For example, assume that Cohen is correct about the language and legislative intent of the Act. Part of the issue here rests on how statutes should be interpreted. He argues that given that the Act allows for racial classification and preferences, the real issue is over how extensive that use should be. Sterba’s idea is that we need to use racial classifications and preferences in order to enforce or correct for violations of the Act. 318) and that Cohen himself admits this (p. In response, Sterba points out that the Act clearly allows for preferences as a means to correct for violations of that act (p. 48) and the clear legislative intent of the members of Congress who voted for it (pp. No person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.Ĭohen argues that preferential treatment violates the plain language of the Act (p. The part of the Act that relates to educational institutions says the following. The legality of the preferential treatment rests on whether such policies are compatible with the 1964 Civil Rights Act and the Constitution. Also, I focus on preferential treatment in the context of education since the majority of their arguments and examples are so focused. I shall follow Cohen and use the former phrase since I want to rule out outreach programs. The authors disagree over whether to call such policies “preferential treatment” or “affirmative action” and this disagreement reflects a broader disagreement on whether these programs favor less qualified applicants or track a type of qualification. In the interests of disclosure, I should mention that I have written a number of articles and a book opposed to preferential policies. The only problem with the book is that the moral arguments are somewhat abbreviated. The legality of preferential treatment consists of two different issues: Is preferential treatment Constitutional? Does preferential treatment violate laws other than the Constitution? The morality of preferential treatment also consists of two issues: Is preferential treatment right? Is it good? The discussion in this book is wide-ranging and the authors provide a fascinating set of legal and empirical arguments that are a nice complement to the moral arguments that underlie their positions on affirmative action. Carl Cohen’s and James Sterba’s debate is an impressive discussion of the legality and morality of various types of affirmative action and a must read for researchers in this field.
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