Ms.Treadwell is a licensed attorney and the author of "How Do Hurricane Katrina's Winds Blow: Racism in 21st-Century New Orleans."
Each generation of Americans, in their own right, has believed they solved the issues of discrimination only to find this evil would find the loophole it needed to rear its ugly head yet again. It is no different in this new millennium. Lawmakers and laymen alike now argue about the relevance of affirmative action policies to solve discrimination: one side screams, “reverse discrimination…preferential treatment,” while the other side insists, “it is because of the legacy of unequal treatment” that affirmative action is still needed. (Ezorsky 133).
Thirty years after the institution of affirmative action policies, it remains a significant argument: has affirmative action achieved integration and equality so that it is unnecessary to continue it into the 21st century? The answer, unfortunately, is not a simple “yes” or “no.” The issue of affirmative action was presented to the Supreme Court again in the Spring of 2003. That summer, the nation held its breath in anticipation of the Court’s decision. Affirmative action policies are controversial, have not been a cure-all for discrimination; and, yet, cannot be completely eradicated.
Read the Case Brown v. Board of Education
De Jure Segregation and Discrimination
Racism and discrimination were engrained into the fabric of American society and government well into the 20th century. These government policies and laws encouraged discrimination from landlords, employers, unions, and schools (Ezorsky 74). Any truly effective argument for or against affirmative action cannot dismiss a reference to the historical significance of discrimination in our country and the failure of businesses, organizations, and government agencies to comply with the law. It was time the break the back of the racial caste system of which blacks, primarily, were the victims. That is the foundation of Supreme Court decisions, Presidential Executive Orders, and Congressional Acts.
It was the landmark case Brown v. Board of Education of Topeka, 347 U.S. 483, (1954), argued before the United States Supreme Court, that served as the spark that led to the rising flames of affirmative action policies. Thurgood Marshall, then an attorney for the plaintiffs, “attacked the ‘separate but equal’ rule” by arguing that segregation harms minority students by making them feel inferior and thus interfering with their ability to learn” (Brown).
The decision delivered by Chief Justice Warren declared that the “segregation of white and Negro children in the public schools of a State solely on the basis of race” violated their constitutional rights (Brown). One might think that this decision would close what has been noted as “an ugly chapter in American history” but instead it also opened the door to “political, constitutional, and human crisis,” which has yet to run its course (Sowell 14).
Read Executive Order 10925
Read the Legislative Text
- The Civil Rights Act of 1964
2014 marks the 50th anniversary of the passage of the most important piece of legislation of the 20th century.
Read the Transcript
Affirmative Action as a Necessity
A directive in an effort to eliminate primarily racial discrimination, the term was used for the first time by President John F. Kennedy in 1961 and was an instruction for federal contractors to take “affirmative action to ensure that applicants are employed and that employees are treated equally without regard to race, color, religion, sex, or national origin.”
Three years later, The Civil Rights Act (1964) was established to ensure voting rights, to bar discrimination in public accommodations, to allow for the attorney general to seek suit against those who violated civil rights in public facilities and public education, to forbid discriminatory practices from organizations receiving federal funding, and to establish the Equal Employment Opportunity Commission, which still exists today (Title VII of the Civil Rights Act of 1964). Undoubtedly, the decade between 1954 and 1964 gave birth to the most important socially-conscious legislation, including The Voting Rights Act of 1965, enacted to strengthen the 13th, 14th, and 15th amendments to the U.S. Constitution. However, even this legislation had an expiration date: 2007. And a heated debate occurred with those in political power on whether to reauthorize the act. In 2006, Congress voted to extend the Act for another 25 years but was still unwilling to make it permanent.
But after these important steps in the civil rights movement, the tide began to shift slightly the following year with Executive Order 11246 (1965) issued by President Johnson. Now government required the development of a written affirmative action program: “to ensure that equal opportunity is provided in all aspects of their employment and “expanded efforts in outreach, recruitment, training, and other areas are some of the affirmative steps contractors can take to help members of the protected groups compete for jobs on equal footing.” (See 30 FR 12319). Johnson defended his position on affirmative action in an eloquent speech at Howard University:
You do not take a man who for years has been hobbled by chains, liberate him, bring him to the starting line of a race, saying, ‘you are free to compete with all the others,’ and still justly believe you have been completely fair. Thus it is not enough to open the gates of opportunity.
In May 1968, Johnson’s office issued guidelines containing “goals and timetables” and “representation”; by 1970, under the Nixon administration, the guidelines referred to “results-oriented procedures.” Then, in 1971, it was clear, underutilization of minorities would be noted by “having fewer in a particular job classification than would reasonably be expected by their availability.” Somehow the movement went from rights to quotas; the transformation was complete (Sowell 41). But it is difficult, if not impossible, to determine if programs are successful or responsible without setting goals.
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Understandably, these were opportunities to “level the playing field.” These decisions appear just and were made with wonderful intentions; now, all minorities would benefit. They had hoped to end discrimination. Before the civil rights movement, it was easy to prove discrimination primarily in that there were laws and policies that, on their face, were discriminatory; and white schools spent much more money per pupil than black schools, translating into large disparities in education input. Discrimination was palatable. Since the civil rights policies were enacted, it is much more difficult to prove discrimination (Sowell 15).
Read the Supreme Court's Opinion in Bakke
The First Challenge to Affirmative Action
Any affirmative action policy afterward that had specific numerical sense was subject to controversy. Numerically-based policies were destined for review by the highest court in the land. Blatant discrimination was easy to identify for the Warren court in 1954 for the decision in Brown and other discrimination cases. The Bakke case, in 1978, would not be as simple. Bakke, a white male, was denied admission to Davis Medical School. The special admissions program provided for admitting a specified number of minority students; thereby, excluding others who might have been admitted if there was no special program in place.
Bakke was a fragmented decision, and Chief Justice Burger was criticized for poor leadership in this case. The Court ruled Bakke should be admitted to the medical school, but the pendulum swung the other way when they also ruled that race was a factor that could be considered in an admission policy, “as long as it was not blatant as was done under the sixteen-seat quota,” without violating the constitution.”
Each part of the decision was a 5–4 vote. This decision, in essence, allowed for preferential treatment and is the case that permitted widespread use of affirmative action programs, albeit without allowing any numerical attachment (Schwarz 324). With these cases firmly established, proponents of affirmative action certainly hoped to see a change in the representation of minorities in education and the workplace.
The Arguments to Keep Affirmative Action
Proponents of affirmative action often use statistics in comparing unemployment rates, salaries, income, or “representation rates” as evidence of discrimination, but differences do not inherently point to discrimination. Social groups differ by large amounts. Age distributions prevent being equally represented in careers, education, jails, the military, sports, etc.
Cultural differences may add to discrepancies; for example, half of all Mexican-American wives were married in their teens while only 10 percent of Japanese-American wives married that young. Those who marry young face more restrictions for future education and mobility (Sowell 43). Those who attend inner-city schools and come from low-income families tend to score lower on standardized testing. It is logical to question the home environment and the quality of the primary schools in those areas since they are high-risk groups (Sowell 46).
If affirmative action has been working, then one would think that minorities would be represented in the workplace, in colleges, etc., in proportion to their numbers in the general population. The same statistics that proponents use demonstrate that affirmative action programs have not made significant differences in representation.
Blacks represent 12 percent of the general population, yet their unemployment rates in 2001 were 11.2 percent; meanwhile, the unemployment rate of Whites was half of that of Blacks, 5.1 percent (U.S. Department of Labor). A decade later, the unemployment rate for Blacks has gone from bad to worse. According to CNN Money, in reporting Department of Labor Statistics, Black unemployment is 16.1 percent in America; and Whites still have half the unemployment rate—8 percent. Today, Black unemployment is the highest it has been since 1984—nearly 30 years later.
In 2001, while only one in ten Whites lived in poverty, nearly one out of four Native Americans lived in poverty (U.S. Census Bureau Number of Poor and Poverty Rate by Race and Hispanic Origin: 1999-2001). Today, the poverty level remains relatively the same among whites, but minorities suffer at much higher rates. According to the New York Times, in reporting Census Bureau statistics, “Blacks experienced the highest poverty rate, at 27 percent, up from 25 percent in 2009, and Hispanics rose to 26 percent from 25 percent… Asians were unchanged at 12.1 percent.”
Asian-Americans tend to make significantly more than white males, but they are distributed geographically in a very different pattern than whites. They live primarily in higher-income states like New York and California, and in urban areas, and also have more education. The reason the statistics prove affirmative action to be a failure is part of two reasons: 1) discrimination is extremely difficult to prove, and 2) the socio-economic problems in the United States are much more complex than civil rights activists would like to admit.
The above issues may answer for the difference in representation; still, there is a concern about the differences in income and employment. One cannot dismiss the value of the way people work. Across the board, those that interview well are professional, accurate, diligent, cooperative, and dependable get the jobs, the promotions, and the higher salaries (Sowell 46). Not even all white people (with the same experience and education) who have the same job get paid the same salaries. These examples are not used to prove discrimination is over, hardly so. The importance of these examples is to reveal that differences are not always the result of discrimination. Equal opportunity does not mean equal success rates.
We are dealing with humans, constantly evolving and completely unpredictable; they are not constants in a mathematical equation. Some of the controversies with affirmative action policies come from the fact nearly 70 percent of the population falls into a minority category; additionally, not all minorities nor all individuals of minority groups have suffered from discriminatory practices (Sowell 26).
Those in favor of affirmative action say the policies are to ensure employers do not discriminate against those who have traditionally suffered from discrimination. Those against affirmative action policies say that all people deserve equal treatment. No one should be denied a job, housing, salary increases, college admission, etc., on the basis of sex or skin color, including white (Olen and Barry 420). In theory, that is fair, but in reality, it has often shut out people who are not white, most significantly in education.
In 1997, the year after affirmative action was banned in California, the first-year law school class at the University of California at Berkeley admitted only one African-American student. The same effect happened at the University of Texas law school; only four African-American students were admitted as opposed to 29 the previous year. Certainly, it cannot be because only four African-American applicants were qualified. (Affirmative Action: Showdown).
Probably in no other arena is affirmative action as desperately needed as in education. Better education should be a part of the program for reducing the gap between the races and sexes (Bergmann 178). The difference in educational access is that unlike the workplace, admission is primarily based on paper, not in an interview. Unlike competing for promotions in the workplace where one can demonstrate expertise, work ethic, and personality, access to education allows for none of that. In fact, it is through the educational process that people will develop expertise, discipline, and a commitment to a good work ethic.
Read the Case of Gratz v. Bollinger
Read the Case of Grutter v. Bollinger
Adversaries of Affirmative Action
Adversaries of affirmative action are concerned that standards will be lowered in colleges to accommodate for the diversity, but this is not the case. There are many minorities who meet the standards for general college admission, but there are only so many seats in such an institution. Even if applications were received in direct proportion to the general population, only 12 percent of college applications would be from African-American students. Reduce that by high incarceration rates and high school dropout rates, and this figure diminishes significantly.
When a college receives 25,000 applications and only has 5,000 seats, the dilemma is unbearable. This was the case for the freshman class at the University of Michigan (UM), and thousands of hopeful candidates vied for the 350 seats at their law school (Affirmative Action: Showdown).
UM and many other universities allow numerous preferences in admissions, including children of alumni (legacies), geography, SAT scores, quality of student’s high school, personal achievement, life experiences, athletic ability, and, of course, race. In 1995, Jennifer Gratz applied to UM and was rejected. She claimed it was because she is white. But to prove that she was the victim of racist policies would be difficult. The student body at UM is 71 percent white, “more than 1400 White and Asian students with lower GPAs or test scores than hers were admitted; and more than 2000 African-American and Latino students with higher GPAs or standardized test scores were rejected by the university” (Affirmative Action: Showdown).
Her case and another, Grutter v. Bollinger, were presented to the U.S. Supreme Court on April 1, 2003; and the nation waited for one of the most significant decisions on civil rights in the previous 25 years. The opinion of the Court was written by Justice O’Connor, and it ruled (5–4) the University of Michigan Law School had a compelling interest in promoting class diversity and that its "plus" system did not amount to a quota system that would have been unconstitutional under Regents of the University of California v. Bakke. Affirmative Action, as thus applied, was saved. Justice Ginsberg added that it might be necessary for another 25 years.
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Is Affirmative Action Still Necessary?
Fifty years after the Civil Rights Movement, minorities in the United States have yet to achieve equal economic representation, educational access, and social acceptance. Affirmative action has not been a cure-all for discrimination; still, we cannot seek to make illegal all voluntary efforts to solve racial, social, and economic inequality.
In a fascinating essay, “Is Affirmative Action a Second Wrong,” Warren Kessler makes an interesting analogy about the insurance industry where the public agrees to pool liability and realizing that there are those who are actually harmed by accident…need help.” People pay for insurance even if they may never make a claim. Through the insurance business, society has found an acceptable way of sharing risks and responsibility; therefore, we should do no less when it comes to affirmative action policies (Kessler 249). Even the criminal justice system is not infallible. Innocent people have been arrested, jailed, and put to death. But we hope that it works most of the time. When dealing with people, it is impossible to have equality 100 percent of the time.
Perhaps the blame rests on all levels. Is it possible that businesses and organizations may or may not have enough savvy to recruit with diversity without using quotas? Maybe the government has the responsibility to make sure that those individuals who seek to make themselves competitive succeed (i.e., more funding for school systems, social programs, building more colleges than jails). Like an athlete in the Olympics requires a trainer, discipline, and practice, so do individuals who wish to grab their part of the American economic dream. They need access to a “trainer” (higher and quality education), personal discipline, good work ethics, and business experience to climb the ladder of success.
“Affirmative action is just one part of a larger claim to substantive equality” (Lawrence 276). Every level of socialization is important to the development of good citizenship and economic success. Parents need to build their child’s confidence level and self-esteem and provide for their needs. Public and private schools need to be committed to providing a quality education that prepares their students for the “real world”; they need to receive the financial resources required to achieve that for all students who depend on them and for all those with the dream to attend in the future. Employers need to use various recruitment methods in order to receive the best qualified candidates and develop a diverse workplace.
It is unfortunate that policies as important as those that try to solve inequality risk being completely shoved aside due to lack of understanding, and the rhetoric from both sides further weakens its importance. We will never eliminate discrimination and racism through public policy because, quite simply, it is impossible to legislate the mind. But perhaps one day, after seeing all different colors of people at a desk next to us in a classroom, in an office, in the corporate boardrooms, and as our representatives in government, we will realize that they have earned the right to their positions through acceptance, encouragement, and good, old-fashioned hard work.
ACLU. “Affirmative Action.” ACLU Massachusetts Affirmative Action. 21 April 2003.
Brown v. Board of Education, 347 U.S. 483 (1954).
“Brown v. Board of Education of Topeka.” World Book Online. World Book Encyclopedia. 21 April 2003.
Bergmann, Barbara. In Defense of Affirmative Action. New York: Harper Collins, 1996.
CNN Money. “Black Unemployment: Highest in 27 years.” Annalyn Censky. 9/2/2011.
“Executive Order 11246.” U.S. Department of Labor Employment Standards Administration Office of Federal Contract Compliance Programs. 21 April 2003.
Grutter v. Bollinger, 539 U.S. 306 (2003)
Kessler, Warren. "Is Affirmative Action a Second Wrong?” Voices of Wisdom: A Multicultural Philosophy Reader, 4th ed. Gary E. Kessler. Belmont, CA: Wadsworth/Thomson Learning, 2001.
Lawrence, Charles and Mari Matsuda. We Won’t Go Back: Making the Case for Affirmative Action. New York: Houghton Mifflin, 1997.
Tavernise, Sabrina. “Soaring Poverty Casts Spotlight on ‘Lost Decade.’” New York Times. 9/13/2011.
Olen, Jeffrey and Vincent Barry. Applying Ethics: a text with readings. Belmont, CA: Wadsworth, 2002.
Regents of the University of California v. Bakke, 438 U.S. 265 (1978)
Schwartz, Bernard. A History of the Supreme Court. New York: Oxford, 1993.
Shaw, Theodore and Elise Boddie. “Affirmative Action: Showdown in the Supreme Court.” The New Crisis. Mar./Apr. 2003: 14.
Sowell, Thomas. Civil Rights: Rhetoric or Reality? New York: William Morrow, 1984.
“Title VII of the Civil Rights Act of 1964.” The U.S. Equal Employment Opportunity Commission. 21 April 2003.
“U.S. Census Bureau Number of Poor and Poverty Rate by Race and Hispanic Origin: 1999 to 2001.” U.S. Census Bureau. 22 April 2003.
U.S. Department of Labor Bureau of Labor Statistics. 22 April 2003. http://data.bls.gov/servlet/SurveyOutputServlet
This content reflects the personal opinions of the author. It is accurate and true to the best of the author’s knowledge and should not be substituted for impartial fact or advice in legal, political, or personal matters.
© 2012 Liza Treadwell Esq aka Liza Lugo JD