The statement often cited to prove that Affirmative Action is a respectable and required liberal policy and not merely reverse racism came from President Lyndon Johnson at the height of the Great Society: "You do not take a person who for years has been hobbled by chains and liberate him, bring him to the starting line of a race and then say, 'You are free to compete with all the others' and still justly believe that you have been completely fair."
This idea has led to the notion that we must use government (acting both in its own agencies and in forcing similar behavior on private organizations) to establish economic equality between races the way the "earlier civil rights movement" did in the political sphere. But in practice, the actions required to seek this equality of outcome collide with Constitutional guarantees to every individual, irrespective of race, creed or background. The Constitution does not guarantee a certain kind of job to anyone. It insists that all have an equal right to compete for the goods of life (as reemphasized by the 1964 Civil Rights Act), but not that every group have an exactly proportion share in these goods. Or, as opponents of affirmative action have insisted, it is against the spirit of the Constitution to deny a highly qualified white or Asian admission to a public university in order to admit a less qualified black simply in the interests of “group proportionality.” What does it mean to demand that blacks be given "equality with whites" when there is no such "equality" between white ethnic groups (Jews vs. Poles vs. Irish), or even between persons within that any particular ethnic group?
Almost invariably, Affirmative Action's proponents justify the demand for equality of outcome through preferences in hiring, school admission, federal contracting, etc., by claiming that despite the “nominal” equality guaranteed by the Constitution and the Civil Rights Act we still live in a race-conscious society where there is ongoing discrimination. While it is true that there are individual bigots, however, bias in hiring etc. is simply illegal in the United States. And as for the “invisible” or “institutional” forms of embedded racism alleged to be omnipresent by proponents of affirmative action, these too are susceptible to legal challenge. But it is no more logical to infer such racism from the disproportionate presence or even success of some groups in some professions or areas of life than it is to infer that racism has guaranteed, for instance, the success of blacks in the NBA. Sports is a good metaphor: for years there was indeed discrimination against minorities; but today athletics is a truly level playing field where achievement is individual and Asians, blacks, Hispanics and members of other minorities have been dominant.
There is an historical argument at the core of the liberal insistence on the need for affirmative action: we must, in effect, pay reparations through present race preferences for past discrimination. But the evils of the past (e.g., slavery) were committed against -- and by -- persons who are long gone. We can neither punish the actual perpetrators nor compensate the actual victims. We can merely set up a situation, as affirmative action seeks to do, where, as former Supreme Court Justice Thurgood Marshall once said, "You guys [i.e., white people] have been practicing discrimination for years. Now it's our [i.e., black people's] turn."
At the end of the 1990s, a new justification for Affirmative Action emerged. Now, it no longer mattered whether a "racial imbalance" was or was not the result of "discrimination" (past or present, proven or alleged). Now, the failure to achieve proportional demographic reflection -- or to use the obligatory term "representation," was an intrinsic evil. It was inexcusable not to "look like America." The proposed remedy was to ensure, by any means necessary, a "more equal" composition, even if that meant taking race into account -- which is precisely what anti-discrimination laws prohibit in the private sector and the Fourteenth Amendment prohibits in the public sector. "Diversity" became a social goal that justified discriminatory practices in education, hiring etc. Some individuals had to get hurt, in other words, if we were to become a “diverse” society.
Adapted from "Affirmative Action, Negative Justice," by Barry Loberfeld (September 22, 2003).