Some Mistakes in Thinking about Affirmative Action

14 SOME MISTAKES IN THINKING ABOUT AFFIRMATIVE ACTION* Donna H. Kerr* Educational Policy Studies University of Washington Once I was a member of a university council that, among other things, played "watchdog" when decisions were being made regarding whom to appoint to high places in the univeristy administration. One of my colleague's favorite points was that if a candidate hedged with a "yes and no" or a "yes, but..." to the query, "Would you support affirmative action?", such a re­ sponse should be taken as prima facie evidence that the candidate didn't really support affirmative action and so should not be hired. It is diffi­ cult not to empathize with the "yes, but" response. Most anyone who works in educational institutions can cite cases in which it seems that affirmative action worked—that it encouraged just decisions. As illustration, there is the case of the brilliant young minority professor who would likely have been passed over for lesser applicants had it not been for affirmative action. But also it is disappointingly easy to recall cases in which injustice has reigned in the name of affirmative action, e.g., the woman who, with minimal qualifications, was appointed project director, in consequence of which both the project and the woman suffered. Indeed, it is with such cases in mind that many of us (whether of the minority or majority, whether female or male) reply with a "yes and no." How are we to understand the inconsistent results of affirmative action policies? That is, why is it that affirmative action seems to pro­ mote both just and unjust decisions? Is it that affirmative action policies, by their very nature, encourage arbitrary decisions? *My thanks to Robert E. Tostberg for his helpful criticisms. 15 Or does the seeming inconsistency derive not from the affirmative action policies themselves, but from failures to implement properly the policies? Or perhaps is it differences in understandings of what constitutes affirmative­ action policy that accounts for the sometimes just and sometimes unjust decisions made in the name of affirmative action? My hunch is with the latter; there is more than one type of affirmative action policy and not all types are just. In order to distinguish just from unjust affirmative action, some analysis of the notion of affirmative action policy is required. Professor Maccia's paper, "Affirmative Action Plans: A . Policy Analysis" serves well in that it nudges us into attempting to refine our thinking on affirmative action. Only with some such analysis can our apparent hedgings be shown to be not hedgings at all, but rather qualifications warranted by their capacity to pinpoint our moral commitments. In her paper, Professor Maccia undertakes to pursue a "logical and 1 moral illumination" of affirmative action plans in universities and colleges. With the aim of logical illumination, she first says some things about the nature of policy, policy analysis, and affirmative action plans. Then, in pursuit of moral illumination, she attempts to use Rawlsf s principles of justice to show that affirmative action plans are moral. In order to indi­ cate where Professor Maccia'.s argument in support of affirmative action goes awry, I propose to identify (1) her brand of affirmative action and (2) some mistakes in the logical­illumination section. Then, in a critique of her moral illumination of affirmative action plans, I will attempt to show how these mistakes and other foibles contribute to the failure of her argument in support of affinitive action. Finally, I will suggest what forms of affirmative action in education appear to be defensible as just programs. 16 What Counts as Affirmative Action? In order to identify Professor Maccia's argument in support of affirm­ ative action, it should help at the outset to locate the brand of affirmative action that she considers. Let us begin with the distinction whe draws be­ tween affirmative action and a passive stance of non­discrimination. "(Affirmative action) requires deeds that rectify inequality of opportunity due to discrimination," whereas non­discrimination requires only that"no person... be denied employment or related benefits on grounds of his or her 2 race, color, religion, sex, or national origin," except where such grounds 3 are relevant. If my...