The Force of Irony: On the Morality of Affirmative Action and United Steelworkers v. Weber

Abstract

In recent years, affirmative action has posed difficult problems not only for courts and legislatures but also for individuals who puzzle over what is just. The claims made both by the proponents of programs that establish preferences on the basis of race and by their staunch opponents have an intuitive appeal. The slave society that preceded the Civil War and the Jim Crow era that endured for a century afterward are a shameful legacy for a nation that seeks to define itself in terms of justice and freedom. The proportionate underrepresentation of black people in positions of power and privilege may plausibly be traced to this legacy, giving moral force to the claim that unique arrangements must be made to redress this imbalance. But the intuitive case against special preferences for blacks is also powerful. Demanding unequal treatment in the name of equality has an Orwellian cast to it, and those whites whose opportunities are diminished by affirmative action have typically played no role in creating the social conditions that arguably justify it.' The Supreme Court has confronted the affirmative action problem on several occasions but has, to my mind, made only one statement that is truly helpful to those who are more concerned with the morality of such programs than with what the Constitution will be interpreted to permit. This case is United Steelworkers of America v. Weber.' United Steelworkers arose out of a voluntary agreement between the United Steelworkers and the Kaiser Aluminum and Chemical Corporation, which reserved for blacks 50 percent of the openings in in-plant craft-training programs until such time as the percentage of black craftworkers in a plant was commensurate with the percentage of blacks in the local labor force. Before this agreement was signed and the programs in question established, Kaiser had hired as craftworkers only persons with prior craft experience. These hirees were almost invariably white because craft experience was