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.
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 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. UCLA School of Law professor Richard Sander wrote several papers on this occurring in both the law schools themselves and in law firms. 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."
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