Cohen, Carl. Naked Racial Preference: The Case Against
Affirmative Action . Boston: Madison Books, 1995: 96-7

But deliberately visiting the sins of the fathers upon their innocent children and grandchildren, to the special advantage of persons not connected with the original sinning, is conduct neither lawful nor morally right. To suppose that both the baneficiaries of redress and those who are made to carry its burden are properly identified by race is, to be plain, racism. It is ethical racism because supposed with good will. It is simplistic because, on this view, race by itself-without consideration of the nature or degrees of past injuries, present advantages, or future pains-is sufficient to trigger the preferential device. The mistaken view in question is therefore properly called simplistic ethical racism.
Injuries are suffered in fact, claims made and burdens carried, by individual persons. Civil society is constituted to protect the rights of individuals; the sacrifice of fundamental individual rights cannot be justified by the desire to advance the well-being of any ethnic group. Precisely such justification is precluded by the Fourteenth Amendment of our Constitution, whose words-no state "shall deny to any person within its jurisdiction the equal protection of the laws"-express no mere legalism but a philosophical principle of the deepest importance. Explicating that clause, in a now famous passage, the Supreme Court wrote: "The rights created by the first section of the Fourteenth Amendment are, by its terms, guaranteed to the individual. The rights established are personal rights.... Equal protection of the laws is not advanced through indiscriminate imposition of inequalities.

The nature and degree of the injury done to many Americans because they were black or brown or yellow varies greatly from case to case. Some such injuries may justify compensatory advantage now to those injured. But the calculation of who is due what from whom is a sticky business; compensatory instruments are likely to compound injustice unless the individual circumstances of all involved-those who were originally hurt, those who benefit now, and those who will bear the cost-are carefully considered. Whatever compensatory advantage may be given, in employment or elsewhere, it must be given to all and only those who have suffered like injury, without regard to their race. What we may not do, constitutionally or morally, is announce in effect: "No matter that you, X, were innocent and gained no advantage; you are white and therefore lose points. No matter whether you, Z, were damaged or not; you are black and therefore gain points." If the moral ground for compensatory affirmative action is the redress of injury, the uninjured have no claim to it, and all those individuals of whatever ethnic group who have suffered the injury in question have an equal claim to it.
Racially based numerical instruments have this grave and unavoidable defect: they cannot make the morally crucial distinctions between the blameworthy and the blameless, between the deserving and the undeserving. As compensatory devices they are underinclusive in failing to remedy the same damage when it has been done to persons of the nonfavored races; they are overinclusive in benefiting some in the favored categories who are without claims, often at substantial cost to innocent persons. Except in those cases where the discriminatory policy of the employer is established, and the identity of injured applicants or employees determinable, racial preference in employment is intolerably blunt, incapable of respecting the rights of individuals.

Carl Gutierrez-Jones,

Department of English

University of California

Santa Barbara, CA 93106

E-mail: carlgj@humanitas.ucsb.edu