To the Editors:
As somebody who has recently been refused an interview for an openly advertised post in a state university explicitly on grounds of my color, I would be grateful for the opportunity to comment on Professor Dworkin’s lucid and interesting article (NYR, November 10).
Broadly, Professor Dworkin argues that those who find themselves excluded from education or employment because of the operation of affirmative action programs should console themselves with two thoughts: first, that all administrative actions and distinctions contain an element of arbitrariness; second, that, as long as they are not being rejected as members of a group habitually treated as inferior, they have no legitimate reason for complaint. Apart from that, Dworkin says, rather coldly, that, of course, we must have sympathy for Bakke, as for all who suffer incidentally from national policies, but that, after all, he had very little invested and was rather old to be starting a career (thirty-three). He also makes a curious analogy with the highway construction industry, to the effect that Bakke is the victim of technological progress.
In fact, one of the features of affirmative action programs is that they disproportionately hurt those who are fairly young and almost never touch those who have, as tenured professors, put their investments beyond risk. In my own experience, the employer (the State University of New York) made no attempt to indicate racial preference when advertising but refused to provide any information about the post (the chairmanship of its Africana Studies Program): I was merely told, five weeks later, that only blacks were to be interviewed and that my qualifications were, nevertheless, “very impressive.” As with Professor Dworkin, no attempt to explain or to sympathize. (All this, I might say, after fourteen years in the field and a post-graduate degree from an African university!)
Surely the most equitable implementation of affirmative action programs would be, at least in employment, to review all posts, senior and junior, in accordance with its principles. As matters stand, those who are excluded are dismissed as necessary casualties (including by Professor Dworkin who, elsewhere, brands as a “meaningless maxim” the notion that the end can justify the means) and are attacked as “racists” by the left and such bodies as the NAACP if they utter the mildest cheep of complaint.
I have every sympathy with the principles of affirmative action, but, as a foreigner, I would despair of its ever contributing to racial harmony, given the insensitivity of its radical and liberal protagonists toward those designated for sacrifice. They have much to say about and against casualties such as Alan Bakke; nothing, it seems, to say to them.
Martin Staniland
Pittsburgh, Pennsylvania
To the Editors:
In “Why Bakke Has No Case,” Dworkin defends the position that affirmative action quotas do not violate the rights of whites excluded from programs on grounds of race. An individual’s rights are violated, he contends, only when the tests employed to exclude him involve prejudice or contempt for a group of which that individual is a member. The affirmative action quotas express no such contempt for white males, but use race only to promote the laudable reduction of racial consciousness in America.
Let it be granted that at least part of the point of protecting individuals from exclusion from public benefits on the grounds of race alone is to protect groups, usually minorities, from public insult. Is it clear that this is the only point? Surely it is at least as much a concern that the value and dignity of individuals be protected, and this value and dignity is undercut by practices such as exclusion from public benefits by irrelevant tests such as race (or religion, or sex, or sexual preference). And just as surely, an individual’s worth and dignity can be threatened by such tests in individual cases, irrespective of their impact on groups.
What has encouraged the view that exclusion on irrelevant grounds violates a person’s rights only in those cases involving contempt or prejudice for a group? Perhaps it is that unfair exclusion is tolerated in case no readily identifiable group is involved. But this does not establish the point that only the protection of groups is at issue. Historically, individuals have been excluded unjustifiably, on the basis of race, religion, or sex, and it is natural that concern for the worth of individuals should emerge in the form of the right not to be excluded on these grounds. The law cannot proscribe every form of injustice of this sort, but it can identify the most common forms and prohibit them. Here, as often, the law does what it can. If this is correct, then Bakke does have a right to be judged on his own merits even though, should he not be so judged, he will not suffer from contempt or prejudice. (I pass over without comment Dworkin’s desperate claim that, in being excluded on grounds of race, Bakke is being judged on his merits [pp. 14-15].)
If Bakke’s rights are being denied by affirmative action, it is crucial to examine the program. What is its point, and what are its prospects of success? Dworkin denies that blacks and other minorities are entitled to preferential treatment (though on this he is fuzzy—by page 15 he has slipped into describing the goal of affirmative action as an “attack on present and certain injustice”), so the only issue can be that of individual rights balanced against the probable social benefits of affirmative action.
Here I cannot share even the guarded optimism Dworkin allows himself. The program will generate a black professional class which will better serve blacks, it is claimed. But what guarantee have we that a black professional class will willingly foresake more lucrative practices, if they can get them, to work in black areas? (One must beware of succumbing to what Bertrand Russell once called the myth of the moral superiority of the oppressed.) It is suggested that black professionals are needed to provide “role models” for black children. But it is difficult to assess how to balance this consideration against the plain fact that quotas generate resentment among those whose rights, as I have argued, must be overridden; and also difficult to balance the advantage against the self-doubts that quotas must arouse in those who benefit from them.
These problems might be set aside if we had assurance that quotas are only temporary. Dworkin offers such assurance, but I can see no reason to believe that reasons for instituting quotas will not be reasons for continuing them, if it should appear likely that discontinuing them would erode the gains blacks make under them. Since the under-representation of blacks in the professions is caused in the main by conditions that quotas themselves will do nothing to correct, such as poverty and a history of oppression, there seems no reason to think that quotas once introduced will not be required for as long as these conditions prevail. And indeed, it would be cruel to provide blacks with “role models” in the professions, thus raising their expectations as well as, perhaps, their self-assurance, and then to remove the conditions on which realizing these expectations depend.
John Robertson
Syracuse University
Syracuse, New York
To the Editors:
…Dworkin is correct when he asserts that merit is difficult to define, and that individuals are rarely judged as such in any pure philosophical sense: we are always categorizing and grouping in the course of making judgments. Yet this does not mean that all characteristics put forth as possible components of “merit” or all treatments of an individual as a member of a group, have equal legal or moral claims for all cases. Historical experience and empirical common sense, operating through the processes of legislation and judicial interpretation, have established a consensus on a number of theoretical principles denoting the best in the Western liberal-democratic tradition. One such principle is that except for the rarest of rarest exceptions (males cannot be wetnurses), ascribed traits such as race, religion, and one hopes sex, may play no role in the public life (housing, education, employment) of citizens. A historic toll of blood and oppression, as well as the understanding that skin color bears no intrinsic relationship to the ability to hit a baseball or interpret an electrocardiogram, have shaped this consensus. Other traits, such as age, are complex and need reflection; still others such as height, or strength, enter our notions of merit without violating our sense of justice or fairness, in limited cases (basketball players, jockeys). There is little reason, other than capricious relativism, why remaining ambiguities in these latter cases need undermine the hard-won recognition of the illegality of the former.
Morton Weinfeld
McGill University
Montreal, Canada
To the Editors:
In your issue of November 10, Ronald Dworkin announced that “Bakke has no case.” Constitutional lawyers are deeply divided on the issue, and many militant Blacks are so fearful of a decision in favor of Bakke that a major effort was launched to persuade the Court to deny certiorari, i.e., to let the California decision stand without passing on the merits. Bakke may indeed lose; the Court may set its imprimatur on racial handicapping. If so, it will not be on Dworkin’s grounds.
Perhaps Dworkin’s failure to see any case for Bakke stems from his misperception of the issue. He starts his argument by declaring that Bakke “applied for one of the remaining eighty-four places”—i.e., those left over after sixteen places had been preempted for non-Whites. Bakke did no such thing; he applied for one of the full hundred available slots, not supposing that he could be barred by a state institution from any available opportunities solely on the ground of color.
Much of Dworkin’s essay is directed at showing that affirmative action is necessary in order to make opportunities equally available to all groups. That is not the issue. There is virtually unanimous agreement on the legality and desirability of affirmative action. The only issue is as to one rare and radical form of affirmative action: a quota from which Whites are excluded. The California Supreme Court in deciding for Bakke outlawed only that; and it outlawed that only because other effective forms of affirmative action are available.
Among forms of affirmative action which the California decision permits and encourages are:
1) actively seeking Black applicants.
2) supplementary training to qualify Black applicants affected by surviving racial disadvantages in schooling and employment.
3) preferring Blacks over higher ranking applicants to the extent that a poly-racial setting improves medical training of all students.
4) preferring Blacks over higher ranking applicants to the extent that Black applicants commit themselves to serve underprivileged Black communities more frequently than Whites.
The California decision even permits preferential Black admissions on the highly dubious basis that it is a function of state education to bring about an allocation of “leadership” positions in society on an ethnically proportioned basis.
