When Race Counts

The Morality of Racial Preference in Britain and America

John Edwards

• Publisher: Routledge
• Year: 2005
• ISBN:
  9781134907168
• Edition: 1
• Topic: Medicine
• Subtopic: Medical Theory, Practice & Reference

When Race Counts investigates the use of race-conscious practices in social policy in Britain and America. It questions the distinction between affirmative action and preferential treatment, and evaluates the effectiveness of a range of education and employment policies designed to counteract both unintended and direct discrimination against ethnic minorities. The book uses both empirical and moral analyses to examine the controversial dilemma of whether and in what circumstances preferential treatment may be used as a means of improving the condition of minority groups. John Edwards looks at justifications for overriding the merit principle, particularly in employment, and shows who bears the costs of such a policy, and where the benefits lie. He argues that the merit principle is in itself so flawed that to override it would cause no great damange to justice. He then sets out the requirements of an acceptable policy of minority preference tailored to the disadvantages of specific minority groups.

1

When race counts

We are right to be wary of policies that take explicit account of race. By such policies we mean those that treat people of different racial groups differently, and which do so by intent. Too many policies that do this have been instruments for repression. Their legacy is an unhappy one and tells us that whatever the ostensible purposes of such policies, there is a grave danger if race, and indeed religion, are allowed to count, that once-benign purposes may turn malignant. But present inequalities between groups that are an inheritance from past harm done by some groups to others may never be righted by policies that take no account of race. In other words, to put right the wrongs of the past it may be necessary once more to let race count. Equal treatment now may not (and probably will not) abolish present inequalities that are the legacy of past unequal treatment, and it may be necessary, in order to achieve a greater inter-group equality, to treat different groups differently—in other words, to let race count.

If, therefore, employment, education, housing and health policies (to name only a few) are to be sensitive to people’s race or ethnic background, in order to establish a greater inter-group equality, we need to ask how far we are justified in giving special help or preference to disadvantaged groups, because to do so appears to promote just those sorts of policy of which we ought to be wary. This is the dilemma of affirmative action and preferential treatment practices. Both types of practice are, within the contexts in which they are used, race-conscious,¹ and preferential treatment more so than affirmative action, though, as we shall see, they are not discrete practices but rather the two ends of a continuum. And because of their race-centredness, both types of practice have been the subject of much debate. For some, they are the only way to achieve equality and equity between groups; for others their use will serve only to harden and crystallise racial divisions in society. For those who take the latter view, practices towards the preferential treatment end of the continuum are manifestly unjust because they must entail (in the area of employment with which we shall primarily be concerned) the hiring or promotion of a less well qualified minority (or target) group member in preference to a better qualified majority group member, in an effort to reduce minority group under-representation in the workforce (or a particular part of it). In short, putting right the wrongs of the past requires that we create more wrongs by overriding the merit principle of ‘the best person for the job’ which must be the foundation of all good employment practice. Or so orthodox practice would have it. We shall see, however, that matters are more complex than this simple argument allows, and ‘merit’ turns out to be a rather less pristine principle than is often thought. There is, in consequence, scope for a defence of policies of preference as well as of affirmative action.

Virtually all public policy (and private policy in the employment field) is supposedly indifferent to the race of the people it affects. We do not, on the whole, have different pensions or housing or employment or health policies for people of different races. If we did, we would rightly be wary of their motives.² Social policies and practices that do focus differentially on racial groups, therefore, will inevitably be subject to particular scrutiny. Our concern in this study is with such groups and the practices which focus upon them. The groups that we are concerned with are racial and ethnic groups, that all have in common a relatively deprived status in employment, housing, income, education and a number of other areas when compared with the majority.³ It is this relative deprivation of whole groups, identifiable by race or religion, that calls forth group-based practices. And this is what makes affirmative action and preferential treatment distinctive and in need of closer moral scrutiny. The beneficiaries of orthodox social policies, if they are defined in group terms at all, are so classified on the basis of morally relevant group characteristics such as need, or having special needs or on criteria of desert or merit (see Edwards 1987: Chapter 3). There is no prima-facie reason, on the other hand, why social and public policy should treat people differently on the basis of morally irrelevant criteria such as race, and when they do there must be good reasons why they do. This requirement lies at the heart of the present study.

Conventional social policies—that is, policies that take no account of race—appear to have been relatively ineffective at reducing inequalities between minority and majority groups.⁴ Now if it were just a matter of minority groups having average levels of needs that were greater than the average levels of needs in the majority group, and if conventional policies allocated resources in proportion to need, then there is no obvious reason why they should not be effective in reducing group inequalities. But the fact that such inequalities persist is in some measure due to past and continuing discrimination of a variety of types and it is of this that conventional policies fail to take account. Discrimination may be inducing needs as fast as conventional policies meet them. We do, of course, recognise direct discrimination against the individual by another or by an institution and there is legislation in many countries that makes such discrimination on the basis of race or religion (and of other factors) a criminal act. But it is not primarily this kind of discrimination that contributes to the relative deprivations of whole groups. Where discrimination is contributory to group social and economic inequalities, it is more likely to be indirect, institutional, often unintended, sometimes unrecognised and endemic. It is this sort of discrimination and its effects that go largely untouched by either social policy or anti-discrimination legislation. Neither is orthodox social policy very sensitive to the multiplicity of factors that contribute to inequalities between groups—of which discrimination in its variety of forms is but one. Hence the need for—or at least the attraction of—race- and religion-conscious policies that are more likely to take account of those factors, peculiar to certain groups, that contribute to their deprivation relative to the majority (and to each other).

The first step onto the continuum of practices that reaches from affirmative action to preferential treatment comes with the recognition of the part that systemic discrimination plays in creating and replicating the relative deprivation of some groups by denying access to goods and services, and by compromising opportunities that ought to be equal to those of majority group members. If, therefore, members of particular minority groups are under-represented in certain occupations or positions, or if they are concentrated in the worst quality housing or over-represented amongst the poor, then this may be seen to be the result of inequality of opportunities in education and employment and of policies which de facto discriminate against them. Such a diagnosis then leads to the promotion of practices designed to remove discriminatory barriers to opportunities and goods and services. Practices of this kind we call affirmative action, though ‘barrier removal’ is not their entirety: there is more to affirmative action than that. Nonetheless, the removal of discriminatory barriers to equality of opportunities with others and to the provision of goods and services commensurate in quality and quantity with the relative needs of minority and majority groups can be seen as the first step away from policies that are blind to race and religion. Affirmative action as barrier removal must, by its very nature, take account of them, though it may be made to appear neutral (and neutralising) in intention and effects. Even more so is this the case when affirmative action develops from barrier removal (such as eliminating discriminatory personnel practices) towards activity that tries to compensate for discrimination, such as concentrating recruiting efforts in minority schools or areas, or advertising posts in the minority press.

Such practices as these, though race-conscious, may be defended in the employment realm at least on the grounds that although special efforts are made to recruit more minority candidates for job or post vacancies, race plays no part in the selection process. The successful candidate will be the best person for the job irrespective of race.

Our intuitive notions of justice would be less satisfied, however, if, in the provision of goods and services such as housing, education, income support or health, we were to give additional resources to minority groups, even if this were to be defended on the grounds of higher average levels of need among such groups. The difference between this and the case of education is that in the latter affirmative action is attempting only to equalise opportunities whilst in the former it is exercising real preference to minorities (which would be justified if all minority group members had greater needs than all majority group members—a situation only very rarely to be found).

The moral dilemmas of race-conscious practices increase the further we move along the continuum from the sorts of affirmative action described above towards what has been characterised as preferential treatment, a discussion of which takes up much of the latter part of this study. It is here that practices appear to breach the canons of justice (or, at least, fairness) by overriding the principle of merit.

Our purpose is not primarily either to promote or to detract from affirmative action or preferential treatment but rather to approach these important areas of public policy with a sense of curiosity. The arguments for and against race-conscious policies, when they are not part of a rhetorical crusade, are complex and, it seems to me, a close-run thing. The arguments must necessarily proceed on a number of fronts, principally the moral, the practical and the pragmatic, but all these are inter-connected and a large part of our task will be to counterbalance arguments on each front. What may in practice and pragmatically be successful may, on the other hand, prove morally unacceptable. Practices that are morally unobjectionable may simply not work and so on.

In an attempt to give substance to our arguments, but also as a means of mapping out current affirmative action and preferential treatment practices, we have looked at examples of practice in two countries—Great Britain and the United States. The race-conscious practices of public and private sector agencies recounted here are not intended to be representative of all current practice in these two countries, but rather they are illustrative of the sorts of practice that are current, and of the sorts of results that are being obtained in terms of minority group representation in employment and education. Neither is the choice of countries intended to be representative of race- and religion-conscious practice in general. The United States selects itself as the country where race-conscious practices are most extensive and widely used and where debate about them is most finely developed. The American experience must be the touchstone against which practice elsewhere should be tested. Great Britain, on the other hand, was selected simply because it is home territory and provides a valuable comparison in terms of race-conscious policy with the United States.

But this is not, strictly speaking, a comparative study. We make no attempt at systematic comparisons of practice or results between the two countries. Rather, experience in one country is used to illustrate that in the other and arguments developed in one are used in analyses of the other.

Policies and practices that differentiate between people on the basis of their race, whether in the public or private sectors, must inevitably be contentious, even though their purposes are benign towards those groups that appear to be relatively disadvantaged. It is not just that history warns us of the dangers, it is more pragmatically that such practices are not costless and that majority group members who bear the costs (the white candidate who does not get the job because it had to go to a black candidate under a preference quota) don’t see why they should because they are not responsible for the relative deprivations of the minority. It is not surprising, therefore, that promoting race-conscious practices is not an attractive position for any serious political party to adopt. Indeed, both countries proscribe preferential treatment. But it is practised nonetheless in varying degrees—and extensively so in the United States. It must be one of our central concerns, therefore, to explain why contentious and (to many) unpopular practices are pursued, often with vigour, not only by local governments and universities, which may be assumed to carry in some measure a social welfare mandate, but by private sector agencies also.

This then is the ground that we shall tread. It is a wide panorama but always at its centre will be the questions of when, and under what circumstances, and for what reasons, will race-conscious practices be justified as instruments of public policy.

2

The nature and varieties of affirmative action

Affirmative, or positive, action practices are, in theory at least, conceptually and morally distinct from both preferential treatment (positive discrimination) on the one hand, and ordinary practice on the other. If they were not, then much of the debate about race-conscious practice that has exercised practitioners, commentators, the legislature and the judiciary in the United States, the United Kingdom and elsewhere would be otiose. The fact is that race-conscious practices are different if only because they appear to contradict the philosophy of non-discrimination that underlies almost all policy and which is itself, albeit inadequately, underpinned by statute or constitution, or both, in the US and Great Britain.

A part of our task will be to examine when, and under what circumstances, practices that take race into account are permissible both morally and statutorily. Another part will be to evaluate the success of such practices when they are used. A prerequisite of both tasks, and a number of others that we shall undertake along the way, must be a specification of affirmative action that identifies it as a set of discrete practices and which distinguishes it both from preferential treatment and from ‘ordinary’ race-blind practice. Two potential sources of confusion must first be clarified however. When we speak of affirmative action (and preferential treatment) as race-conscious practice,¹ we do not mean to imply that all such policies or practices constitute affirmative action. Special dispensations in respect of clothing or holiday allowances or cultural needs (see Commission for Racial Equality 1980, 1984) or provision for race as a genuine occupational qualification (see Home Office 1977) or racially-biased immigration policies are not affirmative action. The term ‘affirmative action’ will be confined to policies and practices in areas where policy is conventionally colour-blind and where there is no prima-facie moral or functional reason for believing that race is relevant to policy intent or output.

The second source of potential confusion lies in the implicit assertion above that affirmative action can be distinguished from preferential treatment. There is a great deal of misuse of the two terms (but especially of their British counterparts ‘positive action’ and ‘positive discrimination’), either wilful or as a result of ignorance or confusion, that would suggest that they are not clearly distinguishable—or at least not easily so. More importantly, informed debate in the US suggests that the borderline between affirmative action and preferential treatment is far from distinctly drawn (see for example Fullinwider 1986, Ruzicho 1980, Abram 1986, Kennedy 1986, Steele 1990a). Whilst the inconsistent use of the two terms in Britain (and to a lesser extent in America) owes less to any real conceptual difficulty in distinguishing between them than to a want of critical analysis, it remains true that though a theoretical dividing line does exist, in practice there is only a blurred division between affirmative action and preferential treatment and they are more usefully conceived of as two points on a continuum. That does not mean, however, that as ideal types the two ideas are indistinguishable. We shall be concerned with both concepts and, where it is necessary to distinguish between the two, the use of terminology will reflect this.

STARTING POINT: RACIAL INEQUALITIES

We wish to avoid characterising affirmative action by its colloquial usage. That would simply be to build into our analysis the errors and inconsistencies that we seek to avoid. What subsequent paragraphs seek to do therefore is to derive a distinct meaning for affirmative action from first principles. The derivation will proceed in a number of sequential stages, the first of which is to identify the perceived reasons why some form of action like affirmative action is deemed to be desirable or necessary. (The reason for seeming to restate the blindingly obvious is that we are sometimes blinded by the obvious.)

The motive force behind race-focused affirmative action is the perceived under-representation or under-utilisation of the affected groups in certain occupations, professions, statuses and positions and their over-representation among the unemployed. Second, there is the perceived over-representation of such groups among those suffering a range of social and economic disadvantages or their unique exposure to a more compounded form of deprivation (usually called racial disadvantage) (see House of Commons 1981, Smith 1977, Benyon and Solomos 1987, Brown 1984).²

There will be more to say subsequently about the nature and extent of the under-representation of minority groups in occupations, professions and positions, but for the purpose of the present argument it is enough to take these as a ‘given’. It should be noted, however, that the picture that emerges will be very different depending on whether what we measure is ‘under-representation’ or ‘under-utilisation’ (the latter being a term used by the Office of Federal Contract Compliance Programs in the US to describe a part of its Affirmative Action Programs). Under-representation is usually taken to mean a comparison between the representation of a minority group in an occupation or position and...

Table of contents

• Front Cover
• When race counts
• Title Page
• Copyright
• Dedication
• Contents
• List of illustrations
• Foreword
• Acknowledgements
• 1 When race counts
• 2 The nature and varieties of affirmative action
• 3 The logic of affirmative action
• 4 Affirmative action in employment: the British experience
• 5 The real thing: the American way with affirmative action
• 6 Race-conscious practice: the United States
• 7 Practice compared: Britain and America
• 8 The moral dilemmas of preference
• 9 Equal opportunities, merits and preferences
• 10 Tailored preference
• Appendix: A note on methodology
• Notes
• Bibliography
• US Cases cited
• Documentary sources
• Name index
• Subject index