Affirmative action is an attempt to redistribute economic power by forcing employers to give preference to women. As with all schemes of distributing justice, choice is taken from individuals and given to social planners. Affirmative action has been a debacle. It has not cured sex segregation in the work place or closed the wage gap between men and women. More importantly, it has hindered the institution that has done the most to benefit women economically: the free market.

Last week I learned that a friend had been passed over for tenure at an ivy-league school. This was surprising to me. He had been teaching at the university for several years and was immensely popular, not only with the students but also within the department. With a book and several journal articles to his credit, his qualifications were in good order. So what was the problem?

He explained it to me: he was a white male in a department that needed more visible women and minorities. Never mind that the woman hired had less experience and fewer credentials. Never mind that the university had been grooming him for the position -- (indeed, the department head could not even look him in the eye while breaking the news). Never mind that my friend is now so embittered that he tells his male students to forget pursuing a degree in the humanities, because credentials and quality do not matter anymore. If they are white and male, he insists, there will be no place for them in academia.

I hope he is overstating the case. But I understand his bitterness: it is difficult not to rail against unfairness when there is next to no recourse against it.

If my friend were a woman, he could sue the university for unfair employment practices under Title VII of the Civil Rights Act of 1964. This section of the Act states that it is unlawful for any employer:

"(1) to fail or refuse to hire or discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, or privileges of employment because of such individual's race, color, religion, sex or national origin."

Because, it is argued, women have historically been discriminated against in employment. Since white males (as a class) have benefited from this injustice, they must now (as a class) bear the brunt of adjusting the balance. This includes him.

In her book Feminism Unmodified, Catharine MacKinnon explains why my friend is inescapably my oppressor:

"...the social relation between the sexes is organized so that men may dominate and women must submit and this relation is sexual."[1]

The contradictory notion of 'discriminating in order to obtain equal treatment' seems to violate common sense. This contradiction leads wayward feminists, like me, to ask: What exactly is affirmative action? And what is being affirmed?

Affirmative action, as a policy, is usually said to be in place when a company or an institution takes reasonable action to remedy any discriminatory behavior which has occurred in the past. On ethical grounds, most people would agree with such a policy; although many would question the wisdom of enforcing the policy by law.

The spirit of affirmative action seems different from a literal interpretation of its words, however. To understand this spirit it is necessary to examine the roots of the issue in the context of the feminist movement from which affirmative action sprang.

First, it is necessary to acknowledge the truth of affirmative action's main claim: historically, women have been the victims of discrimination. During the 19th century, they were excluded from universities and unions, barred from professions such as medicine, and -- upon marriage -- often lost all title to whatever pittance they were allowed to earn. During the 20th century, the legal barriers confronting women fell, one by one. Vestiges of legal inequality still exist, but the instances are few -- e.g. women and men often receive different sentences for the same crime. And, overwhelmingly, these differences are beginning to favor women at the expense of men.

The cry for affirmative action makes no sense if the goal is simply equal treatment before the law. Affirmative action is based on the concept of socio-economic equality, which became popular during the 1960's. Access to the basics was presented as the right of every American. The fact that the law was to allocate these goods on a favored basis to certain classes of Americans -- e.g., blacks or women -- was justified on two grounds. First, they were the victims of another class of Americans: white males. Second, only by assuring equal access to such consumer goods as education could the disadvantaged compete fairly.

What of women in this new world? Although legal barriers to women had largely fallen, it was argued that the ill effects of history still impacted on modern women. The lingering injustice was especially blatant in the marketplace, which continued to undervalue woman's work. The removal of legal barriers had not cured this exploitation; the institution of legal protection was required. It was necessary for the law to prefer women in order for the marketplace to treat them fairly.

Affirmative action prefers women through a wide range of measures which include: remedial training, lower scores on tests for jobs or university admission, recruitment procedures aimed at women, and child care facilities.

Basically, there are two reasons.

First, although affirmative action has seldom been mandated by law, administrative regulations and judicial rulings have often lent this policy the force of law. In 1965, President Lyndon B. Johnson established the Office of Federal Contract Compliance, which ensured that private businesses who did work for the federal government followed non-discrimination requirements. With this, a large block of the American economy adopted affirmative action. Under the Federal Guidelines of 1971, statistical representation became the litmus test of discrimination.

On a more local level, most states have Fair Employment Practice Laws and civil rights agencies who enforce them. Among the damages that can be awarded are: hiring or reinstatement; promotion; training; seniority; a pay increase; back pay, which is broadly defined to include e.g. pension and educational benefits; and legal fees.

The second reason an employer would accept these requirements is because the cost of swimming against affirmative action can be very high. In 1980, for example, a court ordered the Ford Motor Company to give $13 million in back pay to women and minorities. Attorney fees alone can bankrupt a company. In a sex discrimination case against the University of Minnesota, the attorney fees came to $1,475,000. The successful plaintiff later abandoned academia to become a lawyer.

Even companies that rigidly implement affirmative action policies are not safe from the witch hunt surrounding this issue. For example, Sears and Roebuck was among the first large company to voluntarily evolve an affirmative action plan. They were also among the first to be sued by the government, who used Sears' own statistics to show that women were under- represented as sales persons of such commodities as automobile tires. Sears was eventually exonerated. Ironically, it became a target largely because its records on affirmative action were meticulously kept and available for inspection. Its attempt to comply backfired badly.

Thus, the marketplace -- in self-defense -- has adopted a de facto quota system that protects it against charges of discrimination. How, in the name of fairness, have we arrived at a system that openly discriminates on the basis of sex?

Fundamentally, three arguments have been offered for affirmative action: 1) social good; 2) compensatory justice; and 3) the ideal of equality.

The social good, or utilitarian, argument states that society will be enriched by advancing women. This is a relatively light weight justification, since advocates of affirmative action themselves generally concede that they would push equality even if it lowered the overall good of society.

Moreover, it is easy to point out the disastrous long-term consequences to society of using a quota system rather than merit to allocate jobs. Affirmative action drives a wedge between individual worth and economic success: how does this benefit society?

Indeed, affirmative action might well increase the very evil it seeks to cure: prejudice. In his book Illiberal Education, D'Souza remarks on a strange phenomenon happening on campuses across America. Although student attitudes on race have grown more informed, incidents of racial hostility on campus seem to be increasing. D'Souza concludes that a new kind of racism is appearing. One that has been created by affirmative action: that is, by the legal preference given to blacks. This is a racism that stems from the understandable resentment felt by white or Oriental students. It is a prejudice that springs, not from ignorance, but from experience.

Women in the workplace face a similar dilemma. In order to fill their quotas, employers will promote women too quickly or into inappropriate departments. When these women fail, it will be seen as confirmation of the inadequacy of their sex. When other women succeed on their own, it will be assumed that they were coddled along by preferential policies. And what of the men who are discriminated against? Their understandable resentment might well be translated into a heightened sexism -- just as my friend's rejection has embittered him toward all of academia.

The black free-market economist Thomas Sowell has commented on a bitter irony: blacks who had advanced through merit are being victimized by preferential policies. They will not be given due credit for their accomplishments. The same is true of women in the marketplace.

In short, affirmative action is not what economists call 'a zero sum game', by which wealth and power are simply transferred from one group to another. It is possible for everyone to be a loser in the exchange.

The argument from compensatory justice claims that anyone who causes injury to an innocent person should remedy the damage. Affirmative action goes one step farther, however, and claims that descendants of the injured parties deserve compensation as well. There are two basic objections to this argument: the people receiving compensation are not the victims; and, the people being forced to pay the compensation have done nothing wrong.[2]

Indeed, many of those forced to pay are also victims of historical prejudice. Sowell comments on this further irony.

"The fact that some groups are poor because of historical injustices done to them has been taken by many as a blank check to consider all lower income groups victims of injustice. In many parts of the world, however, those initially in dire poverty have, over the generations, raised themselves to an above-average level of prosperity, by great effort and painful sacrifice. Now the deep thinkers come along and want to redistribute what they earn to others who were initially more fortunate but less hard working."[3]

"Early in the twentieth century the government of South Africa already restricted the employment of blacks in mines, largely, it should be added, at the urging of the union of white miners."[5]

"the confiscation of some property of Japanese Americans in the United States during World War II, the restrictions legislated against Negroes in various Southern states, the limited amount of public education available to Jews in eastern Europe for several centuries, or the government imposed Apartheid in South Africa."[6]

Self ownership -- a woman's body, a woman's right -- requires the right to discrimination. To own something means to control its use, including the right of 'freedom of association.' The right to freely chose your friends and your employees on the basis of your own standards and judgment.

But freedom has risks. One of them is that people may chose to deal with women in a biased and offensive manner. As long as this 'discrimination' is peaceful -- that is, it involves no physical injury or threat of harm -- it is not a violation of rights. Such discrimination is simply ignorant behavior, which shows incredibly poor taste. But both freedom of speech and freedom of association guarantee that people have the right to be wrong. To be offensive. To be prejudiced. Freedom of association requires the right to say 'no' and to refuse to associate.

Indeed, discrimination -- on some level -- occurs in everyone's life. It is an inescapable part of forming preferences and tastes. As Gary Becker observes:

"...discrimination and prejudice are not usually said to occur when someone prefers looking at a glamorous Hollywood actress rather than at some other woman; yet they are said to occur when he prefers living next to whites rather than next to Negroes."[7]

Discriminating on the basis of gender may well be unjust. But even in this case, women will benefit more from a free market system than from government regulation. Even if a hefty percentage of society is misogynist, there will always be many others who want to profit by doing business with women. Any discrimination that is suffered will be random and escapable.

In his book Forbidden Ground: The Case Against Employment Discrimination Laws, Richard Epstein observes:

"In a world in which 90% of the people are opposed to doing business with me, I shall concentrate my attention on doing business with the other 10%..."[8]

"...as long as the tort law is in place, my enemies are powerless to block out mutually beneficial transactions by their use of force...The critical question for my welfare is not which opportunities are lost but which are retained."[9]

The government's attempt to regulate the peaceful behavior and attitudes of society is doomed. It is ridiculous to suppose that the complex, ever shifting interactions of society can be controlled. Even the most totalitarian of societies, the Soviet Union, was unable to prevent market forces and personal preference from erupting in the form of the black market.

The consequences of affirmative action cannot be controlled, or even predicted. This is because the individuals involved, both the perceived beneficiaries and losers, are not automatons. They are not, in Thomas Sowell's words, 'blocks of wood passively placed where the policy dictates'.

Unfortunately, theorizing can bring little solace to my friend, who is debating whether or not to abandon the one career that has ever meant anything to him. There is no encouragement I can give him. What he says is true: no matter how good he is or how much he cares, doors are slammed in his face because he is a white male. I feel almost as outraged as he does.

Someone has to get blunt and tell such feminists to put or shut up about equality and suffering and justice. Equality means 'equal treatment', not privilege. Caring for those who suffer means caring for men as well as women. Justice requires that all human beings receive what they individually deserve. So far, all I've seen of affirmative action is institutionalized discrimination, and sloppy thinking. It is the sort of policy that gives feminism a bad name.

Notes

1. Feminism Unmodified, p. 16.
2. For an in depth discussion of these objections, please see Chapter Five of Sexual Correctness, "Preferential Treatment of Women in Employment."
3. Thomas Sowell Compassion versus Justice, p.30.
4. See Chapter Five of Sexual Correctness for in depth treatment.
5. Gary S. Becker The Economics of Discrimination (Chicago: University of Chicago, 1971) p. 7.
6. Ibid.
7. Ibid, p. 13.
8. Richard Epstein Forbidden Ground: The Case Against Employment Discrimination Laws (Cambridge: Harvard Univ. Press, 1992), p. 30.
9. Ibid.