On June 29, in a historic 6 to 3 judgment, the United States Supreme Court terminated affirmative action programs in effect at universities, ruling them to be contrary to the equal protection clause of 14e amendment of the Constitution.
While this debate may seem distant, it nevertheless resonates with us, with the question of the merits of affirmative action returning to the forefront of public debate in waves. When the Trudeau government agreed to form a joint and diverse cabinet of ministers in 2015, there was also an outcry. More recently, the decision of the administration of Université Laval to open a position of Canada Research Chair (CRC) reserved for a person from one of the groups designated by the EDI policy (equity, diversity and inclusion) had also caused floods of ink to flow, whereas 70% of the CRCs (51/73) were nevertheless occupied by men and that 90% of them were by white people.
If, as I believe, we wish to progress as a society in this essential conversation surrounding social inequalities and the strategies to favor to overcome them, it seems to me first of all crucial to examine more closely certain arguments of the detractors of the positive action that has fueled popular resentment over these initiatives over the past decade.
Affirmative action would sacrifice competence
Some of the arguments against affirmative action are easier to refute than others, simply because they are susceptible to confirmation or invalidation by empirical studies. For example, the question of whether these measures are, in fact, felt to be “insulting” or “humiliating”, as their opponents claim, can be analysed, as can the question of whether they result in drop the degree of competence and the quality of candidates. It is not enough to make these affirmations in a grave and convinced tone; it still has to be demonstrated, and it turns out that at least as far as competence is concerned, it is not undermined by positive action.
Indeed, far from leading to a race to the bottom and representing a civilizational threat, as some chroniclers claim, these measures tend to enhance the general quality of the candidates recruited, as shown, for example, by a famous study by Timothy Besley, Olle Folke et al. of 2017. The authors conclude that, far from provoking a crisis of competence, these measures which short-circuit the fast track to power, opened up by white male privilege, would rather provoke “a crisis of the politician mediocre” who now worries about being replaced by a more competent female politician.
As other studies (such as Monica E. Peek’s) have shown Increasing Representation of Black Primary Care Physicians, 2023), increasing the representation of indigenous and black people within the medical and nursing profession, in a context marked by racism and (neo)colonialism, would also make it possible to develop approaches sensitive to the social context and culture, to reduce mistrust (which current events do not help to defuse), better prevention, better support, better healing. In other words, it enhances the quality of practices.
Positive action would be based on gender or skin color, irrelevant criteria
Critics of affirmative action also point out with one voice that it involves selecting women for “what’s between their two legs” or racialized people for the color of their skin alone. However, such an interpretation betrays a misunderstanding of the normative justification underlying positive action, a misunderstanding that opens the door to jokes that ridicule it, such as “if this continues, there will soon be positions reserved for bald people and left-handed”.
However, what makes women and racialized people count as a social group is not the sex or the color of their skin, physiological or phenotypic traits devoid of moral relevance in themselves, but the meaning social of such characteristics: the long history of formal exclusion from the high places of knowledge and power, in a context that still transpires this historical legacy.
Positive action refers to a set of temporary measures aimed at ensuring that, in a context of persistent male and white dominance, minorities can benefit from a boost to enjoy real and fair equality of opportunity to access the same functions. To oppose it is to prevent oneself from seeing that with equal, and sometimes even lower, skills, it has so far been mainly men and white people who have been favored thanks to the arbitrary criteria of gender (masculine) and the color (white).
Practicing affirmative action is like doing reverse discrimination
This reversal of perspective then makes it possible to take a different look at the argument which consists in saying that positive action prescribes “reverse discrimination”. This critique seems to presuppose that the positions of choice in the university, or in society more generally, belong naturally to the members of the dominant groups, that they are entitled to them (” entitled ”), to the point where offering them to others immediately appears as a deprivation of their due. It must be recognized, however, that different factors come into play in the admission and hiring process and that there is no such thing as a right to have only school marks or the number of publications (at examples) are taken into account to judge the best composition of the next cohort of law students or professors of a university department.
It is not the only skill that acts as a principle of distribution of functions in our societies. Privilege traces a reserved path to social dominance. And affirmative action represents one of the possible instruments of a progressive sexual and racial desegregation of our society.