with Powell that no classification whose purpose is to stigmatize people with the “badge of inferiority,” could withstand judicial scrutiny...Brennan granted that if a state adopted a racial classification for the purpose of humiliating whites, or stigmatizing Allan Bakke as inferior and confining him to second-class citizenship, that classification would be as odious as Jim Crow. Allan Bakke may have been upset and resentful at losing out under the special plan, but he wasn't “in any sense stamped as an inferior by the Medical School's rejection of him.” Nor did his loss constitute a “pervasive injury,” in the sense that wherever he went he would be treated as a “second-class citizen” because of his color ..given the asymmetrical position of whites and blacks in our country, we are not likely to encounter laws that try to stigmatize whites as an inferior caste (much less succeed at it). But this merely shows that a principle applied to different circumstances produces different results."

In his study, "Rawlsian Affirmative Action: Compensatory Justice as Seen from the Original Position", Robert Allen establishes three approaches to affirmative action used historically and evaluates them on the basis of Rawls theory of justice. He writes:
"I shall construe the goal of affirmative action policies in Rawls' terms. Thus, they are to be understood as being designed to secure for those who were harmed by a violation of either one of the above principles the measure of primary goods to which those principles entitle them as well as a remedy for the effects of their deprivation. They, then, require us not only to change current distributional practices so as to make them fair, but also to help those disadvantaged by past injustices become capable of utilizing the assets such a change would bring their way."
"As noted above, Rawls believes that in the original position a rational agent would choose the first and second principles of justice. He leaves unanswered, however, the question of how to make amends to the victims of injustice (145). Foreseeing the possibility of the above principles being breached, I propose to answer this question by choosing, from behind the veil of ignorance, principles of compensatory justice."
Allen then lays out his rationale for determining that certain AA methods do in fact meet Rawls fairness criteria and satisfy the first and second priciples of justice.

This should be enough to start the final discussion.

Election process isn't discriminatory? I'd ask some minorities before you make that assertion. You forget everything a person must go through before she can be elected; accordingly, AA should be applied each step along the way so that we can get more proportional diversity in our government, yet it does not happen. While inherently it seems that getting elected to government isn't discriminatory (and legally not so), some might disagree, as would many who argue in favor of AA - I maintain that there's nothing inherently wrong with the system of getting into an institution, but some minorities would disagree. But I'm not going to make that a major point of contention. I could use the same argument against you to say that if more white men apply for a position then clearly there are going to be more white men working somewhere than minorities. Yet you still say that as soon as a minority comes into the picture, on the basis of proportional diversity, redress, whatever position you want to advocate at this point, the minority should get it based on that reason alone (assuming all other factors are equal). I maintain that these reasons are unjust. If you're not advocating this, then there's no reason to have AA because AA serves no other purpose, seeing as the definition above notes that the purpose is to remedy under-representation, and you seem to have argued on behalf of some correction for a past wrong as well (but maybe I'm wrong about the latter part).
I'm saying that reparations are better than AA. It's a one-time thing that only affects those actually harmed by something done. In the case of the Japanese, the USFG specifically harmed specific people, and reparations were issued to correct that. That is more just than an arbitrary program that affects all minorities, discriminated against or not.
“Bad” peace… that’s what I meant. In theory, “peace” can’t be bad, so if injustices are still occurring, then there’s no actual peace. Remember, peace has two components, positive and negative. Pax Romana was only concerned with negative peace. But negative peace doesn’t mean “bad peace”; it merely refers to the absence of war. But we digress.

Again, the Court is deciding legality/Constitutionality. Just because a majority of nine people doesn’t believe it’s unjust doesn’t mean it isn’t. If I find five or six people that disagree with the Court, then we have a stalemate. I still maintain that if I can’t get a job or into a college or whatever scenario because I’m going up against an equally qualified minority, but the minority gets the job because of some argument for proportional diversity/redress/whatever, I’m specifically being harmed because I cannot choose what race or gender I am.
I’m pretty sure your argument about cake flows to my side? Now you’re specifically handing things to some people but not others, and you’re not even trying to prove any sense of fairness. You’re being overtly discriminatory, so I think you just lost that point. (At least in my scenario everyone still gets cake; just some of the cake sucks.)

No offense, but it took you ENTIRELY too long to bring up Rawls; he was the first justification I thought of for this topic, so I was really hoping that you would’ve brought him up sooner. I know all about Rawls, and this is where I thought we were going to go.

Basically, we’ve discussed two general arguments in support of AA: 1) compensatory (for past wrongs), and 2) diversity. If a person is selected for a position for a job or college for the purpose of diversity, the person is used as a means to an end, which is immoral according to Kant; I’ve also provided analysis that AA wouldn’t be willed as a universal maxim because if a person knows that he could miss out on a position because he’s not of a certain race/ethnicity/gender, he would not want such a program in place; thus, AA violates Kant’s Categorical Imperative, and is immoral on that basis. We must now limit the scope of the debate to redress for a past wrong.

If we’re looking to redress for a past wrong, then it seems that we would argue that these people morally deserve an advantage. I propose that we look to Aristotle, since he ties justice to moral desert. Aristotle says, “Justice involves two factors: things and the persons to whom the things are assigned. In general we say that persons who are equal should have equal things assigned to them.” But equal depends on what we’re distributing. For example, the best flute players should get the best flutes. It IS “just” to discriminate in this way. Aristotle says that all justice involves discrimination, but discrimination must be according to relevant excellence (e.g. don’t give the best flutes out to those who can simply pay the most, or those with the most beauty, etc.). Thus, we must determine the end of an institution before we can determine how to distribute it.

Aristotle talks about how people are part of a polis (political community) and it is in this polis that we are concerned with distributive justice. Aristotle says, “Any polis which is truly so called, and is not merely one in name, must devote itself to the end of encouraging goodness. Otherwise, political association sinks into a mere alliance.” He continues by saying, “Law becomes a mere covenant, a guarantor of man’s rights against one another, instead of being – as it should be – a way of life such as will make the members of a polis good and just.” “A Polis is not an association for residents on a common site, or for the sake of preventing mutual injustice and easing exchange. The end and purpose of a polis is the good life, and the institutions of social life are means to that end.” We can derive from that the principles of distributive justice. Those who contribute the most to an association that aims at this good should have a greater share in political rule and in the honors of the polis because they are in a position to contribute most to what political community is essentially about. Aristotle argues that the polis exists by nature and is prior to the individual.

This relates to AA because we shouldn’t be distributing goods (e.g. college education or a particular job) based on redress for past wrongs; we need to better our society by promoting the person who can best contribute to the virtue of society. Now, if that happens to be a minority, then by all means it is just. But to simply say that because a person is a minority and that she “deserves” something because her ancestors were discriminated against does not necessarily promote a virtuous society. Thus, programs such as AA do not always benefit those who really deserve a position and, according to Aristotle, are unjust.

Now for specific analysis on Rawls: Without discriminatory laws/practices (discriminatory in the sense of marking one race as inferior as what used to be done to blacks), everyone has access to equal and basic liberties, so Rawls first principle is met without AA. As for his second principle, if we agree that one ought not be advantaged based on the arbitrary factor such as the family one is born into, how is giving an advantage based on race/ethnicity/gender any less arbitrary? One can no more control the color of her skin than she can the family she was born into. (I believe this answers the rest of your arguments in support of Rawls.) However, your last post specifically says that Rawls “leaves unanswered, however, the question of how to make amends to the victims of injustice” leaving your point up to pure conjecture by the author (Allen). The very first line you quote says, “I shall construe the goal of affirmative action policies in Rawls’ terms” meaning that no one has ever actually made the link, and I maintain that he’s MISconstruing. Again, it violates Rawls’ second principle because race is arbitrary. The only weight you gain from Allen’s argument is that those who have specifically been harmed by a discriminatory practice should benefit from AA – something I’ve already said could be considered just. However, what is unjust is that AA is applied with a broad stroke and applies to ALL minorities, whether they were discriminated against or not. Thus, Allen’s argument is mooted, but more importantly, Rawls’ argument goes away based on the arbitrary factors inherent in AA.

haha well you assume that I knew where this was heading when we started and I didn't. It eveolved as I learned what AA was and so Rawls emerged as the logical choice for a definition of justice. Especially since Rawls released his work right in the middle of AA programs coming into common practice.

As for Kant - I would pull out my anti-moral imperative cards. Rawls establishes his own definition of morality suitable for his principles of justice as I mentioned and it is the one I would hold to, rejecting Kant - especially since he does not tell what we ought to do, only what we ought not.

It was an interesting debate, unfortunately to go any deeper now requires me pull out sources which can be used against our younger debaters. We have exposed many great ideas already and so lets leave it at that. Your partner Duffy, did not contribute much. Next time choose a partner who doesn't work midnights. lol

We'll do it again sometime.

Sources cited in the debate:

Social Philosophy, Rawlsian Affirmative Action: Compensatory Justice as Seen from the Original Position, Robert Allen

Nelson Lund 1995, Special Report to Congress, Reforming Affirmative Action in Employment:
How to Restore the Law of Equal Treatment

Affirmative Action Review, Related: Adarand, U. S. Department of Justice
DJ, Office of Legal Counsel, Washington, D.C. 20530 June 28, 1995
From: Walter Dellinger, Assistant Attorney General

Research Perspectives on Race and Employment in the Advertising Industry
Marc Bendick, Jr., Ph.D., Mary Lou Egan, Ph.D.
Bendick and Egan Economic Consultants. Inc.
January 2009

EEOC no. 21BA70521 Jordan vs. State of Illinois, 2007
Complaintant claims he was denied employment opportunity and was fired based on race.
Court upholds there is SUBSTANTIAL EVIDENCE

Discrimination and Affirmative Action by Dr. Jan Garrett
April 23, 2004.

Office of Legal Counsel, Title VII/ADEA/EPA Division

AUTHOR Tesfagiorgis, Gebre H.
TITLE The Legitimacy of Statistical Evidence in
Discrimination Lawsuits in the Context of Employment
in Higher Education. AIR 1991 Annual Forum Paper.

Discrimination and Affirmative Action
David Simon
University of Michigan


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