U of OxHRH J Publishes New Article by Dr. Nomfundo Ramalekana
U of OxHRH journal has published a new article titled "A Critique of the Stigma Argument Against Affirmative Action in South Africa" authored by Nomfundo Ramalekana. Dr. Ramalekana is a Lecturer at the University of Cape Town in Public Law and a former DPhil student at the University of Oxford.
One of the arguments against affirmative action is that it causes internal and external stigma towards its actual or perceived beneficiaries. In the US, the stigma argument has been so successful that it has narrowed the kinds of race-based affirmative action that can pass constitutional muster. While the stigma argument has yet to gain traction in South Africa, glimpses of this argument can be discerned in recent affirmative action cases. As is the case in the US, I fear that the stigma argument could be used to narrow the kinds of permissible affirmative action in South Africa, particularly in the employment context. This is because affirmative action in the South African employment context has features that could embolden the stigma argument. First, it targets Black people, women and persons with a disability – all groups subject to deeply entrenched systems of domination and oppression from which stigma arises. Second, the scope of permissible affirmative action in the South African employment context challenges the liberal meritocratic ideal in ways that could be said to cause stigma. In this article, I argue that while stigma is a pervasive and persistent predicament that attaches to the beneficiaries of affirmative action, it is not caused by affirmative action. Stigma predates and operates independently of affirmative action. It is rooted in unequal power relations inherent in systems of domination and oppression, in the South African employment context - white supremacy, patriarchy and ableism. I also show how stigma is based on the erroneous assumption that affirmative action measures necessarily allow for the admission, appointment, or promotion of unqualified or unskilled candidates. Further, I argue that even if we were to accept that affirmative action causes stigma, this impact is outweighed by the benefits of affirmative action. Accordingly, the stigma argument should not be used to narrow the nature and scope of affirmative action. To do so would entrench the inequality that affirmative action seeks to eradicate. Instead, our focus should turn to the dismantling of systems of domination and oppression from which stigma is rooted. In conclusion, I suggest that the emerging stigma argument should be seen and fiercely resisted as a part of ‘white backlash’ against measures intended to redress inequality in South Africa.
The full paper can be found at https://ohrh.law.ox.ac.uk/wp-content/uploads/2022/04/U-of-OxHRH-J-Stigma-Argument-Against-Affirmative-Action.pdf