UNEQUAL BUT FAIR
Maguire, Daniel C.
UNEQUAL BUT FAIn DANIEL C. MAGUIRE The morality of justice by quota Oftentimes a Supreme Court decision does not just settle a dispute between isolated litigants but actually determines the...
...The efforts, however, were largely spineless...
...UNEQUAL BUT FAIn DANIEL C. MAGUIRE The morality of justice by quota Oftentimes a Supreme Court decision does not just settle a dispute between isolated litigants but actually determines the shape of American societal existence for years to come...
...Equality is not a term that is suited to handle all of the contextual complexity and relationality of matters moral or legal...
...In the two years before the University of California had a special admissions program I II DAHIEL C. MAGUIRE is an associate pro]essor o] theology at Marquette University...
...One's race or sex could add to one's qualifications, making for a richer mix of experience in the professional school and greater good for the community afterwards...
...The Fourteenth Amendment could only be conceived of as opposing unfair inequality which is based on arbitrariness and unfounded bias...
...There are three forms of justice: commutative justice, distributive justice and legal justice...
...It would provide role models to stimulate minority children, and in the case of medicine, it would provide minority doctors who are more likely to work in minority areas and to do research on special minority health problems...
...The basic question then is not whether there is equality but whether there is fairness...
...If individual blacks have complaints," many say, "let them litigate under the current laws...
...But the important irony about the Ford Foundation grant is more profound than obvious...
...Preferential treatment of any group is prima facie morally suspect...
...3) there must be exclusion from the social centers of power...
...But the rules have been so rubbery in the past that I beCommonweal: 65...
...The handicapped have a right to unequal, extra help from the state...
...Regarding distributive justice, it would seem at first blush that it is the concern only of those who rule...
...That, I submit, is an unbearable error...
...Equality has long stood alongside liberty at the pinnacle of American idealism...
...Taney adds that "This opinion was at that time fixed and universal in the civilized portion of the white race...
...That establishment, in its turn, promises to sin no more...
...rhere can, of course, be no quotas for graduation...
...I should confess that I, my two dear sons, and many of my other best friends ate white males and that I have always enjoyed the preferential perquisites and quotas that go with being such...
...John T. Noonan, Jr...
...In ~is decision separate schools for blacks were thus re-endorsed through the suburban subterfuge...
...The reason why this case is no private dispute between Bakke and the University Regents is that the solution will reveal what critical assumptions are ruling in this land regarding the nature of justice, of society and of personhood...
...No one form of justice can be stressed to thepoint of repressing another form...
...Special schools for the handicapped or the gifted would be separate, unequal and fair...
...The goal of all preferential quotas is not the admission or the hiring of the unqualified but the goal is the ending of the systemic and unfair exclusion of persons from certain groups...
...Some of the arguments are serious and reveal the complex depths of the issue...
...Just to h~ighlight this case, let me add a few hypothetical assumptions: l~t us suppose, what might well be true, that Allan Bakke as an individual is utterly unbiased in his dating and in his social and civic behavior, and that he has long been active in the fight for civil rights for women and minorities...
...In the arguments that manifest strategic naivet6, it is alleged that things were going fine before all this quota business came along...
...All of these arguments from the more ponderous to the absurd require fuller treatment than is possible in this format...
...How did I, a Ph.D...
...It is a shame that the United States does not welcome its immigrants with a statue of justice rather than with a statue of liberty...
...WYMARD, a previous contributor to Commonweal, is an associate pro/essor in the English department o/'Carlow College in Pittsburgh, Pa...
...So since it is critical, gentle reader, do please bear with a brief definition of justice and its forms...
...One whose African ancestry totals all, or one-half, or 1/32 of his endowment...
...The "Plans for Progress," a voluntary plan of major corporations to improve minority opportunity, was eventually revealed as a sham and a shield for privilege...
...They cannot hide and slip over into the dominant power as many other disadvantaged group members can do...
...To enter such schools today, many are qualified but few are chosert...
...It is my contention that the United States moved into the preferential policies not only out of a belated sense of fairness (the judicial decisions and legal literature evince this), but also and significantly under the impetus of fear in the face of the black rage and civil turmoil of the 1960s...
...It did so, ho~vever, without checking the intellectual foundations of this policy...
...Not satisfied, white power now wants to take away quotas which are one of the only enforceable remedies...
...Exclusive, disabling quotas such as were used in the numerus clausus approach against Jews, have no moral standing...
...By legal justice, citizens owe to the social whole an atmosphere free of insult and systemic unfairness...
...Justice, like God, is not yet "all in all...
...Racism is still in the saddle, scarcely jostled by the gentle forays of reform...
...Historically, equality has often served us well since it functioned as an antidote to pretensions of rank and to arbitrariness in governance...
...The suburban camp-followers were home free...
...It would be futile and unbelievable to suggest that appointments to the military academies are based on equal desert...
...In subtle and unsubtle ways the depersonalization of the black goes on...
...The Continental Congress computed them as three-fifths of a person...
...If I have not harmed you or contracted with you I owe you nothing...
...2) the prejudice must be of an especially contumacious sort because of longstanding rcenforcement by religious and cultural myths...
...Little more than 1 percent of the nation's lawyers are black and similarly gross underrepresentation is present in the other professions and positions of status and power...
...These are: 1) the prejudice against the group must have reached the ultimate insult of depersonalization...
...All groups may in some way be offended and if all are preferred, none is preferred...
...Both qualification and selection are based on many factors and not just on fallible, limited and culturally biased testing systems...
...Preferential affirmative action is compared to feudalism, Nazism, and even to the misdirected American militarism in Vietnam...
...While this has not been achieved, the just citizen cannot be at peace_9 Even if the citizen is guilty of no interpersonal offense (commutative justice), he owes a debt to legal justice by the very nature of his social personhood...
...But society does have a right to break recalcitrant monopolies by enforcing inclusive, ennabling quotas...
...The American story is marked by what Stanley Elkins in Slavery calls "the most implacable race-consciousness yet observed in virtually any society...
...The repeated failure of voluntary measures shows that stronger and enforceable remedies are needed...
...His book, The Moral Choice, will be published by Doubleday in the~spring...
...In other words, they are guilty of having lent legitimacy to the unjust distribution of goods and bads...
...only two blacks and one Mexican-American were admitted, whereas between 1970 and 1974, when the program was in effect, 33 Mexican-Americans, 26 blacks, and one American Indian were found qualified for admission...
...some of the concomitants of free trade and free love...
...This is said not to slight liberty but to put it in its place...
...The cry for "meritocracy" is the height of hypocrisy...
...These are the "good" quotas--that do not involve women or minorities...
...Thomas Aquinas, however, sees an error in this...
...With all of this, it is my contention, and one that I submit is of foundational importance, that the exclusion of Bakke was fair and should be recognized as legally and constitutionally correct...
...And so, having set up the "headwinds" to deter black employment, we lhen go on to resent the welfare they require for minimal undignified survival...
...4) the group members must be visible as such...
...Summing Up Conclusions: Allan Bakke was treated unequally but not unjustly in being excluded from medical school even if it could be shown that it was the minority program and not the glut of qualified applicants that did him in...
...Having said that, however, the question arises as to just what this virtue is which is the foundation of moral existence...
...Blacks are likely to have the menial, most unstable and lowestpaying jobs and are the first victims of any economic recession...
...He then went on to present the decision that not even freed slaves were citizens of the United States...
...The ideals of the founding fathers and their documents did not include blacks...
...With the Nixon appointees voting as one, the Court said that the broad metropolitan plan integrating inner-city and suburban children was not justified...
...Also, it is averred, the quota system inevitably involves the hiring of unqualified doctors, lawyers and teachers...
...These debts are as yet outstanding...
...Fina~y, it is argued that everyone suffers from some kind of discrimination: fat people, short people, gay people, and maybe even people with green eyes...
...The insulting belief in the inferiority of blacks has survived the abolition of slavery...
...If we white Christians who hold power in this land could love enfleshingly as we ought, if our eyes peered out from scarred black flesh at the contemporary retrenchment of white power, we could only with difficulty believe that the "goodly people" of white America are the pure of heart who will see God or that they are the hungerers and thirsters after justice who will know the plentitude of God's Kingdom...
...It remains an,ideal...
...He who wants justice without sacrifice does not love justice at all...
...That is why it is so hard to break the news to the American faithful that equality is not always fair...
...For this reason it is sad that the issues here have so little engaged the minds of Christian, and especially Catholic, thinkers...
...As Howard A. Glickstein of the Center for Civil Rights at Notre Dame writes: "If there were some foolproof litmus test for determining merit, perhaps I would be fearful of tampering with the system...
...Black unemployment is still double that of whites and black income is less than 60 percent of that of whites...
...In the words of one New Rochelle alumna and senior administrator: "We no longer had to wait for Reverend Mother to make up her mind...
...Professional schools for years have had unofficial quotas for the sons of alumni and generous ~nefactors, for veterans and for state residents...
...The case is now before the Supreme Court of the United States...
...Chief Justice Taney of the United States Supreme Court observed in the Dred Scott decision in 1857 that for a century before the Declaration of Independence, blacks had "been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations...
...Such anecdotes from an antique past are legion on the campuses of women's Catholic colleges...
...After World War II some efforts were made to correct the rampant effects of American racism...
...It intrudes government objectionably into the intimacies of business and the academe...
...That we owe restitution at the level of commutative justice to those individuals we have specifically offended should be obvious...
...Perhaps most indicative of depersonalizing racism is the enduring cultural resistance to miscegenation...
...If vested interest is holding tight and there is no other way to break the logjam, enforced quotas are a work of distributive and also of legal justice...
...Thus, in 1970 54 percent of all applicants were rejected while in 1972 that percentage increased to 72 percent according to the Journal ot Medical Education...
...legal justice represents the debts of the individual to the social whole or the common good...
...Anti-black prejudice was fortified by distorted theologies of selective covenant and by notions of inherited status which made it easier for religious bigots to believe that the sons of Ham were truly condemned by God to be hewers of wood and drawers of water...
...The cure for this confusion begins When you recognize that we accept many inequalities in society as fair...
...i i i i i f i i AN ACADEMIC PROFILE ELEANOR B. WYMARD Laywomen in women's C tholic colleges Not too early in the history of the College of New Rochelle, one of the first women's Catholic colleges in the United States (1904), a young woman instructormif married and pregnantmknew not to expect the renewal of her teaching contract...
...Quotas are a necessary means to the good end of justice...
...So once we start preferential treatment of offended groups, there is no end to the falling dominoes...
...I became aware of the need for more information regarding the professional development, upward mobility and personal aspirations of such faculty when I was invited to react to the preliminary designs for a "Developmental Conference for Women Faculty Members and Women Academic Administrators" at Chatham College, March 29, 1977...
...others are self-serving and strategically naive...
...Blacks most obviously fulfill each of these tests...
...Every argument in this debate is a predicate of one's conception of justice, but clarity regarding the nature of justice is not the hallmark of this debate...
...A preferential quota should be a last resort, used only in the absence of alternatives, and then not as a permanent expedient...
...And here is where we find an amazing lacuna in the debate on preferential policies...
...Often it is assumed that justice and equality are as one and it is regularly taken for granted that justice is something relating to individuals between whom specifiable torts or contracts have developed...
...If the Supreme Court rules in favor of Allan Bakke, justice will not have been served--however the "majestic generalities" of the Constitution are twisted to make the point...
...In each case persons are rendering what is due to others...
...Quotas always involve unequal treatment, and if unequal is unjust, the debate is ended...
...Openness results when a college does not depend upon the religious order for financial " support...
...Quotas for blacks need not and should not be eternal...
...Obviously the position I am defending on the Bakke case does not sit well with one and all...
...writes: "Slavery in the Western word which lasted until little more than a century ago owed its beginnings to the men of Spain, Portugal, France, the Netherlands and England, all nations molded by Christian thought...
...Likewise, the assignment of one soldier to a desk job and another to perilous frontline duty could hardly be called equal, but it might be called fair...
...He who wills the end of justice must will the means necessary to that end...
...Universities have given unequal and 14 October 1977:648 preferential treatment to athletes...
...And that is a pity, because equality, like liberty, could thrive in a community of thieves...
...He is currently working on a book on the theory of justice behind affirmative action...
...Trust the good laws of this good land and the white male establishment that is their keeper...
...From talking and sharing experiences at nine women's Catholic colleges, my discovery is that their governance structure is not expressed by a single model...
...If I stole your bicycle I owe you a bicycle's worth of restitution...
...justice is a work of the gods...
...These colleges exist on a continuum from the classic to the independent...
...Patterns emerge in their responses, dependent upon how the professor perceives her college in the continuum from classic to independent...
...Exclusion from power is the bitter nadir of poverty...
...Many of these arguments, for all their righteous wrappings, are the new face of racism...
...Starting with slavery, an incultured syllogism intimated to white consciousness that, in Elkins's words, "All slaves are black...
...Definitions are tedious, but to attempt them is the price we must pay to rescue the mind from fuzzy mischief and sprawl...
...The Supreme Court has acknowledged the "built-in headwinds" and the "artificial, arbitrary, and uneeessary barriers to employment" that operate against blacks...
...a generous number are even absurd, but hot unpopular...
...Joan Bristol, Dean of Students, mother of one child and expecting another...
...Power is not black in the corporations, the Congress, the major religions, the temples of finance, the professions, the law-enforcement establishment, or in the writing of history...
...Finally, let us assume that Allan Bakke would have been a better doctor than at least one of the minority students admitted at the time of his rejection...
...And even the Supreme Court, which has i made some major helpful decisions, ruled in Mitliken v. Bradley in 1974 that Detroit's suburbs were immune to the desegregation of Detroit's schools which were already 65 percent black, thus ensuring continued white flight...
...Christian theology owes reparation to black Americans...
...The capital gift was the beginning of New RocheUe's $1,200,000 endowment which encouraged financial independence...
...This too defines their plight...
...Equality and Justice First to equality...
...The citizens as well as the prince are the subjects of the virtue of distributive justice because "they are pleased and satisfied (sura contenti) with a just distribution...
...Christian religion played an unholy role...
...Conceptually, however, there is no reason why restitution would not be also due because of failure at the level of legal and distributive justice...
...Voluntary programs to help blacks or other systematically excluded groups will not turn the tide of discrimination...
...Traditionally, restitution has been considered mainly or only in terms of commutative justice...
...And anyhow (as the naivet6 turns patronizing) quotas make blacks et al look bad as though they could not make it on the merit system as white males do...
...Elevated to nostalgic fables, they celebrate the rites of innocence before Vatican II, the Bundy Act and Feminism...
...Bakke claims his rejections were due to the acceptance of less qualified minority applicants admitted under the University's special admissions program, and that this violated his rights under both the Fourteenth Amendment and the Civil Rights Act of 1964...
...The inherent gall of this new and pious insistence on merit is that the white male aristocracy is implying that it is dominant through desert...
...They were brought here as chattel...
...Both biases seek an unnatural release from the essential paradoxical tension between individual and social claims...
...5) there must be no less drastic alternative relief available...
...Relative to such, Professor James H. Hall of the University of Richmond comments: "You don't cheat at poker for the first six hours of the evening, taking nearly all the money of the other players, and then say (having been caught), 'Well, I'll be honest for the remainder of the night...
...American whites, conveniently emplaced within the perspectives of commutative justice, need this message...
...Commutative justice renders what is due in relationships between individuals...
...come a bit suspicious when a new rigidity is demanded as women and minorities appear at the gates...
...4) Blacks, like women, are visible as such...
...We might then be dearer on what justice entails...
...Slavery was the myth-bearer of black degradation and the myth survived abolition...
...Racism does not stay hidden in the heart...
...Rutgers Professor of Law Alfred W. Blumrosen dares to be specific...
...Further relevant facts are these: between 1959 and 1974 the number of openings in first-year classes in American medical schools increased from 8,173 to 14,763 but the number of applicanls jumped from 14,952 to 42,340...
...This is the essential core of invidious individualism and it is the dominant demon of American 'social debate...
...Here too restoration and restitution are owed...
...In the Declaration of Independence and in the Fourteenth Amendment it achieved biblical status...
...The debate on quotas is poisoned at its roots by the idea that equality is synonymous with fairness and justice...
...The grisly facts of the enduring black plight give proof of that feeling...
...Add to all this that the most recent statistics indicate that black unemployment is now almost back to the post-World War II high...
...Neither the state fair employment practice laws, the executive orders of various presidents, or the judicial efforts under the National Labor Relations Act were notably effective...
...Only adaptively does it serve ethics and law-and then not always well...
...Remarkably, it was only ten years ago in Loving v. Virginia that the Supreme Court ruled anti-miscegenation laws unconstitutional and even then legislatures did not rush to repeal anti-miscegenation measures...
...Equal is primarily a mathematical concept, not a moral concept...
...3) The deprivation of blacks at the critical level of power and status is manifest...
...Generically, justice is the least we can do in response ~to the value of' persons...
...in American literature, accustomed to chasing white whales and tolerating ambiguity, come to arm myself with an inscrutably tangled tape in order to preserve the words of laywomen faculty and religious presidents of women's Catholic colleges...
...In fact, we accept many quotas with their intrinsic inequality as fair...
...A school that was established to allow unequal and special education for the gifted would not be resented...
...A military draft that takes everyone born on a certain date but not those born the day after could be defended as fair but not as equal...
...Since justice is broadly denied, restitution is broadly necessary...
...In the California trial court and in the California Supreme Court, the minority special admissions program was declared unconstitutional...
...To qualify for such treatment and to overcome the suspicion, there are five conditions that must be verified...
...The facts are these: Bakke was denied admission to the medical school of the University of California at Davis for the academic years commencing in September of 1973 and 1974...
...It gives to the wrong beneficiaries and exacts from innocent and inappropriate victims, It tolls the knell of blessed "meritocracy...
...Quite simply, "Where, oh where's the Reverend MotherT' connotes either a sense of invisible convent power or its absence...
...It would be a miscarriage of justice and truth to declare the incompetent competent...
...Regarding the alleged indolence of blacks, a black friend once said to me, "Show me the white man who wants to work so bad that he will clean your toilet bowl or shine your shoes...
...distributive justice directs the fair distribution of goods and burdens to the citizens by those who represent the state...
...He argues that when black unemployment is no longer double that of whites "but runs at one and one-half to one, when the median income levels of minorities is 80 to 85 percent rather than 60 to 70 percent that of whites, and when the occupational distribution is half as skewed as it is now, we will have squeezed out of the society the worst effects of discrimination . . . . The use of quotas will then become inappropriate...
...That a woman must come out for motherhood in order to be a dean, vintage 1977, at the College of New Rochelle, is not, however, the point to anticipate...
...It is said that such programs are attempting to establish race alone as a criterion for admission or hiringQraising the specter that the black pilot of your plane may be a skilled farmer who got this job in a quota draft...
...The arguments Commonweal 647 against it are out in force in the legal, social science, philosophical and popular literature...
...This suggests that white America would be satisfied only if blacks went the way of the Indians--into extinction or onto reservations...
...Unequal tax breaks to lure industry are generally defended...
...And that brings us to justice...
...It offends the fights of the best-qualified to admission or employment...
...Many factors make you qualified...
...Laywomen on their faculties, moreover, have strong convictions about possibilities for leadership and self-expression, as well as opportunities for academic growth...
...Much (not all) resistance to preferential policies is resistance to the demands of legal and distributive justice...
...Among New Rochelle's present administrators are Katherine Henderson, Ph.D., Academic Dean, mother of three young children, and I I I ELEANOR .B...
...That raises restitution to the level of a primatial work of justice...
...5) Finally, the blacks lack alternatives to preferential relief...
...It translates into policy...
...Co-sponsored by Chatham and the Higher Education Resource Service (HERS), Mid-Atlantic, the conference proposed to provide participants---academic women from every type 14 October 1977:652...
...Of such enduring moment is the case of one Allan Bakke against the Regents of the University of California, which is now pending before the high court...
...Beyond this, arguments dip into the absurd, urging among other things that race is an irrelevant category morally and legally, having significance only for the science of genetics...
...In the debate on preferential treatment, equality is the leading category...
...All three forms involve rendering to others what is their due...
...The good-hearted discrimination of the "Living Family Allowance" won the favor of the Ford Foundation...
...Now is not the time for impatience or statistical juggling...
...Citing New Rochelle's "special leadership . . . in improving faculty status and compensation of college teachers," the Foundation granted the College $395,000, July 1, 1956, to be distributed over three years...
...All three serve in concert to create .the basis for moral existence...
...Let us assume further (and this is a strained assumption) that the paucity of places in medical schools is not due to elitism and vested interest operating restrictively in the medical profession...
...The tools of retrenchment are forged from fallacious renderings of the traditional categories of equality and justice and from a new and blooming love affair with "meritocracy," a tactical figment of the white male imagination...
...2) The debasement of blacks is not like the comparatively superficial prejudice against new immigrants prior to their assimilation...
...Not surprisingly in this atmosphere, as law professor Derrick A. Bell of Harvard University writes, "There has been a sudden renewal of interest in theories that IQ accurately measures 'intelligence,' that 'intelligence' is inheritable, and that black children have less to inherit than whites do...
...That, briefly, is justice...
...1) The history of blacks in America is the history of radical insult and depersonalization...
...Pure collectivism and pure individualism do not exist, but operant biases can be discerned, as in American individualism or in Maoist collectivism...
...Within this format, however, let me suggest the lineaments of the argument for preferential affirmative action and, in so doing, speak to the main points of the negative arguments...
...The University contends that Bakke would have been rejected whether or not there was a special admissions program...
...The loss of property through eminent domain does notaffect all equally, nor are all incomes taxed at an equal percentage...
...slaves 14 October 1977:650 are degraded and contemptible . . . . That the black as a species was thus contemptible seems to follow by observation...
...In other words, the use of preferential quotas for certain minorities and women is morally and legally defensible...
...Many of the more serious objections are pure bred from the stock of individualist thought...
...As Aristotle says, "when men are friends, they have no need of justice_9 _9 . ." But short of the eschatological victory'of friendship and the consummation of justice in the superior dynamism of love, justice tells us what we owe to persons at least in a minimal way...
...Furthermore, no one has a right to be a doctor or a lawyer or a. shop steward...
...Because of that, indifference on the Bakke case is damning...
...Anti-black prejudice is empowered by cultural and religious myth...
...As Professor Bell writes, "there are few whites who at some level of their beihg do not believe that whites are superior, and even fewer blacks who do not recognize that feeling and resent it...
...Liberty can be sleazy (cf...
...They run like this: when affirmative action turns to preference it violates the right of individuals to equal treatment...
...Moving off from this idea we may also infer that if the citizens are the beneficiaries of an unjust distribution and have done little or nothing about it until prodded by the dispossessed, they are also quite contenti and are implicated in distributive injustice...
...Preferential Quotas Is my conclusion, therefore, that all offended groups should line up for preferential quotas...
...On the other hand, a radically collectivist anthropology would downplay commutative justice and submerge the individual into the collectivity...
...Now that rioting has been largely quelled, white power is retrenching, as ensconced power always has when the pressure is off...
...In the matter of American racism, the white who would claim to be without such guilt is, in the phrase and spirit of .the Apostle John, "a liar...
...Then, having blocked their access to work, we call them "shiftless" and "lazy," or, when they rebel, "lawless...
...and so far inferior, that they had no rights which the white man was bound to respect...
...In general American society still does not seem to consider the black to be five-fifths of a person...
...and that the negro might justly and lawfully be reduced to slavery for his benefit...
...It constitutes "reverse discrimination," an evil means to a good end, repaying evil with evil...
...Religion alone does not explain the etiology of slavery, but myths that are nourished at religious sources have a peculiar and enduring potency...
...It is a case that draws us inexorably to the foundations and brings us into crucial conflict with the dominant American ideology of invidious individualism...
...If you fixate on commutative justice, and this is the American penchant, you have an atomistic, asocial conception of personhood...
...Here the guilt is the guilt of omission, the guilt of not having done enough, of not having cared enough, the guilt of not having been reCommonweal: 649 sponsive enough or creative enough in the face of gruesome social evil...
...Given the expense and time required to litigate, many blacks might well feel that "let them litigate" is the modern "let them eat cake...
...Obviously not...
...Men faculty who were heads of households received beyond their salaries, however, an annual $400 bonus for each child...
...Or race is declared undefinable: What is a black...
Vol. 104 • October 1977 • No. 21
