Affirmative Action - Historical Review

Affirmative Action - Historical Review

Affirmative Action is defined as the "set of public policies and initiative designed to help eliminate past and present discrimination based on race, color, religion, sex, or national origin." (National Organization for Women, 1995) the Civil Rights programs were enacted originally to enable African-Americans to become full citizens of the United States. The phrase 'affirmative action' was first used by President John F. Kennedy in his 1961 executive Order 10925 which made it a requirement that federal contractors "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. Institutions and organizations with affirmative action policies "set goals and timetables for increased diversity - and use recruitment, set-asides and preference as ways of achieving these goals. In its modern form, affirmative action can call for an admissions officer faced with two similarly qualified applicants to choose the minority over the white, or for a manager to recruit and hire a qualified woman for a job instead of a man. Affirmative action decisions are generally not supposed to be based on quotas, nor are they supposed to give any preference to unqualified candidates. And they are not supposed to harm anyone through "reverse discrimination." (Froomkin, 1998)

II. HISTORY of AFFIRMATIVE ACTION

The work of Curry and West (1996) entitled: "The Affirmative Action Debate" states that it was observed by President Lyndon B. Johnson "In far too many ways American Negroes have been another nation: deprived of freedom, crippled by hatred, the doors of opportunity closed to hope." The role of the federal government in protection of the equal rights of African-Americans was expanded during the Great Depression "through the militancy and agitation of black people." (Curry and West, 1996) Philip Randolph, a socialist and trade union leader, mobilized thousands of African-American workers in 1941 for participation in the "Negro March on Washington Movement calling upon the administration of Franklin D. Roosevelt to carry out a series of reforms favorable to civil rights. To halt this mobilization, Roosevelt agreed to sign Executive Order 8802, which outlawed segregationist hiring policies by defense-related industries that held federal contracts." (Curry and West, 1996) This executive order increased the employment numbers of African-Americans and as well "expanded the political idea that government could not take a passive role in the dismantling of institutional racism." (Curry and West, 1996)

Affirmative action became a public issue in 1972 and even though the Civil Rights Act of 18964 had already instituted a type of affirmative action in the form of a remedy that could be imposed by the federal courts on violators of the Act, the original mandate set out in 1965, this really did not gain the attention of the public until Fall in the year of 1972. The Secretary of Labor was given the job through an Executive Order of the U.S. President, who at the time was Lyndon B. Johnson who issued Executive Order 11246. In 1972 the Secretary of Labor's Revised Order No. 4 fully implemented the Executive Order and made its way to college campuses via directive of the Department of Health, Education and Welfare. According to the Stanford Encyclopedia of Philosophy, in the beginning "...university administrators and faculty found the rules of Order No. 4 murky but hardly a threat to the established order. The number of racial and ethnic minorities receiving PhDs each year and thus eligible for faculty jobs was tiny. Any mandate to increase their representation on campus would require more diligent searches by universities, to be sure, but searches fated nevertheless largely to mirror past results. The Revised Order, on the other hand, effected a change that punctured any campus complacency: it included women among the "protected classes" whose "underutilization" demanded the setting of "goals" and "timetables" for "full utilization." Unlike blacks and Hispanics, women were getting PhDs in substantial and growing numbers. If the affirmative action required of federal contractors was a recipe for "proportional representation," then Revised Order No. 4 was bound to leave a large footprint on campus. Some among the professoriate exploded in a fury of opposition to the new rules, while others responded with an equally vehement defense of them." (Stanford Encyclopedia of Philosophy, 2005)

These events are stated to have occurred parallel to the development of the 'public turn' in philosophy. It is related that for many decades the philosophy held by the Anglo-American mindset "treated moral and political questions obliquely. On the prevailing view, philosophers were suited only to do "conceptual analysis" -- they could lay bare, for example, the conceptual architecture of the idea of justice, but they were not competent to suggest political principles, constitutional arrangements, or social policies that actually did justice. Philosophers might do "meta-ethics" but not "normative ethics." (Stanford Encyclopedia of Philosophy, 2005) This perception was disrupted in the 1970s for two reasons:

1) First, John Rawls published in 1971 a Theory of Justice, an elaborate, elegant, and inspiring defense of a normative theory of justice.

2) Second, in the same year Philosophy & Public Affairs, with Princeton University's impeccable pedigree, began life, a few months after Florida State's Social Theory and Practice. These journals, along with a re-tooled older periodical, Ethics, became self-conscious platforms for socially and politically engaged philosophical writing, born out of the feeling that in time of war (the Vietnam War) and social tumult (the Civil Rights Movement, Women's Liberation), philosophers ought to do, not simply talk about, ethics. (Stanford Encyclopedia of Philosophy, 2005)

Curry and West state that the set of policies that are identified today as 'affirmative action' were implemented nationally under the "moderate-conservative aegis of the Nixon and Ford administration of 1969-77...in both the public and the private sectors." (1996)

III. OVERVIEW LAW RELATING to EDUCATIONAL INSTITUTIONS

The following laws are those which have been enacted to support Affirmative Action and which are applicable to educational institutions:

Fourteenth Amendment of the United States Constitution the "equal protection clause" of the Fourteenth Amendment, which applies only to public institutions, prohibits discrimination based on race or sex.

Title Vl of the Civil Rights Act of 1964, 42 U.S.C. 2000d, and regulations at 45 C.F.R. 80.1 et seq- Title Vl prohibits race discrimination in any program receiving federal funds. This law applies to both admissions and employees. Violations can result in withdrawal of federal funds or suits by private individuals.

Title Vll of the Civil Rights Act of 1964, 42 U.S.C.A. 2000e et seq., and regu rations at 29 C.F.R. 1604-1606, 1608.1 et seq. - Title Vll prohibits employment discrimination based on race, color, religion, sex, or national origin by any employer with 15 or more employees; as amended in 1972 it applies to public and private educational institutions.

Title IX of the Education Amendments of 1972, 20 U.S.C. 1681 et seq., and regulations at 34 C.F.R. 106.1 et seq., 45 C.F.R. 86.1 et seq. - This law prohibits sex discrimination in all educational institutions that receive federal funding. Title IX's affirmative action provisions apply to both employment and admission of students. Violations can result in withdrawal of federal funds or suits by private individuals. Regulations promulgated under Title IX, 34 C.F.R. 106.3, authorize affirmative or remedial action in instances in which members of one sex must be treated differently to overcome the specific effects of past discrimination.

Executive Order 11246, Sept. 24, 1965, as amended by Executive Order 11375, Oct. 13, 1967, 41 C.F.R. 60-1 et seq. - This Executive Order 11246 requires federal contractors to adopt and implement "affirmative action programs" to promote attainment of equal employment objectives. It authorizes use of goals but prohibits quotas, and applies to race, religion, color, national origin, and sex. (Laws Applying to Affirmative Action in Educational Institutions, Jones (nd) AAD Project)

Title VII of the Civil Rights Act of 1964 was the key case in the establishment of the Constitutionality and compatibility with Title VI of university admissions that are conscious of race. The constraints as follows were established by Title VII: (1) racial quotas are not allowed; (2) all students must be evaluated according to common standards, by a common admissions committee; and (3) race may not operate as an overriding factor, but only as a "plus" within "a range of factors a university properly may consider in attaining the goal of a heterogeneous student body." (44 U.S.C. 2000e-2) Title VII prohibits, an employer or union's acting "to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race" (42 U.S.C. 2000e-2), and the legislative history reveals proponents of Title VII vigorously denying that the law would require employers to implement racial quotas. Title VII has two purposes which are to:

1) to end employment discrimination, 2) to remedy the consequences of past discrimination so as to enable the integration of minorities into the economy.

The work of Anderson (1998) states that arguments concerning the justice of affirmative action are of three fundamental types:

compensatory (backward-looking), discrimination-blocking (present-oriented), and integrative (forward-looking)

Anderson states that the compensatory or backward-looking view on the justice of affirmative action "...aims to compensate people for past discrimination and its effects. A main effect of past discrimination is current competitive disadvantage; affirmative action gives victims a competitive advantage to compensate for this injury." (1998) the Discrimination-blocking affirmative action according to Anderson: "...aims to block current discriminatory mechanisms by imposing a countervailing force in the opposite direction. It doesn't remove the factors -- prejudice, stereotypes, stigma, intergroup anxiety -- that cause discrimination; it just tries to block their discriminatory effects." (1998) Finally, Anderson states that the view of Integrative affirmative action has the aims of dismantling the "...current causes of race-based disadvantage -- segregation, stigmatization, discrimination -- by promoting racial integration. It thus aims for a future in which these causes no longer operate." (1998)

Anderson additionally states that arguments relating to 'diversity' supporting affirmative action "are a species of argument from social utility. The general idea is that group attributes can contribute to positive outcomes over and above the attributes of individuals. The diverse whole is greater than the sum of its individual parts. Diverse groups are more effective at solving problems than relatively homogeneous groups, even if the average individually-measured merit of the homogeneous group is higher than the average individually-based merit of the diverse group. There are many dimensions of diversity that have this property; the trick is to show how these dimensions are linked to race, ethnic, gender, or class diversity -- the typical types of diversity sought by affirmative action programs." (1998)

Arguments against affirmative action policies can be generally divided into two categories as follows:

1) Arguments that oppose affirmative action policies on moral principle or upon considerations of justice; and 2) Arguments that oppose these policies on grounds of their bad consequences: that they are self-defeating, harmful, or inefficient. (Anderson, 1998)

Anderson (1998) states that affirmative action in the setting of education "...raises special issues not necessarily encountered in other areas, such as employment" and include the following:

1) the rationale for AA includes not just compensation for past and continuing discrimination, but consideration of the educational value of diversity.

2) the Supreme Court has specifically recognized universities as having a First Amendment right to free speech and hence academic freedom, under which admissions and hiring policies are included. Thus, questions about the legality of affirmative action policies in education must be considered in view of First Amendment as well as the 14th Amendment and civil rights laws.

3) Merit-based arguments against affirmative action are weaker, the earlier in the "pipeline" affirmative action policies are applied.

A a) Few students have a choice over schools; their educational attainment is largely a function of the resources the state has chosen to devote to them. This in turn is a function of place of residence, which, given pervasive housing segregation, is a function of race. Conventional criteria of "merit" for admissions therefore do not measure purely individual factors (talent and determination), but also reflect many dimensions of class, race, and gender privilege.

A b) the best rationale for awarding opportunities on the basis of merit concern the efficiency advantages of assigning the most talented people to perform productive tasks. But students are not employees, they are in school to learn more than to produce.

Students do produce an educational environment, however, and so are selected in part for what they can contribute to that environment and hence to the education of their fellow students. However, at this point diversity itself has been defended as a dimension of merit -- that is, being able to bring to the educational environment various perspective shaped (not defined) by having lived in substantially different circumstances from the majority of students constitutes part of students' merit for admissions purposes. (Anderson, 1998)

IV. CURRENT VIEWS on AFFIRMATIVE ACTION & EDUCATION

It was reported by the Pew Research Center May 14, 2003, that the U.S. Supreme Court was preparing for "what could be a landmark ruling on the issue of racial preferences in college admissions." (Pew Research Center, 2003) the report states that a survey conducted nationwide by the Pew Research Center "finds a growing majority of the public supporting the general idea of affirmative action. But the poll results also reflect the public's complicated and sometimes contradictory attitudes about the subject." (Pew Research Center, 2003) While support is stated to exist "for the rationale of affirmative action - such as overcoming past discrimination or increasing the diversity of students in college..." At the same time "Americans question the fairness of such programs..." (Pew Research Center, 2003) the following figure lists some of the responses given in the survey conducted by the Pew Research Center in 2003.

Responses to Poll on Affirmative Action

Source: Pew Research Center (2003)

According to the Pew Research Center in the report of the 2003 poll "among 1,201 adults nationwide, 63% say they favor "affirmative action programs designed to help blacks, women, and other minorities get better jobs and education." There is somewhat less support (57%) when the question specifically mentions giving "special preferences" to women and minorities." 2003) it is additionally reported that the "...The distinction between the general idea of affirmative action and the use of racial preferences matters much more for whites than for nonwhites: 86% of nonwhites favor affirmative action in general, and 82% favor racial preferences. Among whites, 58% support the general concept, but only 49% support preferences for minorities. Most of the difference in the impact of the reference to preferences occurs among whites with a high school education or less: 66% favor affirmative action in general, but only 51% favor it with racial preferences. Among college educated whites, the same percentage (51%) favor affirmative action whether preferences are mentioned or not." (Pew Research Center, 2003) the gender gap on affirmative action is reported by the Pew Research Center and results are shown in the following figure which has been adapted from the Pew Research Center (2003) report.