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Affirmative action in the United States is intended to promote access to education, employment, or housing among certain designated groups (typically, minorities and women). The stated motivation for affirmative action policies is to redress the effects of past discrimination and to encourage public institutions such as universities, hospitals and police forces to be more representative of the population. It is commonly achieved through targeted recruitment programs, by preferential treatment given to applicants from designated groups, and in some cases through the use of quotas.

Proponents of affirmative action generally advocate it as a means to address past or present discrimination or to enhance racial, ethnic, gender, or other diversity.^[1] Opponents of affirmative action contend that affirmative action programs are discriminatory and that they, in many cases, result in the promotion of under-qualified individuals over higher qualified individuals on the basis of race, ethnicity, and gender.^{[citation needed]} They also argue that preferential treatment should be based upon current social and economical standing, not that of one's ancestors. Some opponents say affirmative action devalues the accomplishments of people who are chosen because of the social group to which they belong rather than their qualifications.^[2]

The overall framework of affirmative action in the United States was established by Executive Order 10925, issued in March 1961 by President John F. Kennedy, but has evolved significantly. The original order required government contractors to take "affirmative action" to ensure equal treatment of applicants and employees "without regard to their race, creed, color, or national origin."

Affirmative action has been the subject of numerous court cases, where it is often contested on constitutional grounds.

Individual American states (such as Florida, California, Washington and Michigan) also have orders that prohibit discrimination and outline affirmative action requirements with regard to race, creed, color, religion, sexual orientation, national origin, gender, age, and disability status.

Legal history

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• The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, 1866

mandates that no State "deny to any person within its jurisdiction the equal protection of the laws.." This Clause grants citizens the protection of their Fifth Amendment rights from state actors, because the Bill of Rights only protects citizens from the federal government.

• Brown v. Board of Education, 1954

The NAACP filed on behalf of a black student, Linda Brown, who was transported out of her white neighborhood to attend a black school in Topeka, Kansas. The Supreme Court ruled that separate educational facilities were "inherently unequal" and violated the Fourteenth Amendment. The next year the Court ordered segregated districts to integrate with "all deliberate speed."

• Executive Order No. 10,925, 1961 ^[3], issued by President Kennedy

Established the concept of affirmative action by mandating that projects financed with federal funds "take affirmative action" to ensure that hiring and employment practices are free of racial bias.

• Compensatory Preferential Treatment, 1962

James Farmer, founder of the Congress of Racial Equality, held a meeting with then vice president Lyndon B. Johnson. Farmer proposed that a program that he called Compensatory Preferential Treatment should be put in place in order to advance the equality of the black race. In 1965, Johnson (then president) renamed Compensatory Preferential Treatment "affirmative action" in a famous speech at Howard University, which became the national justification for moving the country beyond nondiscrimination to a more vigorous effort to improve the status of black Americans:

"You do not take a person who, for many years, has been hobbled by chains and liberate him, bring him up to the starting line in a race and then say, 'you are free to compete with all the others', and still justly believe that you have been completely fair."^[4]

• Operation Breadbasket, 1962

Also during this time Martin Luther King Jr and Ralph Abernathy were bringing their southern civil rights movement to the Chicago area. One important part of this strategy was Operation Breadbasket. This operation consisted of targeting local employers and threatening boycotts unless more African Americans were hired by the business. Many of these businesses operated largely in African American neighborhoods and thus had a large customer base to worry about losing if a boycott ensued.^[5]

• Revised Philadelphia Plan

During the Nixon administration, affirmative action was adopted as a federal mandate for companies with federal contracts and for labor unions whose workers were engaged in those projects. This "revised Philadelphia plan" was spearheaded by Labor Department official Arthur Fletcher.^[6]

• U.S. Executive Order 11246 and Executive Order 11375, 1965

The Johnson administration embraced affirmative action in 1965, by issuing U.S Executive order 11246, later amended by Executive order 11375. The order, as amended, aims "to correct the effects of past and present discrimination". It prohibits federal contractors and subcontractors from discriminating against any employee or applicant for employment because of race, skin color, religion, gender, or national origin. The order requires that contractors take affirmative action to ensure that "protected class, underutilized applicants" are employed when available, and that employees are treated without negative discriminatory regard to their protected-class status.

The order specifically requires certain organizations accepting federal funds to take affirmative action to increase employment of members of preferred racial or ethnic groups and women. Any organization with fifty or more employees and an aggregate revenue exceeding $50,000 from a single federal contract during a twelve month period must have a written affirmative action plan. This plan must include goals and timetables for achieving full utilization of women and members of racial minorities, in quotas based on an analysis of the current workforce compared to the availability in the general labor pool of women and members of racial minorities..

The order is enforced by the Office of Federal Contract Compliance Programs of the Employment Standards Administration of the U. S. Department of Labor and by the Office of Civil Rights of the Justice Department.

• Griggs v. Duke Power Company :401 U.S. 424 (1971), 1971

• Section 717 of Title VII of the Civil Rights Act of 1964, 1964

• Section 501 of the Rehabilitation Act of 1973, 1973

Section 717 of Title VII of the Civil Rights Act of 1964 and Section 501 of the Rehabilitation Act of 1973 require all United States Federal Agencies to implement affirmative employment opportunity programs for all federal employees. EEOC Equal Employment Opportunity Management Directive 715 (MD 715) provides guidance as to how such programs are to be implemented.

• Regents of the University of California v. Bakke 438 U.S. 265 (1978)

The Supreme Court held that the UC Davis medical school admissions program violated the equal protection clause with the institution of quotas for underrepresented minorities. However, Justice Lewis Powell's decision in the majority upheld diversity in higher education as a "compelling interest" and held that race could be one of the factors in university admissions.

• City of Richmond v. J.A. Croson Co., :488 U.S. 469 (1989) (strict scrutiny standard to state and local programs).

• Wards Cove Packing Co. v. Atonio, 1971 490 U.S. 642 (1989) revised the standards established by the 1971 Griggs decision.

• Americans with Disabilities Act of 1990, 1990

People with disabilities as a group were more fully recognized as being protected by this act.

• Adarand Constructors v. Peña, :515 U.S. 200 (1995), 1995

established strict scrutiny standard of review for race and ethnic-based Federal Affirmative Action programs.

• Hopwood v. Texas, :78 F.3d 932 (5th Cir.1996), 1996

(first successful legal challenge to racial preferences in student admissions since Regents of the University of California v. Bakke).

• President Clinton's Affirmative Action Review, 1998

California

• Penn/Stump v City of Oakland, 1967

This Consent Decree stated that men and women should be hired by race and gender as police officers in the same percentage that they’re represented in the population of the city. This process took more than twenty years to complete. There were approximately 34 black police officers on the Oakland Police department. There were no black females among them. At this time, the militant Black Panther Party had formed in part due to police brutality at the hands of Oakland's overwhelmingly white police force and the City of Oakland at the time was approaching an African American majority as well prompting the push for minority police officer recruitment.^[7]

• Proposition 209, 1996

Forbids any discrimination via preferential treatment on the basis of sexuality, race, or gender. Some colleges have used financial criteria to attract groups that have typically been under represented.

Washington

• Initiative 200, 1998

in Washington was overwhelmingly passed by the electorate. Taking effect on December 3, 1998, it applies to all local governments, including counties, cities, and towns. I-200 prohibits "preferential treatment" based on race, sex, color, ethnicity, or national origin in public employment, education, and contracting.

• Smith v. University of Washington 233 F.3d 1188 (9th Cir. 2000) :^[8]

• Parents Involved In Community Schools v. Seattle School District No. 1, 149 Wn.2d 660, 72 P.3d 151 (2003), 2003

The Washington State Supreme Court interpreted I-200 to forbid affirmative actions that promote a "less qualified" applicant over a "better qualified" one, but not programs that sought to achieve diversity without consideration of individual merit.

In the beginning, racial classifications that identified race were inherently suspect and subject to strict scrutiny. These classifications would only be upheld if necessary to promote a compelling governmental interest. Later the U.S. Supreme Court decided that racial classifications that benefited underrepresented minorities were to only be upheld if necessary and promoted a compelling governmental purpose. (See Richmond v. J.A. Croson Co.) There is no clear guidance about when government action is not "compelling", and such rulings are rare.

Michigan

• Grutter v. Bollinger, 2003

The U.S. Supreme Court ruled 5-4 that race could be used as a criterion in school admissions and that it would not be in violation of the equal protection clause of the 14th Amendment. The Court found that the University of Michigan Law School's narrowly-tailored policy was constitutional and appropriate "to further a compelling interest in obtaining the educational benefits that flow from a diverse student body."

• Gratz v. Bollinger, 2003

The U.S. Supreme Court ruled that the University of Michigan's point-based undergraduate admissions policy that took race into account numerically was too mechanical and unconstitutional.

An attorney who filed an amicus brief on behalf of Pennsylvania legislators and former legislators in Grutter v. Bollinger, Rep. Mark B. Cohen of Philadelphia, said that "The cumulative effect of the Bakke, Grutter, and Bollinger cases is that no one has a legal right to have any demographic characteristic they possess be considered a favorable point on their behalf, but an employer has a right to take into account the goals of the organization and the interests of American society in making decisions. This is a moderate, inclusive position that ably balances the various legal interests involved."

• Proposal 2, 2006

After Grutter and Gratz, in November 2006, voters in the State of Michigan made affirmative action illegal by passing Proposal 2 (Michigan Civil Rights Initiative), a state-wide referendum amending the Michigan Constitution. Proposal 2 bans public affirmative action programs that give preferential treatment to groups or individuals based on their race, gender, color, ethnicity or national origin for public employment, public education or public contracting purposes. The amendment, however, contains an exception for actions that are mandated by federal law or that are necessary in order for an institution to receive federal funding. All attempts to appeal this legislation on supposed grounds of unconstitutionality have thus far failed.

Interpretations

Opponents of affirmative action include Ward Connerly of the American Civil Rights Institute, who has promoted and won a series of ballot initiatives in the states of California (California Proposition 209 (1996)), Washington (1998 - I-200), and Michigan (the Michigan Civil Rights Initiative - MCRI, or Proposal 2, 2006).^{[citation needed]} California's initiative was co-authored by academics Tom Wood and Glynn Custred in the mid-1990s and was taken up by Connerly after he was appointed in 1994 by Governor Pete Wilson to the University of California Board of Regents.^{[citation needed]} Each of the ballot initiatives have won, and Connerly plans what he calls a "Super-Tuesday" of five additional states in 2008.^{[citation needed]}

Professor Carl Cohen of the University of Michigan, who was a supporter of Michigan's Proposal 2, has argued that the term "affirmative action" should be defined differently than "race preference," and that while socioeconomically based or anti-discrimination types of affirmative action are permissible, those that give preference to individuals solely based on their race or gender should not be permitted.^{[citation needed]} Cohen also helped find evidence in 1996 through the Freedom of Information Act that lead to the cases filed by Jennifer Gratz and Barbara Grutter against the University of Michigan for its undergraduate and law admissions policy - cases which were decided by the U.S. Supreme Court on June 23, 2003.^{[citation needed]}

Implementation in universities

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In the U.S., a prominent form of affirmative action centers on access to education, particularly admission to universities and other forms of higher education. Race, ethnicity, native language, social class, geographical origin, parental attendance of the university in question (legacy admissions), and/or gender are sometimes taken into account when assessing the meaning of an applicant's grades and test scores. Individuals can also be awarded scholarships and have fees paid on the basis of criteria listed above.

A 2005 study by Princeton sociologists Thomas J. Espenshade and Chang Y. Chung compared the effects of affirmative action on racial and special groups at three highly selective private research universities. The data from the study represent admissions disadvantage and advantage in terms of SAT points (on the old 1600-point scale):

• Blacks: +230
• Hispanics: +185
• Asians: –50
• Recruited athletes: +200
• Legacies (children of alumni): +160

^[10]

Admissions officers claim to select not based on academic record alone, but also on commitment, enthusiasm, motivation, and potential ^[11]. Highly selective institutions of higher learning do not simply select only the highest SAT performers to populate their undergraduate courses. Nevertheless, high performers, with 1500 to 1600 points, are extraordinarily well-represented at these institutions. ^[12]

UCLA professor Richard H. Sander published an article in the November 2004 issue of the Stanford Law Review that questioned the effectiveness of affirmative action in law schools. The article presents a study that, among other things, shows that half of all black law students rank near the bottom of their class after the first year of law school, and that black law students are more likely to drop out of law school and to fail the bar exam. The article offers a tentative estimate that the production of new black lawyers in the United States would grow by eight percent if affirmative action programs at all law schools were ended, as less qualified black students would instead attend less prestigious schools where they would be more closely matched with their classmates, and thus perform better. Sander helped to develop a socioeconomically-based affirmative action plan for the UCLA School of Law after the passage of Proposition 209 in 1996 which prohibited the use of racial preferences by public universities California schools. This change occurred after studies that showed that the graduation rate of blacks at UCLA was 41%, compared to 73% for whites.

In order to accommodate the ruling in Hopwood v. Texas banning any use of race in school admissions, the State of Texas passed a law guaranteeing entry to any state university of a student's choice if they finished in the top 10% of their graduating class. Florida and California have also replaced racial quotas with class rank and other programs. Class rank tends to benefit top students at less competitive high schools, to the detriment of students at more competitive high schools. This effect, however, may be intentional, as less-funded, less competitive schools are more likely to be schools where minority enrollment is high. Critics argue that class rank is more a measure of one's peers than of one's self. The top-10% rule is also only helpful because schools are still highly racially segregated.^[13] And taking the top 10% of each class still does the same thing that traditional affirmative action programs do - admit students to college that would not be admitted under entirely merit-based policies.^[14] From 1996 to 1998, Texas had entirely merit-based admission to its state universities, and minority enrollment was low; adopting the "top 10 percent" rule returned minority enrollment to pre-1996 levels.^[15]

In 2006, Jian Li, a Chinese undergraduate at Yale University, filed a civil rights complaint with the Office for Civil Rights against Princeton University, claiming that his race played a role in their decision to reject his application for admission, and seeking the suspension of federal financial assistance to the university until it "discontinues discrimination against Asian-Americans in all forms" by eliminating race and legacy preferences. Princeton Dean of Admissions Janet Rapelye responded to the claims in the 30 November 2006 issue of the Daily Princetonian by stating that "the numbers don't indicate [discrimination]" and that Li was not admitted because "Many others had far better qualifications." Li's extracurriculars were described as "not all that outstanding" ^[16].

Results

Patricia Gurin, a professor at the University of Michigan, Biren A. Nagda, a professor at the University of Washington, and Gretchen E. Lopez, a professor at Colgate University and the Research Director of the Syracuse University Violence Prevention Project, conducted a series of studies on affirmative action.^[17] In the report, Professor Patricia Gurin stated that "a racially and ethnically diverse university student body has far-ranging and significant benefits for all students, non-minorities and minorities alike. Students learn better in a diverse educational environment, and they are better prepared to become active participants in our pluralistic, democratic society once they leave such a setting. In fact, patterns of racial segregation and separation historically rooted in our national life can be broken by diversity experiences in higher education. ...There is a consistent pattern of positive relationships between diversity in higher education and both learning and democracy outcomes." ^[18]

Conservative commentator Dr. Thomas Sowell identified what he says are negative results of affirmative action in his book, Affirmative Action Around the World: An Empirical Study ^[19]. Sowell writes that affirmative action policies encourage non-preferred groups to designate themselves as members of preferred groups [i.e. primary beneficiaries of affirmative action] to take advantage of group preference policies; that they tend to benefit primarily the most fortunate among the preferred group (e.g., upper and middle class blacks), often to the detriment of the least fortunate among the non-preferred groups (e.g., poor white or Asian); that they reduce the incentives of both the preferred and non-preferred to perform at their best — the former because doing so is unnecessary and the latter because it can prove futile — thereby resulting in net losses for society as a whole; and that they engender animosity toward preferred groups as well.

See also

• Affirmative action bake sale – A critical bake sale organized on college campuses demonstrating "affirmative action pricing structures".
• Race and inequality in the United States
• Redistributive change
• White privilege

Organizations

• Equal Employment Opportunity Commission
• Institute for Justice
• U.S. Commission on Civil Rights

References

External links

• A law lecture in mp3 format (part 1 and part 2) on affirmative action and U.S. constitutional law

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