Affirmative Action




The term affirmative action encompasses a broad range of voluntary and mandated policies and procedures intended to provide equal access to educational and employment opportunities for members of historically excluded groups. Foremost among the bases for historical exclusion have been race, ethnicity, and sex, although consideration is sometimes extended to other groups (e.g., Vietnam veterans, the disabled). Both the concept of affirmative action and its application have undergone a series of transformations and interpretations. These shifts have contributed to considerable ambivalence in levels of public support for and opposition to affirmative action policies.




There is no single model of affirmative action. Affirmative action efforts may be either public or private. Definitions of protected groups range from very restricted to very broad. Enforcement mechanisms may be quite rigorous or virtually nonexistent. Oppenheimer (1989) identified a simple typology of affirmative action efforts that ranged from quite restrictive quota systems on one end to considerably less binding organizational commitments not to discriminate on the other. Situated between these ideal typical extremes were a variety of preference systems, organizational self examinations, and outreach plans.

Affirmative action is in many ways an outgrowth of the Civil Rights Movements. In particular, Title VII of the 1964 Civil Rights Act prohibited discrimination in any areas of employment that was based on race, color, creed, or sex. The year after the passage of the Civil Rights Act, President Lyndon John son signed Executive Order 11246, which prohibited discrimination against minorities by federal contractors. While American presidents had routinely  been  issuing  similar Executive Orders for some time, EO 11246 was different in two important ways. First, it included sex rather than merely race as a protected category. Second, it established an enforcement mechanism, the Office of Federal Contract Compliance. While not a powerful entity, the OFCC was an important step in institutionalizing affirmative action.

Affirmative action received a further boost with the passage of the 1972 Equal Employment Opportunity Act. The EEOA required federal agencies to adopt affirmative action. By 2000, this legislation covered about 3.5 million federal employees (Harper & Reskin 2005).

Affirmative action has had substantial effects in both the educational and employment realms. Its impact has to a great degree been determined by several important Supreme Court decisions, although lower courts too have been instrumental in the direction that affirmative action has taken.

Perhaps the first broadly felt effects of affirmative action in education pertained  to busing. Fourteen  years after the landmark 1954 Supreme Court decision Brown v. Board of  Education  declared  that  government mandated ‘‘separate but equal’’ schooling was unconstitutional, the Court decided in Green v. County School Board that schools needed to take affirmative steps to end racial discrimination. This led to the implementation of busing plans in many urban areas as a means to end racial discrimination in schools. Many of these were quite ambitious, but by the early 1990s these plans had been essentially discontinued. Largely because of the steadily increasing centrality of higher education as a means to socioeconomic mobility (Sullivan 1999), affirmative action has been of critical importance in the allocation of educational opportunity. University of California Regents v. Bakke (1978) was a pivotal case regarding affirmative action in higher education. The University of California at Davis Medical School had two admissions programs, one general and one special. The general admissions program required that students have a 2.5 grade point average on a 4.0 scale for consideration. In contrast, the special admissions program, open to applicants who claimed economic or educational disadvantage and membership in a minority group, had no such grade point requirement. Allan Bakke, a white male, applied to the Davis Medical School in both 1973 and 1974. Bakke was rejected both times. In both years, special applicants with significantly lower qualifications than Bakke received admittance to the Medical School. Although the Court failed to reach a consensus on the case, Justice Powell’s opinion came to serve that function. While Powell’s opinion overturned the special admissions program on the grounds that it violated the Equal Protection Clause of the 14th Amendment, the decision did allow the use of race as a factor in future admissions decisions so long as racial classifications were just one of many factors used to attain a diverse student body.

Standing in contrast to the Bakke case was Hopwood v. State of Texas (1996). In order to accommodate the large number of applicants to the University of Texas School of Law, the admissions program based its initial decisions largely on the applicant’s Texas Index (TI) number, consisting of undergraduate grade point average and Law School Aptitude Test (LSAT) score. The TI score allowed the sorting of candidates into three categories: presumptive admit, presumptive deny, and discretionary zone. In order to consider and to admit more African American and Latino students, the Law School considerably lowered its TI score ranges for them. Hopwood, a white resident of Texas, was considered a discretionary zone candidate, but did not receive admission. Plaintiffs sued, claiming that the Law School’s admissions program subjected them to unconstitutional racial discrimination. Rejecting Powell’s Bakke opinion, the Court ruled that the consideration of race and ethnicity for the purpose of attaining a diverse student body was not a compelling interest under the 14th Amendment. The Court further stated that the use of racial classifications to attain a diverse student body hinders rather than helps the attainment of equal education.

The most recent Supreme Court affirmative action rulings in higher education were Gratz et al. v. Bollinger et al. (2003) and Grutter v. Bollinger (2003), both concerning admissions policies at the University of Michigan. In the first case, petitioners Gratz and Hamacher applied to the University of Michigan’s College of Literature, Science, and the Arts. Although the college determined Gratz to be well qualified and Hamacher to be within the qualified range, both were denied admission.

In order to ensure consistency, Michigan’s undergraduate admissions policy used a point system that awarded points to applicants for a variety of factors, including race. The admissions policy automatically awarded 20 of the 100 points needed for admission to African American, Latino, and Native American candidates; it was undisputed that the university admitted virtually every qualified applicant from these groups. Gratz and Hamacher sued on the grounds that the admissions policy violated the Equal Protection Clause of the 14th Amendment, Title VI of the Civil Rights Act of 1964, and 42 USC }1981. Citing Powell’s opinion from  Bakke, the  Court agreed, finding the policy unconstitutional on the grounds that it was not narrowly tailored to achieve a diverse student body.

The second decision reviewed the admissions policy at the University of Michigan Law School. In order to achieve a diverse student body in accordance with the requirements that the Bakke decision outlined, the Law School admitted students through a flexible, individualized admissions policy. The policy took into account factors such as under graduate grade point average, score on the LSAT, letters of recommendation, the applicant’s personal statement, and an essay describing how the applicant would contribute to the school’s life and diversity. While the admissions policy defined diversity in a broad manner, it did reaffirm the school’s commitment to including African American, Latino, and Native American students.  Grutter,  a white Michigan resident, filed suit, claiming that the policy violated the Equal Protection Clause of the 14th Amendment, Title VI of the Civil Rights Act of 1964, and 42 USC } 1981. The Court disagreed, finding that the policy’s narrowly tailored use of race to foster a diverse student body did not violate the Equal Protection Clause, Title VI, or }1981. Affirmative action is also deeply embedded in the  American  workplace.  The  Equal Employment Opportunity Commission (EEOC) is the federal agency charged with ending employment discrimination. EEOC monitors compliance with and enforces civil rights legislation such as Title VII of the Civil Rights Act of 1964; to do so, the agency can bring suit on behalf of alleged victims of employment discrimination. To prove employment discrimination, the EEOC must find one of the following: (1) disparate treatment, or an employer’s intentional discrimination against an employee, or (2) disparate impact, which, while neutral in intent, shows that the policies of a particular employer have had a negative outcome for a particular employee or class of employees.

Griggs v. Duke Power Company (1971) was a major decision regarding racial discrimination in  the  workplace. Duke  Power Company required most potential employees to have a high school diploma and to pass two aptitude tests.  Current  employees without  a  high school education could also qualify for transfer by passing two tests, neither of which measured the ability to learn to perform a particular  category  of  jobs.  Thirteen  African American workers challenged Duke’s practices on the grounds that they violated Title VII of the Civil Rights Act of 1964. The  Court agreed, ruling that the Act prohibits employers from requiring a high school education or passing scores on an aptitude test as a condition  of employment or transfer when (1) neither standard relates significantly to successful job performance, (2) both requirements serve to disqualify African Americans at a significantly higher rate than their white counterparts, and (3) the jobs in question had been filled solely by white employees due to long standing practices of racial preference. Title VII prohibits artificial, arbitrary, and unnecessary barriers to employment when those barriers work to discriminate on the basis of racial or other impermissible classifications.

Another important case regarding affirmative action in the workplace was United Steel workers of America v. Weber (1979). In 1974 United Steelworkers of America and Kaiser Aluminum & Chemical Corp. entered into a collective bargaining agreement. The agreement included an affirmative action, which reserved 50 percent of the in house training program positions for African Americans. The  plan was to remain in place until the percentage of  African American craftworkers roughly equaled the percentage of African Americans in the local labor force. During the plan’s initial year, seven African American and six white trainees entered the program, with the most senior African American having less seniority than several white production workers whom the program had rejected. Weber, one  of  the  rejected  production  workers, alleged that the affirmative action program violated Title VII of the Civil Rights Act of 1964 through discriminating against qualified white applicants. The Court held that Title VII’s prohibition of racial discrimination does not forbid all private and voluntary affirmative action plans that account for race.

Whether applied to employment or to education, affirmative action has been a politically sensitive issue. Much of the contention has been grounded  in differing understandings and interpretations of affirmative action. In part these differences have emerged from the great diversity of affirmative action programs that have been in effect at any given time. Perhaps as important have been efforts by both proponents and opponents of affirmative action to frame it in ways most congenial to their own preferred remedies for redressing unequal access to social participation. While most participants in the affirmative action debate agree on the social benefits of racially and culturally diverse workforces and student bodies, they differ sharply on how to achieve this. Opponents of affirmative action often emphasize the apparent contradictions between group based remedies and the American commitment to individualism and meritocracy. Many maintain that affirmative action unfairly stigmatizes members of protected categories, who can never be certain that their success was due to their individual merit (Steele 1991). Advocates discuss the benefits of more exclusive hiring and admissions criteria and the need in a fair society to provide reparations for indisputable histories of disadvantage.

References:

  1. Harper, & Reskin, B. (2005) Affirmative Action at School and on the Job. Annual Review of Sociology 31: 357 79.
  2. Oppenheimer, D. B. (1989) Distinguishing Five Models of Affirmative Action. Berkeley Women’s Law Journal 4: 42
  3. Steele, S. (1991) The Content of Our Character. Harper, New
  4. Sullivan, A. (1999) Beyond Affirmative Action: Algorithmic Versus Holistic Approaches to College Admissions. Research in Social Stratification and Mobility 17: 319 34.

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