Gymnasium Tutzing Kollegstufenjahrgang 2002/2004

Facharbeit

aus dem Fach

ENGLISCH

Thema:

affirmative action

Verfasser:

Petra Effenberger

Leistungskurs:

Englisch

Abgabetermin:

02.02.2004

(Unterschrift des Kursleiters)

---

Table of contents

1. Introduction

3

1.1 A definition of affirmative action

2.

The

history

of

affirmative

action

3

2.1 Phases of the American history from the Civil War till today

2.2 The beginning and official introduction of affirmative action

3. The necessity of affirmative

action

programs

5

3.1 The effects of slavery

3.2 The social background of minorities and its effects

4.

Criticism

of

affirmative

action 6

4.1 Arguments of the affirmative action opponents

5.

How

affirmative

action

works 7

5.1 The system of administration

5.2

Training

5.3 Example: The San Francisco State University

6.

Future

developments

9

6.1 California′s way of dealing with affirmative action

6.2

New

Challenges

7. Famous cases and court decisions about the issue

9

7.1 The University of Michigan cases (Grutter v. Bollinger/

Gratz v. Bollinger)

7.2 University of California v. Bakke - the Bakke decision

7.3 United Steelworkers v. Weber

7.4 Wygant v. Jackson Board of Education

7.5 United States v. Paradise

7.6 Johnson v. Transportation Agency

7.7 Comment on the cases

8.

Conclusion 15

9. Appendix

16

10. Bibliography

17

11. Personal declaration

17

---

1. Introduction

Affirmative action is a very controversial subject in the USA which one can see on the often

and periodically appearing court decisions that always cause great sensation and discussions

across the whole country. The following pages will try to explain this subject and to throw

light on some important aspects.

1.1 A definition of affirmative action

"Affirmative action is a term describing a series of presidential executive orders, rules, and

procedures, designed to protect minorities, such as blacks, Puerto Ricans, Mexican ­

Americans, and American Indians from discrimination in employment, housing and

education. It was started to combat the effects of historical discrimination, such as slavery,

and modern discrimination that denied blacks full employment, adequate housing, and equal

educational opportunity"(1). This definition gives the first impression of what affirmative

action consists of and shows the reasons it was created for. It has not only been started to

repay past discrimination like many people think, but also to balance the modern one that is

even today still present in a huge dimension.

2. The history of affirmative action

The roots of affirmative action reach widely back into the past. To understand its origins and

development one has to know something about the American history and how it treated the

minorities.

2.1 Phases of the American history from the Civil War till today

The Civil War, which began in 1861 and ended in 1865, was a war between the "Union" that

consisted of 23 northern states and the "Confederacy" of 11 southern states that wanted to

keep slavery and to maintain their white supremacy. The Union fought for an abolition of

slavery and got through it after the Civil War had been won.

During the following phase that is known as Reconstruction and lasted from 1865 to 1877, the

American society had to examine with the liberation of the slaves. That situation rose up some

questions: Which position in the society should they have and how could one integrate them

into it? Many of the southern states did not take these questions too serious and still

suppressed the liberated slaves, until the Republicans pushed the 14th Amendment through in

1868, which assured the former slaves of nationality and civil rights. Later, in 1870 the 15th

Amendment followed. It prohibited the southern states to curtail anybody because of his skin

color the right to vote. After the states had accepted these Amendments they were admitted in

the Union again in 1871. It was also tried to give a bit of support to the African Americans by

providing them a piece of land or a donkey etc. So Reconstruction represented "the first

a t t e m p t t o r e c t i f y t h e e f f e c t s o f s l a v e r y a n d

white supremacy and in that sense serves as the first antecedent to affirmative

______________________________________________________

1) Simmons, Roy, Affirmative action, Cambridge, 1982, p.vii

---

action"(2).

The next phase that ran from the end of Reconstruction to 1933, was marked by the "Black

Nadir"(3), that means there was the strongest suppression of African Americans after the

abolition of slavery. Their Civil Rights were curtailed and segregation was introduced almost

everywhere in the South. The Ku Klux Klan, a strongly racist organization, became bigger

and bigger after 1915 and intimidated not only African Americans, but also Catholics, Jews

and immigrants. Many lost their right to vote, because they could not pay the tax that had

been introduced to exclude them from politics.

But this Black Nadir soon ended with a rebellion of the African Americans led by a Civil

Rights leader called Randolph. This "pro-black revolt against the reconstruction of whiteness

that emerged with the advent of the New Deal in 1933 gives us the most immediate context

for today′s affirmative action debate" and "the actual origin of modern affirmative action

advocacy came about as a result of pressure exerted by the mass movement led by black

labour and Civil Rights leader A. Philip Randolph who in 1941 had called for an all ­ black

March on Washington" (4). These two quotations make clear which importance and influence

this rebellion has on affirmative action today.

The next historical period ran from 1945 to 1955. It can be seen as a prelude to a battle over

the domestic racial caste system (5). This decade has been left its mark on the movement of

the whites to the suburbs (and leaving the blacks in the city ­ centres behind, which means a

new form of segregation). But there were first signs of the Civil Rights Movement of the

1950´s and 1960´s too. Many activists made demands to the government about an

improvement of the situation of African Americans, especially in the South, but they did not

have too much success.

The Civil Rights Movement that followed under the leadership of Martin Luther King

represented the first huge improvement for the situation of African Americans. Segregation

was effectively banned in 1954, marriage between whites and blacks became legal in 1967,

the black middle ­ class became larger and more and more African Americans could move to

the suburbs. But even today they are often disadvantaged; they have for example the lowest

paid jobs (the difference between blacks´ and whites´ earnings is bigger than thirty years ago)

and suffer from racism. The unemployment rate is very high and black infant mortality is

twice the rate of whites.

Affirmative action is an attempt to change these conditions.

2.2 The beginning and official introduction of affirmative action

During the 1960´s, President Kennedy issued special orders that demanded from

companies to employ a certain number of minorities and women. After the Title VI of the

C i v i l R i g h t s A c t h a d b e e n p a s s e d i n 1 9 6 4 , s p e c i a l a f f i r m a t i v e a c t i o n

agents had the authority to institute quotas and preferential hiring to increase the

representation of minorities in employment and to improve their situation.

_____________________________________________________

2) Rubio, Philip, A history of affirmative action, Mississippi, 2001, p.34

3) Rubio, p.57

4) Rubio, p. 89, 92

5) cf. Rubio, p.114

---

The presidents Roosevelt, Kennedy, and Johnson also created orders that should protect

minorities from further discrimination, but these knocked against resistance and had to be

strengthened.

But the early affirmative action programs were voluntary, and only few companies held on to

these. So new affirmative action orders were necessary. "Affirmative action was designed to

serve a larger purpose than merely breaking down the barriers and forcing compliance.

Affirmative action, if effective, was designed to "go out of business" by making such actions

unnecessary once blacks achieved their rightful places in society" (6).

This quotation means that in an ideal condition, it should not have been necessary to force

people to employ minorities, but it was. The introduction of affirmative action was rather

difficult. "Efforts to change attitudes of managers usually failed because the structure that

fostered negative attitudes persisted." Companies used several strategies to comply with

affirmative action: they evaluated qualification standards again, recruited new employees and

paid attention to local minorities (7).

A court decision in the case of McAleer v. the American Telephone and Telegraph said that

"victims of discrimination could receive compensation at the expense of others" (8).

That was an important new guideline in the development of affirmative action programs.

Many companies had to pay millions of dollars for this compensation. Now other groups than

African Americans and Hispanics wanted to have advantages from affirmative action,

especially women, who were successful in this matter. Above all in the universities, women

soon became a large part of the students with up to 25 percent in opposite to African

Americans and Hispanics from which only 2.9 percent studied. Before affirmative action was

introduced, 2.2 percent of them were studying. So the situation for these groups did not

change so much in higher education as it was desirable.

Another problem occurred: White males, who always were preferred in history, saw with

these affirmative action programs their power declining. They spoke of "reverse

discrimination" and tried to cancel all efforts. They thought themselves to be discriminated

now, because they, of course, were the only group that was not taken into consideration in the

programs. Now that a larger number of minority members had the chance to get better jobs

and better education, they wanted to maintain their position. This problem retains until

nowadays and makes all efforts for equal chances very difficult.

3. The necessity of affirmative action programs

Obviously, affirmative action programs are needed to help the members of minorities out of

their disaster of not being equally treated with whites. Discrimination and racism exist just as

much today as formerly, and their situation has namely improved, but just not enough.

But there are more reasons why those programs are necessary which go back to

______________________________________________________

6) cf. Simmons, p.38

7) cf. Simmons, p.39

8) Simmons, p.39

---

the past.

3.1 The effects of slavery

The injustices that have been done to African Americans during the time of slavery were so

severe that it was necessary to find a solution to alleviate this discrimination. (9)

During slavery, African Americans had absolutely no rights and were even not considered

human. After slavery, racism was developed. "Slavery was not born of racism: rather, racism

was the consequence of slavery." (10) So they had no equal chances from the start, and that

draw them back in their progress, which has to be equalized now. Later, African Americans

had to work for white big landowners for little money. Their descendants that live today are

poor, the descendants of the white landowners and former slave owners are rich. 29% of all

African Americans and only 11% of whites live under the poverty line today, which can be

attributed to the former ownerships. (11)

In conclusion to these facts one can say the necessity of programs which want to break this

circle of black poverty and white supremacy is obvious.

3.2 The social background of minorities and its effects

Supporters of affirmative action think that the existing forms of selection for colleges and

jobs, so ­ called paper ­ and ­ pencil ­ tests, are a very unfair thing. The cause for that is that

c h i l d r e n t h a t b e l o n g t o m i n o r i t i e s d o n o t h a v e e q u a l

chances in these tests, which is a result of their mostly lower education standards that can be

attributed to the under minorities more wide ­ spread poverty. (12)

So it can not be right to say this criterion of selection is a fair and good one that does not

discriminate against anybody. The average of the blacks´ scores (which is under that of

whites´) clearly shows this fact.

From this point of view it is necessary to have affirmative action programs and policies that

compensate this unfair treatment and help the African Americans and other minorities to get

equal chances in life.

4. Criticism of affirmative action

Many white Americans have a very critical attitude towards affirmative action and their

number is continually increasing.

4.1 Arguments of the affirmative action opponents

Adversaries of affirmative action oppose the supporters that it cannot be fair to let whites,

who have not done anything, pay for the crimes their ancestors have committed.But they do

not see that their preferred position rose from these crimes and that African Americans only

w a n t t o b e t r e a t e d e q u a l l y w i t h w h i t e s a n d n o t

______________________________________________________

9) cf. Simmons, p. 31

10) Simmons, p.32

11) cf.

www.blaetter.de/aeltere/nove97/ege1197.htm

12) www.law.harvard.edu/faculty/guinier/racetalks/future_aa03.htm

---

better. But the struggle against affirmative action goes much more far. So are there voices that

demand an abolition of welfare because it is mostly received by African Americans. Some

persons like the writer Meg Greenfield have even a very extreme view of things: "Affirmative

action programs are little more than a cover for putting unqualified and incompetent

minorities, mainly blacks, into plumy positions they couldn′t otherwise achieve or handle ­

and at the expense of people who, by rights, should have the job or place in the school" (13).

This statement shows a very racist opinion, which is not shared by the majority of whites, but

nevertheless, " Eighty per cent (80%) of the white people in America feel that enough has

been done for black people, that it is no longer necessary to give any special attention to the

racial problems that still exist, and eighty per cent

of the black people feel exactly the opposite." (14) Yet in 1977 this attitude

became evident in a survey of the "Phi Delta Kappan". (15) This survey shows

that the majority of the questioned people does not support any preferential treatment of

minorities.

E v e n p r e s i d e n t G e o r g e W. B u s h ma d e a l r e a d y n e g a t i v e c o m me n t s a b o u t

affirmative action. He denoted the use of this practice in universities and colleges as

"splitting, unfair and not to reconcile with the Constitution", which aims an abolition of these

programs. (16)

Even among African Americans or rather all minorities that live in the US, there is a struggle

about the issue. So many of them such as Condoleeza Rice, member of the Bush ­

administration, see affirmative action programs as a kind of "positive discrimination" and

feel offended by it, while others, such as Colin Powell, also a member of the Bush ­

administration, stands for a continuance of them. (17)

Deputies of socialism also belong to the group of opponents. They think that through

affirmative action it is possible that a small group of people from the upper class takes over

the control of the working class, because affirmative action is assimilating to the system of

class differences and not changing it. They also say that affirmative action never went beyond

the question of race and because of that it only aggravates the race differences instead of

reducing it and compensating it. Furthermore they say that affirmative action is only a benefit

for a small number of people from minorities that are profiting of it through an opening of

access for higher education, but who are in reality meant to control the great majority of their

people whose social living conditions are getting worse and worse. This leads to big gaps

under the incomes of minorities, for example the black working class incomes declined about

10% in the last twenty years while the black managers´ incomes rose about 50% in the same

time. Through these numbers it is also easy to recognize the worsening of the minorities´

working class to which most people belong. (18)

5. How affirmative action works

______________________________________________________

13) Simmons, p.45

14) Simmons, p.49

15) cf. Simmons, p.50, survey added at the end

16) cf. www.welt.de/data/2003

17) cf. www.welt.de/data/2003

18) www.wsws.org

---

Affirmative action is represented in almost all parts of US public life. That includes schools,

colleges, universities, companies and organizations. The following text will say something

about the management of this huge system and how it is built up.

5.1 The system of administration

Administrators of affirmative action are subdivided in so - called staff ­ and line ­ officers.

These represent two different types of positions, namely a non-academic and an academic

one.

Line officers are responsible for budgeting, personnel and planning of any actions. Staff

officers, who are subordinated to them, do not have any power over budgets and have little

authority. They are in great parts minorities their selves. Line officers are mainly white.

Because of this condition staff officers have a much greater knowledge about the real

problems of minorities and about good solutions to them, but if the line officers are not

interested in their opinion, they can not change anything. (19)

5.2 Training

Although line officers have not as much knowledge about the issue as their mostly black staff

officers, they have to have some experience and knowledge, for example in teaching,

counselling, familiarity with high school, college practices and policies, with financial aid

policies, contacts with industrial and foundation representatives, rapport with students and

staff and organizational skills. (20) To achieve these skills, they have to do a special training.

"Training activities should focus on developing goals and mission statements, timetables,

office procedures, proposal writing and financial management. Enroll in seminars on business

management, educational administration, and financial management." (21)

5.3 Example: The San Francisco State University

The San Francisco State University has different methods of converting its affirmative action

p o l i c i e s . O n t h e o n e h a n d s p e c i a l m e e t i n g s a n d m a n a g e m e n t

training programs about this subject are taking place in the University where the management

and supervisory personnel discuss about an improvement of their policy. All employees,

minority members or not, should also be aware of the affirmative action plan. On the other

hand, there are also activities to ensure a good implementation of the program outside the

university. Therefore all facilities that deal with recruiting are periodically informed of the

University policy to make sure of an appointment of all positions with minority members and

women. Also the University writes into its entire job offers that it is an affirmative action

employer and it enables to all prospective employees the avail of the program′s benefits (22).

______________________________________________________

19) cf. Simmons, p. 83 ­ 84

20) cf. Simmons, p. 86

21) cf. Simmons, p. 87

---

This is only an example of one University′s efforts in the case of affirmative action under

many thousand different Universities, schools, companies and organizations that may have

different guidelines about this issue.

6. Future developments

It seems that affirmative action policies will soon come to an end, if the course of action that

the state of California went in 1997 will be followed by the other states. And the tendency to

that direction is there.

6.1 California ´s way of dealing with affirmative action

In 1997, an appeals court decided that affirmative action programs are to be abolished in the

state of California. One year earlier an initiative called Proposition 209 that was passed by the

Californian voters, came to the result of abolishing those programs. The problem was that just

in California there was a very high number of minority workers employed just because of

affirmative action policies. Now, when it was clear that those programs were going to be

abolished, all of them were worried about the future.

But the governor of California, Pete Wilson, who is a very strong opponent of affirmative

action, promised them to provide other ways of help, for example he wanted to improve

education, provide prenatal care to mothers and create mentoring programs for children. (23)

That shows that he is not ignoring the minorities´ needs and demands. He is only thinking that

affirmative action is not the right way of helping them.

6.2 New Challenges

Many states are at the moment thinking about or already abolishing affirmative action because

the majority of Americans has the opinion that enough has been done. To survive, affirmative

action has to achieve new goals in the future. The new challenges are to create a "new,

progressive vision of cross ­ racial collaboration, functional diversity, and genuinely

democratic opportunity," (24), because that is something that has not been targeted enough

until now.

7. Famous cases and court decisions about the issue

During the last years it has often come to very controversial court decisions in the struggle

about affirmative action policies. The following text will take a close look at the most

sensational of them, beginning with the most actual, because it mirrors the present situation

the best.

7.1The University of Michigan cases (Grutter v. Bollinger/Gratz v. Bollinger)

In 2001, two women called Barbara Grutter and Jennifer Gratz sued against the

______________________________________________________

22) cf. www.aggh.edu.html

23) www.CNN.com

24) www.law.harvard.edu/faculty/guinier/racetalks/future_aa03.htm

---

University of Michigan that had turned down their application and preferred other students

that had worse marks but belonged to minorities. (25)

The two trials resulted in two very controversial verdicts that were spoken through the district

court.

In the first verdict that ruled about the general admission system of the University the judge

Patrick Duggan decided that it is constitutional to use affirmative action in the selection

process. He said it is an "urgent interest of the state to support race diversity" (26)

In the second verdict that ruled about the admission to the Law School three months later the

judge Bernard Friedman decided that it is unconstitutional to use affirmative action for

supporting race differences and that this wounds the 14th Amendment and the Civil Rights Act

of 1964. He said it is not an "urgent interest of the state to support race differences under the

students" (27).

The problem of these two court decisions is that the University of Michigan uses its

affirmative action policy much more strongly in the selection process for the general

admission system than for the admission system of the Law school. Despite of that the first

one has been decided to be constitutional, the second not. (28)

As it had been expected, the case came to the Supreme Court which made its decision in June

2003. A "6:3 ruling struck down a racial point system for undergraduate applicants, while a

separate 5:4 decision upheld an admissions policy at the law school, which considered race as

a factor without assigning a specific weight to it." (29) In short that means "affirmative action,

yes. Racial preferences, no." (30)

With this verdict, both sides, supporters and opposites of affirmative action, were content:

"This is a wonderful, wonderful day ­ a victory for all of higher education, because what it

means at its core is that affirmative action may still be used and the court′s given us a road

map to get there" ­ University of Michigan President Sue Coleman. (31)

"I think this is a big step forward against the use of race preferences" ­ Terry Pell of the

Center for individual rights. (32)

Sandra Day O′Connor, one of the justices at the Supreme Court, made the difference between

affirmative action and racial preferences clear: "Universities can not establish quotas for

certain racial groups or put members of those groups on separate admissions tracks...

Universities can, however, consider race or ethnicity more flexibly as a `plus` factor." (33)

The university had given members of minority groups extra points that increased the value of

their applications that were relying on a point scale to rate applicants. This process has been

banned now effectively. (34)

______________________________________________________

25) www.cnn.com /2003/EDUCATION/06/24/affirmative.action.michigan.ap/index.html

26) www.wsws.org

27) www.wsws.org

28) www.wsws.org

29) www.edition.cnn.com/2003/ALLPOLITICS/06/27/ip.pol.opinion.oconnor/index.html

30) www.edition.cnn.com/2003/ALLPOLITICS/06/27/ip.pol.opinion.oconnor/index.html

31) www.cnn.com /2003/EDUCATION/06/24/affirmative.action.michigan.ap/index.html

32) www.edition.cnn.com/2003/ALLPOLITICS/06/27/ip.pol.opinion.oconnor/index.html

33) www.edition.cnn.com/2003/ALLPOLITICS/06/27/ip.pol.opinion.oconnor/index.html

34) www.cnn.com /2003/EDUCATION/06/24/affirmative.action.michigan.ap/index.html

---

7.2 University of California v. Bakke ­ the Bakke decision

Perhaps the most famous and most controversial case ­ and one of the first about this issue ­

was the University of California v. Bakke case in 1978. It lead to the first real guiding

decision of the Supreme Court about affirmative action.

Allan Bakke, a white male, wanted to study at the medical school of the University of

California at Davis, but he got no admission although he tried it two times. So he went to the

Superior Court in Yolo County, California, and sued against the University, because he felt

discriminated. The fact that the medical school reserved each year sixteen of hundred places

to members of minority groups made him think so. He saw that as a "violation of the Equal

Protection Clause of the Fourteenth Amendment, a provision of the California constitution

and Title VI of the Civil Rights Act of 1964." (35)

The justice of the trial court decided "that

- the school could not take race into account in making admission decisions

- the program violated the federal and state constitutions and Title VI

- because Bakke had failed to show that he would have been admitted except for the

special admissions program, he was not entitled to be admitted to the school." (36)

The case was brought to the Supreme Court. Its decision agreed with the decision of the trial

court except for the admission of Bakke himself. The Supreme Court ruled that Allan Bakke

was admitted to the medical school.

The university had different reasons to use its affirmative action policies:

- "to reduce the historic deficit of disfavoured minorities in medical schools and in the

medical profession"

- "to counter the effects of societal discrimination"

- "to increase the number of physicians who will practice in communities presently

underserved"

- to obtain the benefits that result from an ethnically diverse student body" (37)

This case does not depict a general guideline about affirmative action, but it was and still is a

case of public interest and struggles and it has left a deep impact on everything that has to do

with this issue and on the Court′s later affirmative action decisions.

7.3 United Steelworkers v. Weber

This case that occurred in 1979 had as its main subject the Title VI of the Civil Rights Act of

1964 and its "redistributive purpose" (38).

An affirmative action plan that had been introduced by the employer, Kaiser Aluminium and

Chemical Corporation, in an agreement with the union, the United Steelworkers of America,

was the cause of the proceedings. This plan intended to give 50% of the places for a training

program to African Americans. In the first year of this training, there were thirteen people

selected for it. Seven of

______________________________________________________

35) Greene, W. Kathanne, Affirmative Action and principles of justice, Connecticut, 1989, p.72

36) Greene, W. Kathanne, Affirmative Action and principles of justice, Connecticut, 1989, p.72

37) Greene, p. 73

38) Greene, p. 87

---

them were black, six were white. Weber, a white male, did not get access to the training

although he had a higher seniority than most of the African Americans that had been chosen.

So Weber went to the district court with the argument that the affirmative action plan violated

Title VII.

The district court decided in favour of Weber, as well as the circuit court did in a later

decision when the case went into the next instance. But with that it was not done. The

argument was brought to the Supreme Court which reversed the decision of the two other

lower courts. It identified the affirmative action plan as not being violating the Title VII and

therefore as valid. (39) As a reason it said the Civil Rights Act of 1964 "did not intend to

prohibit the private sector from taking effective steps to implement the goals of Title VII."

(40)

The steelworkers and the employer Kaiser "argued that Title VII had two purposes: 1.

compensating identified victims of discrimination and 2. achieving equal opportunity and the

removal of barriers to access. (...) The steelworkers emphasized the need to materially reduce

the economic distress of blacks, which would necessarily require redistribution. Weber, on the

other hand, took a compensatory view of the title. The quota was unlawful because there had

been no official finding of discrimination and that even if the quota were remedial; none of

the blacks who benefited from the quota had ever been discriminated against and thus

deserved no compensatory preference." (41)

After the Supreme Court′s decision there was still a lot of struggle about this issue. The fact

that the two other courts ruled different caused a stir at many people. The interpretation of

Title VII whether it is violated by affirmative action programs or not, could not be entirely

cleared up.

7.4 Wygant v. Jackson Board of Education

In 1985 and 1986, there occurred another two cases that involved the subject of seniority.

This chapter will deal with the second one, called Wygant v. Jackson Board of Education.

In 1972, the school board decided to increase the number of employees that belong to

minorities. It was made an agreement between a teacher′s union and the school board "on a

provision that held that if it became necessary to lay off teachers, those with the most

seniority would be retained, except at no time would there be a greater percentage of minority

employees laid off than the current percentage of minorities employed at the time of the

layoff." (42)

Otherwise non - minority teachers would be made abundant although they had perhaps a

higher seniority than minority teachers that would be retained.

This practise was used for several years until1982, when displaced non - minority teachers,

under them Wendy Wygant, filed suit against this. They said this practise violated the Equal

Protection Clause and Title VII.

The district court decided in favour of the agreement and dismissed the claims. The case went

o n t o t h e S i x t h C i r c u i t C o u r t o f A p p e a l s , w h i c h d i d t h e s a m e

______________________________________________________

39) cf. Greene, p. 87 ­ 93

40) www.oyez.org/oyez/resource/case/423/

41) Greene, p. 94

42) Greene, p. 108

---

decision.

The Supreme Court, to which the case went afterwards, did an opposing decision. In a very

tight 5 - to 4 ­ decision, a violation of the Equal Protection Clause and Title VII was

identified by the Court. (43)

As a reason it gave the two main duties the government has in a case of affirmative action:

"first, to justify racial classification with a compelling state interest and second, to

demonstrate that its chosen means were narrowly tailored to its purpose." (44)

Therefore the Court "rejected the lower court′s argument that racial preferences were justified

because the percentage of minority students exceeded the percentage of minority teachers.

(...) Second, the Court rejected the school′s discrimination remedy: layoff preferences

incorrectly addressed injurious prior discriminatory hiring practices since "denial of a future

employment opportunity was not as intrusive as loss of an existing job."" (45)

This was again an example of a case where the Supreme Court rejected the decisions of all

lower courts that came before and made a decision itself that represented just the opposite.

7.5 United States v. Paradise

A case that does not involve seniority as an issue but again quota systems is the United States

v. Paradise case that occurred in 1986.

In short, the case "involved an equal protection challenge to a court ­ ordered promotion

quota that required the Alabama Department of Public Safety (State Troopers) to fill 50% of

its promotional openings with qualified blacks." (46) That was in 1972 ordered by a court

because the Alabama Department of Public Safety had African Americans not employed in

higher positions before this time and so discriminated against.

But despite this order, by 1979 still no African Americans were employed in higher positions

at the Alabama Department of Public Safety. Therefore the court entered a partial consent

decree in which the Troopers "agreed to develop within a year a procedure for promotion to

corporal that would not have an adverse impact on blacks, in conformance with the Uniform

Guidelines on Employee Selection Procedures.

The Troopers also agreed to develop similar procedures for the other upper ranks." (47)

But despite this order, by 1981 still no African Americans were employed in higher positions

at the Alabama Department of Public Safety. Therefore the court entered a second consent

decree in which "the parties agreed that the Troopers´ proposed promotional test would be

administered, the results would be reviewed to determine if there was an adverse impact on

blacks, the determination of a procedure would be submitted to the court if the parties did not

agree, and no promotions would occur until the parties agreed or the court ruled upon the

______________________________________________________

43) cf. Greene, p.107 ­ 120

44) www.oyez.org/oyez/resource/case/955/

45) www.oyez.org/oyez/resource/case/955/

46) Greene, p. 138

47) Greene, p. 138

---

promotion method to be used." (48).

After this order, five African Americans achieved a higher position in the Department. But

that was of course too less. In 1983, the court ruled that the test had an adverse impact on

African Americans and that they should create another one. That failed, and so the court ruled

that the Troopers had to give 50% of all higher positions to African Americans.

In the following year these instructions were followed and then the requirement was abolished

by the court.

But it came to a process were three sides were fighting against the promotion quota: the

United States, the Troopers and a class of whites. Their arguments were:

- "a racial classification must be narrowly tailored to achieve a compelling purpose in

order to satisfy strict scrutiny

- the quota was not narrowly tailored to remedy the Troopers´ past discrimination

- promotion quotas cannot be used as catch ­ up measures designed to achieve racial

balance

- the quota unnecessarily burdened innocent persons and thus failed to satisfy strict

scrutiny" (49)

But the Supreme Court upheld the promotion plan, mainly because of the Department′s

former attitude and procedure. (50)

7.6 Johnson v. Transportation Agency

Since affirmative action was not only created for non ­ whites but also for women, a famous

case about this issue must not be missing. The best example is the Johnson v. Transportation

Agency case that occurred in 1987 in Santa Clara, California.

Diane Joyce and Paul Johnson both applied to a job as a road dispatcher at the Transportation

Agency in Santa Clara, California. They had both the same qualifications, but Diane Joyce got

the job because of affirmative action, which the Agency took into account since 1978.

The affirmative action plan said that in jobs were women are underrepresented they should be

preferred when they have the same qualifications as the male applicants.

Johnson filed a suit at the district court which ruled in favour of him and decided the

Agency′s affirmative action plan to be invalid because in the court′s view it violated the Title

VII.

The next instance, the circuit court, reversed that decision and said just the opposite.

The Supreme Court went along with the opinion of the circuit court and affirmed the strategy

of the Agency. As reasons for that it said that no quota system existed within the Agency and

the affirmative action plan did not represent an "absolute barrier to the advancement of men."

(51)

______________________________________________________

48) Greene, p. 139

49) Greene, p. 139

50) cf. Greene, p. 138 ­ 147, ct. www.oyez.org/oyez/resource/case/411/

51) www.oyez.org/oyez/resource/case/192/

---

The case is very strong related to the Weber ­ case; many of the arguments of the briefs were

related to it. (52)

7.7 Comment on the cases

The above described and summarized cases show how disagreeing not only the American

population, but also the different courts are. The fact that in all of the cases the different

courts to which the cases had been brought to ruled very differently shows this.

Taking this into consideration it is no more surprising that affirmative action is a so disputed

issue in the United States.

8. Conclusion

In my opinion, it is hard to say if affirmative action is good or bad. The idea of creating a

federal program to help and protect minorities is of course a very good one, but its realisation

still includes many problems that lead to struggles and suits. The arguments of the opponents

are not unfounded, but I think that the programs should not be abolished because that would

be a fatal thing for many workers that belong to a minority. And the consequences of past

discrimination are not by any means compensated now.

_______________________________________________________

52) cf. Greene, p. 147 ­ 159, ct. www.oyez.org/oyez/resource/case/192

---

9. Appendix

Survey of the readership of the Phi Delta Kappan (1977):




Questions:

1. When minority groups, such as blacks, Latinos, and native Americans are

underrepresented in certain professions, they should be favoured in screening

applications for admission to preparation in these professions.

2. Applicants for admission to the professions should be screened on the basis of proven

talent and promise of success without regard to race and ethnicity.

3. When the number of applicants for admissions to professional preparation, exceeds the

number of places in a preparatory institution, admission should be based on a lottery

conducted among the qualified applicants without regard to race and ethnicity.

4. Racial and ethnic "goals" or "targets" are acceptable in admission in preparation for

the profession: "quotas" are not.

Responses:

Strongly Somewhat Neutral or no Somewhat Strongly

agree agree opinion disagree disagree

N % N % N % N % N %

Question 1:

50 9.5 71 13.4 24 4.5 104 19.7 279 52.8

Question 2:

397 75.2 64

12.1 10 1.9 38 7.2 19 3.6

Question 3:

169 32.0 103 19.5 56 10.6 51 9.7 149 28.2

Question 4:

212 40.2 145 27.5 64 11.9 35 6.6 73 13.8

Source : Simmons, Ron, Affirmative action, Cambridge, 1982, p.50

---

10. Bibliography


Books:

- Simmons, Roy, Affirmative action, Cambridge, 1982

- Rubio, Philip, A history of affirmative action, Mississippi, 2001

- Greene, W. Kathanne, Affirmative Action and Principles of Justice, Connecticut, 1989

Internet pages:

- www.blaetter.de/aeltere/nove97/ege1197.htm

- www.law.harvard.edu/faculty/guinier/racetalks/future_aa03.htm

- www.welt.de/data/2003

- www.wsws.org

- www.aggh.edu.html

- www.CNN.com

- www.cnn.com /2003/EDUCATION/06/24/affirmative.action.michigan.ap/index.html

- www.edition.cnn.com/2003/ALLPOLITICS/06/27/ip.pol.opinion.oconnor/index.html

- www.oyez.org/oyez/resource/case/423/955/411/192/

Dictionaries:

- PONS Kompaktwörterbuch (Klett - Verlag)

- i - Finger

11. Personal declaration

I declare that I did the work without somebody else′s help and that I

only used the sources indicated in the bibliography.

---