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Affirmative Action

Source:
Encyclopedia of African American History 1896 to the Present
Author(s):

Joseph Wilson,

David Addams

Affirmative Action. 

Affirmative action, a legal and social policy intended to foster equal opportunity in America, accelerated during the political and social ferment in the 1960s as a highly controversial concept and array of programs developed in response to the accumulated and lingering inequality that especially afflicted African Americans.

In a sense, affirmative action can be said to have begun when the idea was put forth in the post–Civil War era that formerly enslaved individuals should be accorded “forty acres and a mule,” that is, given compensation for their years of deprivation in the form of help in starting a new life. Or it could be argued that the executive order issued by President Franklin D. Roosevelt on the eve of World War II, which called for steering government contracts away from businesses that chose to discriminate racially, gave rise to a form of affirmative action, in that these businesses often felt constrained to take aggressive measures to increase their employment of African Americans in order to continue receiving contracts.

The Legacy of the Past.

Despite these precedents, affirmative action generally is associated with the rise of the modern civil rights movement. In the historic 1954 Brown v. Board of Education decision, the U.S. Supreme Court legally abolished the mythology of “separate but equal” derived from the 1896 Plessy v. Ferguson decision. When the Court reversed that precedent, the question that emerged was whether there could be true “equal protection” as “guaranteed” in the Fourteenth Amendment of the United States Constitution if the inherited economic, political, legal, educational, and social inequality from centuries of slavery and a century of post–Civil War inequality imposed by various Jim Crow laws and practices was not mitigated.

With the rise of the civil rights movement in the 1950s, leading civil rights advocates such as Martin Luther King Jr. argued that it was not enough simply to outlaw future discrimination when centuries of slavery, brutality, and discrimination had forged a legacy of profound economic, political, intellectual, and social poverty and powerlessness. Such leaders argued that more affirmative remedies were required to create a foundation for effective equal opportunity. In combination with the legal strategies of Charles Hamilton Houston and Thurgood Marshall at the NAACP Legal Defense and Educational Fund, social and political pressure and mass mobilization led to the implementation of a new approach to racial discrimination and inequality—broadly encapsulated as “affirmative action.”

Until the passage of various civil rights statutes in the mid-1960s, the focus of legislation and constitutional provisions had been on abolishing discrimination by making it illegal. In 1964 the first official usage of the term “affirmative action” came in Title VII of the Civil Rights Act of 1964. The statute reads as follows:

If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action [italics added] as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice), or any other equitable relief as the court deems appropriate.

In 1965 President Lyndon Baines Johnson signed Executive Order 11246 requiring federal contractors to “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.” In 1967 in response to the rise of the women's movement's use of voting and public campaigns for equality, President Johnson expanded the executive order to benefit women.

In any event, the United States Supreme Court subsequently upheld the principle of affirmative action, starting with Griggs v. Duke Power Company in 1971. After persistent political attacks against affirmative action, along with a conservative political backlash against many of the 1960s civil rights gains, in the 1979 case of Regents of the University of California v. Bakke the Court held that affirmative action could not take the form of racial quotas and could not create separate standards for evaluating students. Subsequent cases further limited the availability and forms of affirmative action to the point where many advocates felt that affirmative action was marginalized and rendered almost moot.

Affirmative Action and Women.

The history of affirmative action relative to gender issues has had a similar trajectory. By some measures, women of various ethnicities have been the major beneficiaries historically of affirmative action, although routinely affirmative action has been seen as a program devoted exclusively to the uplift of African Americans. The rise of the women's movement and feminism in the 1960s presented the need to address socioeconomic and political inequalities between men and women in the United States. Long before affirmative action policy took hold, an Equal Rights Amendment to the U.S. Constitution was drafted in the aftermath of World War I as a follow-up to the constitutional amendment guaranteeing women's voting rights.

The ERA, as it came to be known, was designed to outlaw discrimination and inequality on the basis of gender. By the 1970s, although a majority of states had ratified the ERA, the number still fell short of the three-fourths required, so the ERA was never passed. At the same time the unequal treatment of women in education, employment, economics, law, and politics was brought to the forefront of national consciousness through the work of feminist leaders such as Gloria Steinem, Betty Friedan, and the African American Shirley Chisholm. While the push to ratify the ERA stalled, affirmative action became increasingly involved in addressing gender inequality in employment and education. In many other countries, affirmative action principles have been applied to balance electoral slates by gender in order to achieve equal representation of women in various branches of government.

The greater success of feminism in mitigating much of the inequality in some arenas has often been contrasted with the lack of similar progress on a mass scale relative to race and national origin. This has placed a strain on the alliance between the civil rights and women's movements at a time when the concepts and programs emerging from the affirmative action paradigm were coming under increasing attack from mainstream institutions and organized sectors of society.

A similar conflict arose in the historic relationship between the Jewish American and African American communities. Though many Jews were strong supporters of the civil rights movement in the 1950s and 1960s, a number of Jewish leaders opposed affirmative action proposals, deeming them to be racial quotas and therefore akin to the quotas that once limited the number of Jewish people admitted into universities and other institutions. This opposition occurred in the face of an adamant challenge by a number of Jewish women—particularly on university faculties—who argued that affirmative action was essential to knocking down the barriers that had limited their opportunities.

The Late Twentieth Century and the Future.

Over the decades since the first official affirmative action policy was enunciated, social, political, and legal debate has been heated and polarized regarding the validity and necessity of this approach to remedy past discrimination and lingering social and institutional inequalities. A political and social backlash triggered by so-called angry white men, including right-wing pundits and individuals associated with conservative think tanks, called into question the reason for, the fairness of, and the effectiveness of such an affirmative action strategy. The growing conservative movement of the 1980s caused affirmative action increasingly to be attacked as “reverse discrimination” and as being harmful to both minority and majority populations.

Critics pointed to advances in racial integration and the improved social and economic conditions of many African Americans as proof that affirmative action was no longer needed. Further, they argued, continuing inequality is a result of innate deficits of character, culture, or intellect—not discrimination. Hence the “culture of poverty” argument—or the idea that it was not racism but the “culture” of African Americans that was hindering their rise—gained ascendance.

Conversely, defenders of affirmative action have argued that affirmative action is a fundamental reason for racial progress and advancement for women. Moreover, advocates contend that continuing inequality is a result of a failure of government and civil society to apply affirmative action thoroughly and vigorously, thus reflecting the continuation of historically rooted inequality throughout the nation's institutions. Rejecting the claim that the United States is, or ever was, a color-blind meritocracy that rewards anyone who has ability and who gives sufficient effort, civil rights advocates pointed to past and continuing discriminatory practices as de facto pro-white affirmative action, exemplified by legacy admissions in many private universities that benefit the children of alumni.

Economic and political leaders in the United States have found themselves on both sides of the debate as to the benefits of affirmative action, with arguments being made relative to the effectiveness and equity of diversity in building a unified and prosperous society. Arenas such as the military and sports have benefited from advances resulting from various forms of affirmative action, and leaders of the related institutions have become advocates of the need for such policies. Thus advocates of the policies that have led to the increase in numbers of African American professional athletes and coaches often contrast the current situation with that of the past, when those who were obviously qualified were systematically barred. They argue that the increase in minority numbers not only has created more opportunities for African Americans and enriched sports but also has highlighted the fact that previously unqualified whites were obtaining posts undeservedly—which sheds light on why there might be so much staunch opposition to affirmative action in other fields.

Many of the leading public figures advancing various arguments against affirmative action, nonetheless, are African American and Latino Americans: they include Ward Connerly, a former regent of the University of California; Thomas Sowell, a conservative economist; Linda Chavez, a former director of the U.S. Commission on Civil Rights; and the U.S. Supreme Court justice Clarence Thomas. Connerly has led highly visible and successful attacks on affirmative action policy in the states of California, Michigan, and Washington. He spearheaded Proposition 209 in California, which passed as a ballot proposition in 1996 with 54 percent of the vote and thereby led to amending the state constitution to prohibit affirmative action by preventing the use of race, gender, or ethnicity in public institutions for the purposes of hiring or admission into public universities. Proposition 209 was upheld in federal court on appeal. Since 209 passed, the admission of African American and Latino American students into the state's public universities has dropped by more than half. Following California's lead, by 2000 the percentage of U.S. universities with affirmative action recruitment programs dropped from 90 percent to 65 percent, with private universities dropping to 50 percent.

A similar ballot proposal (Proposal 2) passed in Michigan in 2006 with 58 percent of the vote, which matched the vote for a similar proposal in the state of Washington in 1998. At the same time, affirmative action was the central issue in two key U.S. Supreme Court cases coming out of Michigan in 2003: Gratz v. Bollinger and Grutter v. Bollinger. The Court upheld affirmative action policies that used race, ethnicity, or gender as a factor in deciding university admissions, but it overturned a policy that gave alleged direct preferences in admissions based on those criteria.

Civil rights advocates point out that the vast majority of African Americans and Latino Americans, who were intended as the initial beneficiaries of affirmative action policies, still languish in inferior socioeconomic and political circumstances in society. Data shows that health, education, employment, housing, and voting rights discrimination persists and that this discrimination limits the life opportunities of individuals from these groups. Failure to diversify police and law enforcement agencies is connected, according to these advocates, to the persistence of racially discriminatory policing (racial profiling) and to a situation in which dramatically disparate numbers of African Americans and Latinos (compared to whites) are incarcerated in greater and greater numbers. The Harvard University Law School professor Charles Ogletree explored debates within the civil rights community as to whether the successful push for legal equality was effective or even strategically beneficial in his 2004 book All Deliberate Speed: Reflections on the First Half Century of “Brown v. Board of Education.”

Some liberal analysts argue that the problem with affirmative action is that it places too much focus on racial and ethnic identity and not enough on class. They argue that affirmative action and the subsequent diversity initiatives reinforce racial concepts without eliminating the underlying inequality that impacts racial groups as a class or subclass in society. Proposals from this corner focus on providing assistance in various forms to economically disadvantaged people regardless of racial identity.

Corporate and political institutions have benefited from the partial elimination of racial barriers with the rise of minority elites who play visible and strategic roles without—according to their critics—empowering their broader communities or threatening the broader socioeconomic balance of wealth and power in society. African American and Hispanic chief executive officers, chief financial officers, secretaries of state, attorneys general, judges, mayors, and other high-ranking business and civic professionals give the appearance of equal opportunity while the vast majority of the minority groups they ostensibly represent still live in inferior socioeconomic conditions.

Outside the United States, various affirmative action proposals have been instituted to address the inferior status or position of minority groups (as in France, China, and Belgium), as well as of groups that are economically or socially oppressed despite their majority numbers (as in South Africa, Malaysia, and India). The results of such programs have received the same mixed reviews that they have in the United States, and it is unclear that long-term, ingrained institutional social inequality has been eliminated anywhere as a result of any version of such programs. It is also not clear that affirmative action policies anywhere in the world have ever been fully implemented on a broad enough scale or with a long enough timetable to address the problems that they targeted.

Conservative and fascist movements, together with a resurgence of racial violence, have arisen in the United States as well as in several European countries in reaction to affirmative action programs. The rise of hate crimes and hate groups in the United States has been documented by the Southern Poverty Law Center and connected to the backlash against affirmative action over several decades.

Some minority group leaders and institutions have revived the call for reparations or self-help principles or both as representing alternative approaches to the problem of persistent inequality and injustice in the United States—for example, some people advocate offering compensation to the descendants of enslaved Africans for their ancestors' unpaid labor over the centuries. A number of initiatives have also arisen to encourage private institutions such as corporations and foundations to develop programs supporting the educational and social opportunities of African Americans and Latino Americans without running afoul of legal restrictions against affirmative action. It is clear, as the U.S. Supreme Court justice Sandra Day O'Connor stated in her majority opinion in Grutter v. Bollinger, that the issue of affirmative action will continue to be revisited in the coming decades to determine whether the inequities of the past persist and require some form of legal and public solution.

Bibliography

Anderson, Terry H. The Pursuit of Fairness: A History of Affirmative Action. New York: Oxford University Press, 2005.Find this resource:

    Ball, Howard. The “Bakke” Case: Race, Education, and Affirmative Action. Lawrence: University Press of Kansas, 2000.Find this resource:

      Beckwith, Francis J., and Todd E. Jones, eds. Affirmative Action: Social Justice or Reverse Discrimination? Amherst, N.Y.: Prometheus Books, 1997.Find this resource:

        Carter, Stephen L. Reflections of an Affirmative Action Baby. New York: Basic Books, 1991.Find this resource:

          Chávez, Lydia. The Color Bind: California's Battle to End Affirmative Action. Berkeley: University of California Press, 1998.Find this resource:

            Crosby, Faye J. Affirmative Action Is Dead: Long Live Affirmative Action. New Haven, Conn.: Yale University Press, 2004.Find this resource:

              Curry, George E., ed., with Cornel West. The Affirmative Action Debate. Reading, Mass.: Addison-Wesley, 1996.Find this resource:

                Eastland, Terry. Ending Affirmative Action: The Case for Colorblind Justice. New York: Basic Books, 1997.Find this resource:

                  Horne, Gerald. Reversing Discrimination: The Case for Affirmative Action. New York: International Publishers, 1992.Find this resource:

                    Katznelson, Ira. When Affirmative Action Was White: An Untold History of Racial Inequality in Twentieth-Century America. New York: W. W. Norton, 2006.Find this resource:

                      Lynch, Frederick R. Invisible Victims: White Males and the Crisis of Affirmative Action. New York: Greenwood Press, 1989.Find this resource:

                        Moore, Jamillah. Race and College Admissions: A Case for Affirmative Action. Jefferson, N.C.: McFarland, 2005.Find this resource:

                          Ogletree, Charles, Jr. All Deliberate Speed: Reflections on the First Half Century of “Brown v. Board of Education.” New York: W. W. Norton, 2004.Find this resource:

                            Orfield, Gary, and Edward Miller, eds. Chilling Admissions: The Affirmative Action Crisis and the Search for Alternatives. Cambridge, Mass.: Civil Rights Project, Harvard University, 1998.Find this resource:

                              Skrentny, John David. The Ironies of Affirmative Action: Politics, Culture, and Justice in America. Chicago: University of Chicago Press, 1996.Find this resource:

                                —Joseph Wilson —David Addams