Affirmative Action in the United States
Background and Summary
Affirmative action refers to policies intended to promote access to education or employment aimed at a historically, socio-politically non-dominant group that is typically, minorities or women. Motivation for affirmative action policies is to redress the effects of past discrimination and to encourage public institutions such as universities, hospitals and police forces to be more representative of the total population. This is commonly achieved through targeted recruitment programs, by preferential treatment given to applicants from socio-politically disadvantaged groups, and in some cases, through the use of quotas.
Opponents of affirmative action policies argue that it is based on collectivism and is merely another form of discrimination. They believe that it can result in qualified applicants being denied entry to higher education or employment because they belong to a particular social group. This is usually the historically socio-politically dominant group that is typically majority races and men, regardless of social standing or financial need.
Some groups who are targeted for affirmative action are characterized by race, gender, ethnicity or disability status. Affirmative action exists around the world. In India (where the term used is "reservation"), the focus has mostly been on undoing caste discrimination. In South Africa, the focus has been primarily race-based, and, to a lesser extent, gender-based discrimination. When members of targeted groups are actively sought or preferred, the reason given is usually that this is necessary to compensate for advantages that other groups are said to have had, such as through institutional racism, institutional s*xism or historical circumstances. Opponents counter this argument by demonstrating that some groups who have been victims of institutional racism, such as Asian Americans, are directly injured by affirmative action programs. Proponents of it argue that affirmative action is the best set of principles to eliminate years of unfair decision-making. Proponents of affirmative action believe that reliance on race-blindness, gender-blindness or other "blind" faith of elites to behave objectively and without abuse of power, only, will not result in optimal or fair decision-making for several reasons: First, past historical discrimination severely limited access to educational opportunities and job experiences. Second, ostensible measures of "merit" may well be biased toward the same groups who are already empowered. Lastly, regardless of overt principles, people in positions of power are likely to hire people they already know or people from similar backgrounds or both, as favors, based on sociological certainties.
Don’t Allow For Crutches
A less common, advanced argument is based on mathematical probability and on an assumption that individuals' qualifications are indeed unrelated to factors such as race: Affirmative action actually ensures that, on average, the best candidate is selected precisely because affirmative action systematically includes individuals from groups that are otherwise systematically excluded. That is, since individuals in such groups are — in the absence of affirmative action — systematically excluded, and since the groups are composed of individuals that are otherwise equal to others, such groups have a higher proportion of qualified candidates precisely because they are normally excluded. Therefore selecting candidates from the excluded groups yields, on average, a greater number of qualified individuals. Accordingly, the increased mathematical probability of generally selecting more qualified candidates from the groups targeted for affirmative action will decline as candidates are recruited from the targeted groups.
Opponents of affirmative action counter that using affirmative action to remove discrimination is counterproductive, both because it requires the very discrimination it is seeking to eliminate in order to work, and because it promotes prejudice by increasing resentment of those who are the beneficiaries of affirmative action from those who have been adversely affected by the policy. The problem here lies in that those who may not be the beneficiaries now, have historically benefitted in society at some point just by being a member of the dominant ethnic group, which in this case is European-American.
Some also argue that, since economic or educational disadvantage does not necessarily correlate with or restrict itself to those of a particular racial/ethnic status, using race or ethnicity to determine disadvantage is inappropriate. Affirmative action opponents also typically argue that those who suffer on account of affirmative action, i.e. those who don't get the job or who don't get admitted to a particular university, should not be held accountable for crimes they did not commit in the past; in other words, that most people of the present were not a part of the system of the past that oppressed such minorities. Furthermore, the opponents argue, since all people have equal rights, no individual's rights should be sacrificed to compensate for another person's rights being taken away. Such people often claim that the groups that are most negatively impacted by affirmative action are of Asian background and/or Jewish background, both of whom are also discriminated against within society, and that this disproportionate effect is perverse and counterproductive considering that the intent of affirmative action is to eliminate discrimination. Many have noted that on some campuses, such as the University of California, Berkeley, where affirmative action was abolished by Proposition 209, Asian-American students, who already face discrimination on college campuses, would be the predominant victims of a return to race-conscious admissions.
Additionally, it is argued that affirmative action sometimes represses the qualified in favor of the not-so-qualified. This can result in a loss for the national economy and workforce if its citizens are not working at their full capacity, and it can also result in undesired effects like that previously felt by those who were discriminated against. For example, one may be very qualified for a certain job, but may be turned down in favor of a person who is less qualified but is targeted for affirmative action in that certain job. If occurring on a grand scale, the country will lose speed in its advances. Each of those individuals turned down will be repressed and their example might dampen the spirits of those like them, just as it had done to past social groups.
Notable opponents include Ward Connerly, a Black man, of the American Civil Rights Institute, who has promoted and won a series of ballot initiatives in the states of California, Washington and Michigan. He is also looking to begin more anti-affirmative action campaigns to states like Missouri and Kansas, and U.S. Supreme Court Justice Clarence Thomas. California's initiative was co-authored by academics Tom Wood and Glynn Custred in the mid-1990s, and it was taken up by Connerly after he was appointed by California Governor Pete Wilson to the University of California Board of Regents. Each of the ballot initiatives have won, and Connerly plans, what he calls a "Super Tuesday" adding five additional states to this list in 2008.
Notable academics such as professor Carl Cohen of the University of Michigan, who was a supporter of Michigan's Proposal 2, has argued that the term "affirmative action" should be defined differently than "race preference," and that while socio-economically based or anti-discrimination types of affirmative action are permissible, those that give preference to individuals solely based on their race or gender should not be permitted. Cohen also helped find evidence in 1996 through the Freedom of Information Act that lead to the cases filed by Jennifer Gratz and Barbara Grutter against the University of Michigan for its undergraduate and law admissions policy cases, which were decided by the U.S. Supreme Court.
Make Up For What’s Been Done
Proponents of affirmative action generally advocate it either as a means to address past discrimination or to enhance racial, ethnic, gender or other diversity of some minority groups. They may argue that the end result—a more diversified student body, police force or other group—justifies the means, despite the text of the Equal Protection Clause, and regardless of the adverse discrimination against Whites or minority groups such as Asian-Americans. Opponents further claim that affirmative action has undesirable side effects, and that it fails to achieve its goals. They argue that it factors race into the decision-making process, perpetrates new wrongs to counter old ones and undermines the achievements of minorities. It may increase racial tension and benefit the more privileged people within minority groups, such as middle- to upper-class Blacks at the expense of the disenfranchised within majority groups, such as lower-class Whites. In the British 2001 Summer of Violence Riots in Oldham, Bradford, Leeds and Burnley, one of the major complaints voiced in poor, White areas was alleged discrimination in council funding which favored minority areas. There has recently been a strong push among American states to ban racial or gender preferences in university admissions, in reaction to the controversial and unprecedented decision in Grutter v. Bollinger. In 2006, nearly 60 percent of Michigan voters decided to ban affirmative action in university admissions. Michigan joined California, Florida, Texas and Washington in banning the use of race or s*x in school admissions considerations.
Some also claim that, in college or professional admissions, affirmative action hurts those it intends to help, since it causes a "mismatching" effect by admitting minority students who are less qualified than their peers into more rigorous programs wherein they cannot keep up. That, however, may be speculation or exaggeration, and suggests inferiority amongst ethnic groups. UCLA School of Law professor Richard Sander wrote several papers on this phenomena he saw occurring in both the law schools themselves and in law firms.
How the media portrays affirmative action and affirmative action cases plays a role in how the public responds to affirmative action. There are claims that the practice is itself racist or s*xist, or both, depending on how one defines those concepts. For instance, the offering of extra college scholarships to Black and Hispanic students as opposed to White students can be seen as racism towards Whites. Others believe that programs may be motivated by political considerations.
The International Convention on the Elimination of All Forms of Racial Discrimination stipulates that affirmative action programs may be required of states that have ratified the convention, in order to rectify systematic discrimination. It states, however, that such programs "shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved." The United Nations Human Rights Committee states: "the principle of equality sometimes requires states parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant. For example, in a state where the general conditions of a certain part of the population prevent or impair their enjoyment of human rights, that state should take specific action to correct those conditions. Such action may involve granting, for a time, to the part of the population concerned, certain preferential treatment in specific matters as compared with the rest of the population. However, as long as such action is needed to correct discrimination, in fact, it is a case of legitimate differentiation under the Covenant."
An in-depth examination of the legal status of affirmative action, as well as the different kinds of programs that exist and their pros and cons, can be found in a paper written for the United Nations Sub-Commission on the Promotion and Protection of Human Rights by one of its members, Marc Bossuyt.
In the United States, affirmative action mostly applies at transition points in a person's life: when enrolling for higher education, when applying for employment or when seeking housing. Thus affirmative action has the greatest impact on young adults and has little direct effect on the lives of older, more-established members of society.
The overall framework of affirmative action in the United States was established by Executive Order 10925, issued in March of 1961 by President John F. Kennedy, but has evolved significantly. The original order required government contractors to take "affirmative action" to ensure equal treatment of applicants and employees "without regard to their race, creed, color or national origin." Today, however, affirmative action is widely considered to automatically mean preferential treatment for certain groups.
Affirmative action has been the subject of numerous court cases, where it is often contested on constitutional grounds. Individual American states, such as California, Washington and Michigan, also have orders that prohibit discrimination and outline affirmative action requirements with regard to race, creed, color, religion, s*xual orientation, national origin, gender, age and disability status.
Order of Events
The Equal Protection Clause of the 14th Amendment to the Constitution, mandates that no state deny any person the "equal protection of the laws...without due process." This Clause grants citizens the protection of their Fifth Amendment rights from state actors, because the Bill of Rights only protects citizens from the federal government.
Brown v. Board of Education, 1954
The NAACP filed suit on behalf of a Black student, Linda Brown, who was transported out of her White neighborhood to attend a Black school in Topeka, Kan. The Supreme Court ruled that separate educational facilities were "inherently unequal" and violated the Fourteenth Amendment. The next year the Court ordered segregated districts to integrate with "all deliberate speed."
Executive Order No. 10,925 in 1961, issued by President Kennedy
Established the concept of affirmative action by creating the Equal Employment Opportunity Commission, and mandating that projects financed with federal funds "take affirmative action" to ensure that hiring and employment practices are free of racial bias.
Compensatory Preferential Treatment Program of 1962
James Farmer, founder of the Congress of Racial Equality, held a meeting with then vice president Lyndon B. Johnson. Farmer proposed that a program that he called Compensatory Preferential Treatment should be put in place in order to advance the equality of the black race. In 1965, when Johnson was president, he renamed the Compensatory Preferential Treatment program "affirmative action" in a famous speech at Howard University, which became the national justification for moving the country beyond non-discrimination to a more vigorous effort to improve the status of Black-Americans:
"You do not take a person who, for many years, has been hobbled by chains and liberate him, bring him up to the starting line in a race and then say, 'you are free to compete with all the others', and still justly believe that you have been completely fair." It was a counter-argument to the previously prevailing notion of meritocracy. The skills that merit-based admission rewards are cultivated in children by parents with money. Affirmative action was to be a method to help minorities to eventually develop those skills in their own children.
Operation Breadbasket in 1962
Also during this time Martin Luther King Jr. and Ralph Abernathy were bringing their southern civil rights movement to the Chicago area. One important part of this strategy was Operation Breadbasket. This operation consisted of targeting local employers and threatening boycotts unless more Blacks were hired by local businesses. Many of these businesses operated largely in Black neighborhoods and thus had a large customer base to worry about losing if a successful boycott ensued. This was a preliminary attempt as “affirmative action.”
Revised Philadelphia Plan
During the Nixon administration, affirmative action was adopted as a federal mandate for companies with federal contracts and for labor unions whose workers were engaged in those projects. This "revised Philadelphia plan" was spearheaded by Labor Department official Arthur Fletcher. In the 1960s and 1970s, affirmative action became overwhelmingly popular on campuses across America as mass student protests spurred schools to actively recruit minority applicants. National excitement died down in the late 1970s, and quickly turned to national controversy.
U.S. Executive Orders 11246, 11375 in 1965
The Johnson administration embraced affirmative action in 1965 by issuing U.S Executive order 11246, later amended by Executive order 11375. The order, as amended, aimed "to correct the effects of past and present discrimination." It prohibits federal contractors and subcontractors from discriminating against any employee or applicant for employment because of race, skin color, religion, gender, or national origin. The order requires that contractors take affirmative action to ensure that "protected class, underutilized applicants" are employed when available, and that employees are treated without negative discriminatory regard to their protected-class status.
The order specifically requires certain organizations accepting federal funds to take affirmative action to increase employment of members of preferred racial or ethnic groups and women. Any organization with 50 or more employees and an aggregate revenue exceeding $50,000 from a single federal contract during a 12-month period must have a written affirmative action plan. This plan must include goals and timetables for achieving full utilization of women and members of racial minorities, in quotas based on an analysis of the current workforce compared to the availability in the general labor pool of women and members of racial minorities. The order is enforced by the Office of Federal Contract Compliance Programs of the Employment Standards Administration of the Department of Labor and by the Office of Civil Rights.
Griggs v. Duke Power Company in 1971, Section 717 of Title VII of the Civil Rights Act of 1964, 1964 and Section 501 of the Rehabilitation Act of 1973, 1973
Requires all United States Federal Agencies to implement affirmative employment opportunity programs for all federal employees. EEOC Equal Employment Opportunity Management Directive 715 provides guidance as to how such programs are to be implemented.
Regents of the University of California v. Bakke in 1978
The Supreme Court held that the UC Davis medical school admissions program violated the equal protection clause with the institution of quotas for underrepresented minorities. However, the court ruled that race could be one of the factors in university admissions.
City of Richmond v. J.A. Croson Co. in 1989
Said strict scrutiny standard to state and local programs.
Wards Cove Packing Co. v. Atonio in 1971 revised the standards established by the 1971 Griggs decision.
Americans with Disabilities Act of 1990, said people with disabilities as a group were more fully recognized as being protected by this act.
Adarand Constructors v. Peña in 1995 established strict scrutiny standard of review for race and ethnic-based Federal Affirmative Action programs.
This “Consent Decree” stated that men and women should be hired by race and gender as police officers in the same percentage that they’re represented in the population of the city. This process took more than 20 years to complete, in part, because police departments at first were never serious in their effort to recruit minorities. There were approximately 34 Black police officers on the Oakland Police department. There were no Black females among them. At this time, the militant Black Panther Party had formed in part due to police brutality at the hands of Oakland's overwhelmingly White police force and the City of Oakland at the time was approaching an Black majority as well prompting the push for minority police officer recruitment.
Proposition 209 in 1996
Forbids many forms of affirmative action. Conservatives claim that state officials have widely disobeyed it. Alternatively, some colleges use financial criteria to attract racial groups that have typically been under represented and typically have lower living conditions.
Initiative 200 in 1998
This was overwhelmingly passed by the electorate in the state of Washington. It took effect on December 3, 1998, it applied to all local governments, including counties, cities, and towns. I-200 prohibits "preferential treatment" based on race, s*x, color, ethnicity or national origin in public employment, education, and contracting. Washington state legislature has generally been in favor of affirmative action and appears to wish to reinstate aspects of it. However, despite several proposals, they have not yet done so.
Smith v. University of Washington in 2000 and Parents Involved In Community Schools v. Seattle School District No. 1 in 2003
The Washington state Supreme Court interpreted I-200 to forbid affirmative actions that promote a "less qualified" applicant over a "better qualified" one, but not programs that sought to achieve diversity without consideration of individual merit. In the beginning, racial classifications that identified race were inherently suspect and subject to strict analysis. These classifications would only be upheld if necessary to promote a compelling governmental interest. Later the U.S. Supreme Court decided that racial classifications that benefited underrepresented minorities were to only be upheld if necessary and promoted a compelling governmental purpose. There is no clear guidance about when government action is not "compelling," and such rulings are rare.
Grutter v. Bollinger in 2003
The Supreme Court ruled in a 5-4 margin with Sandra Day O'Connor being the swing vote that race could be used as a criterion in school admissions and that it would not be in violation of the equal protection clause of the 14th Amendment. The Court found that the University of Michigan Law School's narrowly-tailored policy was constitutional and appropriate "to further a compelling interest in obtaining the educational benefits that flow from a diverse student body."
Gratz v. Bollinger in 2003
The Supreme Court ruled that the University of Michigan's point-based undergraduate admissions policy that took race into account numerically was too mechanical and unconstitutional. An attorney who filed an amicus brief on behalf of Pennsylvania legislators and former legislators in Grutter v. Bollinger, Rep. Mark B. Cohen of Philadelphia, said that "The cumulative effect of the Bakke, Grutter and Gratz cases is that no one has a legal right to have any demographic characteristic they possess be considered a favorable point on their behalf, but an employer has a right to take into account the goals of the organization and the interests of American society in making decisions. This is a moderate, inclusive position that ably balances the various legal interests involved."
Proposal 2 in 2006
After Grutter and Gratz, in November of 2006, voters in the state of Michigan made affirmative action illegal by passing Proposal 2, also known as the Michigan Civil Rights Initiative, a state-wide referendum amending the Michigan Constitution. Proposal 2 banned affirmative action programs that give preferential treatment to groups or individuals based on their race, gender, color, ethnicity or national origin for public employment, education or contracting purposes. The amendment, however, contains an exception for actions that are mandated by federal law or that are necessary in order for an institution to receive federal funding. The legality of Proposal 2 is the subject of pending litigation.
Breaking Down The Policy
In the U.S., the most prominent form of affirmative action centers on access to education, particularly admission to universities and other forms of tertiary instruction. Race, ethnicity, native language, social class, geographical origin, parental attendance of the university in question “legacy admissions,” and/or gender are often taken into account when assessing the meaning of an applicant's grades and test scores. Individuals can also be awarded scholarships and have fees paid on the basis of criteria listed above.
Affirmative action programs at universities benefit mostly racial minorities, usually in engineering and the physical sciences. Asian-Americans, although a racial minority, do not benefit at most colleges because the amount of college education seekers among Asian-Americans is higher than the other racial groups, including Caucasians.
A 2005 study by Princeton sociologists Thomas J. Espenshade and Chang Y. Chung compared the effects of affirmative action on racial and special groups at three highly selective private research universities. The data from the study represent admissions disadvantage and advantage in terms of SAT points (on the old 1600-point scale): Blacks: +230, Hispanics: +185, Asians: –50, Recruited athletes: +200, Legacies (children of alumni): +160. The estimates for Blacks, and to a lesser extent Hispanic-Americans, probably understate the disparity. Standardized tests tend to over predict for individual, high-scoring members of populations with weaker test scores. One's SAT score predicts a certain level of performance. If one performs above this level, the test under predicted; if the reverse, it over predicted. Critics say that this failure to adjust scores to improve the test's predictive validity distorts the scores of minorities, and indirectly everyone, as admissions is a zero sum game. Adjusting for this tendency would likely result in more controversy, however, as it is easily misconstrued.
In order to avoid a system of racial quotas, the State of Texas passed a law guaranteeing entry to any state university of a student's choice if they finished in the top 10 percent of their graduating class. Florida and California have also replaced racial quotas with class rank and other programs. Class rank tends to discriminate against those at relatively competitive high schools, simply because schools are not uniform in student ability. Consequently, there have been fears that this would lower standards as disadvantaged students from schools with lesser performances would receive an unfair opportunity. Critics argue that class rank is more a measure of one's peers than of one's self. The Ten Percent Program is highly controversial on the grounds that it overemphasizes grade point averages. A bill recently passed in the Texas House, but not the Senate, intended to fiercely limiting the Ten Percent Plan. As another result, some high schools have refused to rank their students at all.
One Way of Looking At It
In 2006, Jian Li, a Chinese American undergraduate at Yale University, filed a civil rights complaint with the Office for Civil Rights against Princeton University claiming his race played a role in the decision to reject his application for admission, and he sought the suspension of federal financial assistance to the university until it "discontinues discrimination against Asian-Americans in all forms" by eliminating race and legacy preferences. Princeton Dean of Admissions Janet Rapelye responded to the claims in the November 30, 2006, issue of the Daily Princetonian by stating that "the numbers don't indicate [discrimination]" and that Li was not admitted because "many others had far better qualifications." Li's extracurriculars were described as "not all that outstanding."
Patricia Gurin, professor Emerita of Psychology and Women’s Studies at the University of Michigan, along with Biren A. Nagda, associate professor of Social Work and director of the Intergroup Dialogue, Education and Action Training and Resource Institute at the University of Washington and also Gretchen E. Lopez, research director of the Syracuse University Violence Prevention Project, all conducted a series of studies that found positive results for affirmative action. Their study claims affirmative action had significant effects in improving citizenship preparation and a student sense of commonality across ethnic boundaries. It also increases student civic engagement and racial/ethnic understanding.
In her expert report for the University of Michigan, professor Gurin stated, "a racially and ethnically diverse university student body has far-ranging and significant benefits for all students, non-minorities and minorities alike. Students learn better in a diverse educational environment, and they are better prepared to become active participants in our pluralistic, democratic society once they leave such a setting. In fact, patterns of racial segregation and separation historically rooted in our national life can be broken by diversity experiences in higher education.”
Professor Gurin's work, and specifically her expert testimony, has been criticized by groups such as the National Association of Scholars, statisticians and Robert Lerner and Althea Nagai. A Wall Street Journal freelance investigative writer, Chetly Zarko, also disagrees. And article unveiled internal University of Michigan archival records suggesting, in his opinion, that Gurin's retired husband had written an "executive summary" of the same data she drew her inferences from that showed far more mixed results and contradicted the educational benefits of admissions policy diversity. "The consistency" Gurin's expert testimony claims was contradicted by negative impacts on social conflicts resulting from the diversity and other factors. When the University of Michigan and Gurin were asked by Zarko and the Michigan Association of Scholars to provide the raw data for her study under the Michigan Freedom of Information of Act, they were denied access to the data on the grounds that it was Gurin's commercial property. Litigation eventually resulted in a settled release of the data in 2005, but it was two years after the US Supreme Court ruling in Grutter v. Bollinger had been decided.
Economist Thomas Sowell, identified the following as results of affirmative action based on a review of Affirmative Action Around the World: An Empirical Study: These policies encourage non-preferred groups to designate themselves as members of preferred groups, i.e. primary beneficiary of affirmative action, to take advantage of group preference policies. They tend to benefit primarily the most fortunate among the preferred group, i.e. wealthy Blacks, often to the detriment of the least fortunate among the non-preferred groups, i.e. poor Whites. They reduce the incentives of both the preferred and non-preferred to perform at their best — the former because doing so is unnecessary and the latter because it can prove futile — thereby resulting in net losses for society as a whole. Finally, they engender animosity toward preferred groups as well as on the part of preferred groups themselves, whose main problem in some cases has been their own inadequacy combined with their resentment of non-preferred groups who — without preferences — consistently outperform them.
Sowell also argued: What about the notion that affirmative action has helped Blacks rise out of poverty? Yet, the Black poverty rate was cut in half before affirmative action — and has barely changed since then.
What about the notion that Blacks would not be able to get into colleges and universities without affirmative action? After group preferences and quotas were banned in California's state universities, the number of Black students in the University of California system has declined drastically, as well as the numbers of Hispanic students. The number of Asian-American students attending and admitted has increased the most out of all ethnic groups.
"Minority students are systematically mismatched with institutions" due to racial preferences, where they underperform relative to the student body, Sowell posits. Had they gone to an institution without the help of affirmative action, to a less selective school, they would have received better grades and graduated at higher rates. "When the top-level schools recruit Black students who would normally be qualified to succeed at the level next to the top, then the second tier of institutions faces the prospect of either being conspicuously lacking in minority students or dipping down to the next level below to bring in enough minority students for a statistically respectable ‘representation.’ Usually they end up mismatching students. Once begun at the top, this process continues on down the line, " he goes on to say.
Contradictorily, resting their statements on a claim to data which they refuse to make publicly available, William G. Bown and Derek Bok claim that from 1960 to 1995, the percentage of Blacks ages 25–29 who had graduated from college rose from 5.4 to 15.4 percent, the percentage of Blacks in law school grew from below 1 to 7.5 percent, and the percentage of Blacks in medical school increased from 2.2 to 8.1 percent. They make their claim in book, The Shape of the River. Just how much progress has been made by Blacks as a consequence of affirmative action remains a matter of great dispute.
Agreeing to Disagree
One argument against affirmative action is that it represents government sanctioned racial discrimination and is demeaning to members of minority groups—that affirmative action wrongly sends a condescending message to minorities that they are not capable enough to be considered on their own merits. If this argument is to be believed, affirmative action promotes the idea that underrepresented minorities do not and can not emphasize education and high academic achievement as much as the racial majority or "model minorities." Many supporters of affirmative action charge that those who make this argument are being ethnocentric and are disingenuously trying to deflect or downplay the role of past and current institutional discrimination of minorities. These critics believe that these proponents are trying to shift the blame onto the victim who was discriminated against in the first place in order to justify rolling back government civil rights policies. Furthermore, many critics believe that those who make this argument are being naive, hypocritical or vague in their quest to 'change the cultural values' of the minority community. Supporters of affirmative action argue that it benefits society as a whole. They argue that the end goal of it should not be one culture, but an embrace of all cultural heritages and, by doing so, we increase the quality of the society. This is widely argued in the realm of education. An example of support for this is a study done by Gurin. Gurin found that students who are from a more diverse educational setting had better results in tests designed to measure complex thinking, were more motivated to understand other people’s points of view, were more understanding of differences in cultural environments and were more confident in their intellectual ability. Most proponents of it believe that eradicating affirmative action would further deepen economic disparity between Whites and underrepresented minorities.
A common argument made for affirmative action is the existence of an "Old Boy's Network." Such a network, it is argued, exists where people with power in organizations are able to and readily elect, promote and support one another and do “favors” for those who are close to them by hiring or admitting them; for example, the CEO of a company ensures that his best friend's son gets a position in his company. Such a network, to the extent that it does exist, does not represent a 'meritocracy,' but an oligarchy that creates barriers to entry for those who are “not connected.” Nobody from outside the "Old Boy's Network" could be promoted “from within” a company unless the job was also posted publicly and everyone was given a “fair chance” via a convoluted and lengthy questionnaire and interview process. Those who make this “favors” argument, however, also point to the fact that the government gives preferential treatment to veterans and that many organizations give preferential treatment to employees who have worked in the organization in the past. This is known as seniority. Seniority is not based on merit, either. Furthermore, there is “geographical affirmative action,” in which people are more likely to be hired if their application has a local address written on it. All of these examples show ways in which employees are hired based on non-merit criteria, thereby proving that even by eliminating affirmative action, the nation’s major institutions will still not operate as a “meritocracy” due to favoritism and seniority.
Those who disagree with this argument point out that, with the exception of the government's preferential treatment of veterans, none of these are cases for affirmative action. Affirmative action involves legal regulation of private enterprises regarding hiring practices. There is no legal regulation for or against “geographic affirmative action,” for example, though that doesn’t prove there shouldn’t be. This argument further runs into the problem of resting on an implicit assumption that people are either connected to the "Old Boy's Network" or a racial minority. Where would one place the Black CEO or the poor White coal miner in that framework? Rather than confronting preferential treatment in a heads-on, affirmative action simply creates more groups who receive preferential treatment. By legalizing and requiring preferential treatment, it promotes preferential treatment and remains mute on the vast number of people who do not fall into either of those categories, i.e., those people who are not members of the Old Boy's Network or minorities, and are discriminated against, in part, as a result of affirmative action law. In other words, opponents of affirmative action in employment and education claim that these programs encourage socioeconomic discrimination in favor of middle-class members of minority groups over better-qualified but working-class members from the majority group, since such programs do not consider socioeconomic class. In essence, middle-class minorities with greater opportunities and resources at their disposal are favored over members of the working poor who happen not to be minorities. Critics believe this is contrary to claims of "social justice" made by supporters and makes affirmative action policy in conflict with the 14th Amendment.
Their argument is a fundamental objection to the use of racial quotas and gender quotas in affirmative action, because such quotas are unable to address social injustice at the fine level of detail which is required. However, proponents of affirmative action reply that quotas are only legal in the U.S. when a judge issues an order for a specific institution to make restitution for past discrimination. There is intense dispute over whether the de jure illegality of quotas prevents de facto quotas in an environment where there is much pressure to guard against the appearance of discrimination against protected groups. Much time has been spent attempting to show that these "goals" are not quotas.
Critics of affirmative action believe that it rewards or punishes individuals in the present for what their group supposedly did in the past. For example, one author argues that affirmative action can be summed up as follows: Regardless of whether he is guilty of racism, a person is to be punished for racism carried out by other members of his racial group. Regardless of whether he is a victim of racism, a person is entitled to benefits for racism carried out against other members of his racial group.
Proponents of affirmative action respond by saying such discrepancies that exist are a result of historic segregation. For example, many of the state and city universities had much lower tuition fees during the time they were primarily for Whites, while tuition at such institutions have grown faster than the rate of inflation now that more minorities are attending. Tuition fees at the City College of New York were free up until the 1960s, when the students were primarily White, but costs now rival those of state universities where most of the students are Black, Italian or Hispanic. Further, a qualified minority with an A-average and a good SAT can qualify for Honors College. Had Thurgood Marshall been admitted to University of Maryland, as a resident of Baltimore, he would not have had to pay tuition. Howard, a private institution, had substantial tuition fees, but was, at the time, the only American Bar Association-accredited law program at a historically Black university.
Sources: Wikipedia.com; Richard Delgado, "Merit and Affirmative Action," The Coming Race War? And Other Apocalyptic Tales of America after Affirmative Action and Welfare, NYU Press, 1996.;http://academic.udayton.edu/race/04needs/affirm02.htm; http://www.law.harvard.edu/faculty/guinier/racetalks/future_aa01.htm; Lani Guinier, "Saving Affirmative Action; and a process for elites to choose elites," Village Voice, July 2-July 8, 2003; http://www.villagevoice.com/news/0327,guinier,45235,1.html; http://www.dailycal.org/sharticle.php?id=21236; Richardson, L. Anita. "What is the Constitutional Status of Affirmative Action?: Reading Tea Leaves." Affirmative Action: a Dialogue on Race, Gender, Equality and Law in America XIII.2, 1998; http://www.abanet.org/publiced/focus/spr98const.html; Commission on Human Rights, Economic and Social Council, June 17, 2002; Plummer, Robert. "Black Brazil Seeks a Better Future." BBC News, São Paulo, September 25, 2006; http://news.bbc.co.uk/2/hi/americas/5357842.stm; http://www.hr.gov.nt.ca/employment/affirmativeaction/; http://www.cre.gov.uk/Default.aspx.LocID-0hgnew0l0.RefLocID-0hg01b001006009.Lang-EN.htm; http://www.personneltoday.com/Articles/2006/01/17/33430/is-there-a-case-for-positive-discrimination.html BBC News "Police recruitment 'will be 50:50'" September 12, 2001; http://news.bbc.co.uk/1/hi/northern_ireland/1540861.stm; Richard H. Sander, A Systemic Analysis of Affirmative Action in American Law Schools, 57 Stanford Law Review 367, 2004; Stanford Encyclopedia of Philosophy entry Cato Institute Policy Analysis 540 David E. Bernstein - You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws, Cato Institute, October 25, 2004; Thomas J. Espenshade & Chang Y. Chung, Princeton University; “The Opportunity Cost of Admission Preferences at Elite Universities,” Social Science Quarterly', Volume 86, Number 2, June 2, 2005.
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