SFFA v. Harvard College
Affirmative action generally means giving preferential treatment to minorities in admissions to universities or employment opportunities for government and private businesses. More specifically, it refers to a range of policies originally developed to correct decades of discrimination and to give disadvantaged minorities a boost. Some say that the diversity of American society today, as opposed to that of 50 years ago, indicates that the programmes have been a success. In contrast, others, particularly conservatives, think the policies were never, or are no longer, needed and that they lead to more problems than they solve.
History of affirmative action
Since the passage of the Civil Rights Act 1964 and the Voting Rights Act 1965 some Americans have argued that the USA established a clear and legal framework for equality of opportunity, in that all races were now free from legal discrimination, ensuring de facto equality.
However, the focus soon shifted away from formal and legal equality towards more substantive equality. Many liberals argued that there was a need for equality of outcome to level the playing field for previously disadvantaged groups. For many, there was now a need for America to address the fact that African Americans in particular were at a historical disadvantage, as they lagged behind whites in terms of income, employment and educational attainment.
Regents of the University of California v Bakke (1978) accepted that race could be one factor, among many, in university admissions but could not directly disadvantage majority applicants.
· Adarand Constructors v Pena (1995) re-established the need for 'strict scrutiny' to ensure that federal affirmative action programmes had a specific purpose and justification.
· Gratz v Bollinger (2003) declared the University of Michigan's racial quota system of admissions unconstitutional as it was 'too mechanistic' in awarding all minorities 20 of the 150 points needed for admission.
· Grutter v Bollinger (2003) ruled that the University of Michigan's Law School admissions programme was constitutional as it used an 'individualised' affirmative action programme, in which race was only a '131us factor'. Although it upheld as constitutional the continued use of certain affirmative action programmes, it did suggest that this may only be necessary for a further 25 years.
· Fisher v Texas (2013) did little to change the existing law and instead upheld the Bollinger cases and referred the matter back to the lower courts. Many commentators awaiting this decision had wrongly believed it would issue a definitive ruling of the constitutionality of affirmative action.
As well as Supreme Court rulings a series of initiatives and propositions in recent years has meant the issue of affirmative action's place in the USA has become further clouded. By 2010 at least five states had seen the successful introduction of measures to ban affirmative action, including Michigan Proposal 2, banning its use in public employment, education or contracting in 2006, and Arizona Proposition 107, which was passed by a vote of over 60% in 2010.
You do not take a person, who for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say "you are free to compete with all the others", and still believe that you have been completely fair.
President Lyndon Johnson, 1965
The public policy of affirmative action provision could be seen as a major factor in the rise of educational standards and the growth of black middles classes in the United States. Without this assistance, arguably patterns of inequality would continue to repeat themselves much more strongly. The impact of racial rights groups in protecting Affirmative Action has started to wane, however, as such programmes are being challenged by state governments. Many states, such as California, Texas and Michigan have ended affirmative action. In several states the provision of Affirmative Action has been challenged by state initiatives. This is seen in the American Civil Rights Institute case study below.
There are a number of arguments surrounding affirmative action beyond the extent of its success. There are many criticisms about its desirability, regardless of its effectiveness in creating equality.
For some racial minority members, AA is patronising. Others argue that it is misplaced and measures to improve equality should focus on race, not class. When Obama was asked if his daughters should benefit from AA, he said they should not — but he still defended AA.
Alternatives to Affirmative Action
· There has recently been a strong push among American states to ban racial or gender preferences. Much of this has been a reaction to the controversial and unprecedented decisions in the Bollinger cases, sponsored by the conservative pressure group the Centre for Individual Rights. These cases effectively declared mechanistic' racial quotas unconstitutional, without specifically declaring affirmative action unconstitutional. In particular, the Grutter v Bollinger case, by a slender 5-4 majority, upheld affirmative action but stated that admissions must be flexible, and reaffirmed that they could not be crude , because race must be considered as one among many other admission criteria.
· Many conservative groups, such as the Center for Equal Opportunity, call for a complete ban on all forms of affirmative action and have led attempts to legally challenge affirmative action.
· Florida governor, Jeb Bush, decided in 1999 to abolish affirmative action with his 'One Florida' initiative. Although this led to widespread demonstrations, conservatives would counter criticisms with the fact that over the decade from 1999 to 2009, total state enrolment among Latinos rose from 13.8% to 18%, while black enrolment remained relatively static at 13.6%.
Class- and income-based action
· Some opponents argue that affirmative action benefits middle- and upper-class minorities at the expense of lower-class Caucasians. Thus some argue that there is a need for class-based, or income-based, affirmative action which does not consider race or ethnicity. Writing in the Washington Post in 2012, Richard Kahlenberg, a senior advisor for the liberal think tank The Century Foundation, called for universities to 'vigorously pursue race-neutral alternatives such as socioeconomic affirmative action'. However, the African American Policy Forum believes that: 'Race-conscious affirmative action remains necessary to address "race-based obstacles.'
School and cultural reform
· A number of largely conservative individuals argue that the inability of minorities to compete is because those minorities need to be 'Americanised' and encouraged to conform more closely to the mainstream cultural norms of the USA.
· The Texan Ten Percent Plan ensures that minority students are not competing with students from schools that are better funded and resourced. Since its introduction, total admissions of Latinos to Texas universities have jumped from 14% in 1996 to 24% in 2012.
· Since 1989 Congressman John Conyers Jnr from Michigan has introduced a bill every year to study the case for reparations. He urges the federal government to undertake a thorough review which will lead to financial compensation to the descendants of African slavery.
· Though calls for reparations do not hold widespread appeal in America, the 'Millions for Reparations' march, in 2002, did see over 50,000 people descend on Washington DC.
Has affirmative action been a success?
What it was meant to achieve?
In 1978, Justice Harry Blackmun suggested that the legitimacy of affirmative action programmes was to be measured by how fast they moved society towards a time when they would no longer be needed and a society in which race no longer mattered. This was the line of argument which Justice Sandra Day O’Connor took up in her opinion in the Grutter decision in 2003 when she announced the 25-year ‘limit’ to affirmative action programmes. So how successful have affirmative action programmes been by this measure? There is evidence on both sides.
Some politicians and philosophers, however, think that affirmative action is bound to fail by this measure because a programme that is based on race is unlikely to move society to a point where race no longer counts. In the view of philosopher Carl Cohen (1995), ‘the moral issue [about affirmative action] comes in the classic form: “important objectives appear to require impermissible means”’. In other words, often the only way we can achieve something is by means which are not allowed. Asks Cohen: ‘Might we not wink at the Constitution this once and allow [affirmative action programmes] to do their good work?’ In other words, can’t we just overlook any constitutional defects in such programmes because they achieve so much that is good and worthwhile?
But Cohen, along with a majority opinion on the Supreme Court, has said ‘no’. ‘In the distribution of benefits under the laws, all racial classifications are invidious.’ This was Justice Clarence Thomas’s conclusion in a 1995 decision when he stated:
I believe that there is a moral and constitutional equivalence between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some notion of equality. Government cannot make us equal
However, an alternative argument is that expressed by President Clinton’s ‘mend it, don’t end it’ catchphrase, suggesting that such programmes will need amending and that reform, rather than abolition, is what is called for.
But many liberals would see affirmative action as something that needs to continue because there is still a long way to go. Liberals would therefore argue that the vision of an equal society is still a vision of the future when the black prison population is larger than the black collage population.