Making Sense of Affirmative Action by Kasper Lippert-Rasmussen

Abstract

Reviewed by: Making Sense of Affirmative Action by Kasper Lippert-Rasmussen Arpita Sarkar (bio) and Pok Yin S. Chow (bio) Kasper Lippert-Rasmussen, Making Sense of Affirmative Action (Oxford University Press, 2020), ISBN 9780190648787, xiii+ 297pages. Equality1 and anti-discrimination2 are often considered non-negotiable rights and are expressly recognized in many national constitutional texts. However, affirmative action has never enjoyed such privilege, despite the validation of such measures by international human rights instruments, such as International Convention on the Elimination of All Forms of Racial Discrimination (ICERD),3 as early as 1965. [End Page 858] Affirmative action (or positive action) is usually taken by states, and sometimes also by private entities, to correct historical discrimination meted against marginalized communities in society. Often, it appears in the form of quotas or goals that guarantee representation from these groups in education and employment. However, since the state spends finite resources on these areas, affirmative action is often perceived as a burden. It is also controversial because these schemes are implemented by reserving portions of limited resources which then become inaccessible to people who in turn, are excluded from using them. The question is often asked: to what extent is affirmative action justified? In Making Sense of Affirmative Action, Professor Kasper Lippert-Rasmussen observes that the strongest argument against affirmative action is not that resources are often required to be expended to assist under-privileged groups. Rather, it is the objection that the beneficiaries of these policies are not direct victims of discrimination;4 it is their descendants who benefit. Similarly, the “cost” of affirmative action is not borne by the direct discriminators. Instead, it is their descendants who “bear the cost.”5 Yet, Lippert-Rasmussen highlights that there is no reverse discrimination because efforts to enhance the social statuses of disadvantaged groups are a necessary means to correct historical and existing discrimination, which is a legitimate goal in a just society.6 What is often overlooked is that segregation, stereotypes, and structural hierarchy, which prevailed in the past, continue to be reasons for existing discrimination.7 Once these aims and objectives are specified, there ought to be no loss of a reasonable expectation of equality as is claimed by the cost bearers.8 These arguments in favor of affirmative action are, of course, not entirely as novel as the use of affirmative action as a compensatory tool for past discrimination has been highlighted before.9 However, what places this book apart from other [End Page 859] existing work is that Lippert-Rasmussen argues affirmative action as a tool to further formal equality. While many scholars have related affirmative action to substantive equality—and in that course, limited the theoretical potential of affirmative action—the author argues in this book that affirmative action both supports and furthers formal equality, by breaking stereotypes over time against certain communities.10 Lippert-Rasmussen’s argument further advances the integrationist approach in favor of affirmative action popular in jurisdictions such as the United States.11 This approach attempts to convince society that affirmative action benefits even those who do not directly gain from it, since it aims at enhancing inclusion in society. Lippert-Rasmussen argues along similar lines and acknowledges that affirmative action does not only undo the discrimination on disadvantaged sections, but it also improves the character of society by making it inclusive in general. Nonetheless, the overall argument for affirmative action in any given context, according to him, must lie in whether a balance between its advantages and disadvantages could be struck. Thoughts must be given to avoid perpetuating stigma against vulnerable communities of being incompetent for regular competitions, and to avoid issues of “mismatch” which arise when affirmative action schemes do not benefit the group they intend to benefit. Also, concerns pertaining to merits need to be attended. Such concerns are based on the argument that affirmative action defeats efforts to build a society where rewards ought to be based primarily on individual merit. Yet, it is important to note that qualifications or eligibility requirements (e.g. for employment) are often unrelated to the merits required to perform the duties and are reasonable so long as they serve legitimate purposes (e...