Educational Law How Lawful? How

Educational Law

HOW LAWFUL? HOW FAIR?

Educational Law: Affirmative Action and Discrimination in Employment

Affirmative Action consists of positive steps to increase the representation of certain groups in employment, education or business where they have been historically excluded (Stanford Encyclopedia of Philosophy 2005). These steps involve preferential selection according to race, gender or ethnicity.

According to a1999 poll, a majority of Americans believe affirmative action programs have improved the lives of Black Americans in recent years (Paul 2003). A 2001 Gallup survey revealed a majority of Americans think affirmative action has done good for the country. Fifty-six percent of the respondents said that such programs are needed to help affected groups or sectors deal with discrimination. More than half of all the surveyed believe that these programs will always be needed (Paul).

At a commencement speech at Howard University in 1965, President Lyndon Johnson discussed race, fairness and affirmative action (Katznelson 2006). This was almost a year after the enactment of the Civil Rights Act of 1964. The Civil Rights Act of 1964 provided, among other things, for injunctive relief to prevent discrimination in federally assisted programs and to establish a Commission on Equal Employment Opportunity (RBP Associates, Inc., 1996). President Johnson explored the reason for the widened gap between Blacks and white in the two decades after World War II. He observed that the majority of Negro Americans were, and still are, another nation despite court orders, laws and legislative wins to incorporate them. He recognized this as an American failure. He noted that the rate of unemployment for Negroes and whites was roughly the same. In 1965, that for the Negroes was two times higher. In 1948, unemployment for Negro teenage boys was actually less at 8% than for whites. In 1964, it went up to 23% as compared to 13% for whites. Negro incomes decreased in every section of the country between 1949 and 1959. From 1952 to 1963, the median Negro family income fell from 57to 53%. Johnson also noted that the number of white poor families decreased by 27 since 1947, while the number of poor non-white families decreased by only 3%. He wondered about the cause of the trend. Then he explored what could be done to compensate this inequality in race. He thus first introduced the concept of affirmative action in order to address and close the racial gap. But four decades after, efforts of affirmative action advocates have not found common ground (Katznelson).

Records show affirmative action to have begun in the early 60s when the federal government instituted policies in dealing with employment discrimination. These policies would include improving working conditions and circumstances for African-Americans. But these policies had progenitors during the New Deal and Fair Deal period of the 30s and the 40s. The exclusion of many Black Americans from the benefits of public policy of the time and the management of important, large-scale, national programs became new sources and grounds for racial inequality. The federal government functioned understandably as an instrument to privilege the whites. Legislations needed the assent of members of Congress from the racist South. Public policy was shaped to suit its preferences, specifically to protect Jim Crow (Katznelson). Jim Crow was a racial caste system, which was primarily followed in the Southern and border States from 1877 and mid-60s (David Pilgrim 2000). It legitimized anti-Black racism, reducing African-Americans as second-class citizens. Many Christian ministers of those times taught that Whites were the chosen people, the Blacks were cursed as servants and that God Himself favored racial segregation. The system held sway over 17 American States and Washington DC. It dictated the direction and content of social security, major labor legislations, the GI bill and other landmark laws. All these created a white middle class, which protected what legislators refer to as "the Southern way of life (Pilgrim)."

But affirmative action is corrective justice (Katznelson 2006). Corrective justice is different from the fair distribution of goods, according to philosopher Jules Coleman.

It compensates deprived groups for previous losses to gains unfairly obtained by others through government action. It seeks out interventions, which would repair past unjust decisions. But advocates must contend with matters involving fairness and legitimacy. So far, they have not come up with clear and defensible principles to match the arguments and rhetoric of opponents. Advocates have developed only broad claims for compensation for a long history of slavery, segregation and other forms of racism. Their reasoning is usually less developed and convincing than that of their opponents. Their theory has been hardly articulated, much less defined. Even their arguments in the Supreme Court have been one-sided and cannot pit strength with the sharp, tried and pragmatic position of their opponents. This was demonstrated in the case filed by United Steelworkers vs. Weber in 1979. The Supreme Court favored the employer's voluntary agreements to reserve half of all craft training positions until its African-American laborers matched the percentage of Blacks in the local labor force. The employer invoked Title VII of the Civil Rights Act on Equal Employment Opportunities regarding the adoption of racial quotas to remedy racial one-sidedness. Weber argued that racial quotas should be permissible as there was no proof of intentional wrongdoing or active discrimination. Justice William Brennan and the majority of Supreme Court justices decided that prohibiting hard targets for the sake of the Civil Rights Act of 1964 would be too ironic. He did not think that the country's concern over racial injustice should deter "race-conscious efforts at... racial segregation and hierarchy (Katznelson).

Court decisions have been dismayingly inconsistent. The 1984 court ruling on Firefighters v Stotts that white firefighters could not be laid off to make way for more junior Blacks (Katznelson 2006). Just two years later, it decided in Wygant v Jackson Board of Education that minority employment was not strong enough to override white teachers' seniority. It also upheld the right to racial quota in Local 28, Sheet Metal Workers' International Association v EEOC. It judged that numerical goals could be spread out to put an end to the steep under-representation of African-Americans and Hispanics in the firm. This was the court's position although International Union disapproved racial restrictions since 1946. In United States v Paradise and Johnson v Transportation Agency, the court upheld promotion quotas and voluntary plans on account o under-representation of minorities over direct discrimination. Justices have used inconsistent language in dividing the arguments of supporters and opponents. Opponents of affirmative action found it wrong as a constitutional doctrine and principled tenets. Justice Clarence Thomas, an African-American appointed to the Supreme Court, disagreed in Grutter v Bollinger in June 2003. He upheld racial preferences in admissions to the Michigan Law School. Sandra Day O'Connor, the first woman justice, decided otherwise. She decided that compensatory steps by affirmative action in higher education would be a social good. These would allow qualified and talented persons, whatever their race, to develop into leaders (Katznelson).

Justice Lewis Powell agreed affirmative action in the 1978 Regents of the University of California v Bakke (Katznelson 2006). He determined that it established clear and principled standards. Four justices decided that the University of California's admissions process breached civil rights laws, which prohibit racial discrimination. But four other justices opposed that position. They contended that race-blind policies in a society that is race-conscious will make access difficult for minorities. Justice Powell voted that the University violated the equal protection provision of the Constitution. On voting, Bakke won and was admitted to the medical school (Katznelson).

The wording of the Fourteenth Amendment has been the springboard of resistance to the way affirmative action has been applied since 1965 (Katznelson 2006). The issue has not been prejudiced treatment but preferential treatment for a group on the basis of race. Powell authorized affirmative action within the provisions of equal protection and under stiff conditions. He said that changes to color-blind policies could remedy the disadvantages under two conditions or they are unlawful. The remedies must link up tightly and clearly with specific historical disadvantages on account of race. General claims on racism would be insufficient. Affirmative action could not be vague or only moderately important. All in all, he required that clear and specific racial harms and a convincing public purpose for applying remedies. But Antonio Scalia countered that Powell was wrong in upholding affirmative action in any form. Scalia found restorative justice to be inherently neither right nor constitutional (Katznelson).

All the dispute over diversity led Justice O'Connor to suggest that diversity should stop being enforced in 25 years (O'Sullivan 2003). Some believed that if the diversity principle or trend proceeded unchecked, the human resources department would be the most important decision-maker in a corporation. Justice Ruth Bader Ginsburg wondered why race preference should not be openly supported rather than uselessly disguised as "individual" assessments. Many commentators replied that the disguises were essential because very large majorities of Americans rejected race preferences (O'Sullivan).

Liberals contend that every deep passion is guaranteed by the Constitution (Ponnuru 2003). Conservatives, on the other hand, have many passions and one of them is a color-blind government. Most of them believe that all policies of discrimination should be discarded. They view these policies as unwise, immoral and unconstitutional. Three conservative organizations submitted a collective brief to the Supreme Court on the Michigan cases. These organizations were the Center for Equal Opportunity, the Independent Women's Forum and the American Civil Rights Institute. Their brief succinctly stated that racial preferences were incompatible with the 14th Amendment. The 14th Amendment, according to them, clearly states that no person within its jurisdiction would be denied the equal protection of the laws. The silence of the justices to this statement was perceived to indicate insufficient interest in the original understanding than in their own case law. In 1865 and 1866, radical Republicans proposed a constitutional amendment that no State could set distinctions in civil rights and privileges according to race, color or descent. That proposal was ignored in the Joint Committee of the 39th Congress. It was the opinion of many that America would have been in better condition if this proposal was approved. The 14th Amendment, which was passed, was really much more limited. In the late 1860s and early 1870s, the equal protection clause was intended for the States to extend the protection of lives, limbs and property from only some to all people. Congress member Thaddeus Stevens emphasized that punishment, protections, redress and the right to testify in court would be equal to whites and Blacks. The equal protection, due process, privileges and immunities clauses of the 14th Amendment might have been originally intended to some of the rights in the Bill of Rights to the States or to guarantee other civil rights. Reconstruction-era Republicans considered segregation in education a violation of civil rights so that the Brown v Board of Education case was grounded on this. The Supreme Court should have rejected the University of Michigan's admission preferences as illegal and unconstitutional. Racial discrimination may not be prohibited by the Constitution but it is, by the Civil Rights Act of 1964. This has two implications. The Supreme Court is not allowed to prohibit racial preferences not prohibited by statute. But if Congress wants to allow universities to practice racial preferences, it should change the law so that court decisions would be honest and constitutional (Ponnuru).

Federal Judge David Lawson gave Michigan universities a six-month extension to continue their race-and-gender-based admissions, hiring and financial assistance (Walker 2007). This ruling delayed the implementation of a constitutional amendment, which banned affirmative action scheduled to become effective in late December. Michigan State University and Wayne State University wanted additional time to study Proposal 2. The extension would end on July 1. The delay was the idea of Governor Jennifer Granholm, State Attorney General Mike Cox and the lawyers of the three universities. Governor Granhold said they understood the voters' decision but her group was also very much administratively committed to diversity. Affirmative action proponents bewailed the universities' lack of excuse to continue their practice for another half year (Walker).

2000 National Opinion Research Center survey showed that a majority of Americans favored affirmative action when questions were vaguely worded or posed (Paul 2003). When words, like "preferences" and "quotas" were used, enthusiasm for affirmative action steeply vanished. At first, respondents say that past discrimination practices should now stop and preference in hiring and promotion should be given Blacks. Others said preference would discriminate against white and therefore wrong. When asked if they favored preferential hiring and promotion for Blacks, only 13% of whites and 43% of Blacks agreed. In the meantime, Blacks showed stronger support for affirmative action programs than whites did (Paul).

Two affirmative action cases reflected the opinions of politicians of both parties and expressed as binding Supreme Court decisions (National Review 1995). The first was the Adarand Constructors v Pena and the second was th Missouri v Jenkins. The Adarand case had to do with minorities in federal transportation projects. The Federal Government manages $14.4 billion a year to disadvantaged business enterprises, which were owned by minorities or women. The Missouri case was a review of the public school system of Kansas City. For almost a decade then, the federal district judge had ordered the State to use $200 million annually to make the inner city schools equal to those of the suburbs. In each case, four justices decided to maintain the status quo. Justices Scalia and Thomas concurred. Justice Thomas ruled as irrelevant if racial classifications were drawn by oppressors or those who sincerely wanted to help the disadvantaged. Judging the Missouri case, unaided Blacks could not achieve. He saw this conclusion as resulting from a theory of Black inferiority. Chief Justice Rehnquist and Justices O'Connor and Kennedy could at best urge affirmative action advocates to note that racial qualifications are constitutional only if these jibed and furthered government interests. The majority in the Bench decided that reverse discrimination is not right, unless done with caution. The main decision was then to be made by voters in a referendum on affirmative action in 1996. Other States were expected to follow suit. If the express will of the majority would be that of the Constitution. If this would not be carried out, voters would find other means to do so (National Review).

Moving back to the Michigan case, President George W. Bush and the Republicans hoped that the controversy had reached an end (O'Sullivan 2003). The court ruling reached a balance. Racial preferences would be allowed and remain entrenched if disguised as "individualized" assessments. Diversity was the primary consideration. Opinion-makers established that diversity should now be accepted as a basic corporate, economic, cultural, and political reality. Opposing racial preferences would be regarded only as a sentiment. No one among the politically motivated would come to the Supreme Court to reverse a decision and rule that diversity as not a compelling interest of government. Conservatives could not come oppose those preferences up to the 25 years limit set by Justice O'Connor. In addition to all these powerful groups, other conservatives and libertarians found corporate America comfortable enough. They would think they got what they wanted in the form of diversity and a multi-ethnic elite. But they were likely to be disappointed (O'Sullivan).

Entrenched racial preferences in college would fail to develop a multi-ethnic elite on two grounds (O'Sullivan 2003). First these preferences systematically mismatch minority talent with academic opportunities. They would pit the top 10% of the minority students against the top 1% of white and Asian students. The expected result would be for a disproportionately large numbers of these minority students to drop out. The survivors would explain their failure away as the outcome of racism. This would explain why diversity classrooms become venues of resentment and rift rather than an idealized vibrant exchange of life experiences. And in an effort at assuring that these failures would not keep a multi-ethnic elite from developing, the same system of race preferences had to persist in some form after college (O'Sullivan).

The second reason or problem would follow at this point (O'Sullivan 2003). If the new multi-ethnic elite must be recognized for leadership, Americans would do so on merit. But if this elite would be engineered, it would remain under suspicion and attract widespread cynicism. But this projected multi-ethnic elite could only be engineered as it would develop out of a current system of permanent racial preferences. Projections do not end here. The ill effects of this kind of multi-ethnic elite would be permanently under suspicion by corporate America. It would behave contrary to corporate America's own market independence and overall and bigger interests (O'Sullivan).