Affirmative action in us

Affirmative action has been a hot-button issue in the United States since the late 1970s. No single event pushed the topic to the forefront more than the Supreme Court case of University of California Regents v. Bakke (1978). This paper will examine affirmative action through the lens of the Bakke case, and the effect that the battle over the issue has had and is having on the state of ethnic and race relations in the U.S.

Affirmative action is designed to help eliminate past and present discrimination based on race, gender, and national origin, particularly in employment and education. The policy seeks to create more opportunities for women and minorities by giving them special consideration in decisions involving hiring, firing, promotion, college admissions, and government contracts. In all of these areas, women and minorities traditionally have been underrepresented. Companies, government agencies, and universities use recruitment, set-asides, and preferences to achieve these goals.

Though the goal of affirmative action is equality, many challenge such programs precisely on those grounds. Opponents say that choosing one person over another because of their race, gender, or national origin is always wrong, no matter how noble the goal. The policy has created bitter divisions that often run along racial and ethnic lines, and it has created fractures among the members of those groups.

Proponents of affirmative action argue that the policy is necessary because women, African-Americans, and other minorities have been excluded from public life. Bringing them into public life not only ends the discrimination, it benefits society because it allows them realize their potential. If employers and colleges used a person's race, gender, and national origin against them in the past, then it is only fair that such characteristics work for them today (Urofsky 29).

Opponents counter that although these groups have suffered because of discrimination, quotas disadvantage individual white males. This is inherently unfair. Why should only a handful of white males have to pay the price for all of society? This sense of unfairness drives much of the opposition to affirmative action (Urofsky 29-30).

Some African-Americans challenge the policy because it creates an assumption about the superiority of whites and the inferiority of whites. Shelby Steele writes that racial preferences “not only reinforce America's oldest racial myth but, for blacks, they have the effect of stigmatizing the already stigmatized” (Mills 43-44).

The policy of affirmative action arose out of the civil rights movement of the 1950s and 1960s. Supreme Court decisions such as Brown v. Board of Education and legislation such as the landmark 1964 Civil Rights Act ended legal segregation and state-sanctioned discrimination, but bias continued to limit opportunities for minorities and women. Clearly, more needed to be done.

Those cases and laws involved “negative” action; in other words, the courts and Congress barred certain acts, such as discriminating against prospective employees based on their race or gender. Such moves succeeded in eliminating the most egregious forms of discrimination (for example, separate drinking fountains), but in many important areas the face of America remained unchanged. White males still dominated universities, government, and the business world; at some workplaces, white males held every job. Societal changes occurred at a glacial pace, if at all. Equality seemed a long way off.

That prompted a call for “affirmative” action to create opportunities for all. President Kennedy first used the term affirmative action in a 1961 executive order that created a committee on equal employment opportunities. “The Contractor will take affirmative action, to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.” The Civil Rights Act of 1964 codified the latter half of that statement into law, adding gender as another criteria that may not be considered by employers (Americans United for Affirmative Action).

That act greatly extended the federal government's reach by barring private employers from discriminating against women and minorities. By 1965, however, President Johnson made it clear that more needed to be done. He also used the term affirmative action, only he ascribed a far different meaning. In a commencement address, Johnson declared, “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 still justly believe that you have been completely fair. Thus it is not enough just to open the gates or opportunity. All our citizens must have the ability to walk through those gates....We seek not...just equality as a right and a theory but equality as a fact and equality as a result.” (Americans United for Affirmative Action).

President Nixon succeeded Johnson in 1969 and followed Johnson's lead. Nixon established minority hiring goals for contractors doing business with the government. The Nixon Administration took pains to state that their minority hiring policy involved “goals” and not “quotas.” Regardless, the Administration clearly had reversed policy; now they were telling employers that they had to consider race, gender, and national origin in their hiring decisions, or risk not being considered for government contracts (Americans United for Affirmative Action).

Affirmative action, however, really began with the judiciary, though the courts did not use that term. The Supreme Court, in Brown, held that the segregation of schoolchildren based on race violated the Fourteenth Amendment (Tribe 1475). However, since children usually attend the school nearest their home, and since blacks and whites lived apart, legal segregation would simply be replaced by de facto segregation.

The Supreme Court addressed that issue in Brown II, which required the school district to submit an integration plan for court approval. This process repeated itself around the country for more than two decades after Brown, as the judiciary often became the overseer of desegregation plans while sparring with intransigent school districts. Following the Supreme Court's lead, the lower courts began to focus on results rather than formal laws, hoping to achieve equality sooner rather than later (Gunther 728).

The judiciary soon extended this approach to the workplace, implementing affirmative action programs to remedy ongoing employment discrimination against minorities and women. For example, in 1970, a federal district judge barred Alabama from discriminating against African-Americans in hiring state troopers. The state had no African-American state troopers. Eighteen months after that ruling, the state still had no African-American state troopers. So the judge ordered Alabama to hire one qualified African-American state trooper for every white state trooper hired, until African-Americans numbered 25 percent of the force, or roughly equivalent to the proportion of African-Americans in Alabama as a whole (Gunther 728).

Similar programs desegregated numerous workplaces, while many employers instituted voluntary affirmative action policies. In addition, federal and state governments enacted more laws to expand affirmative action even further. No legislation had more impact than the Civil Rights Act of 1972, which greatly expanded the reach of the federal government. The employment policies of state and local governments came under federal purview. More importantly, the law put the federal government on the victims' side by giving the Equal Employment Opportunity Commission (EEOC) the power to file lawsuits on the behalf of individual plaintiffs (McWhirter 54).

By the mid-1970s, race and gender had become a factor in hiring and college admittance decisions—a positive factor. Then came Bakke, a Supreme Court decision more notable for the controversy it generated (considerable) than the changes it spawned (minimal).

The Bakke case challenged an affirmative action program for admission to the medical school at the University of California at Davis. Such programs have had a dramatic impact on higher education. In 1965, only 4.9 percent of college students were African-American. By 1990, that figure had risen to 11.3 percent, nearly equaling the percentage of African-Americans in the population as a whole. Similarly, by 1990, women were earning nearly half of the bachelor's degrees awarded by the nation's universities (Stephanopoulos).

In the 1970s, the Davis Medical School admitted 100 students each year. Sixteen of those slots were set aside for members of minority groups, or those who had been “economically or educationally disadvantaged.” The regular admissions committee reviewed the applicants for the 84 open slots, summarily rejecting any student with a grade-point average under 2.5. The committee evaluated each of the candidates, assigning each a benchmark score based on their grade-point average, test scores, extracurricular activities, and other factors.

The committee ranked each candidate according to this score. One out of six candidates received interview. Some students were offered admission without interviews and some were rejected well before that stage. Finally, after comparing the students based on all of these factors, the committee voted, and offered admission to the candidates receiving the most votes.

A special admissions committee recommended names to fill the other 16 slots. For those slots, the committee waived the minimum grade requirement. The students applying to this committee were not compared to one another or to the students applying for the other 84 spots. The chairperson determined which applicants were “economically or educationally disadvantaged” for admissions purposes, though up until that no point no white person had qualified as such. The committee determined the best candidates, then forwarded the names to the regular admissions committee. They accepted or rejected the names. This process continued until all 16 slots were filled.

Allan Bakke, a white male, applied to the Davis Medical School in 1973 and 1974, but did not gain admittance either year. He then sued, alleging that in both years, applicants with lower grades and test scores had been admitted under the special admissions program. Bakke claimed that a preference program based on race, gender, and national origin violated the equal protection clause of the Fourteenth Amendment and Title VI of the 1964 Civil Rights Act.

Ironically, both pieces of legislation had been primarily enacted to end discrimination against African-Americans (Gunther 761). A further irony is that Davis and the numerous other schools that rejected Bakke apparently did so not because of his credentials (which were excellent) but because of his age (he was born in 1940, making him 32 when he first applied) and established career (he was an engineer). Finally, nearly 50 students with better credentials than Bakke had also been rejected by Davis Medical School (Dreyfuss and Lawrence 16-30).

The case reached the Supreme Court in 1978, and in a bit of sophistry, the Court upheld the constitutionality of affirmative action but struck down Davis' method as an unconstitutional quota. The sophistry involved the reasoning of Justice Powell, who wrote two opinions for different 5-4 majorities. In the first opinion, Powell held that numerical quotas, i.e., setting aside 16 spots based on race, gender, or ethnicity, were a racial classification, and thus subject to strict scrutiny. Very few governmental regulations survive strict scrutiny by the Supreme Court. To be found unconstitutional, the University of California at Davis had to prove a “permissible and substantial” governmental interest in creating such a classification.

The school argued that its special admissions program served four compelling governmental interests. First, it reduced “the historic deficit of traditionally disfavored minorities in medical schools and in the medical profession.” Second, it countered “the effects of societal discrimination.” Third, it increased “the number of physicians who will practice in communities currently underserved.” Fourth, the school garnered educational benefits from having an ethnically diverse student body.

Powell rejected Davis' first stated interest as impermissible because it created a racial preference. “Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake.” Powell found the second interest substantial, but found the school's method unconstitutional. The school made no finding that it had discriminated in the past, so how could they have a remedy when they had yet to discover a harm. Moreover, it is not the school's job to ameliorate general societal discrimination.

In rejecting that claim, Powell summarized the Court's thinking in a way that exemplified what many white Americans feel. Powell wrote, “Hence, the purpose of helping certain groups whom the faculty of the Davis Medical School perceived as victims of ‘societal discrimination' does not justify a classification that imposes disadvantages upon persons like respondent, who bear no responsibility for whatever harm the beneficiaries of the special admissions program are thought to have suffered.”

Powell rejected the state's third asserted justification on two grounds. First, he found no evidence to indicate that certain areas were underserved by medical care, though he did not doubt that was the case. Second, and more importantly, the school had offered no evidence that this special admissions program would actually correct that problem.

Powell found the state's fourth asserted justification to be valid and substantial. Powell wrote, “Physicians serve a heterogeneous population. An otherwise qualified medical student with a particular background—whether it be ethnic, geographic, culturally advantaged or disadvantaged—may bring to a professional school of medicine experiences, outlooks, and ideas that enrich the training of its student body and better equip its graduates to render with understanding their vital service to humanity.” However, he added that the state failed to show how its special admissions program furthered that goal, or that another alternative could have done the same thing without infringing on Bakke's constitutional rights. Therefore, Powell invalidated the special admissions program because it violated the Fourteenth Amendment's equal protection clause and Title VI of the 1964 Civil Rights Act.

However, writing for a separate 5-4 majority, Powell also held that schools could consider race, gender, or ethnicity as a factor in admissions decisions. How much of a factor? That is for the schools to decide. And how will they decide? By placing a value on that factor. And how will they arrive at that value? By first deciding how many students of that gender, race, or ethnic background the school wishes to admit. Colleges simply switched to this formula and continued their affirmative action programs under another guise. The end result is the same, but a “factor” sounds better than a “set-aside,” just as the Nixon Administration concluded years earlier in its push for “goals” rather than “quotas.”

The Supreme Court revisited the issue of affirmative action many times after Bakke, upholding some programs that involved quotas and invalidating others. The Court applied its strictest scrutiny to all such plans, upholding only those programs that were remedial, such as the Alabama trooper case. The Court would only uphold plans that sought to remedy past discrimination committed by institution now administering an affirmative action program. The policy could not be utilized to further equality generally or to remedy past discrimination generally. The Court's 1995 decision in Adarand made it clear that this remedial requirement applies even to the federal government's affirmative action programs.

Today, affirmative action is one of the nation's most contentious political issues. Opponents argue that the war against discrimination has been won, that civil rights and equality are guaranteed to all. Thus, special treatment is unnecessary and unconstitutional, resulting in reverse discrimination. Bakke introduced that term into the American lexicon. It is the rallying cry for white males who are passed over for promotion in favor of a woman, or maybe in favor of an African-American man. Legal scholars may argue over whether the term reverse discrimination is logical fallacy, but there is no denying its potency in this debate.

Supporters of affirmative action counter that America is nowhere near achieving its goal of equality, and granting small benefits to minorities and women paled in comparison to the centuries of advantage enjoyed by the majority. Moreover, they argue, that position of advantage continues to feed upon itself, pointing to examples such as Harvard, where children of alumni receive preference in admissions decisions. As a student at the University of California at Berkeley said, “A lot of students here come from well-off backgrounds and good high schools and think everyone just should be treated equally by grades. They don't even stop to think that many other people didn't have the same chances to take SAT prep courses and things like that, that they did” (Sanchez, March 11, 1996, A1).

Some supposed benefactors of affirmative action have also called the policy into question. Many women and people of color find their accomplishments tarnished and their abilities questioned. They face the perception that they owe their position or status to a quota or a set-aside or a preference. These critics say that no matter the benefit, the cost is simply too high (Constable 1995). Those benefits, however, have been substantial. Though women and minorities still work in lower-paying jobs, and few still hold positions of power, the policy has helped transform many workplaces and occupations.

Sentiment towards affirmative action has turned negative in part because it has been portrayed as a zero-sum game. If minorities win, then whites inevitably lose, or so it is assumed. The New York Times' headline on the Bakke case read “A Victory for a White.” This portrayal of winners and losers distorted the reality, which was that whites continued to dominate in professional schools, graduate schools, corporate boardrooms, and in almost every other facet of American society (Dreyfuss and Lawrence 263).

That reality persists to this day. In 1995, the Glass Ceiling Commission reported that 97 percent of senior managers at the Fortune 1000 corporations were white males. This dominance of white males continued despite the fact that women and minorities made up the majority (57 percent) of the work force and two-thirds of the overall population (Morin and Worden A1).

Perceptions differ greatly among members of racial and ethnic groups. George Shultz, a white male and one of the architects of affirmative action during the Nixon Administration, believes that the policy is no longer needed. “It's certainly outlived its usefulness,” said Shultz, now at the Hoover Institution at Stanford University. “At the time we needed a 2 by 4 [to end discrimination] but the time for the 2 by 4 is gone.” African-Americans vehemently disagree with that notion. They also argue that the perception of rampant reverse discrimination is not supported by the facts because very few whites have filed discrimination claims (Harris and Merida A1).

Many critics charge that the media have false represented the impact and scope of affirmative action. Richard Harwood (A17) writes that the media “have created the impression that without ‘preferences' blacks would be shut out of the higher education system. And we have created the corollary impression that ‘minority preferences' are rampant, imperiling the educational future of far too many whites.” The reality is that almost any high school graduate can attend college, and that many well-respected universities accept more than 50 percent of applicants.

These divergent attitudes between whites and blacks are reflected in polling data and interviews. A Washington Post survey of 1,524 people in 1995 found that three-fourths of the respondents opposed affirmative action for racial or ethnic minorities. Nearly that many opposed affirmative action designed to benefit women. Surprisingly, nearly half of the African-Americans polled opposed affirmative action. Pollsters found a much more positive attitude towards outreach programs and other attempts by corporations and colleges to attract minority candidates (Morin and Warden A1).

A woman in Texas summarized the attitude of many whites when she said, “Blacks…walk around with a chip on their shoulder, like we owe them something. I don't feel that we do.” Many white males, stalled in career, find it easy to scapegoat women and minorities. One 52-year-old executive said, “They talk about a glass ceiling for women and minorities. There's a glass ceiling for middle-aged white male managers too” (Morin and Warden A1).

These comments and other research indicate that opposition to affirmative action may be even greater than the Washington Post poll shows. Researchers Paul Sniderman and Edward Carmines conducted a study where they masked their true intent, which was to gauge people's feelings about affirmative action. Liberal Democrats, when asked face to face, tend to support affirmative action, maybe because that is the “right” answer or the answer they think the pollster wants to hear (Morin C5).

By framing the inquiry around general questions of national policy, in Sniderman and Carmines were able to determine how liberals really feel about affirmative action. They found that liberal Democrats, traditionally the strongest supporters of race-based preferences, are just as angry about affirmative action as conservative Republicans. A subsequent study found that the mere mention of the term “affirmative action” sharpened white hostility towards African-Americans. For example, a much greater percentage of whites described blacks as “lazy” or “irresponsible” after hearing the term “affirmative action.” Such findings support the notion that affirmative action has stigmatized all people of color (Morin C5).

Other commentators have noted the lukewarm support for affirmative action among liberals. Professor Randall Kennedy argues that the battle over this policy has splintered the coalition—liberal Democrats, moderate Republicans, black and Jewish communities, and organized labor—that came together for the civil rights movement. Part of the coalition believes that “one gets beyond racism by getting beyond it now: by a complete, resolute, and credible commitment never to tolerate [it].” They oppose affirmative action. Proponents of the policy argue that “in order to get beyond racism, we must first take race into account.” This issue has so divided the coalition as to render it largely ineffective (Mills 48-49).

Still, Kennedy rejects many of the arguments against affirmative action. He claims that most African-Americans, rather than being stigmatized by affirmative action, view it as modest compensation for a long period of racism in the U.S. Moreover, most African-Americans view the notion of “meritocracy” with understandable skepticism. The U.S. never had meritocracy, and to this day, we only pretend to that notion. Witness the number of “legacy” admissions to the nation's elite universities and the other ways in which the “old boys' network” takes care of its own (Mills 52-53).

The debate over affirmative action has taken yet another turn in recent years as Asian Americans have gained increasing wealth and power in American society. Asian Americans initially benefited from the policy, but these days they come to see affirmative action as a hindrance. Today Asian Americans enjoy the highest per capita income ($43,000) and highest college completion rate (42 percent) of any ethnic group in America, higher than the rates for even whites (Fletcher A9).

Asian-Americans allege that in some cases, they have become victims of their success. For example, an elite high school in San Francisco utilized affirmative action to determine its student body. This forced the high school to put a cap on the number of Asian American students because accepting all of the qualified Asians would have upended the school's racial and ethnic balance. A lawsuit eventually forced the school to change its policies and now Asian-Americans make up a majority of the students at the school.

Similarly, Asian Americans have benefited from the end of affirmative action in California. Proposition 209 forced all of the state's universities to end affirmative action admissions programs, like those upheld in the Bakke case (using race, national origin, or gender as a factor to be considered, without quotas). The end of those programs removed the cap on the number of Asian Americans, and now some schools report that the number of Asian-American students nearly equals that of white students (Lawrence and Matsuda 179).

Still, many Asian-Americans perceive that affirmative action continues to hold them back. Asians make up only four percent of the American population but they constitute of the nation's medical school students. Asian students with strong credentials complain that they are denied admittance to graduate schools because they have met their quota, so the faculty admits less qualified students to maintain racial balance (Fletcher A9).

On the other hand, Asian-Americans have made few inroads in many areas of American society. Asians make up only a small fraction (0.3 percent) of the senior-level managers at Fortune 1000 companies, receive a tiny share of government contracts and are underrepresented in a range of jobs, from journalist to college professor. Whether this reflects discrimination on the part of whites or a cultural preference for certain careers (such as science and medicine) is unclear (Fletcher A9).

Still, the divisions in the Asian community are clear. In San Francisco, for example, the group calling itself Chinese for Affirmative Action has split off from the Chinese American Democratic Club, which opposes the policy. The Chinese for Affirmative Action group conceded that the policy would cap the number of Chinese at the area's premier high school, but they argued that the policy set goals for the hiring of Chinese Americans at other institutions where Chinese Americans are underrepresented. They argued that “the fact that some Chinese might not go to their school of choice was a reasonable price to pay to meet the broader goals of affirmative action (Lawrence and Matsuda 179).

Women are another group who have benefited from affirmative action but now are divided about its merits. Many women and men question the need for the policy in some areas, such as universities, where women make up the majority of students. In the workplace, however, women still make up only a fraction of the executives. Data indicate that women still make less money than men, even when comparing women to men with similar educational backgrounds. Many proponents of affirmative action point to this information as proof of the continuing need for the policy (Lawrence and Matsuda 158).

Opponents counter that women make less than men for a myriad of factors. For example, many women take time off from their careers to raise a family. Thus, when years of experience are compared, women's pay is commensurate. Of course, many women have to take time off to care for family members (such as ailing parents), and that is not a choice. Should they be penalized? Some women also change careers or jobs because harassment and hostility because of their gender, situations that men rarely have to face. Should they be penalized? These are tough questions to answer; hence the division of opinion among women about affirmative action (Lawrence and Matsuda 159).

Others argue that educated women need affirmative action to a lesser extent than those with a high school education or less. “For many women, affirmative action is welfare reform that works. Without it, a woman with a high school education is frequently stuck in the world of low-paying women's jobs: babysitters, house cleaners, nurse's aides, clerk-typists, food service workers.” Affirmative action has given these women access to high-paying blue-collar jobs in construction, police departments, auto assembly plants, truck driving, and other technical employment (Lawrence and Matsuda 154-155).

Still, with women making up half of law school classes around the country, support for affirmative action has waned. Such data are deceiving, though. A disproportionate number of women (59 percent) still toil in “traditional” low-paying jobs (Mills 137). Consequently, some women argue that mere affirmative action is not enough. Rather than rolling back the policy, as three-quarters of the nation wants, these women push for an expansion of the policy. “True affirmative action calls for not only the entry of women, but a change in the culture of the places they enter” (Lawrence and Matsuda 165).

The rhetorical argument may continue, but affirmative action may not. Other states are following California's lead and the impact is already being felt. In 1997, only 150 of the 6,500 students entering the University of Texas were African-American, a 50 percent drop from the year before. (This resulted from a court decision that ordered an end to affirmative action at the school.) The law school admitted just four African-American students that year among its first-year class of 468 students, a 90 percent drop from the previous year (Pressley A1).

The withering of such programs has left affirmative action's defenders—and even some opponents—grasping for alternatives. One such alternative has been implemented by the state of Texas. Data show that members of minorities score lower than whites on standardized tests, such as the SAT, possibly because of bias. Texas responded by eliminating the SAT as a criteria for admission to the state's two most selective schools; students in the top 10 percent of their high school class automatically earned admission. Consequently, this plan benefits minority students without creating an explicit racial preference (Guinier A23).

The American people support this type of program much more than an explicit quota because it “embodies a standard of merit even more deeply rooted than the SATs: working hard, getting good grades and doing very well what's expected of you. It also provides a powerful new incentive to students whose horizons have been unfairly narrowed by class: Work hard and you can go to UT” (Dionne A25).

Texas also required all of its school districts to report student achievement and dropout by race, gender, ethnicity, and economic status. That way, Texas can identify those districts that have problems and offer assistance. By intervening in the children's lives at a young age, the educational system can have a much greater impact.

Indeed, nothing will increase minority enrollment more than getting young kids into school—and keeping them there. Towards that end, the University of California at Berkeley offers special tutoring in math and English in low-income neighborhoods. Other programs offer science instruction, seeking to help these grammar school students excel now so they will also excel later (Sanchez, December 28, 1996).

Colleges have also begun to recruit minority students. For example, the University of Virginia invites prospective applicants and their families for a weekend workshop. The gathering offers a glimpse at college life and helps bolster many of the students, many of whom might not apply because of fears about fitting in (Sanchez, December 28, 1996).

Another plan that seems to enjoy greater public support is class-based affirmative action. Americans are more willing to lend a helping hand to those in economic need, regardless of their gender, race, or national origin. One writer making the case for class-based affirmative action pointed out that the program will still largely benefit minorities without creating any of the rancor affiliated with quotas (Kahlenberg 83-120).

Clearly, this process will pan out over time, though that may be small consolation to the proponents of affirmative action. Just as clear is that the process of achieving equality begins with education. If all students receive the same opportunity, they will not need any help getting into college, nor will they need help competing for government contracts, and nor will they need help getting a promotion.

The debate about affirmative action has always been about means, not ends; as affirmative action recedes, those means will have to change. Call it a quota or a preference and the American people vehemently oppose it. Call it a “factor” to be considered or an outreach and the American people generally support it, even though the result may be the same. Semantics do matter. The nation as a whole seems to have adopted the logically inconsistent reasoning of Justice Powell. Supporters of affirmative action would do well to heed that lesson.

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