URC

The Evolution of Affirmative Action

Mario B. Rojas, IV
Newberry College

Abstract

The narrative that follows summarizes the history of affirmative action by focusing on three critical events: what triggered the legislation, legislation, and controversy that followed it and allowed it to stay in place. For a full discussion, the author recommends The Strange Career of Affirmative Action by T. H. Anderson (2005).

Perspectives: The Evolution of Affirmative Action

Much like the Constitution of the United States, affirmative action is very elastic. Over the years, affirmative action has accomplished a great deal of good but also a great deal of harm. It has affected many different facets of life for Americans. Examples of this are visible through how affirmative action has interacted with academics, business, society, and politics. All of these have been adapted in accordance with affirmative action. This is not to say that all of the changes have been good. Some of these sectors of life have been negatively affected, if only for a short time before being repaired. This paper, beginning with generic definitions of affirmative action and followed by a brief history of affirmative action, examines the assumptions attendant to and the application of affirmative action. Finally, the paper concludes by sharing the author’s thoughts about which perspective has the greatest usefulness.

Definitions

Over the years affirmative action has adapted to the times and to the people living in the United States. Likewise, the definitions have changed and there are many ways to understand them. Primarily, this paper will focus on the dictionary definitions, relevant court cases, and the author’s understanding.

Affirmative action is defined by Mirriam-Webster as “an active effort to improve the employment or educational opportunities of members of minority groups and women; also a similar effort to promote the rights or progress of other disadvantaged persons.” While this definition is accurate, it lends itself to being very static, unlike the true nature of affirmative action. Affirmative action was and is somewhat of a fluid policy that has changed over time. As the United States matures, so do the definitions and implications of affirmative action.

Due to the dynamic nature of affirmative action, it is better defined by analyzing court rulings on the subject. Most important are the cases of Bakke (1978), Weber (1979), Fullilove (1980), Gratz (2003) and Gutter (2003).Commonly known as Bakke, UC Regents v. Bakke was one of the first court cases concerning affirmative action in educational institutions. Bowen, Kurzweil, and Tobin (2005) stated that “in 1978, the Bakke case—a formal challenge to racial preferences citing the Civil Rights Act of 1964—reached the Supreme Court” (p. 143). In this case the eight justices quickly split into two groups of four; one claiming it was constitutional while the other claimed the opposite. However, “Justice Lewis Powell’s deciding opinion condemned the use of quotas, but concluded that it was permissible to take race into account, as one among several factors in seeking to secure the educational benefits of diversity” (p. 143).

The next case regarding affirmative action to reach the Supreme Court was Steelworkers v. Weber in 1979. This case was not about academics, rather it was concerning employment and employment practices. “In Weber, the Court held that Title VII of the Civil Rights Act permitted the private sector voluntarily to apply a compensatory racial preference in employment” (Sindler, 1983, p. 2).

Fullilove v. Klutznick was the third major case to find itself in the Supreme Court. Unlike the two previous cases, this was a case in regard to the business sector, specifically set-asides. Set-asides, according to the Public Works in Employment Act, “required that at least 10 percent of the funds granted to state and local governments for construction be set aside for “minority business enterprise” (Boatright, 2009, p. 187). The Court ruled that the preferential treatment of minorities was constitutional in this instance.

For about thirty years there were not many cases reaching the Supreme Court related to affirmative action. However, that changed in 2003. Gratz (2003)and Grutter (2003) raised an interesting point about the admissions processes at the University of Michigan. In Gratz v. Bollinger “the court ruled six to three against the university's admissions policy; it was "not narrowly tailored" to achieve the state's interest in educational diversity” (Anderson, 2005, p. 126). However in Grutter v. Bollinger, “the court noted that the law school used a "highly individualized, holistic review" of each applicant's file, not "some specified percentage”” (p.126). It is interesting to examine how over time the legal definition has changed according to attitudes towards affirmative action as well as the advancement of the groups that it seeks to help.

Affirmative action has been a hotly debated subject for years now. As anything else, it has adapted over time and therefore is not easily defined. After exploring the Mirriam-Webster definition as well as the court decisions on the subject matter, a definition seems to emerge. It can be said that affirmative action was once a policy implemented to advance minorities, and later women, who had been disadvantaged in previous years. Originally, as was shown in Bakke, Weber, and Fullilove, it was a way to level the playing field for all people. However over the years, affirmative changed and become something it was never intended to be. In fact, it is becoming reverse racism in this day and age. An example of how affirmative action is becoming reverse racism was obvious in the Gutter and Gratz case. Although the Gratz case was ruled constitutional, it is only a matter of time before another similar case comes along and reaches a verdict of being unconstitutional.

A History of Affirmative Action

As stated previously by the author, affirmative action has had a very complex past. In order to truly grasp how affirmative action has affected academics, business, and politics, it is important to have a firm understanding of its history. The first ideas for affirmative action came from Franklin D. Roosevelt’s New Deal and the Great Depression (Anderson, 2005, p. 110). At this point, the United States was in the middle of a crisis of epic proportions. The Great Depression had taken hold of the country and Franklin D. Roosevelt was the man that claimed he would change all of that. As president, Roosevelt did all what he claimed he would and moved the country towards a brighter future. Although all of this was good, there was still segregation and discrimination in America. He tried to start many programs, but they were temporary and weakly enforced. During his tenure, Roosevelt led America through World War II and sparked some new ideas for equal employment. Anderson stated (2005), “many African American men volunteered, and during 1940 and the next year Blacks comprised over sixteen percent of enlistment” (p. 111). Unfortunately though, these brave men were put into segregated units and usually served as laborers. Then in 1941, Roosevelt aimed to end segregation and signed an executive order stating that there "shall be no discrimination in the employment of workers in defense industries or government because of race, creed, color, or national origins" as well as established an enforcing body (p. 112). Harry S. Truman followed Roosevelt’s lead with two more executive orders. The first of these reaffirmed Roosevelt’s executive order and allowed minority taxpayers to obtain federal jobs. After that came the executive order, demanding the equal treatment and employment in the armed services. This would essentially not happen until the 1950’s during the Korean War. It had taken two world wars and a large-scale depression just to get this far.

Until the 1960s the word affirmative action had never been used but that would change on March 6, 1961. President John F. Kennedy was newly elected and “issued Executive Order 10925, which included a provision that government contractors" take affirmative action to ensure that applicants are employed, and employees are treated during employment, without regard to their race, creed, color, or national origin"” (The Regents of the University of California, 2010). This executive order had taken a different approach than what had been proposed by the preceding presidents. Prior to this, all executive orders had been attempts to create equality for disadvantaged groups in society. Executive Order 10925 specifically sought out disadvantaged groups and sought to give them preferential treatment in hiring and employment practices. Also, during the 1960’s there was an ongoing societal movement. Later in time, this era would become known as the Civil Right Movement. The citizens of the United States, mostly the minorities, were tired of being segregated and mistreated, and this was their time to strive for equality in all aspects of life; they demanded their constitutional rights.

Johnson followed Kennedy down a similar path of affirmative action. His beliefs, however, were more based in the conservative realm. President Johnson did not believe in advocating “any type of government-mandated hiring quotas” (Anderson, 2005, p. 115). Due to this belief he signed the Civil Rights Act of 1964 and Executive Order 11246. Title VII banned discrimination in small businesses, and the executive order abolished all previous orders and became the guiding legislation for the future of affirmative action. Unlike previous legislation, this would actually have some success because Johnson had an enforcing unit in the Department of Labor. During his presidency, Johnson would also add the word “sex” to what Kennedy had previously said. Confusion ran rampant throughout the country once all of these pieces of legislation came into effect. Title VII advocated no preferential treatment and no discrimination, but there were benefits for hiring African-Americans. Government contracts were forced to hire according to race. The focus on affirmative action would be diverted at the end of his term and shifted to the riots and the Vietnam War. 

President Nixon would enter office and have to deal with affirmative action. In the beginning of his term he measured discrimination and compliance according to Johnson’s executive order and Title VII. More specifically he implemented the Philadelphia Plan in the summer of 1969. This plan made major strides for affirmative action. It defined minorities and set up “target ranges,” rather than specific quotas. Contrary to previous attempts, this plan had a direct correlation to the population of the area in which it was implemented and focused on goals and timetables to reach its achievements; he also established a set-aside program which “granted "set-asides" and contracts to "socially disadvantaged" firms, at first in the ghettos and later throughout the nation”  (Anderson, 2005, p. 119). Like other affirmative action plans before it, it gave rise to different claims and confusion. Due to the lack of clarity, President Nixon was faced with the difficult task of defining affirmative action. His administration declared that the Philadelphia Plan took precedent over Title VII and it became official United States policy. Anderson (2005) stated, “the Nixon Administration defined affirmative action as racial goals and timetables, not quotas” (p. 119). Along with that, Nixon implemented Order No. 4. Order No 4 “directly linked the ratio of minorities in a locale with those working on contracted employment, which subsequently established proportional hiring as a way to prove compliance with affirmative action” (Anderson, 2005, p. 119). Later in 1971, Order No. 4 would be modified to include women and be named Revised Order No. 4. Nixon’s term in office would end in some shame due to Watergate, but before this he accomplished a vast amount of good for affirmative action.

The aforementioned cases of Bakke, Weber, and Fullilove would all take place during the presidency of Carter. During his presidency, these cases changed the definition of affirmative action once again. The country had come a long way to get to where it was at that time. Because of these three cases at the end of his term, Carter defined affirmative action as “goals and timetables for government contractors, set-asides for minority owned companies, and special consideration in admission to university program” (Anderson, 2005, p. 122). When examined, this was a very different definition than what had been established by Kennedy in 1961.

What affirmative action had truly become was now being acknowledged. President Reagan was quoted as saying “we must not allow the noble concept of equal opportunity to be distorted into federal guidelines or quotas which require race, ethnicity, or sex - rather than ability and qualifications - to be the principal factor in hiring or education" (Anderson, 2005, p. 122). Reagan, along with his administration, sought to move back towards a more neutral meaning for affirmative action, a movement towards color-blindness. It was also during this time that non-minorities began to view affirmative action as “reverse racism” or “reverse discrimination.” The attitude Reagan held towards affirmative action led people to believe that this could be the end of it, but time would prove that it was not yet time for that. In fact, Reagan and Bush would do very little to remove affirmative action.

Under Bush, affirmative action received damaging blows to its reputation. In 1996 Proposition 209 was passed in California. This proposition banned “the use of race, sex, or national origin as a criterion for either discriminating against or granting preferential treatment to any individual or group in public employment, education, or contracting” (Anderson, 2005, p. 124). Similar propositions were passed in Florida and Washington shortly thereafter. Also, fraud in the “set-aside” programs also fueled the fire that affirmative action was really “reverse discrimination.” Furthermore, Adarand v. Pena reached the Supreme Court. The verdict of this case would complement the attitude shifts and stated “that racial preferences used in the set-aside program were rarely constitutional, ‘inherently suspect and presumptively invalid,’ ordering all governments to use the toughest standards, ‘strict scrutiny,’ to review their policies” (Anderson, 2005, p. 125). Times had changed and attitudes towards affirmative action consequently changed as well.

As a result of a changed perception of affirmative action, President Clinton decided to stride for “diversity.” Adopting this allowed him to loosely affiliate with affirmative action but reduced the risk that came with associating directly with affirmative action. Under Clinton, he diversity was defined as “a public good that utilized the potential of all citizens” (Anderson, 2005, p. 125). Furthermore he spoke of the Adarand v. Pena case and problems of affirmative action and was quoted saying, “mend it, but don’t end it” (Anderson, 2005, p. 125). It was clear to the citizens that drastic changes to affirmative action were eminent.

The elections of 2000 avoided the topic of affirmative action completely. Once President Bush won, affirmative action once again took a back seat in the public’s mind because of the events of September 11 and the conflicts in Afghanistan and Iraq. That was until 2003 when two cases reached the United States Supreme Court. Gratz and Grutter (both mentioned in the definition of affirmative action) marked a key turning point in affirmative action’s history. Furthermore, it displayed that the citizens were more vehement than ever about finally eliminating affirmative action. Many believed that it had outlived its purpose and now served strictly as a form of reverse discrimination.

Since 2003 there has been a renewed interest in affirmative action. Now more than ever the opposition is voicing its opinion. Two current, noteworthy objections are bake sales that have happened on two university campuses. Recently U.C. Berkley College and Bucknell University have had campus organizations orchestrate what they refer to as “affirmative action bake sales”. The Wall Street Journal, in reference to the Bucknell University case, said that “the bake sales, typically put together by conservative student groups, attempt to make a political point about the alleged unfairness of affirmative action by charging different prices for cupcakes and other baked goods based on one’s race and sex” (Jones, 2009). With access to social media, the varying reactions were heard very easily. Many were in favor the sales, while many others were not. These bake sales usually came as a response to some sort of new legislation or the possibility of new legislation similar to affirmative action. A student organization on U.C. Berkley College’s campus rose up “in protest against an Affirmative Action-like bill awaiting the governor’s signature” (Huffington Post, 2011). Occurrences such as these will likely continue as the debate on affirmative action rages on. 

Assumptions

Affirmative action, as do many other policies, began out of a necessity. At its beginning, in 1961, there was clearly a need to help minorities; it was founded upon a utilitarian belief. People had been disadvantaged for many years and affirmative action was implemented as a way to achieve equality. As time passed and people’s opinions changed, so did affirmative action. What started as a policy striving for equality has ended up becoming reverse discrimination. It shifted from a consequential base to more of a deontological foundation. Today, it can be shown how affirmative action has negatively and positively affected academics, business, society, and politics.

When President Kennedy used the words “affirmative action” for the first time in 1961, he set out in uncharted territory. Never before in the history of the United States had something like this been done. With the best intentions, Kennedy and his administration sought to give a group of citizens, minority groups, the rights they were guaranteed by the Constitution. Originally his equality only applied to the business sector, but it would later spread to encompass other aspects such as education, society, and politics. At that point in affirmative action’s life, it served to level the playing field for all. All, due to racial ideologies at the time, did not favor it but no one received preference based on race or any other category beyond merit. This form of affirmative action would not last forever; it would be short lived.

Changes to affirmative action first became apparent during the presidency of Johnson. On one hand, he was against the preferential treatment and discrimination. But on the other hand, companies that specifically hired and trained African-Americans were given incentives. The wheels of change had been set into motion, and from then on the movement toward preferential treatment based on race, rather than merit, would soon run rampant.

President Nixon tried to move affirmative action towards more neutral grounds but would not succeed. Under Nixon’s and his successor President Carter’s term, injustices seemed to manifest faster than affirmative action could be adapted. It was not until then, that affirmative action’s negative effects would come to light.

The positive effects of affirmative action are undeniable. Since its inception, affirmative action has helped minority groups, groups that had been treated unfairly. At its height, it was credited with taking progressive steps to repair the damages that had been done in the past events such as slavery. Today, schools all over the nation have very diverse populations, as do the realms of business, society, and politics. Colleges and universities, through implementation of affirmative action, sped up the process of integration as well as allowed minority groups to gain access to a higher education. Likewise, affirmative action in the business sector sped up the integration process as well as moved towards equality in the workplace. Politics and society in general also benefited from affirmative action. Affirmative action fueled a movement towards equality, integration, and colorblindness that together served as a catalyst for minorities. Successes in all of these sectors are easily noticeable in the year 2011. The United States has had non-white justices, governors, senators, mayors, business men and women, and also its first non-white president due in large part to affirmative action. With that statement there need to be some explanation. It is not to say that none of these would have been possible, or that these success stories are completely reliant upon affirmative action. Rather, affirmative action simply sped up the process and allowed all of these occurrences to happen sooner than they would have, had it not been introduced in 1961. Regardless of how affirmative action is viewed, it is impossible to believe that it has not served a very important role in American History.    

That being said, affirmative action does have it downfalls as well. Academia, specifically higher education institutions, has suffered in many forms. Some schools have lower standards to make it easier for minorities to enroll in order to meet quotas or other requirements imposed by affirmative action. A believer may think of this as a minor negative repercussion, but the truth is that it is a very big deal. Due to this preferential treatment, minority students could be looked down upon by their peers, and it could also affect the way that minorities see themselves. Such psychological trauma is certainly an extra, unnecessary burden to be concerned with in such an influential time of their lives. These perceptions will certainly permeate society and will be carried along once these students leave their respective institutions. Furthermore, affirmative action has placed a burden on non-minority students by moving the focus of enrollment away from merit and more towards preferential treatment of a selected group.

Business has also suffered similar repercussions. In business, affirmative action has forced quotas and ratios. By implementing a quota, a less than qualified applicant could receive employment due to preferential treatment because he or she is simply a minority. As a consequence of the previous statement, employees could become disgruntled, which leads to unmotivated and unproductive employees. Affirmative action has also created set-aside programs. Because of affirmative action’s current status, there have been abuses and fraudulent behavior. Furthermore, because these programs use taxpayer’s dollars, affirmative action has been misappropriating citizens’ money for years.

Society and politics have also been negatively affected by affirmative action. The minorities and groups that affirmative action set out to help were actually hurt. In recent years the argument has died down some, but in previous years some believed that minorities in certain careers, professions, or offices received that position because of affirmative. The grandeur and excellence that minorities have reached are marred and blemished by the accusation of affirmative action as a crutch. Regardless of the validity of these beliefs, there is a perception that minorities could not have risen to their current levels of accomplishment without some help.

Author’s View of the Most Useful Perspective

Affirmative action has been defined in various ways over the years. Over time the definition has changed because of perspectives, executive orders, laws, and even Supreme Court cases. Even today the definition is changing. In a few words, affirmative action is dynamic and outdated. It cannot be said with certainty that it is no longer needed, but it definitely needs to be modified. In the beginning it was founded upon deontological beliefs that all should be treated equal, but as time passed it turned into a deontological monster. It has changed according to time and has helped millions of minorities, but in its current form it can be shown that affirmative action is achieving more harm than good.

As in the past, it seems a Supreme Court case is imminent. This future case would certainly bring the change or start the process of change that affirmative action so desperately needs. One can only hope that it occurs sooner rather than later so that a truly colorblind society can emerge. Once this happens, America will be one step closer to equality and reaching its true potential as a nation.  

References

Anderson, T. H. (2005) The Strange Career of Affirmative Action. Baltimore, MD; The John Hopkins University Press. Retrieved from http://www.jstor.org/stable/pdfplus/40039874.pdf

Boatright, J. R. (2009). Ethics and the Conduct of Business (6th Ed.). Upper Saddle River, NJ: Pearson Educating, Inc.

Bowen, W. G., Kurzweil, M. A., Tobin, E. M. (2005). Equity and Excellence in American Higher Education. Richmond, VA; University of Virginia Press.

Jones, Ashby. (2009). Bucknell and the ‘Affirmative-Action Bakesale’. Retrieved from http://blogs.wsj.com/law/2009/06/23/bucknell-and-the-affirmative-action-bakesale/

Merriam-Webster. (2011). Affirmative Action. Retrieved from http://www.merriam-webster.com/dictionary/affirmative+action

Sindler, A. P. (1983). Equal Opportunity: On the Policy and Politics of Compensatory Minority Preferences. Washington D.C.; American Enterprise Institute for Public Policy Research. 

The Carnegie Council on Policy Studies in Higher Education. (1975). Making Affirmative Action Work in Higher Education. San Francisco, CA; Jossey-Bass, Inc., Publishers.

The Huffington Post. (2011). UC Berkeley ‘Racist’ Bake Sale Demonstration Sparks Outrage. Retrieved from http://www.huffingtonpost.com/2011/09/24/uc-berkeley-racist-bake-sale_n_979184.html

The Regents of the University of California. (2010). A Brief History of Affirmative Action. Retrieved from http://www.oeod.uci.edu/aa.html


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