Affirmative action redux
VOLOKH at mail.law.ucla.edu
Wed Mar 7 11:07:49 PST 2001
OK, let's say that someone was defending his practice of giving a
preference to whites in hiring. "I'm disturbed by the assumption," he says,
"that my employees are appointed EITHER on the white preference system OR on
merit. Remember, most of the time there is no 'best person for the job';
there are several well qualified candidates, any one of whom would probably
do fine. The other tests of qualifications are notoriously unreliable (ask
anyone who's hired people whether they can confidently predict who can work
out and who can't); so when I let in someone with marginally lower paper
credentials because he's white, I'm not really compromising 'merit
standards', so long as he's absolutely 'well qualified.'"
I think that most people wouldn't buy this. They'd say:
(1) The other tests of qualifications, even if they are imperfect,
are fairly decent predictors, or else you wouldn't be using them for anyone.
(2) Thus, when you depart from these tests in considering the
applicant's race, you are indeed hiring someone who is less qualified --
even if only slightly less qualified -- because of the person's race.
(3) You might be able to defend this decision to prefer people
based on race even though they are somewhat less qualified, but you have to
defend it on the merits, not by denying that you are indeed departing from
merit principles and hiring the less qualified over the more qualified.
(4) And if you think the other tests are flawed, you can fix them,
but you can't keep using these flawed tests and at the same time use them as
an excuse for race discrimination.
I'd say the same here.
Judy Baer writes:
> I'm disturbed by an assumption I find (perhaps wrongly) lurking in these
> last posts: that one is appointed EITHER on affirmative action OR on
> Remember, personnel experts tell us that of the time there is no "best
> person for the job;" there are several well qualified candidates, any one
> whom would probably do fine (as well as a pool of minimally qualified
> candidates, and some who are unqualified.) Remember, also, that to make
> action and merit mutually exclusive is part of the reason we have this
> Judy Baer
> Texas A&M
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