Essay, Research Paper: Preferential Treatment

The granting of preferential treatment, in hiring and admission to schools, afforded to people who are members of a group, which was previously discriminated against, has been a major topic of debate for some time. Do these people really deserve the advantages they are receiving? Are the opportunities they are receiving actually discriminating against others who may be overlooked for that opportunity? These are just some of the many questions surrounding this debate. James Nickel, in response to the question, of whether or not preferential treatment policies are actually a form of reverse discrimination, writes in his article Discrimination and Morally relevant Characteristics, which these policies can't be argued against by the reverse discrimination argument. He feels that the basis for the claim of reverse discrimination is a characteristic, already deemed irrelevant, and thus can't now be deemed relevant in an argument for reverse discrimination. He writes:
"This version of the reverse-discrimination argument (namely that the justification for preferential policies is based on the same morally irrelevant fact that the original discrimination was based on and thus compensation based on this fact can't be justified, just as discrimination based on this fact can't) has a false premise, since it assumes that the characteristic which was the basis for the original discrimination is the same as that which was the basis for the granting of special considerations. And since the argument has a false premise, it does not succeed in showing that to avoid reverse discrimination we must extend no special considerations whatsoever."
Nickel is arguing that the reverse discrimination argument is based on the wrong characteristic. He believes in fact that the characteristic that it is actually based on is a morally relevant, one thus compensation can be morally justified. His argument looks like this:
1. If the characteristic that justifies compensation now, is not the morally irrelevant one that justified discrimination, but rather another morally relevant one, then compensation can be morally justified.
2. The characteristic that justifies compensation now, is not the morally irrelevant one that justified discrimination, but rather another morally relevant one.
3. Thus, Compensation can be morally justified.
He is arguing that since the justification for compensating members, of a group that was previously discriminated against, is based on a morally relevant characteristic, the compensation is therefore justified. It does not, as supporters of the reverse-discrimination argument claim, find its basis in the morally irrelevant characteristic that gave us the discrimination in the first place. Does Nickel succeed in proving the reverse discrimination argument to be unsound, and thus their claim, that compensation is a form of reverse discrimination false? The structure of Nickels' argument is sound, however, its content is not. I, as have other authors, will demonstrate that problems arise with respect to his content.
Before I can show that Nickel doesn't succeed in showing that the reverse discrimination argument fails, I must first show exactly how we have come to this point. The need for compensating certain peoples exists due to the past discriminatory injustices occurred by either themselves or members of their cultural group. As the author Thomas Nagel writes, "not very long ago, it became widely accepted that deliberate barriers against the admission of blacks and women to desirable positions should be abolished." This was the first recognition by the public, and the government that discrimination was occurring and was a severe problem. He goes on to say "that even without these explicit barriers there could be discrimination, either consciously or unconsciously motivated." In other words, even when the barriers forbidding victims of discrimination are torn down, discrimination still exists due to society's pre-disposition to discriminate against certain individuals. Nagel continues and say's that this "all leads to the adoption of compensatory measures, designed to qualify those who's reduced qualifications are due to racial or sexual discrimination." Members of a group, in other words, who previously have been discriminated against, are therefore entitled to special considerations when concerning employment opportunities, and admission into schools. It is this claim, that members of a certain group are entitled to compensation for past injustices, that has come under attack. Many people feel that these measures actually serve as a different form of discrimination, "discrimination for them," meaning those people who previously had been discriminated against are know benefiting from discrimination against others. This school of thought has been labeled the reverse-discrimination school.
The reverse-discrimination school of thought is one that feels that these compensatory measures are unjust, that everyone should be treated the same, regardless of history, race, creed, or sex. This school pins the basis for justifying the awarding of such compensation on the fact that we are awarding it to people based on their race, creed or religion. These characteristics were already deemed irrelevant, and hence discrimination was seen as unjust. This school claims that since the basis for the awarding of compensation rests on these irrelevant characteristics, then the awarding of compensation should also be found to be unjust. Nickel provides an argument on behalf of this school:
1. If a group was discriminated against based on a morally irrelevant characteristic of theirs, then to award extra benefits now to the members of this group because they have this characteristic is simply to continue to treat an irrelevant characteristic as if it were relevant.
2. A group was discriminated against based on a morally irrelevant characteristic of theirs.
3. Thus, to award extra benefits now to the members of this group because they have this characteristic is simply to continue to treat an irrelevant characteristic as if it were relevant.
He writes in his essay:
"To state the argument a slightly different way, one might say that if a group was discriminated against on the basis of a morally irrelevant characteristic of theirs, then to award extra benefits now to the members of this group because they have this characteristic is simply to continue to treat a morally irrelevant characteristic as if it were relevant. Instead of the original discrimination against these people, we now have discrimination for them, but in either case we have discrimination since it treats the irrelevant as relevant. Hence, to avoid discrimination we must completely ignore this characteristic and extend no special considerations whatsoever."
Another author, L.J. Cowen, provides another take on the problem that supporters of this argument have with the compensatory measures in place. He states:
"It is argued that if the characteristic in question is morally irrelevant, its use even in this manner would still constitute discrimination, discrimination now in favor of those possessing the characteristic and against those not, but unjust discrimination still."
Thus, this argument is a relevant one in the discussion of whether or not compensation can be morally justified. Nickel's attempt at proving this argument not to be sound, rests on the premise that the basis for compensation is the same morally irrelevant characteristic, as he believes it to rest on another morally relevant characteristic. His main argument is such:
1. If the characteristic that justifies compensation now, is not the morally irrelevant one that justified discrimination, but rather another morally relevant one, then compensation can be morally justified.
2. The characteristic that justifies compensation now, is not the morally irrelevant one that justified discrimination, but rather another morally relevant one.
3. Thus, Compensation can be morally justified.
He writes:
"The objection which I want to make to this argument pertains to its assumption that the characteristic which was the basis for the original discrimination is the same as the one which is used as the basis for extending extra considerations now. I want to suggest that this is only apparently so. For if compensation in the form of extra opportunities is extended to a black man on the basis of past discrimination against blacks, the basis for this compensation is not that he is a black man, but that he was previously subject to unfair treatment because he was black. The former characteristic was and is morally irrelevant, but the latter characteristic is very relevant if it is assumed that it is desirable or obligatory to make compensation for past injustices."
Nickel believes that this reverse discrimination argument is under the false impression that a morally irrelevant characteristic is the basis for justifying compensation. In fact, according to Nickel it isn't. Instead, he feels that the basis for justifying compensation rests in the fact that a person was previously subject to unfair treatment because of that irrelevant characteristic. Nickel is using this unfair treatment as the bases that the justification of compensation rests upon. An argument can be constructed on his behalf as follows:
1. If compensation is awarded because one was discriminated against because of an irrelevant characteristic, then compensation is justified.
2. Compensation is awarded because one was discriminated against because of an irrelevant characteristic.
3. Thus, compensation is justified.
Textual evidence is:
"The basis for this compensation is not that he is a black man, but that he was previously subject to unfair treatment because he was black. The former characteristic was and is morally irrelevant, but the latter characteristic is very relevant if it is assumed that it is desirable or obligatory to make compensation for past injustices."
However, is this the case? Should the basis for justifying compensation be the unfair treatment due to the irrelevant characteristic, as Nickel believes? J. L. Cowen believes that Nickel's argument has a problem in it, namely the first premise, and thus this problem may lead to it being an unsound argument. Cowen feels as though Nickel's argument deals with an uncontroversial point, one that the original reverse discrimination argument never intended to deal with. He writes:
"The problem is that Nickel does not make it entirely clear just what he is about here. He may simply be pointing out that if a person has suffered injustice through morally unjustified discrimination, then reparation to that person will be appropriate. Surely, it was not against this relatively uncontroversial point that the original argument was directed. And Nickels formulation leaves open the possibility that he is actually trying to support the far more questionable claim that was the original target of that argument"
The statement by Nickel, "being discriminated against because he was black," contains the portion of his argument that Cowen finds fault in. The inclusion of, "Because he was black," is what the original reverse discrimination argument is arguing against. Namely, the inclusion of an already morally irrelevant characteristic such as blackness cannot be the basis to justify the granting of special compensation to blacks. Cowen considers the characteristic that Nickel uses to justify compensation, a complex predicate, meaning it has two parts. One part of it is having been discriminated against for whatever reason, and the other is the morally irrelevant part of being black. Cowen provides another form of the argument against the reverse-discrimination argument that considers this and accounts for the morally irrelevant portion:
1. If the reason why a person should be awarded special compensation is simply the fact he was unjustly discriminated against for whatever reason, then compensation is morally justified.
2. The reason why a person should be awarded compensation is simply the fact he was unjustly discriminated against for whatever reason.
3. Thus, compensation is morally justified.
Cowen textually provides this:
""Being discriminated against because he was black" is clearly a complex predicate. What I would like to suggest is that the portion of it, which was morally irrelevant in independence, remains so within the complex and is thus mere excess baggage. The reason why he was discriminated against is not what should now ground reparation, but rather simply the fact that, and extent to which, he was unjustly discriminated against for whatever reason. Thus assuming that the discrimination is otherwise the same, we would presumably not wish to say that Jones, who has been discriminated against as a black, should now be favored over Smith, who has been equally discriminated against as a woman or a Jew or whatever. We are therefore left without a moral relevance for blackness, and thus without a moral basis for inverse discrimination based on blackness, as opposed to discriminatory injustice per se."
This argument successfully combats the given version of the reverse discrimination argument, and shows the fault in Nickel's argument. It shows fault in Nickel's argument by arguing that Nickel's morally relevant characteristic actually contains the same morally irrelevant fact, from which it is trying to break from. By simply changing the words around slightly, and omitting the fact about the irrelevant characteristic all together, Cowen has provided a superior argument for justifying compensation. This shows that Nickel's argument that compensation should be awarded because one was discriminated against because of the possession of an irrelevant characteristic, can't justify compensation when put up against the reverse discrimination argument provided.
Cowen agrees that Nickel is right when he argues that to justify compensation one should not base it on the morally irrelevant characteristic, but rather another morally relevant one. Cowen, however disagrees with what Nickel believes this relevant characteristic really is and in the process shows Nickels argument to be unsound. Cowen directly finds fault with the first premise of nickels argument, and shows that it is a false premise. This is what makes the argument unsound. However, another author believes that Nickel's first argument pertaining to the irrelevancy of a characteristic has problems with it, namely that the original characteristic is indeed morally relevant.
Paul Taylor states "that since C (the morally irrelevant characteristic) is a morally relevant characteristic at time T2 (meaning today) with respect to the principle of compensatory justice, that principle requires reverse discrimination." In other words reverse discrimination is justified because of the principle of compensatory justice, which requires that persons possessing the characteristic to which the original discrimination was aimed at be compensated in some way, and thus the characteristic to which the original discrimination was aimed becomes relevant. This is different from Nickel's argument that maintains that characteristic is irrelevant and thusly can't be used as the basis for compensation. Taylor believes that since the possession of this characteristic was the reason that injustices (discrimination) was perpetrated onto certain people, this establishes this characteristic as being morally relevant as far as making restitution is concerned. He writes, "According to the principle of compensatory justice, the fact that systematic injustice was directed toward a class of persons as being C-persons establishes characteristic C as morally relevant, as far as making restitution is concerned." His argument may look something like this:
1. If systematic injustice was directed toward a class of persons based on a characteristic, then that establishes that characteristic as being morally relevant as far as making restitution is concerned.
2. Systematic injustice was directed toward a class of persons based on a characteristic.
3. Thus, that establishes that characteristic as being morally relevant as far as making restitution is concerned.
By making this argument, Taylor directly counters, and successfully disproves the first premise of Nickel's first argument, namely, if the characteristic that justifies compensation now, is not the morally irrelevant one that justified discrimination, but rather another morally relevant one, then compensation can be morally justified. Thus, the first, and main, argument Nickel makes against reverse discrimination is also unsound.
I conclude therefore, that Nickels two arguments are unsound, and that he doesn't succeed in one, proving the reverse discrimination argument to be false, and two, justifying compensatory measures, especially when placed against that reverse discrimination argument. His two arguments are unsound, not due to the structure of them, but rather because one of his premises in each argument were found to be false. As an answer to the original question of whether or not nickel successfully disproves the reverse discrimination argument, I would have to say no. Both Cowen and Taylor aided me in understanding why Nickel's arguments failed, as they both disproved one. I am not saying that I support the reverse discrimination argument; merely that Nickel's argument doesn't prove it wrong.