Affirmative action refers to steps taken to eliminate discrimination—whether in employment, housing, or education—but also to redress the effects of past discrimination. The underlying motive for affirmative action is the principle of equal opportunity, which holds that all persons have the right to equal access to self-development. In other words, persons with equal abilities should have equal opportunities. Historically, however this has not been the case as those in power have kept opportunities for themselves and those similar to them, with the result that minorities and others not of the ruling class have experienced limited opportunities. Affirmative action is thus the attempt to rectify this situation by mandating opportunities be made available to those distinguished by their minority or under-represented status. Some groups who are targeted for affirmative action are characterized by gender, ethnicity, or disability status.
Although affirmative action is an attempt to redress the imbalance that undeniably exists, it has many opponents. Criticisms (and in some cases legal decisions) have been brought against such efforts both in terms of the underlying principles, such as quotas and the use of characteristics such as race or gender in application processes ("reverse discrimination"), and in failures to implement the programs effectively. Problematic outcomes include increased racial tensions and the difficulties experienced by unqualified candidates who were accepted into educational programs but failed or into jobs that they were unable to perform at the expected standard.
Although action must be taken to redress the wrongs of the past, as the United Nations Commission on Human Rights noted, any such action, instituted for the purpose of correcting discrimination, that grants preferential treatment to a segment of the population should be temporary. Thus, effective programs should have built-in obsolescence. Righting the wrongs of the past is difficult and takes time. It requires not only legislation but the appropriate attitude on the part of all. While affirmative action programs may have had the noble goal of righting wrongs, they have often lacked, both in conception and in implementation, a true concern for all involved. Without such concern they have been unable to succeed fully.
Affirmative action-like policies can be traced back to the Reconstruction amendments to the U.S. Constitution. The 13th, 14th, and 15th amendments were written to integrate emancipated slaves into American society by prohibiting slavery, guaranteeing equal protection under the law, and forbidding racial discrimination in voting practices.
The Supreme Court case Plessy v. Ferguson in 1896 is the next example that could be considered affirmative action. In this case the Supreme Court ruled that a policy of "separate but equal" treatment for racial minorities was acceptable. President Franklin Delano Roosevelt later signed an executive order stating that there was to be no discrimination in hiring for Defense contracts. The Supreme Court case Brown v. Board of Education in 1954 overturned the ideology of "separate but equal," and mandated the same, equal treatment for all. This can be seen as an extension of the 14th amendment.
The phrase "affirmative action" first appeared in Executive Order 10925 signed by President John F. Kennedy on March 6, 1961 which established the President's Committee On Equal Employment Opportunity and required government contracts to include a non-discrimination provision: "The contractor will not discriminate against any employee or applicant for employment because of race, creed, color, or national origin. The contractor will 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." In this context, affirmative action did not mean that unqualified minority candidates were to be favored over qualified candidates. In 1965, President Lyndon B. Johnson enacted Executive Order 11246 which divided the Committee's functions between the Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance. This order also prohibited employment discrimination based on race, color, religion, and national origin by those organizations receiving federal contracts and subcontracts and required all government contracting agencies to include the nondiscrimination provisions in every government contract, which included affirmative action policies. Affirmative action policies discouraged discrimination against qualified minority candidates, and mandated their inclusion. In 1967, Johnson expanded this policy to include women.
Affirmative action policies were also meant to remedy the discrimination that had existed in various New Deal policies. These policies were designed to redistribute wealth in the United States more equally by providing lower cost mortgages and access to higher education. Unfortunately, such aid was denied to Americans of color, further relegating them to a second-class status within America.
A famous test case of affirmative action policies was the Regents of the University of California v. Bakke, which the Supreme Court decided in 1976. Allan Bakke had applied to the University of California-Davis Medical School two years in a row and was denied admission both times. Minority candidates were admitted who had scored lower on the school's admissions criteria. Bakke argued that their admission was an example of a quota for minorities. The ruling eliminated the use of quotas from use in affirmative action policies while affirming the constitutionality of affirmative action programs giving an advantage to minorities. This rather confusing and controversial ruling was the context within which several states decided to end affirmative action programs over the next several years.
In the early twenty-first century, the state of Michigan became a test site for the affirmative action debate. In 2003, in a case involving the University of Michigan Law School's admission system, Grutter v Bollinger, the U.S. Supreme Court upheld the affirmative action admissions policy. In the court's ruling, Justice Sandra Day O'Connor's majority opinion held that the United States Constitution "does not prohibit the law school's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body." In the same year, the same court set the precedent, in Gratz v Bollinger, that the University of Michigan's points-based undergraduate admissions system, which gave points to candidates based on their race or legacy status, was too mechanistic and therefore unconstitutional. In 2006, nearly 60 percent of Michigan voters decided to ban affirmative action in university admissions. Michigan joined California, Florida, Texas, and Washington State in banning the use of race or gender in admissions considerations.
Arguments in Favor
Affirmative action was designed to rectify past injustices. In the United States, affirmative action was implemented to attempt to even the economic playing field that had been unevenly distributed as a result of a history of chattel slavery and Jim Crow laws, which were specifically designed to suppress people of color in the United States.
Proponents of affirmative action generally advocate it either as a means to address past discrimination or to enhance racial, ethnic, gender, or other diversity. They may argue that the end result—a more diversified student body, police force, or other group—justifies the means.
One justification for affirmative action is that a simple adoption of meritocratic principles along the lines of race-blindness or gender-blindness—or simply relying on elites to behave fairly—will not suffice to change the situation. Proponents cite several reasons: Discrimination practices of the past preclude the acquisition of "merit" by limiting access to educational opportunities and job experiences. Ostensible measures of "merit" may well be biased toward the same groups who are already empowered. Regardless of overt principles, people already in positions of power are likely to hire people they already know or people from similar backgrounds, or both.
Despite the noble aims of affirmative action, there are many criticisms of the policy, both with regard to its underlying principles and goals and in terms of failures in its implementation. Some say that it is unfair to judge people based on their race for any reason. Others say that race based-judgments ignore other types of diversity. Finally, some critics claim that it is unfair to make members of the dominating group pay for "the sins of their fathers."
Opponents claim that affirmative action has undesirable side-effects and that it fails to achieve its goals. They argue that it factors race into the decision-making process, perpetrates new wrongs to counter old ones, and undermines and calls into question the achievements of minorities. There are claims that the practice is itself racist or sexist, or both. Others believe that programs may be motivated by political considerations. Some members of races "assisted" by affirmative action feel that the program is an insult to them, because they feel that they are capable of becoming successful regardless of government's help.
Affirmative action may increase racial tension and benefit the more privileged people within minority groups (such as middle to upper-class blacks) at the expense of the disenfranchised within majority groups (such as lower-class whites). For example, in the British 2001 Summer of Violence Riots in Oldham, Bradford, Leeds, and Burnley, one of the major complaints voiced in poor white areas was alleged discrimination in council funding which favored minority areas.
Some like law professor Richard Sander also claim that, in college or professional admissions, it hurts those it intends to help, since it causes a "mismatch" effect by admitting minority students who are less qualified than their peers into rigorous programs where they cannot keep up, increasing the students' chances of dropping out. However, Sander's claim that this correlation exists has been challenged.
The International Convention on the Elimination of All Forms of Racial Discrimination stipulates (in Article 2.2) that affirmative action programs may be required of states that have ratified the convention, in order to rectify systematic discrimination. It states, however, that such programs "shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved." The United Nations Human Rights Committee states:
The principle of equality sometimes requires States parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant. For example, in a State where the general conditions of a certain part of the population prevent or impair their enjoyment of human rights, the State should take specific action to correct those conditions. Such action may involve granting for a time to the part of the population concerned certain preferential treatment in specific matters as compared with the rest of the population. However, as long as such action is needed to correct discrimination, in fact, it is a case of legitimate differentiation under the Covenant."
In some countries which have laws on racial equality, affirmative action is rendered illegal by a requirement to treat all races equally. This approach of equal treatment is sometimes described as being "race-blind," in hopes that it is effective against discrimination without engaging in "reverse discrimination." In such countries, the focus tends to be on ensuring equal opportunity and, for example, targeted advertising campaigns to encourage ethnic minority candidates to join the police force. This is sometimes described as "positive action," as opposed to "positive discrimination."
- Brazil. Some Brazilian Universities (State and Federal) have created systems of preferred admissions (quotas) for racial minorities (blacks and native Brazilians), the poor and the handicapped. There are efforts to create quotas for the disabled in the civil public services.
- France. The French Ministry of Defense tried in 1990 to give more easily higher ranks and driving licenses to young French soldiers with North-African origins. After a strong protest by a young French lieutenant in the Ministry of Defense newspaper (Armées d'aujourd'hui), this project was canceled. A 1987 law requires companies of more than 20 employees to ensure that 6 percent of their workforce consists of persons with disabilities.
- Germany. Article 3 of the German constitution provides for equal rights of all people regardless of sex, race, or social background. There has been a long public debate about whether to issue programs that would grant women a privileged access to jobs in order to fight discrimination. In August 2006, an anti-discrimination law (Antidiskriminierungsgesetz; ADG) following EU-standards, that aims at improving the protection of minorities, passed the German Parliament .
- India. Affirmative action has historically been implemented in India in the form of reservation or quotas in government positions, employment, and education for lower castes and minorities.
- Indonesia. In Indonesia, affirmative action programs give natives of Malay origin (Pribumi) preference over the Indonesian Chinese in the country.
- Japan. Spots for universities as well as all government positions (including teachers) are determined by entrance examination, which is extremely competitive at the top level. It is illegal to include sex, ethnicity, or other social background (but not nationality) in criteria. However, there are informal policies to provide employment and long term welfare (which is usually not available to general public) to Burakumin at municipality level.
- New Zealand. Individuals of Māori or other Polynesian descent are often afforded preferential access to university courses, and scholarships.
- Philippines. State universities implement a modified version of affirmative action. Secondary schools, both private and public schools, are each assigned a quota on how many students from that high school are accepted for admission, in addition to each student's score during the entrance examination. This was done to address the situation wherein a majority of the university school population was composed mostly of students who came from well-off families and private schools.
- South Africa. The Employment Equity Act and the Broad Based Black Economic Empowerment Act aim to promote and achieve equality in the workplace (in South Africa termed "equity"), by not only advancing people from designated groups but also specifically disadvancing the others. By legal definition, the designated groups include all people of color, white females, people with disabilities, and people from rural areas. The term "black economic empowerment" is somewhat of a misnomer, therefore, because it covers empowerment of any member of the designated groups, regardless of race. It is quota-based, with specific required outcomes. By a relatively complex scoring system, which allows for some flexibility in the manner in which each company meets its legal commitments, each company is required to meet minimum requirements in terms of representation by previously disadvantaged groups. The matters covered include equity ownership, representation at employee and management level (up to board of director level), procurement from black-owned businesses and social investment programs, among others.
- United Kingdom. Positive Discrimination is unlawful in the UK and quotas/selective systems are not permitted. A singular exception to this is a provision made under the 1998 Good Friday Agreement which required that the Police Service of Northern Ireland recruit equal numbers of Catholics as non Catholics.
- United States. In the United States, affirmative action occurs in school admissions, job hiring, and government and corporate contracts. Its intended beneficiaries are ethnic minorities, people with disabilities, and veterans. Affirmative action has been the subject of numerous court cases, and has been contested on constitutional grounds. A 2003 U.S. Supreme Court ruling against some forms of affirmative action in Michigan required some colleges to set new admissions criteria.
- US Equal Opportunity Commission, Executive Order 10925 Retrieved March 8, 2020.
- Office of Federal Contract Compliance Programs, Executive Order 11246, As Amended United States Department of Labor. Retrieved March 8, 2020.
- More History of Affirmative Action Policies from the 1960s American Association for Access, Equity and Diversity. Retrieved March 8, 2020.
- Ira Katznelson, When Affirmative Action Was White: An Untold History of Racial Inequality in Twentieth-Century America (W. W. Norton, 2006, ISBN 0393328511).
- Grutter v. Bollinger, 539 U.S. 306 (2003) Retrieved March 8, 2020.
- Retrieved March 8, 2020.
- Tresa Baldas, Affirmative action ban draws a challenge The National Law Journal, November 16, 2006. Retrieved March 8, 2020.
- Richard Delgado, The Coming Race War? And Other Apocalyptic Tales of America after Affirmative Action and Welfare (NYU Press, 1996, ISBN 0814718779).
- Susan Sturm and Lani Guinier, The future of affirmative action: Reclaiming the innovative ideal originally published in the California Law Review (July 1996). Retrieved March 9, 2020.
- Richard Sander, Mismatch: How Affirmative Action Hurts Students Its Intended to Help, and Why Universities Won't Admit It (Basic Books, 2012, ISBN 978-0465029969).
- United Nations Committee on Human Rights, General Comment 18 on Non-discrimination, Paragraph 10 Retrieved March 8, 2020.
- Robert Plummer, Black Brazil Seeks a Better Future BBC News, September 25, 2006. Retrieved March 8, 2020.
- Thomas Sowell, Affirmative Action Around the World: An Empirical Study (Yale University Press, 2005, ISBN 978-0300107753).
- Police recruitment 'will be 50:50' BBC News, September 12, 2001. Retrieved March 8, 2020.
ReferencesISBN links support NWE through referral fees
- Anderson, Terry H. The Pursuit of Fairness: A History of Affirmative Action. Oxford University Press, 2005. ISBN 0195182456
- Beckwith, Francis J. and Todd E. Jones (eds.). Affirmative Action: Social Justice or Reverse Discrimination? Prometheus Books, 1997. ISBN 1573921572
- Bergman, Barbara. In Defense of Affirmative Action. Basic Books, 2001. ISBN 0465098347
- Curry, George (ed.). The Affirmative Action Debate. Basic Books, 2001. ISBN 020147963X
- Delgado, Richard. The Coming Race War: And Other Apocalyptic Tales of America after Affirmative Action and Welfare. New York, NY: NYU Press, 1996. ISBN 0814718779
- Katznelson, Ira. When Affirmative Action Was White: An Untold History of Racial Inequality in Twentieth-Century America. W. W. Norton, 2006. ISBN 0393328511
- Kellough, J. Edward. Understanding Affirmative Action: Politics, Discrimination, And the Search for Justice. Georgetown University Press, 2006. ISBN 1589010892
- Laird, Bob. The Case for Affirmative Action in University Admissions. Bay Tree Publishing, 2005. ISBN 0972002146\
- Sander, Richard. Mismatch: How Affirmative Action Hurts Students Its Intended to Help, and Why Universities Won't Admit It. Basic Books, 2012. ISBN 978-0465029969
- Sowell, Thomas. Affirmative Action Around the World: An Empirical Study. Yale University Press, 2005. ISBN 0300107757
All links retrieved April 30, 2021.
- Affirmative Action at the Stanford Encyclopedia of Philosophy
- Washington Post Section on Affirmative Action
- American Association for Access, Equity, and Diversity
- Affirmative Action United States Department of Labor
- Affirmative Action American Civil Liberties Union
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