Affirmative Action in Jobs and Education: History and Debate

Introduction

The end of legally sanctioned racial segregation in the 1950s and 1960s was a major step in the direction of racial equality. However, as had been the case with the end of slavery, the removal of formal oppression did not eliminate customary and private discrimination. As a result, the federal government had to take certain steps to ensure that African Americans were no longer being discriminated against. Moreover, because some effects of past discrimination — such as inferior early education — made African Americans less desirable candidates according to some objective criteria, the government instituted a system of preferences. At the time, there was simply no other way to end the vestiges of injustice.

However, many people argue that the time for affirmative action has passed, and that, since the playing field is now level, it now confers an unfair advantage on African Americans. Therefore, this research seeks to answer the following question: Do African Americans receive special treatment in jobs and in education simply because of the color of their skin?

History of Affirmative Action

To understand why affirmative action began, one must first undertake a study of what life has been like for African Americans throughout the brief history of the United States and compare that history with the history of whites and non-African American minorities. It is a well-known fact that many slave states made it illegal to teach slaves to read and write, while, at that same time, most whites were entitled to at least a limited free public education. In addition, in many states, free blacks were also prohibited from receiving an education, whether by law or by custom.

When the slaves were freed — first nominally by the Emancipation Proclamation and then formally by the 13th Amendment — it was not as if they suddenly became entitled to an education. Even during the Reconstruction years, when African Americans experienced the greatest freedom they would have in the United States until well into the 1960s, many adults were too busy earning money and scraping out an existence to concentrate on attaining an education. Furthermore, once Reconstruction ended, the South — where most American blacks resided — quickly instituted a system of Jim Crow laws aimed at keeping African Americans in subservient positions. This included segregating educational facilities, which were inferior in educational quality. Even for gifted children, it was difficult for African Americans to succeed because there were so few educated African American adults in the community to help young people with their educations. While other minorities and poor whites experienced some of the same issues, the problems were not as widespread, and there was never the same type of long-term institutionalized racism directed toward other groups.

This legacy of poor education continued until well into the 1960s, and even when the Civil Rights Movement ensured the end of legal segregation, the reality is that African American students still lacked the same resources as white and other minority children at home. Even if they were entitled to the same schooling, they were often unable to accomplish their educational goals. Given that the children entering college and competing for jobs in today's markets may be only one or two generations removed from segregation and its educational effects, it is unrealistic to expect the African American community to have remedied centuries of educational deprivation within a single generation.

Moreover, the above discussion addresses only legal segregation. Once schools began to be integrated, white flight from cities into suburbs occurred in many areas, leaving urban schools filled with minority students whose families had fewer financial resources than the departing white students. The quality of a school's education is largely determined by the tax base of its school district, and urban school districts began to face a significant financial crisis when wealthier residents fled the cities. Though legal segregation has ended, there is still de facto segregation in many areas, where schools may be composed almost entirely of African Americans. These schools — not legally segregated — suffer from many of the same problems, such as inferior buildings, outdated texts, and less experienced teachers, that prompted the Supreme Court to invalidate legal segregation in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).

Although the Supreme Court ended racial segregation in education in 1954, it did so with the knowledge that changes would not occur overnight. By the early 1960s, it was clear that the impact of desegregation was not spreading as quickly as some had hoped. Therefore, affirmative action officially began in 1961 with Executive Order 10925, in which President John F. Kennedy established the President's Committee on Equal Employment Opportunity and ordered government contractors to "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. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship" (Executive Order 10925). While this provision initially applied only to government contractors and subcontractors, it was the beginning of affirmative action.

The criticism of affirmative action is that it has given African Americans and other minorities an impermissible racial preference in both educational and employment opportunities. Many whites complain that affirmative action is not fair. The reality is that nothing about America's history of racism and systemic degradation of an entire subgroup of human beings is fair. There is no solution that can treat every person in a truly equal and fair manner and simultaneously accomplish the goal of bringing about actual equality. President Lyndon Johnson addressed these issues in his 1965 commencement speech at Howard University. He stated, "You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, 'you are free to compete with all the others,' and still justly believe that you have been completely fair" (Johnson, 1965). Yes, affirmative action does, at times, give a racial preference to minority candidates — not only those who are equally qualified as white candidates, but sometimes those who may be less qualified than white candidates. However, that statement does not condemn the process of affirmative action.

Education Issues Related to African Americans

For several years there was an absolute racial preference toward African Americans in college admissions. African Americans and some other minority groups were judged by different criteria than white students, which resulted in African Americans needing lower standardized test scores and grade point averages (GPAs) to have the same chance at admission as white students. However, that pure preference system did not last long. In Regents of the University of California v. Bakke, 438 U.S. 265 (1978), the Supreme Court officially barred the use of quota systems in college admissions programs. The Court determined that when race was used as the only determining factor in an admissions program, it opened the door to reverse discrimination (see generally Regents of the University of California v. Bakke, 438 U.S. 265 (1978)). Therefore, after 1978, it would be erroneous to suggest that African American students had an absolute advantage over non-African American students, because race could not be the sole factor in admissions decisions.

The educational landscape changed even more dramatically with Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996). In that case, four white applicants to the University of Texas School of Law challenged their rejections, alleging that they were denied admission despite being better qualified than some accepted minority students. The trial court ruled in favor of the University of Texas, citing a continued need for affirmative action programs (Hopwood v. State of Tex., 861 F.Supp. 551 (W.D. Tex. 1994)). However, the appellate court rejected the trial court's reasoning and determined that any use of race in the admissions decision was a violation of the 14th Amendment's guarantee of equal protection (see generally Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996)). While this decision only affected universities and colleges in the Fifth Circuit, it changed the way many universities structured their admissions programs and eliminated a racial preference in those programs.

Hopwood did not long remain the law. In Grutter v. Bollinger, 539 U.S. 306 (2003), the U.S. Supreme Court rejected Hopwood-type reasoning. Writing for the majority, Justice O'Connor stated that it is not unconstitutional for a law school to use race as a factor in admissions in order to obtain a diverse student body. The University of Michigan Law School had a system ensuring a minimum number of minority students, and the Court determined that such a system was permissible. Notably, the Court's decision was not based solely on individual minority access to higher education but also on the educational benefits that a diverse student body provides to all students at an institution of higher education. Moreover, the Court stated that affirmative action could not become a permanent policy and suggested that at some point in the future, when affirmative action would no longer be necessary to promote diversity, it would no longer be permissible for universities to employ it in their admissions processes (see generally Grutter v. Bollinger, 539 U.S. 306 (2003)). Given the significant advancements in the struggle for equality over the past half-century, it is conceivable that the Supreme Court is right, and that affirmative action will no longer be necessary in another quarter of a century.

Conclusion

While legally sanctioned racial segregation ended in the 1960s, it is not accurate to say that segregation has ended. De facto segregation still exists in the United States, and minorities are still far less likely than whites to experience early-life advantages. While it would be ideal to live in a country where affirmative action was no longer necessary, the reality is that today's America still struggles with racism. While opponents of affirmative action may argue that whites lose out under affirmative action programs, Justice Ruth Bader Ginsburg answered that challenge most effectively when she stated, "We are the losers if we neglect what others can tell us about endeavors to eradicate bias against women, minorities, and other disadvantaged groups. For irrational prejudice and rank discrimination are infectious in our world. In this reality, as well as the determination to counter it, we all share" (Ginsburg, 2000).