Affirmative Action and Racial Preference: A Debate

Affirmative Action and Racial Preference: A Debate

Affirmative Action and Racial Preference: A Debate

Affirmative Action and Racial Preference: A Debate


Racial preferences are among the most contentious issues in our society, touching on fundamental questions of fairness and the proper role of racial categories in government action. Now two contemporary philosophers, in a lively debate, lay out the arguments on each side. Carl Cohen, a key figure in the University of Michigan Supreme Court cases, argues that racial preferences are morally wrong--forbidden by the 14th Amendment to the Constitution, and explicitly banned by the Civil Rights Act of 1964. He also contends that such preferences harm society in general, damage the universities that use them, and undermine the minorities they were intended to serve. James P. Sterba counters that, far from being banned by the Constitution and the civil rights acts, affirmative action is actually mandated by law in the pursuit of a society that is racially and sexually just. The same Congress that adopted the 14th Amendment, he notes, passed race-specific laws that extended aid to blacks. Indeed, there are various kinds of affirmative action--compensation for past discrimination, remedial measures aimed at current discrimination, the guarantee of diversity--and Sterba reviews the Supreme Court cases that build a constitutional foundation for each. Affirmative action, he argues, favors qualified minority candidates, not unqualified ones. Both authors offer concluding comment on the University of Michigan cases decided in 2003. Half a century after Brown v. Board of Education, issues pertaining to racial discrimination continue to grip American society. This penetrating debate explores the philosophical and legal arguments on all sides of affirmative action, but also reveals the passions that drive the issue to the forefront of public life.


Rejected by the Harvard law school some years ago, Stephen Carter (now a distinguished professor of law at Yale) was later called by a succession of Harvard officials who told him that his rejection had been a mistake. Said one: “We assumed from your record that you were white.” Carter had been managing editor of the Stanford Daily as an undergraduate; Harvard, having acquired “additional information” about his skin color, now wanted him badly. “I was good enough for a top law school, ” Carter later wrote, “only because I happened to be black.”

Race preference, ugly and unfair, is standard practice in American colleges and universities; it is enforced by rule in state and local governments, and in the federal government also; it plays a critical role in hiring and promotions in much of the private sector. Wellmeaning racism is unhappily but widely ensconced. My essay, with which this book begins, presents the case for a great and wholesome change: the elimination of all preference by race.

The book continues with an essay in defense of race preference by my friend and colleague, James Sterba. He calls what he defends “affirmative action, ” and he defines affirmative action so that it will encompass both unobjectionable, non-preferential efforts to be fair and outright race preference. He is at liberty to define and defend as he pleases, of course. But clumping the just with the unjust obscures what is truly at issue. Many good policies are appropriately called affirmative action, but outright race preference is not made good by giving it that name.

The appropriate order of the pieces in this book was a source of intense disagreement between Professor Sterba and me. He very much wanted to present a defense of “affirmative action” first, to be followed by my critical essay. This was unacceptable to me because . . .

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