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8 Preferential Treatrnent Versus Purported Meritocratic Rights Richard J. Arneson Controversy persists in the United States over whether affirmative action hiring policies are an effective means of achieving legitimate social goals. Some query the moral legitimacy of any of the goals that affirmative action might be thought to serve; others believe that if there are any such legitimate goals, affirmative action will not help to achieve them. These controversies are important, but I intend to focus on a different issue in this chapter. Consider the norm that, other things being equal, it is morally undesirable if some persons are worse off in. life prospects than others through no fault or voluntary choice of their own. An implication of this norm is that, other things being equal, it is morally undesirable if some persons are worse off than others in Hfe prospects on account of their race or skin color. Call this implication the norm of racial egalitarianism . Although this latter norm is controversial, I suppose that many more persons would assent to it tha11 to the broader egalitarian principle. The force of assenting to it will vary, of course, depending on what one packs into the proviso of other tl1ings being equal. Leaving this matter aside, I assume that most citizens of modern democracies correctly believe that compliance with the norm of racial egalitarianism is a legitimate goal that governments should seek to pursue by reasonable and morally permissible means. I wO'uld also claim that there is a broad consensus in support of a some'\ivhat stronger assumption: The goal of achieving racial egalitarianism is a requirement of justice, hence a morally mandatory, not merely morally permissible goal. Assuming all this, I will address a narro',v question: whether or not policies of weak preferential treatment or reverse discrimination that are agreed to be effective means to the morally mandatory goal of racial 158 Richard J. Arneson egalitarianism are nonetheless unjust in that they violate the moral rights of disfavored applicants. Weak preferential treatment occurs when a more qualified candidate for a job or post is passed over in favor of a less qualified (but still qualified) candidate on account of the race or ethnicity of the applicants (or their sex-but for convenience I limit my discussion to the racial application). In Chapter 3, Lawrence Becker explicitly assumes that there is a wide agreement today that preferential treatment ("double standards for appointment criteria") is unjust. In Chapter 2, Robert Simon argues vigorously toward the conclusion that preferential treatment is in fact unjust. I say that Simon argues "toward" this conclusion rather than to it because he does not commit himself as to whether his arguments compel this verdict of injustice that they attempt to support. Both writers work to convey the impression that there are powerful philosophical arguments capable of rationalizing the ordinary person's "common sense" opinion that preferential treatment is unfair. But nothing could be further from the truth. The philosophical arguments against preferential treatment are nonstarters. Recent shifts in political opinion in the United States regarding affirmative action policies are not tracking a reasonable philosophical consensus any more than the fact of the Compromise of 1877 ending hopes for Reconstruction was any sort of signal that new and powerful philosophical arguments for Jim Crow laws were informing public discourse at that time. The discussion to follow proceeds within the following deontological constraint: If a policy proposed as a means to promote a morally required goal is in itself wrongful or unfair, the policy should be rejected even if it is necessary for the achievement of the goal. In other words, the constraint holds that if preferential treatment is unfair in itself, then that policy is morally forbidden even if it turns out that it is the only way to achieve the obligatory goal of racial nondiscrimination . (The constraint would in that case condition the obligatoriness of the goal.) This constraint is nontrivial. Indeed, it is very likely false at least in this sense: If the only alternative to imposing an unfair burden on one person is allowing greater unfair burdens to be imposed on other persons, then imposing the unfair burden is the lesser evil and hence ought to be chosen. For example, if the only way to prevent two murders is to commit one comparable murder, then committing the one murder is morally right, because on a scale of injustice two murders are worse than one. So even if preferential treatment should turn out...

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