Affirmative Action

Introduction

In society, there exist different social groups which are characterized by many features among them race. These different social groupings are characterized by the existence of imbalance in opportunity available to them; this status quo necessitated the creation of special programs for the disadvantaged groups. Affirmative Action consists of a set of antidiscrimination measures put in place which are intended to ensure access to some positions by society members who would otherwise by under-represented or entirely excluded1. This implies the adoption of practices to provide preferential treatment to individuals based on their belonging to groups which are a minority or disadvantaged or as redress for past wrongs experienced by the group.

These groupings are predominantly based on race. Over time, there have come to exist varied views on their need and their effectiveness in the society. In recent times, affirmative action has fallen from grace and its widespread embrace and acceptance by the public has been on a decline. This paper shall set out to discuss the need

for the adoption of Affirmative action programs and policies and the underlying reasons behind the change in attitude towards affirmative action in the USA. A Recent Supreme Court case that showcases the blows dealt on affirmative action shall be identified and discussed summarily so as to shed light to the issue.

Affirmative Action in the USA

The phrase “affirmative action” can trace its birth to the year 1961 when U.S. president Kennedy sought to address the issues of inequality in employment opportunities for the African 1 J, E. Kellough. “Understanding Affirmative Action: Politics, Discrimination, And the Search for Justice” (Georgetown University Press , 2006) American population2. It should be noted from the onset that Affirmative action was not a platform for compensation for past discrimination, oppression or injustices perpetrated against some societal group but rather is a present day compensatory practice or means set in place to offset effects that come about as a result of racism and other current discriminatory practices. This Action was especially welcome by the minority communities in the USA since it gave them leverage over the leverage over the elite by offering a means of desegregation. Justification of Affirmative Action programs in the US is that they seek to correct harm caused to individuals by cognitive bias. This is harm that is motivated by the perpetrator’s awareness of the people’s race, sex or national origin. In recent Affirmative action was is especially significant since individual litigation carried out in reaction to perceived discriminatory acts was unable to tackle the issue of inequality and disadvantaged faced by the minority. Many of the victims of discrimination could not seek redress as individuals since they were either unwilling or unable or unwilling to use the legal system for enforcement.

Compounding this is the fact that disadvantaged groups also suffered from extreme poverty and social exclusion hence reduced capacity to access redress. Affirmative action was never meant to be a permanent state of affairs but rather was envisioned as

1. a temporary measure to ensure that minorities enjoyed the same opportunities that had in the past been the premise of whites4. Its need arose from the fact that advantaged members of the society had better chances of excelling and achieving their goals if placed on the same

2 S. Leiter, Affirmative Action in Antidiscrimination Law and Policy: An Overview and Synthesis.” (NY: State University of New York Press, 2002)

3 D. Malamud, Class-based affirmative action: Lessons and caveats. (Texas Law Review 74, 1996) 847-900

4 S. Leiter, Affirmative Action in Antidiscrimination Law and Policy: An Overview and Synthesis.” (NY: State University of New York Press, 2002)

grounds with less advantaged members; this called for measures to level the field. Hence it was assumed that with time, affirmative action plans would render themselves obsolete as the minority parties would no longer need this measures as the playing field would have been made level so to speak and opportunities equal for all Americans.

Reasons for drop in Affirmative action Support

From the conception of Affirmative Action plans by the government, there existed groups which opposed the idea. These groups which are mainly made up of the majority class have grown and become more vocal in recent times5. The major bone of contention as far as Affirmative Action goes is the categorizing of individuals according to race such as black, African American or Latino. An argument has been put forwards that not all African Americans or any other of the minority race members for that matter need affirmative action. Instead, it is proposed that more equitable programs could be endorsed which use only class categories such

as low-income6. Williams advances the need for a change from the basing of opportunities on race in his article “but not at this cost” whereby he proposes that opportunity be based on social status instead7. Apart from the economic implication of affirmative action, there it has been advanced that this policies undermine the nation’s commitment to racial justice since they point out to a lack of justice hence necessitating and validating their existence. This being the case, it is argued

that the USA can never achieve its racial justice objectives so long as people are lobbying for Affirmative Action plans for the minority races.

5 J, E. Kellough. “Understanding Affirmative Action: Politics, Discrimination, And the Search for Justice” (Georgetown University Press , 2006)

6 B. Ritter, Is It Time to End Affirmative Action? New York Times Upfront ( February 16, 2009): 22.

7 W, Armstron. “But not at this cost.” Newsweek (January 27, 2003): 33.

The view that color-conscious selection procedures can only serve to undermine meritocratic standards is another front from which affirmative action opponents draw blood

8.This is especially an issue in the USA since the country prides itself in the value of self-reliance and rewards being awarded as a factor of competence and ability rather than as a result of belonging to a minority group. Perhaps one of the paradoxical effects of the affirmative action policy is that of Reverse Discrimination

9. The famous case of Bakke in 1978 highlighted this issue when Allan Bakke, a white male was rejected from medical school despite possessing higher qualifications than the minority applicants to the school who were enlisted. This was a result of the affirmative action policy that necessitated that the school reserve 16 of its 100 positions for minority students. Another issue arises from the mentality that affirmative action causes on the minority race. Critics assert that young minorities who are joining the workforce expect preferential treatment such as promotions and consideration for employment because of the affirmative action plans. Not only is this an unconstructive mentality but it is also grossly unfair to the majority whites who are out for the same opportunities.

The case of Parents v. Seattle and Meredith v. Jefferson

Popular support of Affirmative Action programs in the US has significantly declined over the years and is currently at a minimal. It does not come as a surprise then that there have been cases in the supreme courts questioning the relevance of these programs Most of the recent cases 8 A. W. Darity, J. Dietrich, and David Guilkey “Persistent Advantage or Disadvantage?”

(American Journal of Economics and Sociology 60:2 April 2001) pp.435-470 9 J. T. Wise “Affirmative Action: Racial Preference in Black and White” (RoutledgeFalmer, 2005) on affirmative action have been focused on the educational system ranging from elementary schools to institutes of higher learning.

In the case of Parents v. Seattle and Meredith v. Jefferson, the Supreme Court ruled against race considerations when assigning students to schools. This was a major blow to affirmative action which has enjoyed considerable good will especially in the educational sector. In the Seattle Case, the Seattle District classified children as white or nonwhite and used this racial classification as a “tiebreaker” to allocate slots in high schools. As such, in the case of oversubscription to a particular high school by students, the race of a student acts as a tiebreaker if the school is racially imbalanced. Despite Seattle not being under any court order to implement desegregation, it was noted that due to its segregated housing patterns, Seattle high schools would have had high levels of segregation if race was not considered by the respective high

schools. In Jefferson County (Kentucky) public schools were subject to a desegregation decree until 2000 when it was deemed that the decree had eliminated segregation to a practicable extent.

In 2001, the district adopted a plan classifying students as black or otherwise while making elementary school assignments or considering transfer requests. The 2001 plan required each school to strive to maintain a between 15% and 50% Black student enrollment.

Parents in Seattle through their organization, Petitioners, and the mother of a Jefferson County student (Joshua), whose children where subject to being assigned schools based on this current plans filled these suits contending that allocated children to public schools based solely on their race violates the Fourteenth Amendment’s equal protection guarantee.

Reasons for ruling against affirmative action

The court ruled against the districts by a 5-4 vote. This ruling was triggered by a number of reasons. It was noted that this race-conscious programs that had been adopted by the district had not been triggered by any racial discrimination in the areas. This being the case, it could not be clamed that the programs were corrective in nature since the district did not have a history of discrimination10. Hence the only justification for the plans was to be found under the diversity interest. Under this notion, it was noted that the districts’ policies was not part of a broader assessment of diversity but rather a simple effort to achieve racial balance within the schools in the district. The Supreme Court has a set of procedural standards on which it bases the legitimacy of affirmative action policies. These standards stipulate that race can be a factor for designing affirmative action programs so long as it is not the only factor of the major factor for the program creation. This being the case, it was concluded that there did not seem to be any justification for these race-conscious programs since the districts failed to look into other methods other than racial classification through which diversity could be achieved.

From this case, it can be seen that the popular support for racial affirmative action has declined. In Seattle case, the plaintiffs were parents who can be taken to symbolize a large section of the population. The fall from grace of the affirmative action program that were being implemented in their children’s schools points to the general attitude that the population is adopting towards such programs. They are losing their significance and people are beginning to question if they really are a necessity11.

10 J, Breyer. Parents Involved in COmunity Schools V. Seattle School No.1551 U.S. 2007

11 C, Ward and B, Ritter, Time To End Affirmative Action? (New York Times Upfront, February 16, 2009): 22.The Supreme Court decision in the case will have the effect of reducing the scope of acceptable affirmative action programs. No longer will the government’s move towards implementing such programs be met with the enthusiasm that they were accorded in past years.This is because the objectives of these programs such as those of enhancing “diversity” and “inclusion” as can be demonstrated from the Seattle and Jefferson Country do not qualify as compelling and hence do not necessitate the need for affirmative action.

Conclusion

This paper set out to showcase the drop in the significance of affirmative action in recent times. Recent developments in public opinion and court rulings have made significant changes in existing affirmative action programs sometimes necessitating they be abandoned. It should be noted that this does not necessarily imply that the goals or antidiscrimination and equal opportunities for all which the plans set out to accomplish should be abandoned. Instead, other avenues in which these discriminations can be combated should be sought out and used. The excessive relying on Affirmative Action as the only front for fighting injustices should be avoided and a broader approach adopted. Finally, in all areas where affirmative action is implemented, race should be one of the factors taken into consideration as opposed to being the only factor. This will lead to a feeling that the programs are fair and they will be acceptable to all and hence be more productive.

References

Armstron, W. But not at this cost. Newsweek , 2003: 33.

Breyer, J. Parents Involved in Community Schools V. Seattle School No.1551 U.S. 2007

Darity, A. W. , Dietrich, J. and David Guilkey Persistent Advantage or Disadvantage? American

Journal of Economics and Sociology 60:2, 2001: 435-470

Kellough J, E. Understanding Affirmative Action: Politics, Discrimination, And the Search for Justice. Georgetown University Press, 2006.

Leiter, S. Affirmative Action in Antidiscrimination Law and Policy: An Overview and Synthesis.

NY: State University of New York Press, 2002.

Malamud, D. Class-based affirmative action: Lessons and caveats. Texas Law Review 74, 1996: 847-900

Ritter, B. Is It Time to End Affirmative Action? New York Times Upfront, 2009: 22.

Ward, C. and Ritter, B. Time To End Affirmative Action? New York Times Upfront, 2009.

Wise, J. T. Affirmative Action: Racial Preference in Black and White. RoutledgeFalmer, 2005