Updated: Nov 22, 2019
During America’s Third Democratic Republic (1932 to 2004), America began promulgating its second grand experiment designed to ensure justice, fairness, and inclusion (affirmative action). As we saw in Chapter 2, America has not developed a reasonably comprehensive way to address the shortcomings of its social contract, specifically in the way it fails to deal appropriately with the plight of minorities and women. Affirmative action, which was promulgated in the 1960s, was designed to be an exercise in compensatory justice. It was supposed to make up for past and present discrimination and to deal with persistent inequalities that minorities and women have been subjected to since before the founding of the republic. In 1961, in response to the perceived plight of African Americans, President John F. Kennedy's signed an Executive Order 10925, which mandated all government contracting agencies use "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."[i] President Kennedy stated the following in the first four paragraphs of Executive Order 10925:
WHEREAS discrimination because of race, creed, color, or national origin is contrary to the Constitutional principles and policies of the United States; and 13 CFR 1960 Supp.
WHEREAS it is the plain and positive obligation of the United States Government to promote and ensure equal opportunity for all qualified persons, without regard to race, creed, color, or national origin, employed or seeking employment with the federal government and on government contracts; and
WHEREAS it is the policy of the executive branch of the Government to encourage by positive measures equal opportunity for all qualified persons within the Government; and
WHEREAS it is in the general interest and welfare of the United States to promote its economy, security, and national defense through the most efficient and effective utilization of all available manpower; and”[ii]
With this change in focus, affirmative action became America’s national public policy vehicle for making American institutions more just, fair, and inclusive in their structure and operation. Regardless of how well-intentioned affirmative action was, it met with immediate, comprehensive, and fierce resistance. The anti-affirmative action forces couched their opposition to affirmative action in the language of civil rights by portraying affirmative action as “reverse discrimination” against whites. Given the vigorous push back against affirmative action and the fact that has been no clear alternative offered for it or appropriate counter-narrative to those who opposed it, there is little wonder that it seems to be increasingly less and less sustainable.
Since the introduction of affirmative action, the one universal sentiment is that everyone now claims to be afraid of discrimination. Minorities and women claimed to be afraid of “traditional discrimination”[iii], and white males claimed to be afraid of “reverse discrimination.” If discrimination is so bad and so ubiquitous, what is this “discrimination” that everyone is so afraid of it and wants so desperately to avoid? The Equal Employment Opportunity Commission identifies three types of discrimination: “individual, “institutional,” and “structural.” Individual discrimination is discrimination by and against individuals aimed at denying them benefits they might otherwise get. Institutional discrimination is a perversion of institutions, systems, and processes such that they purposefully bestow a disproportionate amount of benefits to one group while denying similar benefits to other groups. Structural discrimination refers to policies of dominant institutions that may be facially neutral but have the effect of generating disparate impacts for different races.[iv]
All types of discrimination are anathemas to the American people. They are at variance with the principles that Americans publicly subscribe to and upon which the American republic was founded. Yet, all types of discrimination exist in America, and getting rid of them has proven to be very difficult. An examination of the enabling legislation of affirmative action shows that it was (optimistically) intended to address institutional and structural discrimination against groups (originally blacks). Affirmative action has/had three major purposes:
Affirmative action was intended to dismantle institutionalized or informal cultural norms and systems of ascriptive group-based disadvantage, and the inequalities historically resulting from them (“Structural Inequality”).[v]
Affirmative action was intended to promote an idea of an inclusive community, as in the ideals of democracy, integration, and pluralism (multi-culturalism).
Affirmative action was designed as a means of classifying people according to their ascriptive identities (race and gender) and select people for participation in institutions using these classifications as criteria for participation.[vi]
Unfortunately, affirmative action, as promulgated, had a serious legal problem. It was unconstitutional. the door was opened to legal challenges.[vii] Affirmative action has been the subject of much controversy. Some policies adopted as affirmative action, such as “racial quotas” or “gender quotas” for collegiate admission and public procurement, have been criticized and challenged legally as a form of “reverse discrimination.” Moreover, the implementation of most types of affirmative action has been ruled unconstitutional by the majority opinion of an increasingly conservative Supreme Court. Some individual American states have passed plebiscites that prohibit affirmative action on race, creed, color, religion, sexual orientation, national origin, gender, age, and disability status, supposedly to promote “Absolute Color Blindness.”[viii]
For the first decade of existence, affirmative action made inroads in mitigating structural and institutional discrimination. It laid the groundwork for the creation of a black middle class chomping at the bit to partake of the American Dream. However, starting in 1973, affirmative action came under extreme fire from forces seeking to eliminate it. The American body politic divided itself into mutually exclusive competing camps divided by political orientation and policy preferences, as shown in the schematic below.
The anti-affirmative action forces based their objection to the policy on the alleged discriminatory effects that it had on white males. White males say they want politically determined, generally applied goals, set-asides, and quotas eliminated, and the operation of the public-sector marketplace be rendered race-neutral. Minorities and women are prepared to have the public-sector marketplace rendered race-neutral so long as a method or process is in place to ensure that they are not systematically discriminated against by way policies, structures, and institutions currently work. The debate has become heavily politicized, and sides are being taken, and battle lines are being drawn. To date, each side in this shoving match is ratcheting up their resistance and their rhetoric in opposition to their opponent’s positions. Unfortunately, this has led to increased rancor and fraying of the socio-economic relationships in America. The fact that the two groups are at loggerheads has resulted in a “zero-sum game shoving match over the fate of affirmative action, as depicted in the figure below.
Further, the proponents and the opponents of affirmative action are locked in a cold war of argumentation, litigation, and political confrontation. Each side is trying to portray itself as the “victim” of governmental efforts to deal with what they maintain to be the “realities" of discrimination in America.” Both sides profess fealty to the notion of a “color-blind society.” White males see Absolute Color Blindness as a “means to an end,” while minorities and women see color blindness as an “end” unto itself but one that requires embracing color-consciousness to get to it. The rhetoric of both portrays discrimination as an anathema to American law and values. However, the two sides define the nature and source of discrimination differently. White males see government action as the problem, and they maintain that the solution lies in the elimination of affirmative action in all of its manifestations and the promotion of anti-discrimination law aimed at individual discrimination. Minorities and women see government inaction as a problem because such inaction will only further entrench the status quo is characterized by white male privilege and structural and institutional discrimination against them. For minorities and women, affirmative action is the solution.
The major venue of the fight over affirmative action has been in the courts. The court has wrestled for years with the question of whether affirmative action is constitutional. The 1954 Brown v. Board of Education Supreme Court of the United States (SCOTUS) ruling marked the beginning of efforts by pro-affirmative action forces to make America more inclusive.[ix] They based their case on the fact that blacks, other minorities, and women had faced discrimination and exclusion that had circumscribed their life choices and opportunities for centuries — the Bakke v. University of California SCOTUS ruling marked the beginning of anti-affirmative action forces efforts to get affirmative action banned by using the court system.[x] Opponents of affirmative action based their campaign on the twin logic that (1) affirmative action is no longer needed because discrimination was non-existent in America and (2) it constituted “reverse discrimination” against white males.
Though the fundamental premises of their anti-affirmative action crusade (America is a post-racial society, and the only discrimination that exists in America is against white males, affirmative action discrimination discriminates against white males specifically and whites in general) has been shown to be dubious at best. This “mythology” regarding affirmative action has become “(un)conventional wisdom.” It echoes throughout our body politic, and even some justices at SCOTUS repeat it as if it were true. The SCOTUS position is perhaps the most troubling aspect of this current state of affairs because they are supposed to be neutral arbiters of what is constitutionally allowable, but instead, they seem more and more like just another partisan cog in the wheel of Majoritarian Democracy. The nature and quality of justice one get when going before the ultimate bar of justice is inevitably determined by the philosophical disposition of the judges on the court (“conservative” or “progressive”), which is an artifact of the political process, which is itself zero-sum in its nature.
Throughout this series of Supreme Court cases, the court has struggled with the fundamental, overriding question, “…are governmental actions that affirmatively use race, national origin, and sex classifications constitutional under the equal protection clause of the 14th amendment?” The Supreme Court had been unable to unequivocally determine the constitutional standard governing affirmative action, from Bakke through Weber. In Klutznick, SCOTUS established that Congress has the power to mandate affirmative action plans where the evidence supports the need for such measures. The Bakke ruling "...sharply limited to the issue of congressional authority to pass legislation containing racial and ethnic classifications, holding that congressional legislation may employ racial or ethnic criteria if it is ‘narrowly tailored’ to the present effects of past discrimination that impair or foreclose access by minorities to opportunities enjoyed by whites.”
SCOTUS has consistently ruled that such actions are constitutional, but only under certain conditions. The major thrust of the series of rulings cited above represents an effort to define those conditions. The City of Richmond v. J.A. Croson ruling represents the culmination of that effort; it found that "...temporary race-based preferences, closely tied to an identified problem and designed to rectify that problem and thereby eliminate the effects of past discrimination are lawful." After the City of Richmond v. Croson ruling, strict scrutiny became the standard evaluative criteria for race-based public policy. State and local authorities could now engage in race-based decision‑making only to rectify prior, identified discrimination.
In 2019, another anti-affirmative action case is working its way through the judicial system, the case involving Harvard’s use of race in its admissions policy. In this case, anti-affirmative action forces are hopeful that the conservative Supreme Court will use the case as an opportunity to strike down affirmative action comprehensively. Pro-affirmative action forces are hopeful that the Supreme Court will use the case as an opportunity to uphold the concept of affirmative action, albeit pursuant to strict scrutiny. In an effort to get out in front of the situation, Harvard has amended its recruitment and enrollment procedures to bring them more in line with the requirements of strict scrutiny. As shown in the initial ruling in the 2019 Harvard case, the correct application of the strict scrutiny standard can be the saving grace for public policies using race.
So, what is strict scrutiny? The Free Dictionary defines strict scrutiny as the most stringent standard of judicial review that can be applied to a challenged public policy. When strict scrutiny is applied to a policy, “…the court presumes the policy to be invalid unless the government can demonstrate a compelling interest to justify the policy.”[xi] The Free Dictionary’s explanation of strict scrutiny is worth quoting at length.
The strict scrutiny standard of judicial review is based on the equal protection clause of the 14th Amendment. Federal courts use strict scrutiny to determine whether certain types of government policies are constitutional. The U.S. Supreme Court has applied this standard to laws or policies that impinge on a right explicitly protected by the U.S. Constitution, such as the right to vote. The Court has also identified certain rights that it deems to be fundamental rights, even though they are not enumerated in the Constitution.
Strict scrutiny is the most rigorous form of judicial review. The Supreme Court has identified the right to vote, the right to travel, and the right to privacy as fundamental rights worthy of protection by strict scrutiny. In addition, laws and policies that discriminate on the basis of race are categorized as suspect classifications that are presumptively impermissible and subject to strict scrutiny. Once a court determines that strict scrutiny must be applied, it is presumed that the law or policy is unconstitutional. The government has the burden of proving that its challenged policy is constitutional. In order to meet the requirements of strict scrutiny, the government must show that its policy is necessary to achieve a compelling state interest. If this is proved, the state must then demonstrate that the legislation is narrowly tailored to achieve the intended result.[xii] Strict Scrutiny has various components and characteristics depending on the type of public policy to which it is applied. An agency that is involved in making public policy that is likely to be challenged or is in the process of defending one of its policies that are being challenged should do the following:
Explore workable race-neutral alternatives
Determine whether the policy provides for flexible and individualization in its application
Determine whether the policy minimized undue burdens on non-recipients of policy benefits
Ensure that the policy is limited in time and subject to periodic review
Activity in the courts was not the only effort to ban affirmative action by making them subject to strict scrutiny. Anti-affirmative action forces also conducted a campaign to ban affirmative action comprehensively at the state level through public initiatives designed to place language banning affirmative action into the state’s constitution. In these state initiatives, the voters were asked to go to the polls and vote on whether they wanted affirmative action used in their states. Thus, the effort was part of the Majoritarian Democracy effort going on around the country. Anti-affirmative action forces had effectively campaigned against it to the point where more than 50 percent of Americans had a negative opinion of the policy. Since its inception, opponents of affirmative action have invested much effort in trying to convince Americans that discrimination had been eradicated in America, that we are living in a post-racial society. Americans recognize that we have a way to go in resolving our problem with current and systemic discrimination.
The campaign to ban affirmative action comprehensively state by state was led by Wardell ("Ward") Connerly and his organization, the American Civil Rights Institute. Mr. Connerly, who is black, vehemently made the case that affirmative action as reverse discrimination against white males.”[xiii] They further maintain that affirmative action requires the very discrimination it is seeking to eliminate. Therefore, this contradiction makes affirmative action counter-productive and should be banned. It is notable that neither Mr. Connerly nor his supporters offer anything to replace affirmative action. Connerly and his fellow travelers maintain that affirmative action requires the very discrimination it is seeking to eliminate and thus is unconstitutional.[xiv] He is one of the main forces behind California's Proposition 209 prohibiting race and gender-based preferences in state hiring, contracting, and state university admissions, a program formerly known as affirmative action.[xv] He and his organization have played a major role in sponsoring the spread of plebiscites to change state constitutions in ways designed to ban affirmative action around the country. The table below shows the list of plebiscites that have been promulgated to ban affirmative action comprehensively, state-by-state.
These public initiatives sought to ban affirmative action in all their embodiments: (1) procurement, (2) workforce utilization, (3) employment, (3) K – 12 public school districts, (4) undergraduate college and university admissions, (5) graduate and professional school admissions. These anti-affirmative-action plebiscites were strategically chosen to foreclose any attempt at state-sponsored efforts to promote justice, fairness, and inclusion, to shore up the structural and institutional barriers that thwart minority and women’s advancement, and to prevent a disruption of the status quo.
The contending parties are trapped in a zero-sum-game shoving match, and the win/loses, 100/0 solution, in which one of these positions wins all to the total detriment of the other position, is a recipe for disaster. Given these opposed positions, the only defensible policy choice is to pursue a path that leads to the adoption of a new justice, fairness, and inclusion paradigm with related management systems that do not discriminate against anyone while protecting the rights of everyone. Regardless of the preponderance of the evidence of the existence of traditional discrimination, the need to deal with reverse discrimination and the highly charged political environment has forced a rethinking of both the current justice, fairness, and inclusion paradigm and the management systems that implement it. We are undergoing a paradigm shift in the field of race and gender socioeconomic relations in America, and we must be open to all of the positive changes and resistant to all of the negative changes that might ensue.
Given that both affirmative action and Absolute Color Blindness are under fire and are likely to be found to be unsustainable and/or unconstitutional going forward, a new policy vehicle capable of ensuring justice, fairness, and inclusion for all Americans and thereby unifying the country must be found. The reason that both affirmative action and Absolute Color Blindness are problematic are explained in the table below. Pursuant to Rawlsian analysis (which is the foundation of EM-P), we find the following:
Affirmative action does not violate Rawls’ Equal Liberties Principle
Affirmative action does violate Rawls’ Equal Opportunities Principle
Affirmative action does not violate Rawls’ Difference Principle
Absolute Color Blindness does not violate Rawls’ Equal Liberties Principle
Absolute Color Blindness does violate Rawls’ Equal Opportunities Principle
Absolute Color Blindness does violate Rawls’ Difference Principle
The operationalization of Rawls' Second Principle is the engine of EM-P. EM-P was purposefully designed to comport with all of Rawls’ Justice as Fairness principles. It is also what makes EM-P is superior to either affirmative action or Absolute Color Blindness, as shown in the table below. It also demonstrates why both affirmative action and Absolute Color Blindness are fraught with legal problems, and both are likely to be ruled to be unconstitutional over time.
Affirmative action is America’s second great experiment in promoting justice, fairness, and inclusion. Like the policies associated with America’s first great experiment in promoting justice, fairness, and inclusion, Reconstruction, it faced tremendous resistance in the courts and the court of public opinion, from forces antithetical to political, social, and economic change. Anti-affirmative action forces have been attempting to have affirmative action banned since the early 1970s without giving any thought to what might replace it or the legitimate fears of those dependent upon it to ensure they have a “seat at the table.” From the inception of the republic to the present, Majoritarian Democracy, zero-sum politics, and economics, and Identity Politics have combined to create and sustain a Vicious Cycle of Inequality which creates and powerfully reinforces already intractable structural and institutional racism, and sexism that leads to racial, gender, and class inequality.
These self-same anti-affirmative action forces refuse to admit that the political, social, and economic systems have been rigged in favor of white males (and whites in general) and against women and minorities for centuries resulting in structural and institutional political, social, and economic barriers against equitable participation by women and minorities. Instead of acknowledging the persistent and pernicious effects of injustice, unfairness, and exclusion that women and minorities suffer, anti-affirmative action forces choose instead to make a case that America is a post-racial (and post-gender discrimination) society and that what discrimination that does exist is “reverse discrimination against white men. Banning affirmative action, calling it reverse discrimination, not replacing it with anything is not an effort to unrig the system but is an eschewing justice, fairness, and inclusion altogether.[xvi]
As mentioned above, the two sides of this conflict are locked in a zero-sum shoving match, each trying to gain control of the levers of power, so they can bend public policy to their benefit. Pursuant to America’s founding documents and subsequent laws and regulations, the government cannot take sides. Indeed, for America to remain one country, both government and political parties must fulfill their unifying (“centripetal”) mission, which should be aimed at pursuing principles of justice, fairness, and inclusion and foregoing the zero-sum tribal impulses, that characterize this conflict, and that is tearing America apart. Unfortunately, government and political parties have abrogated their role, ensuring justice, fairness, and inclusion. Any government that foregoes its unifying mission of ensuring justice, fairness, and inclusion, is either irresponsible or oppressive and tyrannical. In any case, that government will not be perceived as being legitimate and will likely not be stable for long.
Unlike governments, political parties have a mission to aggregate interests, advocate for particular policies, and promote specific candidates for office (centrifugal mission). In an ideal environment, political parties endeavor to balance their centripetal and centrifugal missions while they participate in aggregating interests, advocating for policies, and promoting specific candidates for office. The cause of unity and social peace means that political parties must still leave room for their opposition to realize some of what they want and need. This balancing act is part and parcel of the nature of a democratic republic and the essence of the type of distributive justice that our Founding Fathers enshrined in our founding documents. Representative Consensus Democracy; win-win politics and economics; and justice, fairness, and inclusion are the touchstones of the American republic.
Despite the high-sounding words in America's founding documents, America has engaged (and is still engaged) in oppressing its citizens, encouraging cruelty against or among its citizens, or blithely ignoring injustice, unfairness, and exclusion. Any government that allows or actively participates in such activities is truly illegitimate (see Chapter 2 of the book, Ensuring Justice, Fairness, and Inclusion in America). Majoritarian Democracy, zero-sum politics and economics and injustice, unfairness, and exclusion the (Vicious Cycle of Inequality) that marginalized, disenfranchised, and dispossessed minorities and women for centuries must be repudiated. What is new is the intensity of the attacks and the potential for increased social and economic inequality, political polarization, political and virulent divisiveness.
The situation in America is likely to become increasingly direr due to demographic changes. As America becomes “browner,” it is likely to become more divided and politically polarized. America hurtles toward irreconcilable loggerheads. White fear of the browning of America could undermine the public peace and rend the fabric of society by creating an intractable social divide with white males on one side and women and minorities on the other and no way to bridge the gap. An article entitled “Some White Trump Voters Fear Becoming Minority,” cites an ABC News/ Washington Post Poll and a University of California Santa Barbara Survey that found that the roots of Trump’s populism lie in the fact that whites are fearful of their becoming the minority within a quarter-century, which will occur around 2043, as projected by the United States Census Bureau.
Many whites fear not being able to find jobs as companies are compelled to hire more minorities. Whites believe that they are losing out because of preferences for minorities. They see preferences, affirmative action as diminishing their opportunities, and they see the election of Donald Trump as “liberating,” as giving “…them their country back.”[xvii] This a tacit admittance that they have benefited from Majoritarian Democracy, zero-sum politics, and economics and white Identity Politics for centuries and that they fear a loss of their white majority privilege, which could mean a loss of white dominance. Another study conducted by the Association for Psychological Science and published in the journal Psychological Science echoes the ABC News/ Washington Post Poll and as University of California Santa Barbara Survey, as it found that many whites were fearful of becoming the minority and because of that they were more likely to become increasingly conservative in their politics.[xviii]
Minorities and women maintain that affirmative action deals with types of discrimination, institutional and structural, that individually oriented anti-discrimination law cannot begin to touch, and they decry any attempt to undo the mechanisms that seek to deal with these traditional forms of discrimination. In summary, the anti-discrimination paradigm in America is flawed because it fails to explain and address all forms of discrimination in America. Given the polarized nature of the arguments being put forth by the “disputants,” there seems to be no common ground upon which to develop a consensus. The political pendulum swings back and forth between the contending positions, thus contributing to the amount of partisanship and polarization in the environment as each group seeks to gain control of the levers of government and manipulate them to the benefits of its reference group ("us") and to the detriment of the opposition ("them"). The schematic below shows the swings in the political pendulum between the positions of the disputants as each side takes control of the levers and government power and attempts to bend government policy to their preferred position.
Both sides see the winner of these contests as getting the opportunity to mold social policies for the nation; presumably, those policies will be molded to the winners’ betterment and the opposition’s detriment. This is a pitched battle: both sides are afraid of losing, fearful that they will then face suffocating discrimination. In truth, it is impossible for either side to “win” with the resultant policies benefiting the entire “American community.” Banning affirmative action without replacing it with something designed to deal with the ever-present reality of traditional structural and institutional discrimination against minorities and women-only addresses the concerns of white males.
Retaining affirmative action, unchanged, addresses only the concerns of minorities and women while failing to deal with the issue of reverse discrimination against white males. Any dream of “winning” this conflict/debate is a delusion. No mutually exclusive victory, no 100/0 solution, is possible or even desirable in a pluralistic, democratic nation that professes to value justice, fairness, and inclusion. Therefore, pure zero-sum strategies or even “minimax” strategies must be avoided. National peace is at stake here, as is the legitimacy of the state and the viability of the American way of life. We need a new justice, fairness, and inclusion paradigm for the 21st Century. However, it cannot mirror the pre-1960s oligarchic control paradigm, wherein the fears of minorities and women of rampant traditional institutional and structural discrimination become a reality. Nor can it mirror the affirmative action paradigms of the 1970s and 1980s, which prompted fear of rampant reverse discrimination in white males. It must be a Milton Fisk "Varimax” like solution appreciate and seek to quell the “legitimate fears” of both groups and avoid discrimination of both kinds.
Neither group has the better of this argument. Neither of the positions (“eliminate affirmative action” or “retain it as it is”) is historically conscious, politically legitimate, or morally acceptable. The majority of Americans do not (and should not) want the government to sponsor, support, or condone policy choices that abet discrimination against anyone. The win/lose, 100/0 solution, in which one of these positions wins all to the total detriment of the other position, is a recipe for disaster. As shown above, the contending parties are trapped in a zero-sum-game shoving match. America is undergoing a paradigm shift in the field of race and gender socioeconomic relations in America. Given these opposed positions, the only defensible policy choice is to pursue a path that leads to the adoption of a new social contract wherein all of these issues are resolved. Regardless of the preponderance of evidence regarding the existence of traditional discrimination, the need to deal with reverse discrimination in this highly charged political environment has forced a rethinking of both the current anti-discrimination paradigm and the management systems that implement it.
The potential for finding common ground does exist. To find that common ground, we need only come to grips with the fact that both minorities and women, on the one hand, and white males on the other claim to fear the injustice of discrimination and are actively trying to avoid it. This act of avoidance of yourself and the willingness to allow the opposition the same should give them a sense of common purpose (“common ground”) upon which a new social consensus can be built. After all, there can be no justice for one group without justice for all groups! This new social consensus has to be rooted in “justice, fairness, and inclusion for all.” In such a manner, the potential for “Mutually Assured Victimization” (MAV) can invoke a democratic response. It can lead to the development of new institutions.[xix] It can sustain the theory of limited government and provide a strong and universal moral foundation for, as Rosenblum calls it, “self-protective liberalism.”[xx] Ann-Marie Slaughter in her article, “Opinion: This is the only way forward for a divided U.S.” advocates for the building of “…a new narrative of patriotism, culture, connection, and inclusion.”[xxi]
What is needed in America is a new social contract to which all Americans can subscribe and from which all Americans will benefit (see the post on the social contract in this blog). So, in answer to the question posed in the title of Chapter 1 of the book, Ensuring Justice, Fairness, and Inclusion in America, entitled “…Justice (Fairness and Inclusion) for All?” today, the answer is a resounding no! However, there is hope for a better future, and the driving force that can get us there is "fear." During the Cold War, fear of mutual annihilation helped to keep the peace. During this “new civil war,”[xxii] fear of mutual oppression and cruelty could help promote the acceptance of Representative Consensus Democracy, win-win politics and economics; and justice, fairness, and inclusion for all. Some may ask, is all of this even remotely possible? The rest of this post seeks to answer that question in the “affirmative.”
It is not enough to have just, fair, and inclusive values, laws, or rules as written in and inferred from the Declaration of Independence and the Constitution. Rawls would add that basic policies and societal institutions must exist to ensure that these rules are followed. Equity Management provides policies, management models, and tools to ensure that everyone’s fundamental right to justice, fairness, and inclusion are operationalized. Equity Management-Plato (EM-P) is designed to function as a complement to the Constitutional framework in America and to be the component that operates in the background to ensure justice, fairness, and inclusion.
So, what is EM-P? To start with, EM-P falls squarely in the realm of “non-ideal theory.” non-ideal theory is best understood in opposition to its counterpart, “ideal theory.” which., according to John Rawls, is an exploration of conditions necessary to achieve justice and fairness (and inclusion) in ideal conditions. Conversely, Non-Ideal Theory addresses how to achieve justice and fairness (and inclusion) when conditions are not as perfect as they are assumed to be in ideal theory. Few, I believe, would try to make the case that current conditions are ideal in America or anywhere else in the world.
Under normal circumstances, EM-P will allow us to “play the game” confident in the knowledge that the playing field is level and that the game is fair. Societal peace is assured because everyone will be able to be confident that if injustice, unfair circumstances arise, or some are being excluded, EM-P will help flag both victim and victimizer and aide in the development of policy solutions, pursuant to Rawls’ Difference Principle. to rectify the situation and restore the situation to the default situation (equality), which should be equivalent to Rawls’ Equal Opportunity Principle. It is designed to mitigate the effect of Identity Politics. Equity Management applies the concepts of justice, fairness, and inclusions to all Americans. Equity Management-Plato was, in fact, designed to be a User’s Guide for the Declaration of Independence and the Constitution (for democracy itself). EM-P was designed to help create and maintain what Rawls calls a “well-ordered society” or a “realistic utopia.” Such an effort demands functionality that is simultaneously “revolutionary” and “evolutionary.” Building EM-P will require two main strategic efforts, replacing affirmative action with a system designed to ensure justice, fairness, and inclusion for all Americans (Equity Management) and building an artificial intelligence-driven, web-based software system to power the concept.
The EM-P concept is evolutionary for the following reasons:
EM-P builds on preexisting SCOTUS rulings, concepts, laws, and regulations related to affirmative action
EM-P uses concepts and technologies for which there are already antecedents (see the book Ensuring Justice, Fairness, and Inclusion in America and the five white papers on this website, www.washington-associates.com
EM-P will be powered by an Artificial Intelligence-driven web-based software system (the Plato MIS system) for which designs and prototypes have been in the works for years.
EM-P is practical (it can be done)
It is affordable, all subscribers paying their fair share of the costs making it cost-effective and cost-efficient.
The EM-P concept is revolutionary for the following reasons:
EM-P extends protection against discrimination to all Americans
EM-P levels the playing field
EM-P ensures justice, fairness, and inclusion for all Americans, thus mitigating the
EM-P can serve as the basis of a new social contract in America
EM-P can serve to bring unity and social peace to a divided country
EM-P is designed to be universal. Thus, with some modifications, it can be used to promote (save) democracy worldwide
EM-P is designed to help democracy-loving countries a way to help democracies match their realities to their rhetoric
EM-P is designed to give democracies a positive populist narrative to counter the negative populist narrative offered by authoritarians to sway the hearts and minds of people worldwide
Creating a system that will forge justice, fairness, and inclusion in America and other countries in the world requires the amalgamation of several theories, philosophies, models, principles, etc. It also combines all four major principles of justice: (1) Distributive Justice “Equality” “Need” and “Equity”; (2) Retributive Justice; (3) Restorative Justice; and (Procedural Justice). Equity Management is grounded in the logic of the public policy life cycle: (1) problem identification, (2) solution development; (3) solution implementation; (4) assessment; (5) policy adjustment. The “cyclical” nature of the public policy is important in EM-P because not all policy problems are linear or time-bound. The application of a policy solution may mitigate the problem for the time the solution is in place only to have it resurface if the solution is turned off. Well-designed public policies should be turned on and off as the policy increases in intensity or is mitigated in the manner of a “light switch.” EM-P is designed to function in this manner. See Chapter 4 in the book, Ensuring Justice, Fairness, and Inclusion in America.
Equity Management also combines the legal principle of “strict scrutiny,” with its requirement to move back and forth between “Race-Neutral” (Equality) and “Race-Conscious”) states as required; with the second principle of Rawls’ Justice as Fairness, with its requirement to move between “Equality of opportunity, and the “Difference Principle” as required. My development of Equity Management represents the first comprehensive attempt to operationalize Rawls’ Theory of Justice. Equity Management with its and the notion of the policy cycle the logic of public policy (1) problem identification, (2) Solution development; (3) solution implementation; (4) assessment; (5) policy adjustment. Rawls’ Justice as Fairness equals EM-P.
EM-P includes all of the major components of Rawls’ Justice as Fairness: (1) “Original Position; (2) “Veil of Ignorance,” (3) "Reasonable Citizens; (4) “Overlapping Consensus;” (5) “Reflective Equilibrium;” (6) "First Principle of Justice; (7) Second Principle of Justice; (7a) "Equal Opportunity Principle;” (7b) “Difference Principle; and “(8) Basic Societal Structures and Institutions. The table below was excerpted from Chapter 3 of the book, Ensuring Justice, Fairness, and Inclusion. It shows how EM-P correlates with Justice as Fairness.
The Schematic below shows the management EM-P management model that is derived from the table above.
Equity Management-Plato seeks to provide mechanisms, structures, institutions, and tools for ensuring justice, fairness, and inclusion in America and other countries in the world requires combining numerous theories, philosophies, models, principles, and so forth. This first set of principles, which are combined to form the core of Equity Management-Plato, are the four major principles of justice: (1) Distributive Justice, made up of the sub-principles: “Equality” “Need” and “Equity”; (2) Retributive Justice; (3) Restorative Justice; and (Procedural Justice). These individual principles are coupled with the logic of the public policy life cycle, which is made up of the following: (1) problem identification, (2) solution development; (3) solution implementation; (4) assessment; (5) policy change to create the Equity Management Policy Cycle.
The “cyclical” nature of the Equity Management Policy Cycle is important because not all policy problems are linear or time-bound. Implementing a policy solution may mitigate the problem for the time the solution is in place only to have it resurface if the policy is policy, the solution is turned off. Well-designed public policies should be their ameliorative aspects capable of being turned on and off as the policy increases or diminishes in intensity in the manner of a “light switch.” Equity Management-Plato Policy Cycle functions in this manner as it alternates between the different sub-components of Distributive Justice.
Next, upon the basic policy framework mentioned in the preceding paragraphs, which included the principle of policy management and the policy management life cycle, are added the principles of Rawls’ Justice as Fairness. I believe I am the first to attempt a comprehensive operationalization of Rawls’ Justice as Fairness. Equity Management-Plato includes all of the major components of Rawls’ Justice as Fairness. To these Rawlsian principles, were added the most stringent standard of judicial review in American jurisprudence, “strict scrutiny,” which was amended to allow for cyclical movement between “Race-Neutral” (Equality) and “Race-Conscious” (Equity) as necessitated by changes in the policy environment. The cyclical movement is made possible by adapting the standard policy life cycle to the preceding concepts and principles. The application of strict scrutiny in EM-P allows it to replace both affirmative action and Absolute Color Blindness, meet critical constitutional requirements, meet Rawls’ requirements for his Reflective Equilibrium, redefine the political center, and provide an “inevitable” unifying force to the body politic. See the schematic below.
Combining strict scrutiny’s evaluative requirements with Rawls’ Second Principle of Justice formed the basis of a revolutionary analytical engine, giving Equity Management-Plato the ability to perform the same policy assessment/evaluation as found in the policy evaluation vehicle called a “disparity study” on a continuous real-time basis. A battery of rulings handed down by the Supreme Court of the United States (SCOTUS), from Bakke v. The University of California to Fischer v. The University of Texas will circumscribe any solution to the affirmative action problem by mandating the use of “strict scrutiny” when “race” is involved in making public policy. Equity Management is based on these current legal and constitutional challenges to the current justice, fairness, and inclusion paradigm, affirmative action.
This challenge has led to the current polarized situation with white males on one side and minorities and women on the other fighting over whose agenda with respect to government involvement in Distributive Justice will prevail. Equity Management-Plato was purpose-designed to meet the SCOTUS requirements for strict scrutiny, and the steps involved in creating Equity Management-Plato were as follows:
Deciphering the content of Justice as Fairness
Creating a logic model that explains the structure and dynamics of Justice as Fairness
Creating a logic model that lends itself to the operationalization of Justices as Fairness, Equity Management-Plato
Demonstrating the operationalization of Equity Management-Plato in granular detail in a series of hypothetical sector-based scenarios
Explaining the results of a properly implemented Rawlsian solution to create a “realistic utopia” (a “well-ordered society”)
The most difficult of these steps was figuring out how to combine Rawls’ Second Principle of Justice, as Fairness, the Equality of Opportunity Principle, with its requirement for policy to move between the sub-principles, the “Equality of Opportunity Principle” and the “Difference Principle” as required. As shown in the table below, Rawls’ Second Principle of Justice, Strict Scrutiny’s requirement to switch between race-neutral and race-conscious policy only for cause; and EM-P’s “Light Switch Concept” are identical.
The Plato Software System is the component of this solution that represents Rawls’ just “basic societal structures.” It is a paradigm shift from contemporary methods to comply with strict scrutiny because it will make real-time findings of discrimination under strict scrutiny and support, making just, fair, and inclusive public policy. The Plato Software System is the component of this solution that represents Rawls’ just “basic societal structures.” It is a paradigm shift from contemporary methods to comply with strict scrutiny because it will make dynamic real-time findings of discrimination according to the principle of strict scrutiny. With discrimination, its victims, and the victimizers identified, it will then be possible to fashion constitutional policy correctives. possible, thus making just, fair, and inclusive public policy possible for the first time ever.
Dynamically managing the oscillation between these states of being for the purpose of making public policy is what makes EM-P unique. Currently, the type of policy evaluation required to support managing the moving from one type of policy focus to the other and back again takes one or more years, requires engaging specialists, and can cost millions. The functionality to perform these policy evaluations will be built into the Plato MIS system. Plato will be able to perform the required policy evaluations in minutes for an infinitesimal amount.
The Rationale for the Equity Management-Plato project is that by implementing derivations of the project in the federal government, the 200,000 public-sector agencies, all the K-12 school districts, public sector employers, colleges, universities, and professional schools many of the problems centered around justice, fairness, and inclusion will be solved. In the Equity Management-Plato project, we are proposing to help solve a myriad of social, economic, and political problems that America now faces and help create a new social contract. Policy and program implementation on this scale will require a team of national experts and specialists to work toward getting Equity Management-Plato developed and implemented. The implementation effort will require America’s leadership to develop the political will to pursue the inevitable. It will also require strategic partnerships with key policymakers and stakeholders that can provide advocacy and other support for this important public policy initiative. See Chapter 4 through Chapter 7 in the book, Ensuring Justice, Fairness, and Inclusion in America.
The figure below illustrates the architecture of Plato, and the following exposition explains the nature of its elements and workings. See the Plato MIS schematic below. This progress represented in this figure is the part of EM-P that performs the real-time disparity analysis, which is the first and most critical part. If the disparity analysis finds the potential for discrimination, then the other two stages (regression analysis and public hearings) are initiated.
This figure below represents the computerized regression analysis process, which will be contained in Plato and performed on-demand as needed when significant disparities between what is found and what is expected. This process will be used to manage public sector procurement and workforce utilization.
While the management of diversity is still to be subject to the principle of strict scrutiny, there are differences. Chapter 7 of the book, Ensuring Justice, Fairness, and Inclusion in America outlines how diversity is managed for K-12 school districts, public sector employers, colleges, universities, and professional schools. It is designed to provide all of the strict scrutiny functionality necessary to pass muster under the constitution.
No solution, no matter how appropriate or elegant, is acceptable if it is too expensive to be afforded by those who need it. In order to keep the cost down, the Plato MIS will be built upon open-source software and will, therefore, be open source. The NIWI Consortium will engage in “Platform Integration” in the building of Plato. They will build it using components from different open-source vendors and integrate and augment them to best meet the unique functional needs of Equity Management. The open-source systems chosen to be the basis of Plato were chosen for their web-based nature, power, high scalability, robust ecosystem, support for distributed databases, ability to handle really “big data sets,” ability to handle transactional data, and their compatibility. The Equity Management Analysis Module will be powered by the following open source systems: the business information system, Pentaho, and R- Statistical Analysis tool to perform high-level statistical analysis, e.g., regression analysis, and a “Policy Solver” built on the GLPK linear programming optimizer. The Contract Compliance module will be powered by the following open source systems: PIEMatrix; Contract Alert; Cobblestone Contract Management; TimeLive Open Source Time Sheets; and JSurvey. The following schematic shows the architecture of the Plato MIS.
While EM-P, as presented in the book, Ensuring Justice, Fairness, and Inclusion in America, is written from an American perspective, it is meant to be universal. It is designed to easily modifiable to meet local conditions, laws, regulations, etc. in democracies around the world. This is a good thing because the data shows that democracies elsewhere suffer from similar shortcomings and vulnerabilities and are in search of solutions to problems within their own democracies. The UK-based Economist Intelligence Unit (EIU) annually examines the state of (health of) democracies around the world using what it calls the "Democracy Index." The purpose of the Democracy Index is to "...measure the state of democracy in 167 countries (of the 196 countries in the world), of which 166 are sovereign states and 164 are UN member states. According to a Wikipedia website, the following is true regarding the Democracy Index:
The index was first published in 2006, with updates for 2008, 2010 and later years. The index is based on 60 indicators grouped in five different categories, measuring pluralism, civil liberties, and political culture. In addition to a numeric score and a ranking, the index categorizes each country in one of four regime types: full democracies, flawed democracies, hybrid regimes, and authoritarian regimes.
The Democracy Index identifies 20 full democracies, 55 flawed democracies, 39 hybrid regimes, and 53 authoritarian regimes. According to the Democracy Index, America ranks 27th in the world and is characterized as a ”flawed democracy”
The toxic soup of injustice, unfairness, racial, gender and class inequality, rabid populism, anti-establishment furor, and right-wing authoritarianism, nativism, and Identity Politics represent a global phenomenon. This panoply of corrosive circumstances and sentiments have popped up all over the world, and they threaten to undermine democracy everywhere they surface. The world has been down this road before. Antidemocratic forces assailed the liberal democratic order three times during the 20th Century. During World War I, World War II, and the Cold War, aggressive anti-democrats tried to bring down global democracy and supplant it with various strains of authoritarianism. During World War I, World War II, democracies were slow to resist right-wing authoritarianism, thus giving anti-democratic forces early advantages that resulted in prolonged global wars, untold destruction, and human carnage, leading ultimately to the fall of states and of empires. During the five-decades-long Cold War, left-wing authoritarianism assailed democracies in a global campaign of dueling ideologies and proxy wars before democracies were finally able to prevail. Now, at the start of the 21st Century, democracies again find themselves locked in another existential clash, this time against another strain of right-wing authoritarianism. Again, the barbarians (authoritarians) are at the gate, and democracy-loving peoples everywhere must meet them there and roll them back.
If democracy as an organizing and governing ethos is to survive, its proponents must engage in serious self-reflection, figure out what are its vulnerabilities, and make corrective changes (fix its vulnerabilities) to “harden” democracy against the corrosive effects of authoritarianism, nativism, and negative populism. It is possible to resist these anti-democratic forces if countries around the world developed institutions, processes, and policies aimed at being more just, fair, and inclusive. One of the main vulnerabilities of democracy is that its “rhetoric” (all men are created equal) does not match its “reality” (the existence of rampant racism, sexism, xenophobia, and homophobia). At a more fundamental level democracy fails the test of “the people ruling in a representative democracy (“demos” “kratos”) as states that are rhetorically democratic actually are “special interest states” wherein an oligarchy or an autocracy rules for the elites and corporations and the votes of the people are a mere formality. Anti-democratic forces (authoritarians, terrorists, Nazis, and nativists) focus on this hypocrisy inherent in democratic states as proof that democracy is sham.
Pro-democracy forces also need to make common cause worldwide to establish a new international coalition of conscience bent on saving the world order as we know it. While saving liberal democracy begins with “hardening” it (fixing its vulnerabilities), it ends with creating a benign yet robust ethos that is far more attractive than the authoritarian philosophies extant in the world today. This book is meant to help begin those processes. By these making these necessary changes, democracies can reduce the appeal of these corrosive anti-democratic elements and shore up liberal democratic states. This book and the solutions offered in it (EM-P) were designed to help liberal democracies everywhere offer their citizens a positive alternative vision to the negative one being offered worldwide by forces of authoritarianism and virulent nationalistic populism. While this volume focuses specifically on the American experience, its definition of the problems that afflict democracy-loving countries and “the solutions to those problems (EM-P) are, in fact, meant to be universal. With some modifications to account for localized circumstances, Equity Management-Plato is universal in it is in their applicability. If affirmatively adopted and implemented, the solutions proposed herein book will result in the creation of Rawls’ “realistic utopias,” the saving of liberal democracy worldwide, and ultimately the creation of a “better world.”
There is irrefutable evidence that democracy is declining, and authoritarianism is on the rise. A website entitled "Our World Data" tends to corroborate these trends. The existential question facing democracies in the current age is, "how do they stem the tide and reverse these trends." EM-P was designed to stem this tide, apply the brakes to the rise of authoritarianism, and advance the cause of democracy. Nearly twenty of the countries professing to be democracies have already adopted some derivation of affirmative action in order to ensure justice, fairness, and inclusion. Those countries are more than halfway to the solution (EM-P). They need only to make the appropriate modifications to their version of affirmative action to turn it into EM-P. The remaining countries that genuinely aspire to be democratic, but have not adopted affirmative action, need to explore what changes will be necessary to adopt EM-P without the intermediate step of adopting affirmative action. Both groups of countries will benefit from examining the book, Ensuring Justice, Fairness, and Inclusion in America, and the five white papers that comprise the strategic plan for saving the liberal democratic world order as a guide to the way forward.
The rationale for the Equity Management-Plato project is that by implementing derivations of the project in the federal government, the 200,000 public-sector agencies, all the K-12 school districts, colleges, universities, and professional schools, many of the problems centered around justice, fairness, and inclusion will be solved.
Equity Management-Plato will require the support of the American people. Solving the problems that Equity Management-Plato was designed to solve is no mean feat. The issues are myriad and complicated, but with the coordinated, concentrated, and committed effort, we can achieve our goal, E Pluribus Unum.
This post is Part 1 of “EM-P: Replacing Affirmative Action with EM-P is the Key to Saving Liberal Democracy.” Part 2 of this post is contained within this blog.
[i]. Stanford Encyclopedia of Philosophy, “Affirmative Action,” accessed May 10, 2017, https://plato.stanford.edu/entries/affirmative-action/. See also Encyclopedia Britannica, “Affirmative Action,” accessed May 10, 2017, https://www.britannica.com/topic/affirmative-action.
[ii]. Equal Employment Opportunity Commission (EEOC). “Executive Order 10925,” accessed March 28, 2018, https://www.eeoc.gov/eeoc/history/35th/thelaw/eo-10925.html.
[iii]. “Traditional discrimination” presupposes that white males have control over the levers of power and have shaped public policies and institutions to favor themselves over all other groups on the allocation of benefits available. Conversely, “reverse discrimination” presupposes that the effort by governments to alter their institutions and public policies to be more accommodating and inclusive of minorities and women discriminates against better-qualified whites in general and white males in particular.
[iv]. Structural (“institutional”) Discrimination is the most pernicious form of discrimination because it is most difficult to identify and the most resistant to amelioration.
[v]. See the section in Chapter 1 regarding structural inequality, the dynamic that causes it, and the results of it.
[vi]. An examination of the “objectives” of affirmative action clearly shows that it was intended to meet the evaluative criteria set out by Rawls for delivering justice, fairness, and inclusion. It also meets the requirement for taking care of the least among us.
[vii]. To see how affirmative action violates Rawls’ Rawls’ First Principle, the Equal Liberties Principle, and the first part of his Second Principle, the Equal Opportunity Principle, see John Rawls, A Theory of Justice, 60-65, 150-161, and 175-183. See also John Rawls, Justice as Fairness, 42-50.
[viii]. Anti-justice, fairness, and inclusionary forces have been trying to ban affirmative action virtually since it was initiated. This is explored in much greater detail later in this chapter.
[ix]. Brown v. the Board of Education of Topeka Kansas U.S. 483 (1954). The particulars of the ruling are covered in more detail in the text and in the associated footnotes.
[x]. Regents of University of California v. Bakke 438 U.S. 265 (1954). The particulars of the ruling are covered in more detail in the text and in the associated footnotes.
[xi]. The Free Dictionary, “Strict Scrutiny,” accessed May 18, 2017, http://legal-dictionary.thefreedictionary.com/Strict+Scrutiny.
[xiii]. HuffPost, “Ward Connerly Cashes In: Profiteering Exposed by …The American Conservative,” accessed May 18, 2017, http://www.huffingtonpost.com/kristina-wilfore/ward-connerly-cashes-in-p_b_126806.html. See also The New York Times, “Affirmative Action Foe is Facing Allegations of Financial Misdeeds,” accessed May 18, 2017, http://www.nytimes.com/2012/01/18/us/ward-connerly-faces-allegations-of-fiscal-misdoing.html?_r=2&scp=1&sq=Connerly&st=cse.
[xvi]. See David Harsanyi, “Liberals Shouldn’t Complain about Paranoia and Fear. They Perfected It,” accessed May 22, 2017, http://thefederalist.com/2016/06/27/liberals-shouldnt-complain-about-paranoia-and-fear-they-perfected-it/.
[xvii]. Candace Smith, “Some White Trump Supporters Fear Becoming Minority,” accessed May 27, 2017, http://abcnews.go.com/Politics/white-trump-supporters-fear-minority/story?id=43229203.
[xviii]. See Breanna Edwards, “Study: Some Whites Who Fear Minority Status More Likely to Shift Right,” accessed May 27, 2017, http://www.theroot.com/study-white-americans-who-fear-minority-status-more-li-1790875273.
[xix]. Judith Shklar, “The Liberalism of Fear.”
[xx]. See Nancy L. Rosenblum, Another Liberalism: Romanticism and the Reconstruction of Liberal Thought (Cambridge, MA: Harvard University Press, 1987).
[xxi]. Anne-Marie Slaughter, “Opinion: This is the Only Way Forward for A Divided U.S.,” accessed May 28, 2017, http://www.marketwatch.com/story/this-is-the-only-way-forward-for-a-divided-us-2017-03-25.
[xxii]. Neal Gaber and Bill Moyers, “A Tale of Two Countries: Thanks to President Trump, America is Now Engaged in A Civil War of Sorts,” accessed May 28, 2017. http://www.salon.com/2017/01/30/a-tale-of-two-countries-thanks-to-president-trump-america-is-now-engaged-in-a-civil-war-of-sorts_partner/.