01 Mar 1996 Let Us Mark The End of Racial Preferences with the Beginning of Equal Opportunity, by Carl Cohen
The object of The Equal Opportunity Act of 1995, which the House Judiciary Committee is expected to vote on by the end of April, is to prohibit our federal government from giving preferences based on race or on sex — and to prohibit the government from requiring or encouraging others to give such preference.
Why in the world would any fair-minded person object to that? Surely there is no ground for complaint if our government does not discriminate! But many well-intentioned people do complain, struggling to retain group preferences — some because they seek to engineer a redistribution of goods to match the proportions of the races and the sexes, and some because they think that such preferences give compensation for past injuries. Reasons of both kinds are deeply mistaken. The moral case against group preference is overwhelming.
Here is the nub of it: to give favor to males or to females, to whites or to blacks or to persons of any color, because of their sex or color, is morally wrong because doing so is intrinsically unfair. Color, nationality, sex are not attributes that entitle anyone to more (or less) of the good things in life, or any special favor (or disfavor).
When preference is naked — given flatly by skin color or by sex — the inevitable result is the award of advantages to some who deserve no advantage, and the imposition of burdens upon some who deserve no burden. Those who are disadvantaged by the preference most often did not do any wrong, and certainly not that earlier wrong to a minority group for which the preference is alleged redress.
The oppression of blacks and some other minorities in our country has been grievous, a stain on our history; no honest person will deny that. But the notion that we can redress that historical grievance by giving preference now to persons in the same racial or sexual group as those earlier wronged is a mistake. It supposes that rights are possessed by groups and that therefore advantages given to some minority group now can be payment for earlier injuries to other members of that minority.
But moral entitlements are not held by groups. Rights are possessed by persons, individual human persons.
In its original sense affirmative action was intended to insure the elimination of racially discriminatory practices — that is the sense in which the phrase is used in the Civil Rights Act of 1964 — and there is nothing in the Equal Opportunity Act of 1995 that would hinder that honorable aim. But most Americans now consider affirmative action to mean preferential devices designed to bring about redistribution of the good things of life to match ethnic proportions in the population. These preferential devices must be rejected because no sound principles, constitutional or moral, justify discriminating by race or sex to achieve some pre-determined numerical distribution of goods.
The principle of equal treatment is the moral foundation upon which the Equal Protection Clause of the 14th Amendment ultimately rests; our Supreme Court has repeatedly emphasized that the rights guaranteed by that clause are individual rights, the rights of persons and not the rights of groups.
Racial and sexual vindictiveness, like preference itself, is the product of “groupthink” — the confused conviction that one group has an entitlement, another group a debt; again supposing that racial or sexual groups are the bearers of rights. It is that very blunder that led us, long ago, to the evils flowing from categorization by race, differential treatment by race. It was wrong then and it is wrong now.
Carl Cohen, a professor of philosophy at The University of Michigan at Ann Arbor, testified before the U.S. House Committee on the Judiciary on December 7, 1995. This article is based on his testimony.