By Steven A. Holmes (Click here to view the entire P&R issue)
“Simply telling a defendant to go forth and sin no more does little or nothing to address the unfair advantage it has already gained,” Judge Sporkin said recently, in declaring that the settlement did little to help Microsoft’s competitors catch up. They had been the victims of what the Justice Department said was Microsoft’s anti-competitive practices.
Substitute the words “white males” for Microsoft and “minorities and women” for its competitors, and the judge’s words sound remarkably similar to a rationale for affirmative action.
“If you look at it in a broad sense, in terms of a remedy, there are similarities,” said David Neely, assistant dean of the John Marshall Law School in Chicago. “The legal definition of affirmative action is a remedy for an illegal act-discrimination.”
… One little-noticed fact in the current debate: many of the principles underlying affirmative action, including the use of quotas, have been accepted in spheres outside the volatile world of race and sex relations without a peep from conservatives.
Take, for example, the concept of compensation for past injustices. There is the Government’s payment of $1.2 billion to the families of Japanese-Americans who spent World War II in internment. The payment to the Japanese also affirmed the notion of the sons paying for the sins of the fathers. Nearly one-third of those who paid taxes last year, and therefore contributed to the reparations payments, were born after World War II. They could not have supported the Government’s policy of putting Japanese-Americans in prison camps.
And what of quotas? In 1986, the Reagan Administration negotiated a trade agreement with Japan under which that country set a goal of American manufacturers gaining 20 percent of Japan’s market in computer chips. The policy, though highly contentious, is still in force. Yet conservatives, who are often backers of free trade, saying purchasing decisions should be made solely on quality and merit, have generally not criticized the deal as a manipulation of the market.
The computer chips agreement is rare in international trade negotiations-as are rigid quotas in affirmative
action. But the use of numerical goals to measure the success of opening the Japanese market to American goods and services is not. In recent rounds of trade talks the Japanese have agreed to the use of certain goals like increasing the number of foreign bidders for government procurement contracts or raising the number of American car dealerships in Japan.
Such actions – which encourage the diversification of the Japanese market and the use of numerical goals to determine whether a good faith effort is being made-are the staples of much of affirmative action policy….
