The Cons and Pros of Affirmative Action
Affirmative action programs have spanned seven different presidential admistrations – four Republican and three Democratic. In 1961, in Executive Order No. 10925, John F. Kennedy introduced the phrase “affirmative action” and established the Equal Opportunity Employment Commission (EOEC). JFK’s Executive Order No. 10925 used affirmative action for the first time by instructing federal contractors to take “affirmative action to ensure that applicants are treated equally without regard to race, color, religion, sex, or national origin.” JFK favored a weak form of affirmative action that involved eliminating discrimination and expanding educational and employment opportunities.
The originating document of affirmative action as we see it today was President Johnson’s Executive Order No.11246. The order required each federal department to develop a “positive program of equal employment opportunity” regardless of race or color. It also required federal contractors to take “affirmative action” to ensure non-discrimination in recruitment, hiring, promotion, and rates of pay. In 1964, under the Johnson Presidency, Congress passed the Civil Rights Act of 1964. It barred discrimination in a wide variety of private and public settings. Title II of the Act prohibited discrimination in privately-owned facilities open to public. Title VI outlawed discrimination in federally-funded programs. Title VII prohibited discrimination by both private and public employers. In 1965 President Johnson gave the Department of Labor responsibility for enforcing affirmative action. In 1967 E.O. No. 11246 was amended to also include affirmative action for women.
In 1970, The Labor Department under President Nixon, – issued Order No. 4, authorizing flexible goals and timetables to correct “underutilization” of minorities by federal contractors. In 1971 Order No. 4 was revised to also include women. Also, in 1971, President Nixon issued E.O No.11625, directing federal agencies to develop comprehensive plans and specific program goals for a national Minority Business Enterprise (MBE) contracting program. The Nixon administration issued “Memorandum-Permissible Goals and Timetables in State and Local Government Employment Practices,” distinguishing between proper goals and timetables and impermissible quotas.
In 1978, under the Presidency of Carter, The U.S. Supreme Court in Regents of the University of California -v. Bakke upheld the use of race as one factor in choosing among qualified applicants for admission. At the same time, it also ruled unlawful the quota of the University Medical School’s practice of reserving 18 seats in each entering class of 100 for disadvantaged minority students. In 1979, President Jimmy Carter issued E.O. No. 12138, creating a National Women’s -Business Enterprise Policy and requiring each agency to take affirmative action to support women’s business enterprises. Also, in the same year, the Supreme Court ruled in United Steel Workers of America, AFL-CIO v. -Weber that race-conscious affirmative action efforts designed to eliminate a conspicuous racial imbalance in an employer’s workforce resulting from past discrimination are permissible if they are temporary and do not violate the rights of white employees.
Ronald Reagan became president in 1981. He and his supporters were generally opposed to the stronger forms of affirmative action. Some of those in the Reagan administration wanted the president to rescind Johnson’s Executive Order No.11246. This never happened. However, the administration did initially argue for a particular understanding of when courts should order or allow relief in discrimination cases. This understanding is sometimes called “victim specific.” It allows that only the specific victims of proven discrimination by a particular employer must be given relief or compensation by that employer. The Supreme Court later rejected this view. The Supreme Court ruled in Johnson v. Transportation Agency, -Santa Clara County, California, that a severe under representation of women and minorities justified the use of race or sex as “one factor” in choosing among qualified candidates. In 1989 The Supreme Court in City of Richmond v. J.A. Croson Co. struck down Richmond’s minority contracting program as unconstitutional, requiring that a state or local affirmative action program be supported by a “compelling interest” and be narrowly tailored to ensure that the program furthers that interest.
During his presidency, President Clinton made the following remarks on affirmative action, finally addressing its negative aspects – “Let me make this clear: Affirmative action is good for America… Let’s mend, not end it… When affirmative action is done right, it is flexible, it is fair, and it works.” “The purpose of affirmative action is to give our nation a way to finally address the systemic exclusion of individuals of talent on the basis of their gender or race from opportunities to develop, perform, achieve and contribute. Affirmative action is an effort to develop a systematic approach to open the doors of education, employment and business development opportunities to qualified individuals who happen to be members of groups that have experienced longstanding and persistent discrimination.” In 1994, under President Clinton, in Adarand Constructors, Inc., v. Pena, the Supreme Court held that a federal affirmative action program remains constitutional when narrowly tailored to accomplish a compelling government interest-such as remedying discrimination. In 1995, President Bill Clinton reviewed all affirmative action guidelines by federal -agencies and declared his support for affirmative action programs by announcing the Administration’s policy of “mend it, don’t end it.” 1995 was an interesting year for affirmative action, The Regents of the University of California voted to end all affirmative action programs at all University of California campuses. Beginning in 1997 for graduate schools and 1998 for undergraduate admissions, officials at the University were no longer allowed to use race, gender, ethnicity or national origin as a factor in admissions decisions. 1996 brought about California’s Proposition 209. It passed by a narrow margin in the November election. Prop. 209 abolished all public-sector affirmative action programs in the state in employment, education and contracting. Prop. 209 permits gender discrimination that is “reasonably necessary” to the “normal operation” of public education, employment and contracting. In 1997 the U.S. Supreme Court refused to hear a challenge to California’s Prop. -209. By declining to review the case, the court did not decide the case on its merits but allowed Prop. 209 to go into effect. In 1997 and 1998 lawsuits were filed against the University of Michigan and the University of Washington School of Law regarding their use of affirmative action policies in admissions standards. Both the United States House of Representatives and the United States Senate have thwarted recent attempts to eliminate specific affirmative action programs. First both houses rejected amendments to abolish the Disadvantaged Business Enterprise program funded through the Transportation Bill, and then the House rejected an attempt to eliminate use of affirmative action in admissions in higher education programs funded through the Higher Education Act.
Institutions with affirmative action policies generally set goals and timetables for increased diversity – and use recruitment, set-asides and preference as ways of achieving those goals. In its modern form, affirmative action can call for an admissions officer faced with two similarly qualified applicants to choose the minority over the white, or for a manager to recruit and hire a qualified woman for a job instead of a man. Affirmative action decisions are generally not supposed to be based on quotas, nor are they supposed to give any preference to unqualified candidates. And they are not supposed to harm anyone through “reverse discrimination.”
Affirmative action was not supposed to be about the unjustified preference of the unqualified over the qualified of any race or gender. It was not supposed to mean numerical quotas. It was not to favor rejection or selection of any employee or student solely on the basis of race or gender without regard to merit. Throughout its history, there’re times when affirmative action didn’t work, when it was done in the wrong way. And there are times when some employers don’t use it in the right way. They may cut corners and treat a flexible goal as a quota. They may give opportunities to people who are unqualified instead of those who deserve it, thus opening the doors for reverse discrimination. But this is not legal and it was never the intent behind affirmative action
Affirmative action in its current state does not always work. Yet it is interesting to note that since affirmative action was taken out of the education system in California, UC Berkeley had a 61% drop in admissions of African American, Latino and Native American students, and UCLA had a 36% decline. This clearly indicates a need for continued use of affirmative action. Despite its many weak points, it is my opinion, that affirmative action remains a necessary if imperfect cure for a social disease. Affirmative action needs to be amended. It needs to focus more on its initial intent and less on quotas.
