This is a short paper I presented as part of my research project many years ago. It covers some of the historical, ethical, social, and legal issues surrounding the implementation of Affirmative Action policies and the subsequent controversies they created.
Affirmative Action are measures which have been taken to formulate policies which will favor certain minorities in an attempt to affect a remedy for past discriminations. Affirmative action programs thus give some form of preferential treatment to minorities. Such programs may take the form of quotas which are used as an apparatus through which to guarantee a percentage of minorities to be accepted into private institutions.
Although initially affirmative action appears to be an adequate means through which to correct past wrongs but like many other policies, there are considerable problems associated with its use which wait to be addressed. Today, advocates of affirmative action believe that it remains to be one of the few mechanisms that has at its means the capability of adequately mending past wrongs. They feel that society should have the burden of “repaying blacks and other minority groups for all the pain and suffering they have endured.”1 On the other hand, those who oppose affirmative action strongly believe that it is a form of reverse discrimination—that it favors one race at the unnecessary and excessively burdensome expense of another.
The first test for voluntary affirmative action was in Regents of University of California v. Bakke, 438 U.S. 265, (1978). Allan P. Bakke, a white male and viewed as a very good prospect for admission into Davis Medical School, was rejected even though he held that his qualifications far surpassed those of other minority applicants. He was distraught over the fact that they were accepted over him. He maintained that his test scores were significantly higher than other minorities, but yet, they were accepted over him purely because of their race. Since the Davis Medical School at the time had “a special admissions program which reserved 16 of 100 places for preferred minorities, in this case Blacks, Chicanos, Asians, and American Indians.”2 Bakke contended that he was deprived of an equal opportunity and shortly thereafter brought suit against Davis.
The Supreme Court in a split decision with Justice Lewis F. Powell having the deciding vote ruled that Bakke should be admitted into the Davis Medical School. Their findings were based on the fact that there was no past history of racial discrimination on the part of that medical school.
While Bakke’s whole case was argued on grounds of reverse discrimination, it ultimately gave rise to the tenet of “compensatory preferences”3 which the Supreme Court found compelled to confront.
It appears that many have forgotten the specific intent of the enactment of the Civil Rights Act of 1964. At that time, amidst all the controversies and political turmoil which surrounded the issue of Civil Rights, much opposition existed. Several Senators who might have otherwise opposed this Act, did not, because they were comforted by persistent assurances that in no way would Title VII of the Civil Rights Act be misconstrued “to grant preferential treatment to any individual or group on account of any imbalance which may exist.”4
In Bake, the board of admissions contended that their policies were instituted to serve strictly as a mechanism to redress past wrongdoings towards minority applicants. Still, it is argued by those who are opposed to affirmative action that those benefiting from these policies are not the same individuals who were originally discriminated against. Wrongs were perpetrated by past generations but remedies attempted at are being applied to a present generation, a policy at variance with the notion of restitution for an injustice having existential units.
Consequently, there are three major problems that exist. First, the attempt to remedy past wrongs through preferential treatment of an entire group when “the guarantees of the Fourteenth Amendment extend” only “to persons,”5 is somewhat dubious. Secondly, since Davis had not demonstrated any past discriminatory measures towards these minorities, its preferential policies were therefore deemed unjustified. The third problem was that the special admissions program at Davis clearly “violated his rights under the equal protection clause of the Fourteenth Amendment to the Constitution…which proscribed the exclusion of any person from a federally funded program on the basis of race.”6 Yet, while not endorsing quotas they were prepared to countenance goals. Compromises of this nature had been attempted but there was some negative feedback as a result.
There are fears that have arisen out of the effects of distressing affirmative action programs. These programs are viewed by many as having an uncontrollable effect differing from their original purpose. An example of the possible hazards which can accompany such affirmative action policies are those of Harvard University. The Harvard University Medical School established an affirmative action program which was not solely based on quotas. Specifically, their qualifications for minority applicants was a mixture of taking into consideration not only factors such as their race but their “social class background”7 as well. These “laid back” requirements had a disastrous effect on public opinion. Even though the measures which Harvard took were of intended benefit, havoc arose. When the public became aware of Harvard’s policies, “white patients began to refuse to be examined by black medical students.”8 In a situation like this one, is there any “one” culprit? Surely the intentions of Harvard were good. However, this is a good example of how easy it is for an affirmative action program to work against itself.
Unfortunately, the question of whether or not these affirmative action policies are counterproductive is a real one. The logical reason behind the use of any program or policy is to benefit a certain group or promote a specific cause. In the case at bar, neither was accomplished. Here, “the real tragedy is that it lowers the market value of medical degrees held by competent Black doctors.”9 The biggest loss in this instance is to our entire society. Society is constantly in of these skin should not be held against him, but neither should it be held to his advantage over others. It is common knowledge that in the past society did not give equal treatment to all its citizens. Nevertheless, by promoting programs such as these, society is not repenting for its past sins but creating new ones.
In 1971, Marco DeFunis was denied entry into the University of Washington Law School. At that time many minority students who had test scores lower than other white students were still admitted under special programs which the University had incorporated into their admissions policies. DeFunis brought an action against the University on the grounds of reverse discrimination. The question for the courts to subsequently take into consideration was the constitutionality of these minorities as a group to be accorded preferential treatment. Meanwhile, a court order had admitted him (DeFunis) while the case slowly made its way up to the United States Supreme Court.
In DeFunis v. Odegaard, 40 L.Ed.2d 170 (1974), DeFunis contended that the criteria that the University of Washington Law School used was that of a “Double Standard.” He argued that the school, in choosing its future students, did not use any other means to justify their giving a preferential treatment except for that of belonging to a racial group. Due to the significance that this case could have, many amicus curie briefs were filed with the court and readily considered with reference to possible solutions. Since various interest groups, universities and Jewish groups, to name a few, felt that the issues raised in this case were of paramount importance, they appropriately submitted briefs detailing the involvement and effect certain rulings could have on their own respective interests.
From a Jewish perspective, the DeFunis case mirrored a reflection of past injustices once imposed on Jewish students in order to deny or restrict their entry. Then, quotas were the instruments used against Jewish applicants. Hence, it is not especially difficult for Jews to harbor discontent for their usage. Racial quotas are “of particular importance to the Jewish minority in this country because of the long history of discrimination against Jews by the use of quotas…After only 30 or 40 years of open admissions, the universities which, for centuries, set the style in excluding or restricting Jewish students may again be able to do so.”10
Minority groups believed that the United States Supreme Court was “really straining to rid itself of this dispute.”11 They alleged that the Supreme Court had intentially waited for the issue to die down before pursuing the matter further. This action was so drawn out, DeFunis was in the position to graduate regardless of how the Supreme Court would ultimately rule.
Even though DeFunis was going to graduate, the school appealed in order to protect its admission policy.”12 The Supreme Court sided with the law school. Its overriding reason was based on the fact that the school did not use race alone as the criteria through which to evaluate and accept its applicants.
The case of Firefighters Local Union Number 1748 v. Stotts 467 U.S. 561 (1984), is one of the more significant cases to be dealing with important affirmative action policies. This case involved a city fire department that had earlier been sued for race discrimination by black firefighters and in order to settle the case, entered into a consent decree. This decree outlined hiring and promotional “goals” for blacks. In 1981, due to forced layoffs occurring as a result of budget deficits and with considerate thought, the Supreme Court did not wish to disturb the “progress made by the hiring goals in the consent decrees.”13 A temporary restraining order was issued by the District Court whose objective was to prevent any minority firefighters from being laid off by the City as a result of what could ensue.
Since many of these new firefighters were recently hired, they were fearful that in adherence to the governing seniority plan (which the consent decree had made no provision for) the policy of “last hired, first fired”14 would operate to their disadvantage. The department as a result of not wishing to decrease the “proportional” representation of blacks, laid off more senior whites. The Court eventually overturned the injunction finding (again not with an unfamiliar note) that “no racially preferential treatment could ever be afforded to “nonvictims” of past discriminations.”15 In the end, when bona fide seniority plans were pitted against affirmative action devices, seniority plans won out.
It should be apparent by now that when anyone seeks relief they must be able to show that; 1) there was no intentional discriminatory act carried out against them and 2) they were personally the victim or that there is a possibility of them becoming the victim in the future. The past decisions of the Supreme Court with respect to affirmative action would undoubtedly lend many to believe that this is the case. But is it?
On July 2, 1986, the Supreme Court upheld Affirmative Action as being a (legitimate) remedy for past job discrimination. This is a distinct victory for Civil Rights. Before, it was necessary to show individual acts of discrimination in order to justify relief. Now, however, the Supreme Court realized that most of the time, other less controversial methods of addressing job discrimination have not been successful. Therefore, they have concluded the “judges may sometimes order special preferences that benefit members of minority groups who are not personally victims of discrimination.”16
In wake of our courts past judgments concerning implementing affirmative action programs, only time will tell which verdict will stand. The history of preferential treatment flickers with uncertain fate. If preferential treatment is given to one group, then by following its own logic, it must be distributed to all groups which have suffered similar fates. This would probably encompass about half of the population of the United States. Furthermore, it has shown itself to be goals which have with them their own separate agenda. The fact that we live in a litigious society adds to this difficulty. Instead of finding a common ground to settle this issue once and for all, short lived compromises continue to echo nearby. Seemingly, every new case that comes before the court regarding affirmative action issues does so in the shadows of conflict and confusion.
Most of all, the saddest part of all this is that people fail to recognize that this issue does not pit white against black or minority against majority. Rather, it is a sign of disunity and a reflection of man’s struggle against himself. In the bigger picture, we (humanity) are all one. While Civil Rights are cherished by all, they are most important for minorities. This is their protection from the will of the majority. Unfortunately, the means that affirmative action takes does not always justify its ends. In many cases, capabilities which our society puts much emphasis on, are sold out and discarded to a preferential color. This is an injustice which is only too often hurting those which it was originally suppose to help. Yet, in final summation, we must draw comfort from the fact that we are human beings—and therein is our greatest hope. Perhaps this is what Martin Luther king, Jr. meant when he said; “the ultimate measure of man is not where he stands in moments of comfort and convenience, but where he stands at times of challenge and controversy.”
Volkomer, Walter E., American Government: Fourth Edition, (Englewood Cliffs: Simon & Schuster, Inc., 1986), p. 317.
Wilkinson, Harvie J., The Guide to American Law; p. 19.
Becker, Sowell & Vonnegut Jr., Discrimination, Affirmative Action, and Equal Opportunity, (The Fraser Institute, 1981), p. 56.
Ibid, p. 40.
Ibid, p. 56.
Wilkinson, p. 17.
Becker, Sowell & Vonnegut Jr., p. 161.
Ibid, p. 22.
Footlick, Jerrold K., Newsweek, 1975, p. 62.
Hints on Reverse Bias., 1974, p. 62.
Footlick, p. 61.
Conrad, Ralph J., Akron Law Review, 1986, pp. 510, 511.
Sullivan, Kathleen M., Harvard Law Review, 1986, p. 85.
Taylor, Stuart Jr., The New York Times, 1986, p. 1.
Becker, Sowell & Vonnegut Jr., Discrimination, Affirmative Action, and Equal Opportunity. Vancouver: The Fraser Institute, 1981.
Conrad, Ralph J., Affirmative Action: Alive And Well After Stotts., 1986.
Footlick, Jerrold K., Racism in Reverse. Newsweek: 1974.
Sullivan, Kathleen M., Sins of Discrimination: Last Term’s Affirmative Action Cases. Harvard Law Review: 1986.
Taylor, Stuart Jr., Groups Protected Even If Individuals Did Not Suffer Personally. New York: The New York Times, 1986.
Time Magazine., Hints on Reverse Bias. Time: 1974.
Volkomer, Walter E. American Government. Englewood: Simon & Schuster, Inc., 1986.
Wilkinson, Harvie J. The Guide to American Law. 1984.
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