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Myth: Affirmative Action is Justified Only Under a Perpetrator-Victim Model

 Laura M. Padilla
excerpted Wrom: PTCXLYRWTQTIPWIGYOKSTTZRCLBDXRQBGJS And Positionality: Situating Women of Color in The Affirmative Action Dialogue, 66 Fordham Law Review 843, 853-885 (December, 1997)(432 footnotes omitted)
A third myth is that affirmative action can only be utilized under a corrective justice model, which requires both an identifiable victim and a proven identifiable perpetrator. This corrective justice model attempts to restore equality between two parties. Aristotle was one of the earliest philosophers to elucidate the notion of corrective justice within the legal system to allow an injured party to be made whole by enforcing a claim against the injuring party. He described corrective justice as a mathematical equation seeking equality and fairness. FN125] It is mathematical because it focuses on a quantity that represents what rightfully belongs to one party but is now wrongfully possessed by another party. In other words, there must be both a wrongdoer and a victim. Professor Alan Freeman describes the law under this model as follows:
You can't assert your claim against society in general, but only against a named discriminator, and you've got to show that you are an individual victim of that discrimination and that you were intentionally discriminated against. And be sure to demonstrate how that discrimination caused your problem, for any remedy must be coextensive with the violation. Be careful your claim does not impinge on some other cherished American value, like local autonomy of the suburbs, or previously distributed vested rights, or selection on the basis of merit. Most important, do not demand any remedy involving racial balance or proportionality; to recognize such claims would be racist.
Many foes of affirmative action concede that "compensation" to an identifiable victim via affirmative action is appropriate provided there is a specific injury to that person. In other words, under a corrective justice model, affirmative action for women of color could be justifiedonly if there was evidence both that particular women of color suffered multiple discrimination and that the perpetrators alone bear the cost of making those women whole through affirmative action remedies. Do these women individually have to show that they have been discriminated against in the past, that they are currently being discriminated against, or that they are likely to be discriminated against in the future? Or is it enough if women of color have suffered and continue to suffer multiple discrimination because of the confluence of race and gender?
A criticism of the corrective justice model is that discrimination is systemic and structural, not simply ad hoc or individual. Thus, a shortcoming under the corrective justice model is that it can only be used to equalize parties if intentional discrimination and readily identifiable wrongdoers and victims exist. Undoubtedly, women of color have suffered from discrimination, both directly and indirectly. But the acts of discrimination are frequently subtle and the match between the discrimination and a remedy under this model is too inexact and inefficient. As one scholar has noted:
To say we must find the offenders against blacks one at a time and try them on an individual basis would be as realistic as saying that if you prosecute individual criminals when you happen to catch them organized crime will go away. . . . The fixation is at the level of one-to- one individual justice. Such a constricted perspective is useless in the face of the actual problem. . . . We cannot dismantle a caste system any more than we can reform a sexist society simply by plodding from one specific violation to another, leaving the distorted and distorting structures substantially intact.
The corrective justice model's insistence on clear discrimination and a close match between the victim and the crime invokes such a strict standard of proof that many women of color would be precluded from access to affirmative action under this model. It is also misguided because it detracts from affirmative action's goals of increasing the availability of opportunities, working towards inclusion, and obtaining positions of power for women of color. The corrective justice model thus is problematic because the reality for women of color does not neatly fit this model. For one, the costs to prove discrimination may be prohibitively expensive. Furthermore, the one-on-one type of discrimination required by this model may not be provable, because the discrimination tends to be more broadly based and systematic. In addition, the time it would take to prove such discrimination could effectively preclude remedial action. For example, if a woman of color is seeking college admission or a job as a highway worker, by the time she presents necessary proof of past discrimination against her by the college or employer, the entering class she wanted to join will have graduated or the job she sought will have long been filled. Finally, and perhaps most troublesome, this model denies that much of race and gender discrimination is subtle, invidious, ongoing, and systemic.
Even with its shortcomings, the classic corrective justice model could still be invoked if modified or relaxed as it has been in some cases where it was impractical or impossible to identify a particular wrongdoer or victim. Accordingly, it could be used to support affirmative action even if there is no particular wrongdoer whose wrongs can be traced to identifiable victims. The theory would be that affirmative action attempts to correct injuries inflicted on women of color through race- and gender-based discrimination.
A criticism of affirmative action under a relaxed corrective justice model is that the beneficiaries (direct or indirect victims who are now perceived as wrongdoers) gain at the expense of perpetrators (direct or indirect wrongdoers who are now perceived as victims). The myth that arises here, which many people have been lulled into believing, is that well- qualified, innocent white males pay for affirmative action which benefits women of color. One problem with this myth is that it assumes innocence, or the lack of racism. But as one scholar pointed out, "[a]n affirmative action program does not violate the rights of innocent white individuals when it guarantees to minorities the portion of society's goods that minority individuals would have gained for themselves in a nonracist environment." In other words, as long as society remains racist, the notion of innocence is mythical. Another problem with the innocent white male myth is the often ignored reality that those males not only directly and indirectly benefit from affirmative action, but that they have for a much longer time than any other group, and in substantially larger numbers. "White men continue to be the only beneficiaries of 'affirmative action,' the only group who are hired at rates significantly higher than their proportion in the available pool of qualified candidates."
Another attack on affirmative action relates to the preferential treatment myth. Underlying this myth is the idea that affirmative action beneficiaries are undeservedly preferred to more deserving persons. For example, many people criticize government contract affirmative action programs as unduly burdening majority contractors for the benefit of minority- and women-owned businesses ("MBEs" and "WBEs," respectively). San Diego, California had an affirmative action contracting program entitled "Equal Opportunity Contracting Program." Its goal was to award 20% of construction projects over $50,000 to MBEs and WBEs, and 15% of consulting projects to MBEs and WBEs. Even with this policy, which was partly designed to create greater equality of contracting and consulting opportunities for groups traditionally deprived of those opportunities, only 1.9% of construction contracts were awarded to MBEs and 4% to WBEs, for a total of 5.9%--far short of the voluntary goal of 20%. Only 1.8% of consulting contracts were awarded to MBEs and 0.8% to WBEs, for a total of 2.6%--again far short of the 15% goal. Women of color fared even worse. Of the $209,732 worth of construction contracts awarded to African- American owned businesses, $23,400 worth, or just under 11.2%, went to women. This means that African-American women received approximately 0.09% of all construction contracts. Of the $6,829,362 worth of construction contracts awarded to Latino owned businesses, none went to women. Latina owned businesses also received zero percent of the $1,657,454 in consulting contracts awarded to Latino owned businesses. Of the $132,353 worth of consulting contracts awarded to African-American owned businesses, $12,400 worth of contracts went to women. In other words, approximately 0.48% of all contracts went to African-American owned businesses. Of these contracts, approximately 9.4% went to women owned businesses. The African-American women thus received a total of less than 0.05% of all consulting contracts awarded.
The point of the San Diego story is twofold: even with modest affirmative action goals, the city fell far short of its goals, and affirmative action opponents still complained about preferential treatment and reverse discrimination. Majority-owned businesses are hardly being deprived of contracts, and women of color continue to receive only a nominal percentage of construction and consulting contracts in San Diego. As affirmative action proponents point out:
[A]ffirmative action is not a matter of affording "preferential treatment" to its beneficiaries, but instead [is] an attempt to offer them greater equality of opportunity in a social context marked by pervasive inequalities, one in which many institutional practices work to impede a fair assessment of the capabilities of those who are working class, women, or people of color. Thus, the notion that affirmative action beneficiaries are receiving preferential treatment to the detriment of more deserving parties remains as mythical as the notion that affirmative action is causing majority contractors to go out of business because of preferential treatment for women of color.
The San Diego story brings out another wrinkle in the problem. Some people complain that affirmative action generally, and in government contracting particularly, has not been effective and should therefore be abolished. The myth is that because goals are not being met, affirmative action is at fault. The reality is "that the city's figures show that minority- and women-owned businesses have received dramatically less city work since the equal opportunity program was abolished." First, note that women of color receive more contracts with affirmative action than without. Hence, it is making a positive difference for women of color. Second, ponder why goals are not being met. It may be because not enough women of color submit bids. But other, more sinister reasons exist as well. For example, in describing why almost all state departments failed to reach affirmative action goals, one report noted that "[t]he program's administration is fragmented and its provisions are applied unevenly; in some cases, the law has simply been ignored while in others advantage has been taken of loopholes." Furthermore, affirmative action in government contracting has not worked very well in California partly because it has been sabotaged by majority-owned firms. Fraud is rampant in the contracting area. "After examining 700 contracts valued at $375 million, auditors hired by the Office of Public School Construction reported that 30% involved fronting or other violations of affirmative action requirements." It is telling that this view of affirmative action does not garner the same attention that the marginal percentage of contracts awarded to MBEs or WBEs receives under reverse discrimination headlines. Thus, affirmative action in government contracting has not achieved even modest goals, in part because of fraud committed by majority-owned firms. Those same firms are either moaning that affirmative action should be eliminated because it is not working, or are crying reverse discrimination when a negligible percentage of contracts is awarded to MBEs or WBEs. Clearly, affirmative action is not at fault here, and rather than be eliminated, it should be revamped to run more efficiently and effectively for women of color.
Another story will illustrate the fallacy of the myth that well-qualified white males pay for preferences favoring affirmative action beneficiaries. Many parents have complained that their children could not get into law school because they are not ethnic minorities. Yet a look at the composition of law schools reveals that minorities, including women of color, still make up a only small percentage of all law students, and they are still severely underrepresented. For example, in 1995-1996, out of a total of 129,318 law students, 9779 were Black American, 1085 were Native American, and 2495 were Mexican-American. Thus, it is evident that minority students hardly cause a massive displacement of white students. The numbers for practicing lawyers are even more discouraging. In 1995, only 8.36% of associate attorneys nationwide were minorities, while a paltry 2.68% of partners were minorities. While 38.99% of the associate attorneys were women, only 12.91% of partners were women. As noted elsewhere, few statistics exist on women of color. However, in Chicago, just under 2% of attorneys are women of color. Thus, in spite of the myth that undeserving minorities are taking away white men's entitlements, women of color are still underrepresented in law and many other professions.
All this is not to say that non-beneficiaries may be asked to bear too much of the cost of some affirmative action programs. To the extent that a program is structured so that those parties pay an undue price, however, the program will not, and should not, last. As case law shows, non-beneficiaries are well-versed in affirmative action law and have shown no hesitation in bringing reverse discrimination lawsuits. FN174] The solution is not to do away with a program that is resulting in some improvement, but rather to modify and overhaul the program to make it more efficient and results- oriented.