Affirmative Action

Table of contents

1. Introduction
1.1 A definition of affirmative action

2. The history of affirmative action
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
3.1 The effects of slavery
3.2 The social background of minorities and its effects

4. Criticism of affirmative action
4.1 Arguments of the affirmative action opponents

5. How affirmative action works
5.1 The system of administration
5.2 Training
5.3 Example: The San Francisco State University

6. Future developments
6.1 California’s way of dealing with affirmative action
6.2 New Challenges

7. Famous cases and court decisions about the issue
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

9. Appendix

10. Bibliography

11. Personal declaration

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 attempt to rectify the effects of slavery and

white supremacy and in that sense serves as the first antecedent to affirmative 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 Civil Rights Act had been passed in 1964, special affirmative action agents had the authority to institute quotas and preferential hiring to increase the representation of minorities in employment and to improve their situation.

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 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 children that belong to minorities do not have equal

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 want to be treated equally with whites and not

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

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

⁶⁾ cf. Simmons, p.38

⁷⁾ cf. Simmons, p.39

⁸⁾ Simmons, p.39