Module 8: Debating Affirmative Action

Affirmative action policies are one of the most robust attempts to achieve social justice. They are a recognition of inequality in representation or opportunity in society. They are often adopted in contexts where such inequality is deeply structural and is recognized as being unjust. And recognition is an important qualifier here. Many states and institutions have consciously adopted deeply unjust policies: slavery, apartheid, ethnically-based internment, and residential schools for example. And this doesn’t even start on the history and legacy of imperialism and colonialism. These discriminatory policies are extremely harmful to the individuals who suffer the degradation and marginalization that these policies by definition entail. However, perhaps even more insidious is the impact of such policies on the group. These discriminatory policies can lead to intergenerational trauma and the internalization of derogatory narratives. Such internalization can manifest in harm of self or others, including family members. The identity group which could traditionally provide a support network for individuals in distress can become another layer of oppression. This is a deeply structural process that has no immediate ‘solution’. Rolling back such trauma will take generations. One purpose of affirmative action policies is to facilitate this ‘roll back’. Therefore, affirmative action is a recognition of structural violence and an attempt to address it.But it is also more than that. It is not just a recognition of past wrongs, it is also a recognition of the societal good generated by diversity. A more diverse society at all levels of authority and in all fields of endeavour has many benefits. It promotes creativity, adaptability, and learning while avoiding stagnation in society; people are able to learn from each other and consider innovative responses to problems. It also provides a diverse set of role models that people of all sorts can identify with. However, affirmative action also has its detractors, usually based on one of two arguments. The first argument being that while well-intentioned, affirmative action is ultimately ineffective and quite possibly harmful. The second argument being that affirmative action itself violates individual rights and therefore is morally unjust. In order to address these questions, we will begin by looking at what affirmative action is and the goals it is trying to address. We will then turn to affirmative action in Canada. Finally, we will conclude with an assessment of how just affirmative action is.

 

Affirmative action is most closely associated with the Civil Rights Movement in the United States, but its roots can be traced all the way back to 1865 and the establishment of the Freedman’s Bureau after the Civil War. The Freedman’s Bureau operated between 1865 and 1872 and was a source of relief to tens of thousands of former black slaves and dislocated southern whites. It provided food and clothing, medical treatment, legal services, employment, and even settlement on confiscated land. However, facing an increasingly hostile Congress, its authorizing legislation failed to pass in 1872 and the Freedman’s Bureau was dissolved.

Yet during this short period, Black Americans had made significant process. They held public office and achieved significant political gains. The 14^th Amendment passed in 1868 providing Black Americans equal protection under the law. The 15^th Amendment passed in 1870 removing “race, color, or previous condition of servitude” as grounds to be denied the vote. However, rising racism by White Americans led to ‘Jim Crow’ laws in the South.

These laws imposed racial segregation, banned interracial marriages, and disenfranchised Black Americans through intentionally discriminatory voting requirements.

These ‘Jim Crow’ laws were legitimated by the Supreme Court’s decision in Plessy v. Ferguson, which said the provision of separate but equal facilities was not in violation of the law. In the North, there was less legal discrimination but substantial societal discrimination in the work place, in which neighbourhoods Black Americans could live in, and what schools Black Americans could study at.

There were important battles against this racial discrimination being fought in the late 19^th and early 20^th century. Booker T. Washington fought for economic opportunity for Black Americans. W.E.B. Du Bois fought for the civil rights of African and African descendants globally.

In 1909, the National Association for the Advancement of Colored People (NAACP) was formed, one of the most influential civil rights organizations. These early struggles set the stage for the Civil Rights Movement which began to coalesce during World War II. Black Americans served in the military and worked in the factories producing war material. When the War ended, many were confronted with the hypocrisy of fighting for freedom and democracy abroad and supporting the war at home while still facing systemic discrimination. During the 1950s and 60s, large scale civil rights protests began in earnest.

In 1955, Rosa Parks was famously arrested for refusing to give up her seat to a white man on a public bus. This lead to protests and a boycott of the Montgomery bus system which lasted 381 days, only ending when segregated seating was ruled to be unconstitutional.

The Supreme Court ruled segregated public schools were illegal in the case of Brown v. Board of Education in 1957. In the same year, President Eisenhower used federal troops to enforce school desegregation in Arkansas. In 1960, four black college students staged a sit-in by occupying lunch counter seats reserved for whites at the Woolworth’s drug store in Greensboro North Carolina. This led to similar supporting sit-ins across the country. In 1963, 200,000 people took part in the March on Washington, demanding civil rights legislation. It is here that Martin Luther King Jr gave his famous “I have a dream” speech.

 

 

 

 

However, participation in the Civil Rights Movement was dangerous. In the early 1960s, protestors in Alabama were routinely set upon by police with clubs and dogs. In 1965, 600 peaceful demonstrators were beaten by the police during the Selma to Montgomery march.

In the same year Malcom X was assassinated, followed by Martin Luther King Jr in 1968. Their deaths empowered more militant means of fighting formal and informal discrimination in the US. The fight for civil rights was increasingly linked to the fight for independence by colonized people around the world. Groups like the Black Panther Party would dismiss the non-violent principles espoused by the leadership of the Civil Rights Movement, especially that of Martin Luther King Jr. Instead, they would quote Malcom X, “We want freedom by any means necessary. We want justice by any means necessary. We want equality by any means necessary.”

The demand of the Civil Rights Movement in the United States transformed the legal status of Black Americans and later other groups facing systemic discrimination. It forced the government to enforce civil rights laws and uphold civil-war era constitutional amendments like equal protection under the law and non-discrimination of voting rights. The gains of the Civil Rights Movement also became the basis of affirmative action policies.

The term ‘affirmative action’ was first used in Executive Order 10925, issued by President Kennedy in 1961.

This established the President’s Committee on Equal Employment Opportunity and sought to facilitate non-discrimination employment policies in the executive branch of government. In the text of the order, it stated “the contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin”. However, it was the administration of President Johnson that actively promoted affirmative action policies to improve employment and educational opportunities for Black Americans. With the Civil Rights Act (1964), the Johnson Administration expanded the non-discrimination policies of Kennedy’s Executive Order 10925 to all private employers working with the federal government. It also made it illegal to discriminate against students in the college admissions process based on race. In 1968, Green v. New Kent County expanded the Brown v. the Board of Education decision, requiring district school boards to take the race of students, faculty, and administrators into account in the process of desegregation. In 1973, the decision in Keyes v. School District No. 1 expanded desegregation policies to Hispanic Americans. In 1978, the Regents of the University of California v. Bakke decision addressed the issue of affirmative action in higher education. It upheld the right to include race as one of the criteria by which to base admissions in pursuit of desegregation.

However, this case is also significant for another reason – the plaintiff was arguing against affirmative action. He was arguing that as a white male student, he had been the victim of discrimination because of an affirmative action policy. This is an argument that will be repeated in different forms in subsequent cases – that affirmative action policies themselves are discriminatory. The Bakke decision is also significant because it ruled that blunt instruments like racial quotas violated the equal protection clause of the 14^th Amendment. Therefore since 1978, the Supreme Court has sustained affirmative action policies in higher education through a number of cases, including: Hopwood v. Texas (1996), Johnson v. University of Georgia (2001), Gratz v. Bollinger (2003), Grutter v. Bollinger (2003), Fisher v. University of Texas (2013), Fisher v. University of Texas (2016).

But the Court has also narrowed the scope to which affirmative action policies can be applied. The Court has stipulated that affirmative action admissions policies cannot be pre-eminently about race. Rather, affirmative action admissions policies are constitutional when they foster diversity amongst the student body, when they develop leadership in a diverse society, and when they foster cross racial understanding. Currently, even these supporting arguments may be coming under challenge by the Trump Administration. The administration has already rescinded seven Obama-era policy guidelines on affirmative action and, far more importantly, may have the opportunity to make long lasting changes through the Supreme Court. This is because Trump is about to nominate his second Supreme Court Justice. Trump is replacing Justice Kennedy, the traditional swing vote in the Court, and there is open conjecture that this will shift the court decidedly to the right. Since most dissenting opinions on affirmative action have come from the right, some are questioning if this signals the end of affirmative action policies in the US. There is currently a case being reviewed by the Department of Justice on Harvard’s admissions. This case is aimed for the Supreme Court, so we have our answer sooner rather than later.

For the purposes of this module, the constitutionality of affirmative action in the US is only tangentially relevant, albeit very interesting. We are asking whether such policies are just. There are two arguments that need to be assessed here. First, are affirmative action policies which are designed as compensation for past wrongs just? Second, are affirmative action policies which are designed to increase diversity just? We will be addressing these two questions in the third section of this module. Before doing so, we will look at affirmative action outside the US and specifically in Canada.

While the concept of affirmative action is most closely associated with the United States, similar policies exist in nearly a quarter of the countries in the world, including Canada. In this section we will briefly survey affirmative action policies from other states and then more intensively focus on the situation in Canada. Globally, policies similar in intent to affirmative action go by a variety of names. India has the world’s oldest affirmative action program, called the system of ‘reservation’, entrenched in the Constitution since 1950. This policy identifies designated groups as being disadvantaged and sets quotas for them in public jobs, places in publicly funded institutions of higher education, and even elected assemblies. Initially two groups were identified, ‘Scheduled Castes’ which includes the Dalits or ‘untouchables’ and ‘Scheduled Tribes’ which are primarily isolated Indigenous tribes.

In 1980, a third category called ‘Other Backward Classes’ was created comprising socially and educationally marginalized classes. Gender is also being debated as a category that should be recognized in the reservation policy, although legislation to achieve this has been stalled in the lower house since 2010. To partially ensure that the benefits of the reservation system go to those who are actually disadvantaged, there are income thresholds members of the Other Backward Classes have to meet to qualify.

In Brazil, the government began to tackle its racial issues with affirmative action policies in 2001. The two goals of Brazil’s affirmative action program are to combat racial discrimination and expand access to higher education for traditionally disadvantaged groups. This was a highly contentious decision given Brazil’s self-identification as a ‘racial democracy’ – 43% of the citizens identify as mixed-race and 30% of those who identify as white have black ancestors. However, the legacy of African slavery in Brazil has created great social disparity. The Portuguese had transported nearly 5.5 million African slaves to Brazil and it currently has the largest black population outside of Nigeria.

But Afro-Brazilians, as well as those of mixed race and the Indigenous peoples in Brazil, are largely excluded from the best schools, top positions in business and politics, and are most likely to be poor. The wealthiest 1% in Brazil are 80% white while Afro-Brazilians and those of mixed race constitute 76% of the bottom 10% of earners. In a country where there is a broad spectrum of skin colour – 136 recognized tones according to the census department – opportunity and success are most often dependant on whether one’s skin is darker or lighter. In response, the government has created a system whereby half of all university admissions are reserved for public high school graduates. Of these positions, half go to students from families making less than 1.5 times the minimum wage. Further, a percentage of spots is established in both categories by a ratio of white to non-white residents in each state, which are set aside for black, brown, and Indigenous students. One perverse complication of this system in a state with 136 officially recognized skin tones, is the necessity of creating state Ethnicity Evaluation Committees and having dermatologists with special machines to judge skin tone according to the Fitzpatrick scale. However, despite such complications, the Brazilian program is arguably one of the largest scale affirmative action systems today.

Post-apartheid South Africa has entrenched the right to use affirmative action policies for redress of past discrimination in Section 9 of the Constitution. While many places, including the US and Canada, have a history of deeply institutional discrimination, South African Apartheid stands out for two reasons.

First, the move from segregation to apartheid began in 1948 with the election of the Afrikaner Nationalist Party and didn’t end until 1994. As such, it stood in stark contrast to the processes of decolonization happening around the world, even if this has at times been only rhetorically. Second, the full force of state coercion was used to enforce blatantly and unapologetic racist laws: the registration and classification of every South African according to racial population groups; strict segregation of economic and educational opportunity based on these population groups; banning inter-racial sex and marriage; restrictions on land ownership; ‘pass’ laws that controlled where and when non-white South Africans could live and work; state security laws that allowed arrest and detention without trial.

The apartheid regime increasingly had to use violence to uphold these laws, like the imprisonment of activists like Nelson Mandela (1956), the killing of 69 protestors in the Sharpeville Massacre (1960), the killing of more than 600 students in the Soweto Massacre (1976), and the questionable deaths of imprisoned activists like Steve Biko (1977).

Consecutive post-apartheid governments, all led by the African National Congress, have implemented affirmative action policies in employment and education as redress. The Employment Equity Act (EEC, 1998), the Broad Based Black Economic Empowerment Bill (B-BBEE, 2003), and the 2006 amendments to the Higher Education Act (1997) were implemented for three reasons: to provide redress for past discrimination, to increase diversity and, as a consequence, cultural understanding/reconciliation; to fulfill the potential of South Africa’s human capital. The EEC aims to achieve equity in the workplace by promoting equal opportunity in employment as well as implementing affirmative action measures to ensure equitable representation. The B-BBEE requires all businesses in South Africa to be assessed for diversity, including: ownership, management, employment equity, enterprise development, skills development, preferential procurement, and socio-economic development. Any company working with the government must have met the B-BBEE minimum requirements and all companies over a certain threshold can be penalized for not meeting these requirements. The 2006 amendments to the 1997 Higher Education Act now requires universities to increase admissions of under-represented groups. As a result, campuses like Cape Town University, which used to be 100% white, are now quite diverse. However, much like the debates in the US, there are increasing complaints that such affirmative action policies are themselves discriminatory.

Beyond race, gender is another category where affirmative action policies have sought to address under representation. In 2018, there are only 11 female Heads of State and 12 female Heads of Government. Over 150 countries still have active laws which discriminate against women, including punitive rape laws. The UN estimates that 35% of women have experienced sexual or physical violence. Significant pay gaps between men and women doing the same work exist in most countries. Around the world, women and girls are prevented from going to school, taking up jobs, and buying property to a much larger extent than men and boys.

In response, some countries have begun to put into place affirmative action policies. In business, some countries have introduced gender quotas in the boardroom. In 2006, Norway was the first country to introduce legislation that requires a 40% quota of women on the board of directors for listed companies. Since 2006, Belgium, Iceland, Italy, the Netherlands, and Spain have followed suit. Malaysia has imposed a 30% quota for women in new appointments to boards. Brazil requires a 40% quota but only for state-controlled firms. Australia and Sweden are considering such legislation, as is the UK which requires robust reporting of gender composition in companies as well as on pay equity. In politics, half of the countries in the world have some form of gender quotas in elections.

Quotas can be used in the process of selecting candidates for a particular riding, in the percentage of women each party fields in an election, or in reserving a specific number of seats in the legislature. These quotas can be constitutionally required or be based on a voluntary commitment by political parties. In the end, perhaps the most important metric is how many women sit in the legislature and how many of those hold positions of influence. In terms of women sitting in parliament, the top five countries in 2018 are Rwanda, Bolivia, Cuba, Iceland, and Nicaragua. In terms of women in ministerial positions, the top five countries in 2018 are Bulgaria, France, Nicaragua, Sweden, and Canada. Having better gender equality in politics is important as women provide more diversity in opinion and especially on issues of poverty where women are over-represented. The UN argues a critical mass of 30% women in the legislature is needed to change how political institutions operate.

What about affirmative action in Canada? What are the disadvantaged and/or under represented groups that need such policies? Well, the 2015 election did elect more women as Members of Parliament than ever before, but they still only constitute 26% of MPs. This not only fails to be representative of the general population, it fails to meet the 30% goal set by the UN. On the other hand, Canada’s gender balanced cabinet at least puts the Trudeau Government in a better light. But even that cannot compensate for the fact that Canada has slipped in the World Economic Forum’s Global Gender Gap Index from 14^th position in 2006 to 35^th position in 2016.

Green = least Inequality Yellow = moderate inequality  Red = most inequality

This regression is due to issues like the fact that women only make up 26% of MPs, the stubborn pay gap, the minimal representation of women on the boards of Toronto Stock Exchange listed companies, over representation in low paying and vulnerable positions, and a lack of support services like affordable/accessible child care. The disadvantage that women face in Canada can also be intersectional with being Indigenous. As we saw in Module One, Indigenous peoples in Canada have faced intense systemic disadvantage and discrimination. They are 2.1 times more likely to be unemployed; 6.1 times more likely to be murdered; 10 times more likely to be incarcerated; 2.7 times more likely to drop out of school. Infant mortality rates are 2.3 times the national average. Young indigenous men are 10 times more likely to commit suicide than their non-indigenous counterparts and for young indigenous women it is a staggering 21 times more likely. This highlights the point above on intersectionality. Indigenous women are 3.5 times more likely to be victims of violence and their homicide rate is 7 times the rate of non-indigenous women. Indigenous women also face higher rates of poverty, unemployment, and access to social services. Again, as we saw in Module One, explanations that seek to understand such tragic statistics point to issues of racism, under funding of First Nation schools, health and public services, the condition of so many First Nation reserves, and the generational trauma that can be traced back to things like the residential school system.

People living with disabilities, both physical and mental, constitute another disadvantaged group in Canada. People living with disabilities in Canada face difficult obstacles simply managing day to day activities and even more employment obstacles. There is a lack of government support, a lack of accessible transportation, a lack of employment opportunity, a problem of jurisdictional clarity, and a lack of understanding in the general public of the problems faced by people with disabilities. For those who have moderate to severe disabilities as children, the obstacles magnify when they become adults. There is little to any funding for specialized health care, support for home care, and strategies to allow people with disabilities to participate meaningfully in society. However, much of the evidence for these claims is anecdotal since it is difficult to even assess the scope of the disadvantages faced by Canadians with disabilities since there is no federal mandate to collect data on disability issues. This may be changing as the Trudeau Government has introduced the Canadian Survey on Disability in 2016. The last group identified as facing discrimination in Canada are visible minorities. According to the 2016 Census, total income for visible minorities was 26% lower than non-visible minorities. These numbers get worse for recent immigrants, falling to 37% below incomes for natural born Canadians. Moreover, this is a growing problem since 22% of Canadians report being from a visible minority community, including 51.5% of Torontonians, Canada’s largest city. And don’t forget intersectionality: If you are an Indigenous woman with a serious disability or a member of a visible minority with a serious disability who has recently immigrated into Canada, you face significantly higher obstacles to success in Canada.

Let us turn back to affirmative action – what is being done in Canada to address these issues? First, unlike the US, the right to implement affirmative action policies are constitutionally entrenched in Section 15 of the Canadian Charter of Rights and Freedoms. Section 15, subsection 1 entrenches equality rights for all Canadians. Subsection 2, however, allows for affirmative action policies which may by definition privilege one group over another if it is done to address issues of persistent disadvantage. Section 15 reads as follows:

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

15. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The Canadian Charter of Rights and Freedoms is an important document in providing all citizens with constitutionally protected rights. But it is Section 15 Subsection 2 that we are interested in this module: the constitutionality of affirmative action. However, despite affirmative action being constitutional, there are far fewer affirmative action policies in Canada than the US or other countries. At the federal level, the Employment Equity Act (EEA) was passed in 1986 and amended in 1995. It is the most prominent example of an affirmative action policy at the national level. In 1983, the Trudeau Government introduced the Federal Affirmative Action Program that sought to increase the representation of women, Indigenous peoples, and persons with disabilities in the federal public sector.

The Royal Commission on Equality was also established at this time to study how best to meet the affirmative action goals of the government. In 1984, the Commission released the ‘Abella Report’ that made several recommendations including: changing the term ‘affirmative action’ to ‘employment equity’ because of the debates over affirmative action in the US and implementing mandatory employment equity laws.

In 1986, the federal Employment Equity Act was passed, requiring federally regulated private sector companies and crown corporations to remove barriers to employment for women, Indigenous peoples, persons with disabilities, and visible minorities. This means more than treating all applicants equally. It means putting into place positive policies for the recruitment of people from these four identified disadvantaged groups. On the civil society side, the National Employment Equity Network is created in 1988 to lobby the government in order to effectively implement the EEA. In 1995, the EEA is revised so that it applies to the federal public service. In 2000, a voluntary program called ‘Embracing Change’ was launched with the goal of achieving a 20% hiring goal for racialized people. The goals were not met and the initiatives funding was not renewed. In 2006, the Public Service Employment Act was adopted and sets some guiding principles for hiring practices, including ‘representativeness’ which requires a check on bias, the removal of systemic barriers, and seeking a public service that reflects the Canadian population. In 2007 and again in 2010, the Senate Standing Committee on Human Rights has released reports critical of the efforts to achieve representativeness in the federal public service.

The Harper Government pushed back against the EEA by cancelling the long form census and thereby hampering data collection on employment equity and more directly by removing requirements for employment equity for federal contractors.

Yet despite reports arguing that the EEA has not gone far enough in addressing disadvantage, there has been substantial public criticism of the program, and subsequently, much political manipulation of this criticism. In 2010, Sara Landriault was denied the ability to apply for a job in the federal ministry of Citizenship and Immigration because she was white. In response, the Harper Government launched its review of the EEA. Such stories have continued to be published, including a letter to the editor published in the Global Mail on April 22^nd, 2018. The author recounted an exchange with a recruiter where he was told that despite being well qualified, he couldn’t be hired because he was a white male. These arguments closely reflect the debates being heard in the US.

Beyond the policies at the national level in Canada, the provinces have also enacted varying degrees of affirmative action policies as have universities. Between 1993 and 1995, Ontario experimented but eventually abandoned its own Employment Equity Act. Under Article 23 of the Nunavut Land Claims Agreement, signed in 1993, the government is required to increase Inuit representation in government employment and develop employment training programs. In 2001, Québec implemented a number of affirmative action policies: it amended the Québec Charter of Human Rights and Freedoms, enacted its own employment equity legislation, and implemented an Affirmative Action Contract Compliance Program. These policies mirror the EEA quite closely but also recognizes as a disadvantaged group people “whose mother tongue is neither French nor English”. In higher education, many Canadian colleges and universities have a range of affirmative action policies. For example, Dalhousie University’s Medical School has an affirmative action policy for African Nova Scotians and Indigenous persons of the Maritime region but only if the applicants meet the admission prerequisites. Another example can be found at the University of Manitoba’s Education program which targets 45% of its admissions from five diversity categories: Indigenous, racialized, LGBTQ, persons with disabilities, and disadvantaged. These schools are able to draft affirmative action policies because of Section 15, subsection 2, of the Charter. But that does not mean they are uncontroversial. Despite the statistics regarding disadvantaged groups in Canada discussed earlier, many in Canada believe in the positive narrative of Canada as an uncontested multicultural state. Many question the need for such policies, even with ample evidence that inequality exists.

Are affirmative action policies just? According to Sandel, there are three positions by which affirmative action policies can be justified: correcting for bias or personal circumstances, compensating for past wrongs, and promoting diversity. Let us look at all three arguments in turn and assess the degree to which they can be considered just. The least complicated argument is when affirmative action policies are intended to correct for bias. Take for example two people applying for the same position in the public service or admission to an institution of higher education. One student comes from a privileged background, went to the best high school, and had support for any problems they might have encountered – say tutors for any subjects that they struggled in. The other comes from a disadvantaged background, from an identified group that has suffered systemic discrimination, whether that be slavery or residential schools. This second applicant did not have access to a well-equipped school, with well trained teachers. They had less support at home and perhaps had to work while studying. When considering these two applicants, whether that be for a job in the government or to a law school, how can their relative applications be assessed justly? Should applications be assessed relative to the applicants racial, ethnic, and economic backgrounds? Or should they be assessed by a strict equality of opportunity. Which process of assessment is more just? Sandel argues that correcting for bias or personal circumstances does not pose a challenge on the grounds of justice since the employer or institution of higher education is seeking the most qualified candidate or candidate with the most potential. However, they have to correct for distorting factors to do so.

The second argument is that affirmative action policies are a means to compensate for past wrongs. Take for example a descendant of a slave or a descendant of a residential school survivor. The institution of slavery and residential schools not only imposed deep scars upon the people who suffered through them, they created long lasting discriminatory structures and intergenerational trauma. In other words, people several generations removed from the initial harm are still facing discrimination and disadvantage. Would it be just to implement affirmative action policies in order to make amends for past wrongs, or to compensate for the disadvantage that can be traced back to past wrongs? To make the question a bit tougher, is it just to disadvantage another, who had no hand in creating that harm, in order to compensate for past wrongs? To make the question even tougher, should an affluent and successful member of a disadvantaged group be given preference over another candidate that may have faced more individual disadvantage? The answers to these questions depend on a couple of positions. First, it depends on whether you subscribe to the idea of collective responsibility or individual responsibility. Collective responsibility argues that the group can bear the moral responsibility for the harm done to others. And if they are morally responsible for harm, they are also responsible for redress.

Think for example of the Holocaust. Was Hitler alone responsible for the harm? Can the responsibility be limited to members of the Nazi Party? How about the rank and file members of the German army? What about the German citizenry? Does the international community hold at least some responsibility? What about the Canadian Government of Mackenzie King for refusing Jewish refugees entry? What about the German state or German citizenry today? Is there a hierarchy of responsibility? And if there is a hierarchy of responsibility, what are the implications regarding redress? To whom is redress owed?

On the other hand, if you subscribe to the idea of individual responsibility, it is argued that we can only be held to account for those things we have actually done. We cannot be held to account for things we did not do, even if done by our state or descendants, and certainly not for things that were done before we were even born. This is a difficult position. Harm has been done in the past and people are suffering now because of it. But is it just to ask individuals, who were not party to the original harm, pay for what is needed to address it. Second, we need to consider what is needed for redress. For some harm, important steps can start with recognition and apologies. For example, both the Harper and Trudeau governments apologies for the harm of the residential school system. Sometimes more is needed, like affirmative action policies that provide preferential treatment to people from disadvantaged groups or groups that have faced historical discrimination, for example, the quotas reserved for Afro-Brazilians in the admissions to the best institutions of higher education. And sometimes even more is needed, such as reparations for past harms. For example, payments made by the Canadian Government to survivors of the residential school system and the Japanese who were forcibly put into internment camps during World War Two. It is also important to note here that one type of redress doesn’t preclude others, as we have seen in the apologies and reparations paid to survivors of the residential schools. We will leave this discussion here as we will be covering it in more detail in Module 10.

The last justification for affirmative action policies, and the position most often used, is in the pursuit of diversity. This does not require attempting to amend for past harm as a rationale. Neither is it trying to correct for systemic bias or personal circumstances. Rather, it is arguing that achieving greater diversity is a social good in and of itself. That it is a benefit not just to those people whose interests are advanced under the policies but to everybody, to the common good. A diverse campus, a diverse workplace, a diverse government has tangible benefits. Diversity brings a wider set of viewpoints that better reflect society at large. It promotes better awareness of racial, ethnic, class, geographic, and gender based issues. On campus this has the potential to produce better teachers, lawyers, doctors, and politicians. These people have the potential to be better leaders in the classroom, the courts, in hospitals, and in legislatures. Not only may this produce better public policy and social services, it empowers those from disadvantaged groups by demonstrating that they have a meaningful role to play in society. They have role models to emulate. Advocates argue diversity therefore has a civic purpose.

However, in order for the diversity argument to be considered just, one objection must be overcome. Unless you are an ideologically committed utilitarian, how can it be considered just to sacrifice individual rights for a civic purpose? If university admissions or public service positions take race, gender, or disabilities into account, are they not denying access to others for those places? There is no question that it was constitutional that Sara Landriault was denied the ability to apply for a federal position in Citizenship and Immigration Canada. But was it just? Shouldn’t decision-making be based on merit alone? Well, according to Rawls, it was just to deny Ms. Landriault. It was just because she is not owed some moral dessert because of qualities she may possess. She is entitled to compete for rewards with the system once it is designed. Rawls would be more concerned as to whether the design of the system privileged the interests of most disadvantaged. In the case of the EEA, it sought to do just that – increase the representation of disadvantaged groups. Not all agree with this position, including the subject of our next module, Aristotle.

This module has sought to introduce and problematize the concept of affirmative action. Unlike most of our previous modules, the focus here has not been on a theory but rather a practice. Affirmative action is an institutional attempt to seek justice or at least an attempt to address past injustice. It refers to official policies implemented with the objective of addressing under-representation of particular minority groups, women, or people with mental/physical disabilities in higher education, the work place, state institutions, and public office. Affirmative action is most closely associated with the Civil Rights Movement in the United States but such policies can be found to varying degrees in over 150 states, including: one of the world’s oldest affirmative action programs in India; one of the world’s most robust affirmative action programs in Brazil; one of the most challenging affirmative action programs in South Africa. Canada has constitutionally entrenched the right of affirmative action policies in Section 15, subsection 2 of the Charter of Rights and Freedoms. However, despite this, there are relatively few such policies. The most significant affirmative action policy is the Employment Equity Act (1986). Provincially, Quebec has mirrored federal efforts most closely and the Nunavut Land Claims Agreement of 1993 requires increased Inuit representation in government employment and the development of employment training programs. In assessing whether affirmative action policies can be reconciled with justice, three arguments were introduced: correcting for bias or personal circumstances, compensating for past wrongs, and promoting diversity. The first argument, correcting for bias, poses no obstacle to justice since the intent is to find the best candidates. The second argument, compensating for past injustice, does pose a challenge to the notion of justice. It is argued the crux of this tension depends on whether you adhere to the notion of collective or individual responsibility. This will be dealt with in more detail in the next module. The last argument, promoting diversity, can be reconciled with justice if you take a Rawlsian position that divorces fairness from moral desert. Instead, Rawls would be concerned with the justice of the system and whether the design of the system privileged the interests of most disadvantaged. This is the express purpose of affirmative action policies. However, as we will see in the next module, not everybody agrees that questions of justice and fairness can be divorced from questions of moral desert.

Affirmative action refers to official policies implemented with the objective of addressing under-representation of particular minority groups, women, or people with mental/physical disabilities in higher education, the work place, state institutions, and public office. While affirmative action policies are most often associated with the Civil Rights Movement in the United States, nearly 25% of the countries in the world have some form of affirmative action policy in place. Canada also has affirmative action policies in place at the federal and provincial levels of government as well as in select institutions of higher education. In fact, the permissibility of such policies is constitutionally enshrined in section 15, subsection 2 of the Charter of Rights and Freedoms.

The Civil Rights Movement was a fight for Black Americans to gain equal legal rights in the United States. ‘Jim Crow’ laws adopted in the American South were examples of discriminatory laws, imposing racial segregation, banning interracial marriages, and disenfranchising Black Americans through intentionally discriminatory voting requirements. These ‘Jim Crow’ laws had been legitimated by the Supreme Court’s decision in Plessy v. Ferguson, which said the provision of separate but equal facilities was not in violation of the law. The Civil Rights Movement reached its apex during the 1950s and 1960s. There were protests, boycotts, and marches, all intended to put pressure on the government to repeal ‘Jim Crow’ laws, fully implement the 14^th and 15^th Amendments to the American Constitution, and later to advocate for the adoption of affirmative action policies to address the historic discrimination and under representation of Black Americans.

Globally, women are under represented in positions of leadership, in the economy, in politics, and in society. In 2018, there are only 11 female Heads of State and 12 female Heads of Government out of 193 states. Over 150 countries still have active laws which discriminate against women, including punitive rape laws. The UN estimates that 35% of women have experienced sexual or physical violence. Significant pay gaps between men and women doing the same work exist in most countries. Around the world, women and girls are prevented from going to school, taking up jobs, and buying property to a much larger extent than men and boys. Perhaps most importantly, women are under represented in politics, globally and in Canada. In the 2015 election more women were elected as Members of Parliament than ever before, but they still only constitute 26% of MPs. This not only fails to be representative of the general population, it fails to meet the 30% goal set by the UN to facilitate change in how political institutions operate.

Intersectionality is the theory that asserts that the overlap of various identities contributes to the specific kind of oppression that the individual experiences. Take Canada for example. Women, Indigenous peoples, visible minorities, and people with disabilities, face both discrimination and under representation in Canada. However, If you are an Indigenous woman with a serious disability or a member of a visible minority with a serious disability who has recently immigrated into Canada, you face significantly higher obstacles to success in Canada. For example, young Indigenous men are 10 times more likely to commit suicide than their non-indigenous counterparts. But that number rises to a staggering 21 times more likely for young Indigenous women compared to their non-indigenous counterparts.

At the federal level, the Employment Equity Act (EEA) was passed in 1986 and amended in 1995. Coming out of the ‘Abella’ Report released by the Royal Commission on Equality, it requires federally regulated private sector companies and crown corporations to remove barriers to employment for women, Indigenous peoples, persons with disabilities, and visible minorities. In 1995, the EEA is revised so that it applies to the federal public service. In 2006, the Public Service Employment Act was adopted and sets some guiding principles for hiring practices, including ‘representativeness’ which requires a check on bias, the removal of systemic barriers, and seeking a public service that reflects the Canadian population. There are also several provincial level affirmative action polices. Between 1993 and 1995, Ontario experimented but eventually abandoned its own Employment Equity Act. Under Article 23 of the Nunavut Land Claims Agreement, signed in 1993, the government is required to increase Inuit representation in government employment and develop employment training programs. In 2001, Québec implemented a number of affirmative action policies that closely mirroe the EEA but also recognizes as a disadvantaged group people “whose mother tongue is neither French nor English”. Some universities have also adopted affirmative action policies in their respective admissions requirements, most often for similar groups as the EEA but each tailored to their specific contexts.