Affirmative action what does it mean

On its face, this rule would seem to preclude filling positions by reference to factors like race and gender that are unrelated to competence. Goldman explained the derivation of the rule and its consequent limit this way:.

Where can such an unyielding principle be found? I postpone further examination of this question until I discuss the Bakke case, below, whose split opinions constitute an extended debate on the meaning of constitutional equality. The terms of the popular debate over racial and gender preferences often mirrored the arguments philosophers and other academics were making to each other.

Critics of preferences retorted by pointing to the law. And well they should, since the text of the Civil Rights Act of seemed a solid anchor even if general principle proved elusive. In face of the plain language of Titles VI and VII, how did preferential hiring and promotion ever arise in the first place? How could they be justified legally? The federal courts had to do that job themselves, and the cases before them drove the definition in a particular direction.

Many factories and businesses prior to , especially in the South, had in place overtly discriminatory policies and rules. If, after passage of the Civil Rights Act, the company willingly abandoned its openly segregative policy, it could still carry forward the effects of its past segregation through other already-existing facially neutral rules. The objective of Congress in the enactment of Title VII…was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees.

What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to exclude on the basis of racial or other impermissible classification.

Since many practices in most institutions were likely to be exclusionary, rejecting minorities and women in greater proportion than white men, all institutions needed to reassess the full range of their practices to look for, and correct, discriminatory effect. Against this backdrop, the generic idea of affirmative action took form:.

The point of such affirmative action: to induce change in institutions so that they could comply with the nondiscrimination mandate of the Civil Rights Act. However, suppose this self-monitoring and revising fell short?

In early litigation under the Civil Rights Act, courts concluded that some institutions, because of their histories of exclusion and their continuing failure to find qualified women or minorities, needed stronger medicine.

In all these cases, the use of preferences was tied to a single purpose: to prevent ongoing and future discrimination. Courts carved out this justification for preferences not through caprice but through necessity. They found themselves confronted with a practical dilemma that Congress had never envisaged and thus never addressed when it wrote the Civil Rights Act.

The dilemma was this: courts could impose racial preferences to change foot-dragging or inept defendants and by doing so apparently transgress the plain prohibition in Title VII or they could order less onerous steps they knew would be ineffective, thus letting discrimination continue and by doing so violate their duty under Title VII. Reasonably enough, the federal courts resolved this dilemma by appeal to the broad purposes of the Civil Rights Act and justified racial preferences where needed to prevent ongoing and future discrimination.

Thus, preferential affirmative action in the workplace served the same rationale as the non-preferential sort. Its purpose was not to compensate for past wrongs, offset unfair advantage, appropriately reward the deserving, or yield a variety of social goods; its purpose was to change institutions so they could comply with the nondiscrimination mandate of the Civil Rights Act.

In the s, while campuses were embroiled in debate about how to increase African-Americans and women on the faculty, universities were also putting into effect schemes to increase minority presence within the student body. Very selective universities, in particular, needed new initiatives because only a handful of African-American and Hispanic high school students possessed test scores and grades good enough to make them eligible for admission.

These institutions faced a choice: retain their admissions criteria unchanged and live with the upshot—hardly any African-Americans and Hispanics on campus—or fiddle with their criteria to get a more substantial representation. Most elected the second path. The Medical School of the University of California at Davis exemplified a particularly aggressive approach.

It reserved sixteen of the one hundred slots in its entering classes for minorities. In and again in , Allan Bakke, a white applicant, was denied admission although his test scores and grades were better than most or all of those admitted through the special program.

He sued. In , his case, Regents of the University of California v. Bakke , reached the Supreme Court. The Court rendered its decision a year later U. So, too, thought four justices on the Supreme Court, who voted to order Bakke admitted to the Medical School. Led by Justice Stevens, they saw the racially segregated, two-track scheme at the Medical School a recipient of federal funds as a clear violation of the plain language of the Title.

Four other members of the Court, led by Justice Brennan, wanted very keenly to save the Medical School program. To find a more attractive terrain for doing battle, they made an end-run around Title VI, arguing that, whatever its language, it had no independent meaning itself. It meant in regard to race only what the Constitution meant. His vote, added to the four votes of the Stevens group, meant that Allan Bakke won his case and that Powell got to write the opinion of the Court.

To paraphrase Powell:. Did any or all of them specify a compelling governmental interest? Did they necessitate use of racial preferences? As to the second reason, Powell allowed it more force. A state has a legitimate interest in ameliorating the effects of past discrimination. Even so, contended Powell, the Court,. And the Medical School does not purport to have made, and is in no position to make, such findings. Its broad mission is education, not the formulation of any legislative policy or the adjudication of particular claims of illegality.

As to the third reason, Powell found it, too, insufficient. The Medical School provided no evidence that the best way it could contribute to increased medical services to underserved communities was to employ a racially preferential admissions scheme.

Indeed, the Medical School provided no evidence that its scheme would result in any benefits at all to such communities Bakke , at This left the fourth reason. Here Powell found merit. In reducing diversity to racial and ethnic quotas, the Medical School wholly misconceived this important educational interest. The special admissions program was unconstitutional. So concluded Justice Powell.

This was a conclusion Justice Brennan tried vigorously to forestall. But the same rule applied to different circumstances need not yield the same results. Racial preferences created for different reasons and producing different outcomes need not all be judged in the same harsh, virtually fatal, manner. He argued that if the Court looked carefully at its past cases striking down Jim Crow laws, it would see the principle at work. What the Court found wrong in Jim Crow was that it served no purpose except to mark out and stigmatize one group of people as inferior.

The policy ought not be treated as though it were cut from the same cloth. Brennan granted that if a state adopted a racial classification for the purpose of humiliating whites, or stigmatizing Allan Bakke as inferior and confining him to second-class citizenship, that classification would be as odious as Jim Crow. In short, argued Brennan, the principle expressed in the Equal Protection Clause should be viewed as an anti-caste principle , a principle that uniformly and consistently rejects all public law whose purpose is to subject people to an inferior and degraded station in life, whether they are black or white.

But this merely shows that a principle applied to different circumstances produces different results. The issue between Powell and Brennan was not the consistency and stringency of the principle but its content. If we turn away from exegesis of the Constitution, are we likely to find in political theory itself any principle of equality implying that every use of racial preferences in every circumstance works an intolerable injustice?

The prospects seem dim. For example, the state might offer special assistance to the old or disabled. Now, this example suggests that the relevance of physical differences is something independent of social policy.

Age and disability, it seems, are real features of persons and public policy simply tracks them. However, the difference that differences make is not something itself given by nature; it is determined by public purposes.

Age and disability are made relevant in this manner—in the one case, by the social purpose of assuring that people do not have to live in poverty when they can no longer work; in the other case, by the social purpose of assuring that people are not foreclosed from developing and marketing their talents by impediments in the largely constructed physical environment. Purpose determines relevancy, and this is true whether or not the relevant differences are physical. If the nation thinks it desirable to change white institutions so that they are less uniformly white, that purpose links skin color to recruitment.

Bakke arguably had to bear a particular burden because of his race but the burden was not significantly different objectively from others that public policy might have thrown his way.

If the Medical School had reserved sixteen of its seats for applicants from economically deprived backgrounds, no one would have suggested that it had violated the equal protection clause of the Fourteenth Amendment.

Yet under this hypothetical policy Allan Bakke could have lost out as well—lost out to low-income applicants whose college grades and MCAT scores were inferior to his own.

Cohen needs to specify a conception of dignity in which bearing unequal burdens on behalf of urgent social ends invariably amounts to an assault on dignity if the burdens happen to be assigned by race. This specification remains unfinished in his work so far.

Powell thought this went too far. Then he added some dicta for guidance. In such a program, Powell contended, racial or ethnic background might.

In these off-hand comments, universities saw a green light for pushing ahead aggressively with their affirmative action programs. Yet by the mids universities across the land had in place systems of admissions and scholarships that exhibited one or both of these features.

In , the Court of Appeals for the First Circuit struck down a Boston plan assigning students to selective high schools by race. Texas , 78 F 3d [Fifth Circuit, ] threw a cloud even over this small window for affirmative action, boldly asserting that the Bakke holding was now dead as law and that race could not be used at all in admissions. Bollinger , U. Diversity was alive after all. But how it worked its affirmative action elixir remained as unclear in as it had been in After all, the Medical School too had asserted in its defense a similar special interest.

By contrast, Allan Bakke was not able to compete for all one hundred seats at the Medical School; sixteen were reserved for candidates not like him. The undergraduate admissions office operated differently than the Law School. Why should the undergraduate admissions office take account of all the factors that may contribute to student body diversity if it especially wants to select from certain parts of the diversity spectrum?

The undergraduate admissions procedure, with its index scores, yielded a similar outcome Grutter , at —69 [Rehnquist, dissenting] and [Kennedy, dissenting]. Only surface appearance distinguished the two procedures. As it turned out, Grutter failed to close the book on university affirmative action. A new legal challenge soon arose, this time against the University of Texas, which had revised its own admission program in to emulate the scheme validated in Grutter.

The case, Fisher v. Texas , wound its way through the courts for a decade, twice landing on the steps of the Supreme Court before final disposition in University of Texas , S. But despite these legal victories, have universities actually made a case for diversity as the justifying basis for race—conscious admissions? As the University of Michigan cases approached a final test in , the Supreme Court was bombarded with scores of friend—of—the—court briefs from business groups, military officers, higher education associations, coteries of scholars, and other interested parties lauding the benefits of diversity.

A similar outpouring preceded the two decisions in Fisher v. University of Texas. Consider some of the claims in these briefs.

Racial and ethnic diversity on campus are vital to securing a capable workforce; it is essential that [students] be educated in an environment where they are exposed to diverse people, ideas, perspectives, and interactions 65 Leading American Businesses , 1, 2; emphasis added.

According to the briefs the positive effects of diversity are bountiful. Now consider four points. Of course. But the issue at hand is racial diversity. Wrapping the latter into the former is not an aid to precision.

Third, the straining by academics to show that cross-racial interaction is essential , indispensable , vital , necessary , or imperative to a good education, if taken at face value, leads to an unpleasant conclusion, namely that a lot of black college students suffer a deficient education. Graduates of Fisk University 0. Bollinger , F. Justice Kennedy did the same in Fisher , The primary aim of these institutions is not through vigorous affirmative action to enhance the liberal learning of their students although they welcome this gain for all students.

Their main motive for assuring that the percentage of African-Americans and Hispanics on their campuses is more than token derives from their self-conceptions as institutions training individuals who will some day take up national and international leadership roles in the professions, arts, sciences, education, politics, and government Bowen and Bok , 7.

Society, they believe, will be stronger and more just if the ranks of its leading citizens include a racially and ethnically broader range of people than it does now. Nor are they wrong in thinking that the pipeline to local and national elites runs through top-notch universities.

Elizabeth Anderson, in two long essays , , bookending the Grutter decision, makes a thorough and cogent case for putting racial integration at the center of conceptions of affirmative action. The diversity argument is insufficient, she writes. She goes on:.

The integrative model of affirmative action offers an alternative rationale for race—sensitive admissions that unites educational with democratic and social justice concerns. It begins with a recognition that Americans live in a profoundly segregated society, a condition inconsistent with a fully democratic society and with equal opportunity. To achieve the latter goals, we need to desegregate—to integrate, that is—to live together as one body of equal citizens Anderson , The integrative model has several legal advantages over the diversity and compensation models of affirmative action.

On the contrary. From a business viewpoint, refusing to serve people who want to rent a room in your hotel or order a sandwich at your lunch counter is irrational. The only economic incentive for denying them service is a fear of their driving white customers away. Once the Court made it clear that every hotel and lunch counter must serve every customer regardless of race, that fear was significantly reduced.

Under Jimmy Carter, affirmative-action requirements were extended to virtually all firms, educational institutions, and state and local governments that received contracts or grants from the federal government—which covers a lot of the national waterfront. By and large, the courts went along. And so did businesses. When a company is serving customers of different races, it wants to present a diversified face.

If you are selling cars to African-Americans, you do not want all the salesmen in your showroom to be white. If, to achieve this result, a company diversifies on its own, it is open to lawsuits claiming reverse discrimination. But when a company or a police department or a fire department adopts a race-conscious hiring program under government guidance it is immunized.

When Reagan made noises about abolishing affirmative-action requirements, the National Association of Manufacturers lobbied him to leave the program alone. It was helping manufacturing companies do what they could not have done without it.

It was dealing with labor unions, whose seniority systems overwhelmingly favored white male workers. Small businesses also resented the paperwork. The extent of the corporate buy-in was put on dramatic display in , when the Supreme Court heard Grutter v. Bollinger, another admissions case, this one involving the University of Michigan Law School. They supported affirmative-action admissions because they wanted universities to produce educated people for a diversified workforce.

The Court voted to uphold the Michigan program, but it was a 5—4 decision. No sector is more committed to diversity than higher education is, but it has proved to be one of the stickiest areas for affirmative action, both legally and practically. Urofsky, perhaps because he is an academic, is more patient with the trouble that universities have had in achieving diversity than he is with the problems of labor unions, to which, in general, he is uncharitable.

It is true that probably the main reason Nixon promoted affirmative-action programs was to pit African-Americans against labor, both traditionally Democratic voting bases. And, by many accounts, he succeeded, and created Archie Bunker—the Reagan Democrat, a man who resents special government help for minorities.

Still, the leadership of unions like the United Auto Workers, though sometimes fighting their own membership, were active in support of civil rights.

Higher education and unions have a similar problem when it comes to changing the demographics: we are dealing with a cake that cannot be unbaked. The undergraduate population turns over every four years, but the faculty turns over every forty years.

When the new students arrive on campus, they often wonder where the professors of color are. The answer is: wait twenty years, and they will show up. Even so, the lag in diversification between university faculties and their student bodies is striking.

As late as , less than five per cent of all professors had African or Asian ancestry, and around eighty per cent were men. Schools like Harvard and Stanford have had trouble even getting to gender balance. In , women made up 1. Even at Berkeley, which had been admitting women since , women made up just 5.

Today, less than thirty per cent of all university faculty at Stanford are women, and seven per cent are classified as underrepresented minorities. At Harvard, twenty-seven per cent of tenured faculty are women, and eight per cent are underrepresented minorities.

On the other hand, student bodies, where race- and gender-conscious admissions policies can have an effect more quickly, have diversified. In , eighty-three per cent of university students were white; in , fifty-seven per cent were white. The percentage of black students in that period increased from ten to fourteen; the percentage of students that the government categorizes as Hispanic increased from less than four to more than eighteen.

The percentage of black and Latinx graduates as opposed to enrollees also increased although graduation rates for both groups are lower than for whites. Did affirmative-action admissions help? Starting in the mid-nineties, opponents of affirmative action were able to get laws passed prohibiting the use of race in admissions at public universities in several states, including Michigan, Washington, and California.

The top public universities in those states tried to attract minority students by other means, but Urofsky says that the percentage of black and Hispanic students has dropped significantly. Do students admitted under affirmative-action criteria benefit from their educations? Historically, black students as a group have tended to underperform academically—to get lower grades than their SAT scores predict.

So do varsity athletes. As many writers have pointed out, when we are considering colleges and jobs, there is a pipeline problem. They went to the same high schools that their brothers did and most of them probably got better grades. The success of affirmative action in employment and university admissions has not eliminated the education and income gaps between whites and blacks. Although the poverty rate for blacks and Hispanics has dropped some since , it is still more than double the rate for whites.

Americans of color are starting from much farther behind. Millions never get on board a train that most whites were born on. The Supreme Court case that admissions offices rely on today is Regents of the University of California v. It was decided in , and, despite several attempts to relitigate it, it is still the law of the land. Bakke is a good example of the jurisprudential confusion around affirmative action: the Court managed to produce six opinions in that case.

Instead, the school used race as one of a number of factors; race could not automatically result in an acceptance or a rejection which contrasts with Gratz , in which those 20 points used n Gratz could have resulted in admission or rejection.

The Court held that this plan is narrowly tailored enough to satisfy strict scrutiny because the "program is flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes race or ethnicity the defining feature of the application.

The Law School engages in a highly individualized, holistic review of each applicant's file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment. In Fisher v. University of Texas , U. The Court found that the University's use of race constitutes a "factor of a factor of a factor," which, as one factor in the University's holistic review process, is narrow enough to meet strict scrutiny.

The Court also held that there is a compelling interest in "obtaining the educational benefits that flow from student body diversity. Please help us improve our site! No thank you. Affirmative Action Primary tabs Definition A set of procedures designed to eliminate unlawful discrimination among applicants, remedy the results of such prior discrimination, and prevent such discrimination in the future.

Legal Origins While the concept of affirmative action has existed in America since the 19th century, it first appeared in its current form in President Kennedy's Executive Order : "The contractor will 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.

General Employers who contract with the government or who otherwise receive federal funds are required to document their affirmative action practices and metrics. Brown v Board In Brown v.

Board of Education , U. This decision acted as a precursor to many of the education-based affirmative action cases in the Supreme Court which followed in later years.

Klutznick , U.