By John Corvino
I am not a big fan of ballot initiatives. I mean, I'm all in favor of democracy, but there are reasons we pay legislators to make informed decisions on our behalf.
The problem is not just that voters are typically ignorant about the issues. It's also that, by bypassing the usual legislative process, initiatives often frame issues in unhelpfully stark terms, forcing an all-or-nothing vote where the best policy may lie somewhere in between. And once they're passed, legislators are loath to tinker with results, lest they be accused of "subverting the will of the people."
Two years ago, Michiganders voted for Proposal 2, which amended the state constitution to prohibit not only same-sex marriage but also "similar union[s] for any purpose." Perhaps the saddest aspect of this unnecessary and deeply hurtful amendment was that most voters favored only part of it: polls showed that while Michiganders largely opposed same-sex marriage, they supported some form of civil unions. Yet they amended the constitution to prohibit both Since same-sex marriage was already illegal in Michigan, the amendment's practical effect was to take away benefits (such as health insurance) from the same-sex partners of state employees – a result that most Michigan voters neither wanted nor (I dare guess) feel proud of.
On Nov. 7 we will be asked to vote on another Proposal 2 – the so-called "Michigan Civil Rights Initiative" (MCRI). The MCRI would amend the constitution to ban affirmative action by state agencies. It ought to be voted down.
I have mixed feelings about affirmative action. Done well, it can open doors for women and minorities and help promote a more egalitarian society. But it isn't always done well. Some forms of affirmative action are ill-tailored to its goals: instead of promoting diversity, they stifle it; instead of helping minorities, they hamper progress for all. Those forms should certainly be changed.
The problem with the MCRI is that it would eliminate ALL forms of affirmative action by state agencies, including the necessary and beneficial ones. Take a simple, real-world example. I'm a philosophy professor in a department of nine white males and one white female. My experience tells me that, in general, women bring something distinctive and valuable to the department. It's not necessarily that they approach philosophy in a different way (although they well might). It's in the other things we do – teaching, mentoring, departmental governance – that their distinctive contribution is noticeable. In particular, they provide important role models for female graduate students in a male-dominated field.
Now suppose we have two candidates for a job opening in the department: a male and a female. Both are highly qualified. In terms of "objective" qualifications, the male is slightly more qualified (maybe he has ten publications whereas she has eight). All else being equal, it seems to me that a strong case can be made for hiring the woman. She would diversify the department; she would bring certain experiences to the table that would benefit our students. This is affirmative action of a modest and reasonable form.
Several things should be noted about this case. First, "slightly less qualified" does not mean "unqualified": there is no excuse for hiring weak candidates where strong ones are available. Second, and related, gender (or minority status) does not trump all other considerations: it is merely a "plus-factor."
Third, the kinds of things that women bring to the table are true "in general." This fact should not count against the point. After all, the same can be said of "objective" qualifications: in general (but not always) those who publish a lot early in their career continue to do so, those with degrees from prestigious departments are better trained than those with degrees from lesser-known schools, and so on.
One might wonder why we don't simply count gender as a qualification. There are already jobs where we do so: the TSA hires women to pat down female airline passengers, not because men are not capable as inspectors, but because female passengers are more comfortable being inspected by female agents. Why could we not make the same case by appealing to the comfort of a diverse student population? What about the comfort of the black student whose professors are all white, or that of the female student whose professors are all male?
While the point may be philosophically convincing, it is not (under current caselaw) legally compelling. Gender and ethnicity may count as "Bona-Fide Occupational Qualifications" for some jobs, but "philosophy professor" is not currently among them.
I think hiring the female philosophy professor in this case would be reasonable – if not required, then certainly at least permissible. But the MCRI would prohibit it – always and forever, in our state constitution. That is a good reason to vote "No" on 2.
