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Affirmative Action

Historic Prejudices
Although affirmative action programs and civil rights legislation both sharea common history and address the question of how to end societal discrimination, they provide quite different approaches on how to accomplish that objective. Civil rights legislation forbids individuals or institutions, such as employers or university admissions offices, from considering factors such as color or gender in decision-making processes. Many affirmative action programs,however, do just the opposite. These programs require that color and gender be taken into account when making decisions about who will be hired or admitted to a school and that preference be given to people of color and or women.
There are no affirmative action laws, per se. Most affirmative action mandates are a result of a series of presidential executive orders and government programs. Affirmative action initiatives were not intended to be permanent measures; rather, they were designed to be temporary actions. The goal of affirmative action is to help support the economic development of minorities and women, who have historically suffered prejudice in employment and educational opportunities in the United States. For affirmative action purposes, it is assumed that these groups are at a disadvantage in our society and need programsto give them a level playing field. The most visible affirmative programs, and the most controversial, are those that involve affirmative preference, suchas government set-asides. Set-aside programs have a stated goal that five percent of all government contracts should be awarded to minority- and women-owned businesses. In order to achieve this, it becomes necessary to take race and gender into consideration when making a contract award.
While preference programs have received a great deal of public scrutiny theyare not the only affirmative action initiatives. Other measures include affirmative recruitment and affirmative fairness. Affirmative recruitment occurs when an employer or educational institution takes proactive steps to encouragewomen and minorities to apply for jobs or school admissions. An example of affirmative recruitment is when a corporation participates in a job fair thatis targeted to minorities. While the goal of affirmative recruitment is to make women and minorities aware of opportunities, it does not guarantee that they will be hired by a company or gain admission to a school.
Affirmative fairness assesses the capability of a candidate for a job or promotion or school admissions on an individual basis. The purpose of affirmativefairness is to make the selection process a fair one for minorities and women. For instance, even though an applicant lacks the usual university admission requirements, that does not mean that the person might not have the abilityto be a successful student. If that is the case, the admissions office wouldtake into account other factors, such as obstacles this person had to overcome in order to graduate from high school, that would indicate a potential todo well in college. With affirmative fairness, standard measures, such as test scores, would be only one element to determine a candidate's merit. Unfortunately, because affirmative fairness requires weighing many subjective factors, it often is quite impractical to use when qualified applicants far outnumber the available spaces.
Affirmative Action v. Civil Rights
Affirmative action programs are an outgrowth of civil rights laws. Civil rights legislation was created to eliminate the differences in opportunities caused by racial divisions and lines. Although slavery was a prevalent practice in the South in 1787, the authors of the original Constitution chose not to deal with the issue, even though it clearly went against the notion of a free society that was the cornerstone of the country's founding. It would take theratification of the Thirteenth Amendment in 1865 to outlaw slavery. Three years later, the Fourteenth Amendment guaranteed that the states could not makeor enforce any law that would "abridge the privileges or immunities of citizens" or "deprive any person of life, liberty, or property, without the due process of law." It also provided that a state could not deny any citizen "the equal protection of the laws." The Fifteenth Amendment, ratified in 1870, stated that a citizen's right to vote could not be denied or abridged "on accountof race, color, or previous condition of servitude."
Following the Civil War Congress passed numerous civil rights laws to ensurethe rights of former slaves. The Civil Rights Act of 1875 guaranteed that everyone, regardless of race or color, should be able to enjoy "inns, public conveyances on land or water, theaters, and other places of public amusement." This piece of legislation would effectively be overturned, however in an 8-1 decision in 1883 by the Supreme Court. In the Civil Rights Cases, the Court ruled that the Thirteenth and Fourteenth Amendments applied only to states and that the federal government did not have the authority to outlaw discrimination by private individuals. In his dissenting opinion, Justice John Marshall Harlan I stated that he believed that Congress did have such a right. However, in response to the Court's majority opinion, Southern states began passing laws, commonly called Jim Crow laws, that required separate accommodations for blacks and whites in most public places.
In 1896 the concept of "separate but equal" was upheld by the Supreme Court in Plessy v. Ferguson. Mr. Plessy challenged a Louisiana law that required racially separate seating accommodation on trains, after he was arrestedfor violating this law by trying to sit in a whites-only section. Although the Louisiana law appeared to be in violation of the Fourteenth Amendment's Equal Protection Clause, the Court ruled otherwise, thus allowing for continuedsegregation of the two races in the South. However, Justice Harlan was once again the sole dissenting voice and wrote that he believed that the Constitution should be "color blind." It would take over 50 years for Justice Harlan'svision of a "color-blind" Constitution to be affirmed. In Brown v. Board of Education, the Supreme Court unanimously ruled in 1954 that "separate"public schools were not "equal" for black students. This landmark case wouldhave longlasting repercussions as school districts across the country have spent decades trying to determine the best way to integrate schools.
Affirmative Action in Practice
In 1961 President John Kennedy first used the term "affirmative action" in Executive Order 10925, which required federal contractors to hire more minorityemployees. The policy, as Kennedy envisioned it, was meant to provide minorities an opportunity to demonstrate their skills. The Civil Rights Act of 1964, passed during the Johnson Administration, guaranteed equality to blacks andeffectively ended Jim Crow laws. However, President Johnson believed that the scars caused by years of legal discrimination in the South could not be quickly erased. In a commencement speech that he delivered at Howard Universityon 4 June 1965, President Johnson said: "You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, `You're free to compete with all the others,'and justly believe that you have been completely fair." The president then went on to say that freedom alone was not the solution, that there needed to beopportunity and "not just equality as a right and a theory, but equality asa fact." That same year, the president signed Executive Order 11246, which provided a means to implement affirmative action policies. The order required federal contractors to file written affirmative action plans with the Office of Federal Contract Compliance Programs (OFCCP) under the Department of Labor.
It was during the administration of President Richard Nixon that affirmativeaction programs began requiring specific target goals, or quotas, and timetables for hiring minorities and females. In the late 1960s, the federal government began pushing for the inclusion of more minorities into high-paying, trade-union jobs and in 1969 authorized what would become known as the Philadelphia Plan. The program required construction companies in Philadelphia that received federal contracts to increase the number of racial minorities in that city's construction industry from one percent to 12 percent. The Civil RightsAct of 1972 was passed under the Nixon Administration. The act allowed the department of theEqual Employment Opportunity Commission to file lawsuits and regulate both state and local governments. Further presidential mandates regarding affirmative action appeared over the years, including the Public Works Employment Act, signed by President Jimmy Carter in 1977. This act required state and local government to spend 10 percent of federal funds for public works on Minority Business Enterprises.
Early on, federally mandated set-asides began being challenged in the courts.In 1974, the Supreme Court almost ruled on the constitutionality of university affirmative-action programs in the case of DeFunis v. Odegaard. DeFunis, a white male, sued the University of Washington Law School when he wasdenied admission while minority students with lower test scores were acceptedinto the program. The case had worked its way up through the appeals courtsand during that time, the university had been ordered to admit DeFunis whilethe case was being reviewed. When DeFunis was only weeks away from graduation, the case came up for review by the U.S. Supreme Court. Instead of ruling onthe legality of the admissions process, the Court decided that the case wasmoot since DeFunis had already finished his law school studies.
Reverse Discrimination
Four years later, the Court finally made a ruling on affirmative-action admissions in University of California v. Bakke, a case that raised the issue of "reverse discrimination." Bakke challenged the medical school admissions process at the University of Califonia—-Davis Medical School that set aside16 slots, out of 100, for minority applicants only. In this case, Bakke hadnot gained admission into the program despite the fact that he had scored higher on medical aptitude tests than minority applicants who were enrolled by the university. The Court ruled that Bakke had been discriminated against andordered the medical school to admit him. But the Court also upheld affirmative-action procedures, to some degree, by stating that race could be a factor involved in the admissions process. In ruling in cases such as Bakke, which centered on equal protection issues, the Court adopted a "strict scrutiny" test. This test was used to determine if the government should be allowedto treat citizens unequally. In order to do so, the Court held that the reasons must be compelling and narrowly defined. In the view of the Court, the university's arguments for affirmative-action admissions did not pass the strictscrutiny test. For example, making up for past instances of specific discrimination would be allowable under strict scrutiny. However, the university's medical school was less than 20 years old and therefore did not have a historyof past discrimination.
In 1995 the Supreme Court again used the strict scrutiny test in Adarand Constructors, Inc. v. Pena, a case that challenged the 10 percent set-asides for minorities for public works contracts. Adarand sued for race discrimination when his firm had lost a job to a Hispanic-owned construction company,despite the fact that Adarand had been the lowest bidder. The Court ruled that the federal government's arbitrary set-aside goal of 10 percent did not meet the strict scrutiny test. In writing the majority opinion, Justice Sandra Day O'Connor said that the plan failed to meet the test because it did not have a "compelling purpose" and it had not been "narrowly defined." While many people viewed the Adarand decision as a death knell for most preferenceaffirmative-action programs, the Court did leave the door open for the constitutionality of programs that were enacted to remedy specific instances of past discrimination, had measurable goals, and a timeframe to achieve the goals.

Further Readings

  • Curry, George, ed. The Affirmative Action Debate. Reading, MA:Addison-Wesley Publishing Company, Inc. 1996.
  • Lawrence, Charles R., III, and Matsuda, Mari J. We Won't Go Back: Making the Case for Affirmative Action. Boston: Houghton Mifflin Company. 1997.
  • McWhirter, Darien A. The End of Affirmative Action: Where Do We Go from Here? New York: Birch Lane Press. 1996.

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