Affirmative Action: Well‐Being, Justice, and Qualifications

• Author: Re’em Segev
• Date: 01 June 2019
• Published date: 01 June 2019
• DOI: http://doi.org/10.1111/raju.12240

© 2019 The Author. Ratio Juris © 2019 John Wi ley & Sons Ltd.

Ratio Juris. Vol. 32 No. 2 June 2019 (138–156)

Affirmative Action: Well-Being, Justice,

and Qualifications

RE’EM SEGEV*

Abstract. A common concern re garding affirmative action i s that it sanctions the selection of

candidates whose qual ifications are not the best overal l and that this is inef ficient or unjust or

both. I argue that t his concern is misguide d, since there is no independent concern re garding

qualification s with respect to the moral status of af firmative action. The only sen se in which

qualification s are not morally arbitrary— and the only sense i n which there is a reason to s elect

the most qualif ied candidate—is purely in strumental to the promotion of mora l values whose

fundamental concern is not qualifications.

1. Introduction

A common concern regarding affirmative action is that it sanctions the selection of can-

didates whose qualifications are not the best overall and that this is inefficient or unjust

or both.1 According to one view, such a compromise in terms of overall qualifications is

always wrong, all things considered. This view entails that affirmative action is justified

only as a tiebreaker—when the overall qualifications of the selected candidate are at

least as good as those of any other candidate. A less radical view holds that while a

compromise in terms of overall qualifications is not necessarily wrong, all things consid-

ered, it is at least pro tanto wrong. According to this view, affirmative action that involves

such a compromise implicates a morally significant cost and therefore there is a reason

against it, and when this reason is decisive, affirmative action is wrong overall.2

The concern that aff irmative action sanction s the selection of candidates whose

qualifications a re not the best overall occasionally appears to be reflecte d in the law.

The view that a compromise in ter ms of overall qualifications is never justifie d may

underlie the legal rule that af firmative action is justified only as a tiebr eaker (when

1 For attempts to evaluate the degre e to which affir mative action involves a compromise i n

terms of quali fications see, for example, Holzer and Neumark 1999 and Niederle, Segal, and

Vesterlund 2013.

2 Sometimes, the conce rn regarding quali fications is presented as a concept ual, rather than as

a normative, concern, that is, af firmative action i s defined in a way that excludes suc h a

compromise.

* I am gratef ul to Yoav Dotan, Barak Medina, Keren Weins hall-Margel, and the part icipants in

the Public Law & Human Rig hts Workshop at the Hebrew University of Jerusalem for helpful

comments; to Naama Goldberg and O mry Levin for excellent researc h assistance; and to the

Israel Science Foundation for its suppo rt (Grant 1148/13).

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Ratio Juris, Vol. 32, No. 2 © 2019 The Author. Ratio Juris © 2019 John Wi ley & Sons Ltd.

Afrmative Action

the overall qualification s of the selected candidate are at least as good as thos e of any

other candidate).3 And the view that a compromise in terms of qual ifications is at

least pro tanto wrong seems to underlie the com mon legal rule that permits affir ma-

tive action only if the quali fications of the selected c andidate are not significa ntly

below those of other candidates.4

In this paper, I argue that thes e views, even the less radical one, are misguided,

as there is no independent concern rega rding qualif ications with respect to t he

moral status of affir mative action. The only sense i n which qualificat ions are not

morally arbitrary—and the on ly sense in which t here is a reason to select the most

qualified cand idate—is purely instrumenta l to the promotion of moral values whose

fundamental concer n is not qualifications, whereas t he concern that affi rmative

action i nvolves a compromise in terms of quali fications assumes a sense that is not

purely instrume ntal. Therefore, a reference to qualifications makes sen se merely as

a way to express, rather than just ify, all-things-considered conclusions with rega rd to

affirmative action. I n these words, if the balance of reaso ns supports affir mative

action—namely, the selection of a certai n candidate (based on facts such a s race or

sex)—this candidate is t he most qualified overall in t he only sense that matt ers

morally.5

I demonstrate this clai m through what I thi nk is the most plausible account

of affirmative action, one th at is based on considerations in favor of maxim izing

well-being and promoting dist ributive and retributive justice. However, some of the

arguments in favor of this cl aim are not based on the assumption that these a re the

only considerations that are morally sign ificant with regard to affirmat ive action.

A few clarifications shou ld be noted before proceeding. First, I do not deny that

affirmative action t hat is justified overall may involve a morally signif icant cost.

Indeed, since I believe that the moral statu s of affirmative action depends on several

considerations (relating to well-being and di stributive and retributive justice), which

may clash, this is clea rly possible. However, while affir mative action may involve

a morally significant cost, i n terms of well-being or justice, and thu s in terms of

qualifications t hat are instr umental to one of these values, when affirmative action

3 See, for example, the UK Equalit y Act 2010, Section 159(2), stating that affirmative act ion is

permissible only i f the selected candidate is “as qualified” as comp eting candidates, and the

Australian Af firmative Action (Equal Employme nt Opportunity for Women) Act 1986, Section

3(4), stating that the act does not require employers “to take a ny action incompatible with the

principle that employment matter s should be dealt with on the basis of merit.”

4 See, for example, the Canadia n Employment Equity Act 1995, Sections 6(b) and 33(b), which

state that affir mative action is not requ ired with regard to a c andidate who does not have

“essential qualif ications,” and Section 33(c), which makes it permissible not to engage i n affir-

mative action when hiri ng is require d to be done based on “merit”—thereby implyi ng that

this is not always the ca se.

5 The more radical view is doubt ful for another reason too. If t here is a reason in favor of affir-

mative action sometime s, as is plausible to assume, especially if a ffirmative action is justi fied

as a tiebreaker, then even if t here is reason agai nst it, why should this latter r eason always

defeat the for mer, especially g iven that the force of the se reasons varies in differe nt circum-

stances? For example, if there is som etimes a decisive rea son in favor of affirm ative action

when the overall quali fications of the relevant candidates are exac tly equal, it is plausible to

assume that th is reason is sometimes dec isive even when it supports a candidate whose over-

all qualif ications are just slightly less th an those of the most quali fied candidate, since the force

of the reason again st affirmative action in t his case is presumably very weak.