Persistent Need for Affirmative Action Policies Affirmative

Persistent Need for Affirmative Action Policies

Affirmative Action

The Historical Roots of Contemporary Affirmative Action Policies

President John F. Kennedy signed Executive Order 10925 in 1961 to mandate unbiased hiring practices in federally funded agencies and projects using "Affirmative Action," thus beginning a 50-year history of administrative, legislative, and court actions that repeatedly redefined the role of Affirmative Action policies in American society. Kennedy's executive order was codified in the Civil Rights Act signed into law in 1964. In 1965 President Johnson gave new meaning to Kennedy's interpretation of Affirmative Action by requiring federal agencies and contractors to take affirmative measures that ensured minorities were not excluded from employment opportunities. This order was eventually modified in 1967 to include gender.

In 1978 the concept of 'reverse discrimination' made national headlines when the U.S. Supreme Court decided that Affirmative Action policies in higher education could not be used to preferentially admit less qualified minorities at the expense of more qualified non-minorities, because it violated the equal protection clause of the 14th Amendment. Two years later the Court modified its stance on race quotas by deciding that limited quotas not based entirely on race were Constitutional. The Court's 1978 quota ruling was further weakened when it decided in 1987 to forcibly desegregate the Alabama Department of Public Safety using racial quotas, ruling that in this case the use of such quotas are appropriate since past discrimination is evident and no other means of rectifying the situation are available.

Over the next several years the Court's stance was repeatedly refined by several challenges to Affirmative Action policies at the federal, state, and local levels. Currently, the use of quotas as part of affirmative action programs or policies can be used only under narrowly defined circumstances and only when prior discrimination can be shown. A notable exception is in the realm of higher education, where the Court has recognized the added value a diverse student body adds to an education and academic discourse (Koppelman and Rebstock, 2007). In Grutter v. Bollinger the Supreme Court upheld the use of race in the admission process for University of Michigan Law School applicants because each is given "individualized consideration" and therefore no violation of equal protection occurs. By comparison, in Gratz v. Bollinger the Court found that equal protection was violated when undergraduate minority applicants to the University of Michigan were given additional points because it's impossible that individualized consideration can occur on such a large scale.

Racism and Affirmative Action Today

Affirmative Action programs and policies have been further weakened by state legislatures that have passed outright bans on such programs and policies over the past decade. Together with the Supreme Court rulings it seems as though Affirmative Action has been under attack nationwide for several decades, despite overwhelming evidence that employment, economic, and social segregation still exists along racial and gender lines in the United States (Denvir, 2011). With respect to gender equality, significant barriers still exist despite considerable progress (Orr, 2010).

Relying solely on historical Affirmative Action rulings by the Supreme Court, the evidence of extant discriminatory hiring and advancement practices justifies instituting Affirmative Action policies to counter racial and gender disparities in the workplace. All that's required is evidence of prior discrimination. When the court addressed discriminatory hiring and advance practices in the Alabama Department of Public Safety, the absence of minorities in managerial and executive positions was sufficient evidence to institute a race quota.

The attacks on Affirmative Action by state legislatures seems to signal a much darker trend in America, one that seems to ignore the continued existence of racism in this country. Even the U.S. Senate acknowledged in 2008 that racism is still prevalent enough to threaten a presidential bid by a minority candidate (Mail Foreign Service, 2008).

The guidelines for instituting affirmative action policies seem clear enough and concerns about reverse discrimination in circumstances where prior discrimination can be shown are irrelevant, at least according to the Supreme Court. Historically, the Supreme Court seemed to be creating a permissive legal environment within which local or situation-specific affirmative action interventions could be implemented. This was apparently interpreted by several state legislatures as support for eliminating such programs completely. Even though two Supreme Court Justices in 1995 would have supported an outright ban, the majority held that discrimination remains a persistent problem and a significant historical burden on minorities. The limited use of affirmative action is therefore still supported and legally sanctioned by the U.S. Supreme Court.

The Supreme Court's approach to affirmative action is purely libertarian because the primary criterion for judging the Constitutionality of a specific policy is whether a current inequality was caused by discrimination. This stance is consistent with the Supreme Court viewing the Constitution as a social contract that guarantees specific inalienable rights, such as equal protection, and when patterns of racial or gender discrimination result in an unequal distribution of wealth and income this constitutes a violation of this contract.