Affirmative Action

Affirmative action refers to a set of procedures implemented for the purpose of eliminating discrimination in educational and employment opportunities. Amounting to “positive discrimination,” the policy creates favor toward members of disadvantaged groups believed to have suffered discrimination in society.

Affirmative action is the result of President John F. Kennedy’s 1961 executive order requiring government employers and contractors to “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.” Since that time, any employer receiving federal funds has been required to document their affirmative action procedures and actual hiring numbers.  To explore this concept, consider the following Affirmative Action definition.

Definition of Affirmative Action

Noun

1. The practice of improving employment and educational opportunities for members of minority groups, including those discriminated against because of their sex, race, color, or religion

Origin

1961 English

Affirmative Action History of Dispute

While, in theory, the act of giving preference to a minority candidate should be acted upon only when such a candidate has the same or similar qualifications as other candidates, many people look upon Affirmative Action with contempt, feeling the practice creates a new minority group. In fact, few subjects regarding employment are has hotly debated as Affirmative Action, as sound arguments exist both for and against the practice.

One dispute in Affirmative Action is what represents a history of discrimination. For example, both Asian and Jewish Americans have been subject to discrimination in the United States, but they are by and large excluded groups in the Affirmative Action scheme. Another hot argument to the issue of determining which groups constitute “minority” groups is the geographical or regional population. For instance, in some states, such as California, the Hispanic population has grown so large that most feel is could hardly be considered “minority,” or “under-served,” and that favoring applicants from this group amounts to discriminating against the non-Hispanic population.

Affirmative Action in the Workplace

While the Federal government, and employers funded by the Federal government, are required to observe Affirmative Action in the workplace, corporate affirmative action programs are a strictly voluntary effort to improve diversity in the workplace. Corporate endeavors often take a different form, such as assertive outreach to identified minority groups, as well as mentoring and targeted recruitment.

Companies utilizing these forward-thinking methods find that greater diversity leads to greater creativity and innovation, thus improving the company’s bottom line. While it has been proven that Affirmative Action in the workplace profoundly influences job opportunities for minority groups, studies have shown that quite often current and prospective employees have a negative opinion of the practice. This may be due to the use of such negative terms as “reverse discrimination,” “quotas,” and “preferences.”

Affirmative Action in College Admissions

The workplace is not the only breeding ground for Affirmative Action disputes, as colleges nationwide took up the policy of giving preference in admissions to members of certain minority groups. For years, colleges were seen as filling certain quotas of diverse nationalities and ethnic groups without regard to such requisites as grades and test scores, leading to more cries of “reverse discrimination” against Caucasians.

Today’s global society is certainly a multicultural and ethnically diverse society, making diversity in education an advantage to all. In order to be successful after college, employers and employees alike need to be able to work effectively with others from a multiplicity of cultures.

In light of such significant controversy, eight states have now banned the use of Affirmative Action in college admissions selection processes. California, Texas, and Florida have instituted, in place of Affirmative Action, plans that guarantee the top percentage of high school graduates admission to a state University. This helps ensure those who work hard for it a place at the table of higher education.

In April 2014, the Supreme Court upheld the states’ rights to ban affirmative action in college admissions, enabling them to stop giving preferential treatment in colleges based on race, ethnicity, national origin, or gender, paving the way for more states to change the way entrance to a higher education is achieved.

The Issue of Reverse Bias in Affirmative Action

In 2009, Princeton sociologist Thomas Espenshade and researcher Alexandria Walton Radford examined admissions data on students applying to top-rated medical schools, in order to determine the issue of reverse bias in Affirmative Action. Researchers discovered that Asian-American applicants needed to present a near-perfect SAT score of 1550 (out of 1600) to gain the same chance of acceptance as white applicants who scored only 1410, and African American applicants who scored only 1100.

After accounting for such variables as family background, athletic status, grades, and test scores, this study determined that white applicants were three times, Hispanic applicants six times, and black applicants more than 15 times as likely to be accepted into a U.S. university as Asian American applicants.

Affirmative Action Laws

By law, Affirmative Action must be taken by federal contractors and subcontractors to recruit, hire, and advance qualified minority applicants, including women, covered veterans, people with disabilities, and people from minority national and ethnic origins. More than just a hiring plan, Affirmative Action laws address training programs, advancement programs, outreach efforts, and other steps to increase the diversity of the workplace.

Such employers are required to incorporate an Affirmative Action plan into their written personnel policies, and to implement them, keeping records of such efforts and their results. The Affirmative Action efforts of private entities that are government contractors are overseen by the Office of Federal Compliance Programs.

Under the spirit of Affirmative Action laws, the absence of discrimination is not enough. The goal of Affirmative Action is to make an effort to eliminate patterns of inequality, not only to abolish discrimination, but to remedy the effects of past inequity.

Affirmative Action Example Cases

Amid the controversy of Affirmative Action, some institutions have implemented policies bringing on even greater debate. Such policies include racial or gender quotas adopted for admission to colleges across the country. These questions have been brought before the Supreme Court of the United States more than once, and have generated some surprisingly disparate opinions. Below are some examples of affirmative action cases.

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

In this landmark Supreme Court decision, Affirmative Action policies using race as one of a number of factors considered in college admissions was upheld. The court ruled, however, that defining specific quotas was not permissible. The example cited in this case was the reservation of 16 of 100 seats available at the University of California, Davis School of Medicine to be filled exclusively by minority students.

This case, in which a former Marine officer, Allan Bakke, sued the medical school for denying him admission based on his age, splintered the Supreme Court bench. Of the nine sitting justices, six individual opinions were issued. The bottom line, however was the opinion that, while Affirmative Action was allowed under the Civil Rights Act of 1964, as well as the U.S. Constitution, U.C. Davis’ program of fulfilling a quota of minority student applicants went too far and was not permissible.

Grutter v Bollinger 539 U.S. 306 (2003)

When the University of Michigan Law School denied admission to white female applicant Barbara Grutter, who applied with a 3.8 GPA and LSAT score of 161, she filed suit alleging that, as the school uses race as a “predominant factor” in their admissions policy, she had been discriminated against on the basis of her race.

In yet another example of how the controversy surrounding Affirmative Action can fracture even the opinions of the Supreme Court Justices, this 2003 split 5-4 decision in Grutter v Bollinger upheld the Law School’s policy of a “race-conscious” admissions process that might favor “underrepresented minority groups,” but which also takes into account other pertinent factors, was not indeed a “quota system,” such as was banned under Regents v. Bakke.

The dissenting Justices argued that the percentage of African American applicants was very much the same as the percentage of African American applicants who were accepted into the school, making the school’s “plus” system a barely camouflaged, and unconstitutional, quota system. On the whole, however, this decision upheld Affirmative Action as a practice. This 2003 Supreme Court decision is considered the most important decision on Affirmative Action since the Bakke decision.

Schuette v. Coalition to Defend Affirmative Action (2014)

In appealing the Supreme Court’s decision on Grutter v. Bollinger, this case questioned whether the state of Michigan violated the Equal Protection Clause of the Fourteenth Amendment by giving the decision on whether to ban discrimination based on race and sex in admissions to state universities. Michigan voters had approved, in 2006, an amendment to the state’s constitution making Affirmative Action illegal in public education, employment, and contracting, except where mandated by federal law, such as in entities receiving federal funding. On April 22, 2014, in the case of Schuette v. Coalition to Defend Affirmative Action the Supreme Court upheld the constitutionality of Michigan’s ban on Affirmative Action.

Related Legal Terms and Issues

• Discrimination – The practice of unfairly treating different categories of people, especially on the grounds of ethnicity, national origin, gender, race, religion, and sexual orientation.
• Minority – a group differing from the majority of a population, especially in race, religion, ethnic background, or sexual orientation.
• Quota – a fixed share or proportional part of a total that is a required quantity; a fixed number or percentage of people of a specific minority group required to be accepted to enroll in a college, join a an organization, or participate in a program.
• Reverse Discrimination – the unfair or discriminatory treatment of members of a majority group usually resulting from such preferential policies as Affirmative Action.
• Predominant Factor – a factor given superiority or preference over other factors. Example: when attendance is given more weight than test scores, being present is a predominant factor.
• Dissenting Opinion – a written opinion on a legal case provided by one or more judges who disagree with the majority opinion of the court. While the majority opinion creates binding precedent and becomes case law, the dissenting opinion may be cited later as persuasive argument in to limit or change the law.