World PoliticsSocial IssuesMilitaryEconomyUS PoliticsActivismGovernment

Affirmative Action: Is it Still Necessary in the 21st Century?

Updated on December 10, 2016
lawdoctorlee profile image

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.

Thurgood Marshall, lead counsel on the case, explains segregation to the press.  He went on to become the first African-American on the Supreme Court.
Thurgood Marshall, lead counsel on the case, explains segregation to the press. He went on to become the first African-American on the Supreme Court. | Source

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 business, 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 a door to “political, constitutional, and human crisis,” which has yet to run its course (Sowell 14).

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.

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

Allan Bakke, a white graduate student, protested his inability to enter medical school at the University of California at Davis. He argued that affirmative action programs prevented him from entering and were denying him his rights.
Allan Bakke, a white graduate student, protested his inability to enter medical school at the University of California at Davis. He argued that affirmative action programs prevented him from entering and were denying him his rights. | Source

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, demonstrates 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 tent 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 controversy with affirmative action policies comes from the fact nearly seventy 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 on 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, 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.

 Michigan Attorney General Bill Schuette and Jennifer Gratz, CEO of XIV Foundationspeak, speak during a press conference outside the Supreme Court, Oct. 15, 2013, in Washington. Andrew Burton/Getty Images.
Michigan Attorney General Bill Schuette and Jennifer Gratz, CEO of XIV Foundationspeak, speak during a press conference outside the Supreme Court, Oct. 15, 2013, in Washington. Andrew Burton/Getty Images. | Source

Read the case of Grutter v. Bollinger.

In 1997, Barbara Grutter, a white resident of Michigan, applied for admission to the University of Michigan Law School. Grutter applied with a 3.8 undergraduate GPA and an LSAT score of 161. She was denied admission.  Photo credit:  CSPAN
In 1997, Barbara Grutter, a white resident of Michigan, applied for admission to the University of Michigan Law School. Grutter applied with a 3.8 undergraduate GPA and an LSAT score of 161. She was denied admission. Photo credit: CSPAN | Source

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.

Share Your Opinion

Is Affirmative Action still necessary in the 21st Century?

See results

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 in 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, which 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.

Works Cited

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




By Liza Lugo, J.D.


Note: With this author's permission, significant portions of this article can be found in the newly-released anthology, Controversies in Affirmative Action, edited by James A. Beckman (Greenwood, 2014.). See the chapter entitled: "Affirmative Action: Is It Really Necessary in the 21st Century."

Portions of this article or the entire content of this article may not be used without the author's express consent. Persons plagiarizing or using content without authorization may be subject to legal action. The articles by Ms. Lugo regarding legal issues are purely academic in nature and do not constitute legal advice. For advice on legal matters, consult a licensed attorney in your jurisdiction.

Send permission requests to liza@lizalugojd.com.

See Liza Lugo's chapter "Affirmative Action: Is It Really Necessary in the 21st Century" in Controversies in Affirmative Action

© 2012 Liza Treadwell Esq aka Liza Lugo JD

Comments

    0 of 8192 characters used
    Post Comment

    • lawdoctorlee profile image
      Author

      Liza Treadwell Esq aka Liza Lugo JD 5 years ago from New York, NY

      Audrey, thank you for taking the time to read this hub and for your comments. Glad you enjoyed it!

    • AudreyHowitt profile image

      Audrey Howitt 5 years ago from California

      Cogent discussion regarding the issue--well-presented--well-written--Thank you!

    • lawdoctorlee profile image
      Author

      Liza Treadwell Esq aka Liza Lugo JD 5 years ago from New York, NY

      Hi Everyone! I need your vote!!

      Guess what? My Hub "Top 10 Ways to Get a Raise from your Employer" has been selected among 6 candidates for this week's HubNuggets contest on HubPages!

      The criteria for selection as a HubNugget is entirely dependent on votes, so please vote for this Hub before Wednesday, February 15, 2012!

      Click on the HubNuggets at http://hubpages.com/topics/business-and-employment Vote Now tab at the top, right below the title.

      Thanks so much for your support and following of my written works.

      Liza Lugo, J.D. aka lawdoctorlee

    • lawdoctorlee profile image
      Author

      Liza Treadwell Esq aka Liza Lugo JD 5 years ago from New York, NY

      For further clarification on my Hub, please read my reply to the comment by James A Watkins.

    • lawdoctorlee profile image
      Author

      Liza Treadwell Esq aka Liza Lugo JD 5 years ago from New York, NY

      Poetvix, thank you for taking the time to read my Hub and for commenting. I appreciate your compliments on my writing style. We can agree to disagree.

      Allow me to answer your questions. According to President Kennedy “affirmative action was to ensure that applicants are employed, and that employees are treated equally without regard to race, color, religion, sex, or national origin.” And that is what I agree with.

      Affirmtive action did not exclude Asians. Admissions policies consider a lot of different factors in the admissions process. But one thing they do not waiver on is academic achievement. Colleges instead have been increasing their GPA and SAT scores requirements for admission over the past 30 years. They don't base admission on geographical demographics, rather they are looking to increase the applicant pool to include students (who are qualified for admission) from different regions of the country. That is not affirmative action; it's advertising. Overall, I do not believe that more money in education means more success, but there are some very poor districts in the nation that do not have their basic needs met (libraries, computer labs, gifted programming, special needs programming, more teachers,etc.; and that is where money would be best spent. Most certainly not to get an $8,000 board. I agree with you on where to spend education dollars.

      The true affirmative action policies do not require quotas. That is where they went wrong. And I am satisfied with the Supreme Court's decision on striking down quotas. They are unconstitutional.

      God Bless. Keep on Hubbing.

    • poetvix profile image

      poetvix 5 years ago from Gone from Texas but still in the south. Surrounded by God's country.

      This was useful and interesting in many ways other than the obvious. You are exceedingly good at citation and the compilation of information, cases, and history. As a fellow PTK member in good standing, I applaud those qualities.

      I have a few questions. You state that affirmative action was mostly to benefit the African American member of our society (paraphrased). How do you feel about the current exclusion of another minority, Asians, through differing scoring requirements based on demographics, because they test so well in the area of higher educational opportunities? Is that not a form of discrimination? Further, you speak of more dollars in education as if it ensures a more quality education. It does not. Much money in education is wasted. We don't need fancy Promethian boards at 8k per to teach. What we need is more good teachers, better classroom management, accountability off real world measures and smaller class sizes in lower grades building a better foundation in reading and math.

      I thank you for the glimpse into your thinking. I can't say I agree with all of it for I feel affirmative action is a politically correct tool that ensure the best and most qualified, regardless of race, nationality or any other demographic applied often are overlooked just to fill a quota which hurts us as much as it may have historically helped, which is also in doubt. As you mention, things have not improved that much, if at all.

      You write an excellent paper on an academic level. That is for sure. I look forward to delving more into just how you think and wish you much success here on Hubpages. I think we may be running into each other on occasion as we cover some of the same topics from opposite ends of the ideological spectrum.

      God bless and happy hubbing.

    • lawdoctorlee profile image
      Author

      Liza Treadwell Esq aka Liza Lugo JD 5 years ago from New York, NY

      Ronnie, thanks for following and for taking the time to read my Hub and comment. Glad you felt it was worth it. This was the article that got me the publishing deal.

    • profile image

      R. J. Lefebvre 5 years ago

      lawdoc,

      Your hub was exhausting and definitely worth it. I'm concerned that laws are not engraved in concrete; the power brokers (bad guys)are always looking for changing the laws on their behalf. However, the statistics change with time so change is a must, live with it in trepidation.

      Ronnie

    • lawdoctorlee profile image
      Author

      Liza Treadwell Esq aka Liza Lugo JD 5 years ago from New York, NY

      Lone Ranger,

      Thank you for reading my essay, for commenting, and your compliment. True that not all men and women have the same qualities, talents or ambitions. Please read my response to James in this forum.

      Nobody should be discriminated against - not on the basis of race, color, creed, sex, or disability.

      Best wishes to you as well. :-)

    • lawdoctorlee profile image
      Author

      Liza Treadwell Esq aka Liza Lugo JD 5 years ago from New York, NY

      James,

      Thank you for taking the time to read this essay and for the time you took to respond. I made an effort to present both the proponents' and opponents' views in writing this essay. Allow me to clarify some of your concerns and those you raise for others.

      I do not think it is alright to discriminate against any group of human beings. There are no excuses for discriminating against people based on age, color, religion, national origin, sex, or disability, or familial status. These are “protected classes” according to federal law. It does not mean that it is ok to discriminate against white, heterosexual males; and it certainly does not mean that white, heterosexual males are not protected. They are protected as the Supreme Court demonstrated in the Bakke case. However, there have not been laws or policies that specifically denied them their civil liberties unlike other races, women, etc. At least none of which I am aware, except for what I mentioned with cases like Bakke.

      "Has affirmative action achieved equality" is the question proponents ask. I admit that equality is difficult to measure.

      Indeed, former-Supreme Court Justice, Thurgood Marshall, denied that the Founding Fathers of America were politically or morally wise men during a speech at the Annual Seminar of the San Francisco Patent and Trademark Law Association in Maui, Hawaii, in 1987. He did not think the original meaning of the Constitution had died. He clarified his reasoning:

      “To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today. When contemporary Americans cite "The Constitution," they invoke a concept that is vastly different from what the Framers barely began to construct two centuries ago. For a sense of the evolving nature of the Constitution we need look no further than the first three words of the document's preamble: 'We the People." When the Founding Fathers used this phrase in 1787, they did not have in mind the majority of America's citizens. "We the People" included, in the words of the Framers, "the whole Number of free Persons." On a matter so basic as the right to vote, for example, Negro slaves were excluded, although they were counted for representational purposes at three-fifths each. Women did not gain the right to vote for over a hundred and thirty years. These omissions were intentional. The record of the Framers' debates on the slave question is especially clear: The Southern States acceded to the demands of the New England States for giving Congress broad power to regulate commerce, in exchange for the right to continue the slave trade.” See http://www.thurgoodmarshall.com/speeches/constitut... for the full speech.

      Again, proponents argue, "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.” I disagree with this “measuring stick” because this does not demonstrate whether or not affirmative action programs are "working." There are many reasons, other than discrimination, that result in discrepancy of proportion to the general population, some of which I mention in the essay.

      You say, “Perhaps 1 percent of blacks would qualify on merit to attend our most prestigious universities.” I would guess that most Americans would not qualify on merit (or financial means) to attend the most prestigious universities – forgetting about race or any other factor but merit. Setting aside a percentage of seats for any race is unconstitutional according to the Supreme Court; and I agree with that.

      Institutions, organizations, and corporations may be entitled to federal funding (i.e. grants, loans, etc.) but they must comply with the law or risk the losing “billions” they receive. That would include discriminatory practices.

      Once again, affirmative action programs were to make up for discriminatory practices – it is not just about what “ancestors” did. It is not about slavery. It is about addressing underrepresentation because of laws that were discriminatory – and those instances of discrimination and abuse were current at the time affirmative action policies were created. It was not until 1970 that a white man could legally marry a person of color in many states. In that case, Loving vs. Virginia, the husband was jailed for a year for getting married.

      You argue that standards will be lowered to accommodate for diversity. I was a director of admissions for a private college; and spent nearly a decade in the profession before I decided to get into the legal profession. Each year the standards went up requiring students to get higher scores on entrance examinations and higher GPAs. Tuition was raised every year. This is common in the higher education industry. They want the best and the brightest, so do employers; and they should.

      If you have specific examples of schools lowering standards with the purpose of admitting students who would otherwise fail or drop out, please enlighten me. Colleges want top performing students so the college can look good. They want graduates who will work in their chosen profession. In essence, colleges want their students to be successful so that the college will be successful.

      Affirmative action is this in a nutshell: “to ensure that (people – with regard to employment and education)… are treated equally without regard to race, color, religion, sex, or national origin.” When organizations implement affirmative action with quotas or set-asides, that is of their own doing, not because the law requires set-asides; the organizations should be challenged on that. These forms of implementation have been found to be unconstitutional –and I agree with that, as I mentioned in the essay.

    • profile image

      Lone Ranger 5 years ago

      Well written, Lawdoctorlee!

      Having said that, I do not agree with the premise of affirmative action. I mean, it is pleasing to the ears and looks good on paper, but in reality, not all men and women have the same qualities, talents, or ambitions, so how can the concept of equality be rightly measured and justly enforced?

      Obviously, if we look at the fruits of affirmative action, we see how misguided it is and how foolish we are for insisting on its use.

      Best wishes and be well - L.R.

    • James A Watkins profile image

      James A Watkins 5 years ago from Chicago

      I find it interesting that in your opening salvo you posit that discrimination is evil. Yet in your essay, you seem to think it is alright to discriminate against one group of human beings: White men who are heterosexual. Is not what this is really all about? After all, is not EVERY group except heterosexual white males a "protected" group?

      "Has affirmative action achieved equality?" you ask. What do you mean by equality? Equality of outcomes? If you line up an entire town to run a hundred yard dash would you expect "equality" in the results?

      Thurgood Marshall denied that the Founding Fathers of America were politically or morally wise men. He believed the original meaning of the Constitution had died. Justice Marshall was a judicial activist to the core. He believed the Court must "step outside the boundaries of the Constitution" to secure the triumph of the administrative state dedicated to leveling American society.

      You write: "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, demonstrates that affirmative action programs have not made significant differences in representation."

      Have not made significant differences? Me thinks you jest. Perhaps 1 percent of blacks would qualify on merit to attend our most prestigious universities. But they set aside 10 percent of their admissions for blacks, many of whom have roughly half the test scores and grades of white men—who are discriminated against for something that supposedly their ancestors did. Does not denying admission to our best universities to the best and brightest young people bring down our whole national human capital and then our economic prosperity? And would not those blacks do better at a university where their merit would qualify naturally? Where they could shine instead of failing and dropping out (after costing the national treasury untold billions)?

      I find it odd that, as you say, "nearly seventy percent of the population falls into a minority category." How can 70% make a "minority?"

      You write: "Adversaries of affirmative action are concerned that standards will be lowered in colleges to accommodate for the diversity, but this is not the case."

      Yes it is the case! Surely you know this is true. The examples of its veracity are manifold. Affirmative Action is all about lowering standards.

      You write: "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."

      Any business in 2011 would be foolish not to hire the best workers available. Would a car lot today refuse to hire a black man who can sell 20 cars a month? Any such business would be doomed to failure in the Free Enterprise system because its competitors would be savvy enough to hire the best people.

      You write: "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."

      I think Affirmative Action diminishes those "minorities" who really do succeed on their own. And what study has ever shown that "diversity" has had any positive impact on anybody?

      In a free country, the Rule of Law does not apply only to particular persons. It is intended only to be instrumental to the pursuit of various individual ends. It is intended for long periods of time, so it is impossible to know if it will assist some people more than others. It helps people predict the behavior of those with whom they must collaborate, but it does not aid the effort of particular persons. In other words, the Rule of Law is blind. It does not know in advance which individual it will assist; it does not choose between particular persons or particular ends. It serves to create new opportunities for all, but the precise results remain unseen. This is what it means for legislation to be impartial. Any activity by governments deliberately aimed at material equality of different people, and any policy aimed at redistribution or Social Justice, leads to the destruction of the Rule of Law. To produce the same result for different people is necessarily to treat them differently, because blind justice never produces equality in the outcomes of people’s lives.

    • profile image

      geminitrudy 5 years ago

      I was glad to see you touched briefly on the lamentable fact that many minorities posess a poor self-image and lack the self-esteem needed to seek and find educational and employment opportunites that are available to them through affirmative action. I wonder if there have been any long-term studies to measure the changes in these minorities' perception of personal worth since affirmative action was implemented.

    • lawdoctorlee profile image
      Author

      Liza Treadwell Esq aka Liza Lugo JD 5 years ago from New York, NY

      Thank you for your comment Wordpaintrix. You are so right that women were one of the many groups of minorities who benefitted from affirmative action. Male-dominated industries were difficult for women to enter: law, medicine, construction, law enforcement, and the military. Your comment is well written; and I appreciate you sharing your personal experience. Well done!

    • wordpaintrix profile image

      wordpaintrix 5 years ago from Huntington, WV

      Affirmative action allowed me to enter a field that was blocked for me. Over the years other women entered the field but the farther we got from the end of affirmative action the fewer women were allowed in. Today when I apply for a job or just tell someone that I am a Heavy equipment operator that operates dosers, loaders, backhoes, etc I get an amazed look of disbelief.In the last ten years I have only come across three other women construction workers and most of them are over forty. It is not a hard job as all the new equipment is power operated so physical strength is not a necessary qualification. But because companies are not 'encouraged' to hire women and minorities they find it easier to avoid the issue. I think affirmative action was important to the development of our company and wish they would bring it back.

    • lawdoctorlee profile image
      Author

      Liza Treadwell Esq aka Liza Lugo JD 5 years ago from New York, NY

      Thank you KrystalD for taking the time to read my hubs and for your positive energy.

    • KrystalD profile image

      KrystalD 5 years ago from Los Angeles

      Welcome to hubpages! I love the topics your choosing and the thoroughness in you writing keep up the great work!

    • lawdoctorlee profile image
      Author

      Liza Treadwell Esq aka Liza Lugo JD 5 years ago from New York, NY

      If you enjoyed this hub read my related hub, "Racism and its Effect on Society at:

      https://soapboxie.com/social-issues/Racism-and-Its...