Paradoxes of Affirmative Action

Autor: Tomáš Břicháček | Publikováno: 28.5.2006 | Rubrika: English
Šaria

Affirmative action (AA) as it is called in the USA or Positive discrimination as it is usually called in Europe can be defined in many ways. It is difficult to provide one exact and all-encompassing definition. Generally speaking it is a policy aimed at increasing the representation and opportunities of members of groups that have traditionally been discriminated against by using active measures that go beyond non-discrimination. These measures concern in particular education, employment, government contracts, health care, or social welfare. They can take the form of special recruitment efforts to draw more applicants in these areas from these groups, but might also include some additional consideration of these applicants or preference for them, given that their credentials along certain dimensions might look weaker than those of their counterparts from the majority population.1

Since these measures give preferential treatment to the above-mentioned individuals, it necessarily means, that it is done at the expense of somebody else, i.e. the majority population. Therefore the European term “positive discrimination” seems to be more adequate. There is no wonder that AA remains vastly more controversial than anti-discrimination programs stricto sensu.2

In this paper, we will examine the benefits and costs of AA in the USA, both for its intended beneficiaries and for society and we will focus on the theoretical questions related to this controversial approach.

***

In the context of anti-discrimination policy the term “affirmative action" first appeared in President Kennedy's Executive Order 10925 Establishing The President's Committee On Equal Employment Opportunity from 1961. 3 It was used there in connection with government contracts. According to the Order all government contracting agencies were obliged to include in every government contract provisions banning race discrimination that were explicitly enumerated in the Order. The provisions started as follows: "The contractor will not discriminate against any employee or applicant for employment because of race, creed, color, or national origin. The contractor will 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. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship.” 4

We can see that the term was used in a different meaning than is the current one. In the same sense it was repeated in the famous Civil Rights Act of 1964, which permitted courts to order "affirmative action" in cases where an employer was "intentionally engaged in" an unlawful discriminatory employment practice, or in Lyndon Johnson’s Executive Order 11246, which was a revision of that above mentioned Kennedy’s one. 5 In fact, in the beginning the term was related to an anti-discrimination policy, which was not supposed to overpass the colour-blind approach.

But AA started to take a new shape already under Lyndon Johnson. It was him who advocated a new approach towards the emancipation and integration of the blacks in a famous speech given in 1965 at Howard University as follows: "You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line in a race and then say, 'you are free to compete with all the others', and still justly believe that you have been completely fair." 6

In the following years the AA and the whole anti-discrimination policy of United States came to mean something quite different from the original colour-blind approach. Instead, we encounter "race-consciousness".7 We cannot analyse in this place the complex federal and state legislations and the voluntary AA practice of some private firms in detail, we will only explain the principles on which this policy is based.

Focusing in particular on education and jobs, AA policies required that active measures be taken to ensure that blacks (and later other minorities) enjoyed the same opportunities for promotions, salary increases, career advancement, school admissions, scholarships, and financial aid that had been the nearly exclusive province of whites. Racial preferences started to be used in their favour: lower admissions standards at colleges and graduate schools, minority set-asides for government contracts, unofficial racial quotas to benefit those applying for jobs. 8 From the outset, affirmative action was originally envisioned as a temporary remedy that would end once there was a "level playing field" for all Americans. 9

AA was rather popular in the beginning among Americans, especially the young generation. Students throughout the USA organized mass protests to spur their schools to actively recruit minority applicants. But as the AA was progressing in the 1970s this enthusiasm disappeared and turned to controversy. 10 The universities appeared to be one of the most problematic areas.

Although universities may be bound by AA in employment in their role as federal contractors, there are no explicit federal rules regarding AA in university admissions. Universities have implemented AA admissions policies giving preferential treatment to minority candidates (or women) in particular by establishing quotas, lower requirements etc rather voluntarily.

There have been many controversies and many judicial decisions connected with the AA in this field. Let us mention the most famous cases. Preferential admissions initially came under attack in the Bakke v. University of California Regents (1978). Allan Bakke, a white male, had been rejected two years in a row by a medical school that had accepted less qualified minority applicants—the school had a separate admissions policy for minorities and reserved 16 out of 100 places for minority students. The Supreme Court declared that policies that set aside a specific number of places for minority students, which bars states from depriving citizens of equal protection of the laws. However, the Court upheld the legality of affirmative action itself. Therefore, while this decision is viewed as declaring strict quotas illegal, it is also interpreted as ruling that race can be used as a flexible factor in university admissions. 11

In 2003 in the case of Gratz v. Bollinger, et al. the Supreme Court struck down the undergraduate admissions practices at the University of Michigan, because it found the point system used by the university in its consideration of race (and other criteria) too rigid. At the same time the court upheld the University’s law school admissions procedures, finding that the more flexible treatment of race in this case satisfied the state’s compelling interest in expanding the pool of minority candidates admitted to this prestigious school. Thus, again the Supreme Court confirmed that colleges and universities could consider race in making admissions decisions. 12

Also a case on state level is often mentioned, the case of Hopwood v. State of Texas in 1996, in which a Texas court of appeal eliminated racial preferences in admissions in state universities there. 13

***

There are different opinions as far as the real impacts of the AA are concerned. In the last 30 years, a number of studies have attempted to assess whether affirmative action programs lead to greater employment and advancement of minorities and women.

According to F.D. Blau and A. E. Winkler these studies suggest that minorities and women have benefited at least modestly. There was an increase in the share of minorities and women employed at large establishments, where antidiscrimination legislation and regulations are most likely to apply and employment rates for minorities and women increased faster in firms with federal contracts (that is to say AA subjects) than at otherwise equivalent firms without such contracts.

The supporters also claim that AA has brought about vast improvement in the class stratification of minorities. Blau and Winkler quote the study The Shape of the River by William G. Bowen and Derek Bok, according to which, in the period 1960-1995, the percentage of blacks aged 25–29 who had graduated from college rose from 5.4 to 15.4%, the percentage of blacks in law school grew from below 1 to 7.5%, and the percentage of blacks in medical school increased from 2.2 to 8.1%.14

According to H. Holzer and D. Neumark AA improves both opportunities and outcomes for the minority students and employees who are its direct beneficiaries. At the same time the magnitudes of the costs borne by white majority (especially white males), in terms of lost jobs at contractor establishments or lost positions at elite colleges and universities, have not been terribly high; and the costs borne by employers in the form of lower productivity also appear quite limited. 15

Holzer and Neumark’s pro-AA argumentation continues as follows. They claim that there are greater shares of minorities and women in the firms using AA. Moreover, when firms used AA in recruiting—for example, advertising more widely for positions or requiring applicants to complete a larger number of screening tests to learn more about their attributes and potential—the new female and minority hires were equally as qualified as their white male peers; and once hired, they received equally as good job performance ratings (indicating they were likely equally as productive). When AA was used in the hiring process, Holzer and Neumark again found that new female hires had similar qualifications and job performance. They did see some evidence of lesser qualifications “on paper” for minorities; but once hired, most minority groups performed at a level equivalent to their white male peers. Holzer and Neumark also found that employers who used affirmative action programs were more likely to have formal human resource procedures in place for evaluating their employees, which should help create more objective evidence when considering women and minority candidates for potential promotions down the road. In other words, this research allegedly suggests that affirmative action policies make firm personnel management practices more systematic and impartial.

As far as the negative consequences for “white males” are concerned Holzer and Neumark affirm that the likelihood of more productive men or whites being passed over in favour of less productive women or minorities is probably low. And the fact that minorities and women still earn less than men and whites, all else equal, also indicates that reverse discrimination is not the norm. 16

Let us go on to speak about the opponents’ views. They object that AA cannot be considered the primary agent of change for the growth of minorities employment in the majority of employment categories in the U.S., as official AA employment programs applied only to government and government contractor hiring. Most Americans worked for small- and medium-sized businesses that did not employ AA programs. Many of these companies, however, used another concept - Equal Opportunity Employment: a pledge to not discriminate negatively in hiring and promotion decisions on the basis of race, colour, sex, religion or national origin. They also object that the growth of the black middle class , which has been remarkable, was on an upward trajectory in the 1950s and 1960s prior to the implementation of AA programs. 17

We can conclude that it is very difficult to evaluate the real impacts of the AA, because there are other factors such as the normal (colour-blind) anti-discrimination legislation, and natural development of the society, which have been influencing all the positive changes that are today considered as a success of AA by some.

***

Supporters argue that the “positively discriminatory” measures are essential if the rewards of good jobs, university slots, and government contracts are to be distributed equitably and fairly and that is necessary to offset the systematic barriers that minorities and women continue to face in pursuing in these fields. According to them discrimination and pernicious stereotypes have persisted into the present, while the cumulative effects of past discrimination also continue to hobble underrepresented groups in a variety of ways. In this view AA is needed to counter these barriers and to equalize opportunities.18 Some claim that without AA, minorities and women would have fewer opportunities or may invest less in education and training because they would think that it would not pay off down the line. 19

The opponents argue logically that such a policy is discriminatory and unjust, because it judges an individual according to his or her biological characteristics rather than his or her knowledge, skills and other personal qualities. We can say together with J.D.Skrentny that this is one of the paradoxes of AA. On the one hand it is intended to serve to create a world without discrimination and race prejudices, on the other hand it forces people to be "race- conscious".20

They also argue that discrimination now plays a relatively small role in the determination of educational and employment differences across race groups and sexes. Instead, they point to weaknesses in early family and school environments that continue to generate low skills among underrepresented minorities, which in turn generate lower representation and poorer performance in highly-paid jobs and university positions for these groups. To the extent that women continue to lag behind men in labour market outcomes, these gaps are largely attributable to individual choices made by women themselves – especially related to fertility and motherhood. As a consequence, the critics argue that AA leads to the hiring or promotion in jobs, and to the admission to universities, of less-qualified minorities who perform poorly. It thus constitutes an attempt to equalize results or outcomes, rather than opportunity. Finally, the supposed beneficiaries of Affirmative Action are themselves hurt, as they find themselves in positions in which they ultimately fail. Affirmative Action might also help perpetuate negative stigmas regarding the abilities of minorities. In this view, Affirmative Action is grossly unfair – not only to white males and to employers, but also to the underrepresented groups whom these policies are intended to help. 21

Critics also say that AA can actually cause problems for those who are supposed to benefit from it as it is based on the belief that they cannot succeed if they have to compete on a level playing field. They may be viewed as “affirmative action hires” rather than as equally qualified, equally productive employees. This stigmatize them as less able than other Americans to stand on their own two feet and may make them feel inferior. 22 Even many members of the minorities that are advantaged by the AA-measures think so. For example a Californian black scholar Ward Connerly, famous enemy of AA says that „[AA] is poisonous. I think it poisons the relationships between people based on their groups and based on the perception that some are being left behind because of it. I can't tell you the number of people who are white and male who say that ´I would've been here except for affirmative action.´ There's no evidence of that, but there's that perception in their minds. And perception becomes reality. It poisons relationships and builds resentment, often needlessly. It also marginalizes people, if you are female or you are black or you are Latino. … those of us who are in that group called "minority and women," if we are performing in any role that is not seen as being a traditional role, the impression is that we did not get that by reason of our own accomplishment. We got that because of somebody giving it to us, because of affirmative action.23

On both sides we can find strong arguments. So, where is the truth? In this paper we are not going to try to make any categorical judgments. We will rather present a couple of remarks as a contribution to the discussion.

We can fully understand the logic that stood behind the AA policy in the beginning in the context of the emancipation of the black Americans. There is a deep truth in above-mentioned Lyndon Johnson’s speech at Howard University. In the middle of 1960s it was clear that United States owed a lot to its black citizens after the centuries of oppression (originally slavery, than segregation and unequal treatment). Therefore the “positively discriminatory” policy can be utterly justified as a temporary auxiliary measure.

However, the situation is significantly nowadays. As Skrentny points out, the American racial and ethnic scene has changed profoundly. A large black middle class has formed (although one must admit that the large black lower class continues to suffer severe unemployment and social exclusion). 24 This self-confident middle class does not need any paternalistic positive discrimination, which, as we have shown, they can perceive degrading and stigmatizing.

The explosive post-1965 growth of immigration, mainly from Latin America, Asia, and the Caribbean, has produced a very diverse and growing population of affirmative action-eligible groups. 25 However, contrary to the case of black Americans, there is no imaginable justification for proceeding in the same way vis-à-vis the economic immigrants and their descendants.

We must add - although it may not be politically correct - that from the very beginning any justification for AA practices is missing in the case of women. Surprisingly unequal treatment in this field (all those 50:50 quotas) seems to be one of the most acceptable kinds of discrimination in the current society, even in Europe. We may observe e.g. many populist leftist political parties vaunting of 50:50 “distribution” of both sexes in their candidate lists.

Therefore and with regard to the fact that the ban of discrimination based on race, ethnicity or sex can be considered one of the fundamental principles of modern Western civilization, we must attach ourselves to the opponents of the further application of AA in the United States and everywhere round the World except really extraordinary situations limited in time and scope. The value of a human being should be evaluated according to his or her knowledge, skills and other personal qualities, not according to his or her race, colour, ethnicity or sex. The one who is the best according to the objective criteria should be accepted to the university or get the job not the one, who is privileged thanks to his or her biological characteristics.

Of course there is the problem of persisting discriminatory practices towards minorities and women, however, the classical anti-discrimination legislation and its better enforcing should be the key to resolving the problem.

***

AA in the United States remains a controversial topic. This short paper has tried to understand its roots, its usual forms, its impacts, arguments of the supporters and opponents and thereafter present a couple of remarks on these grounds. It advocated the approach that the value of a human being should be evaluated according to his or her knowledge, skills and other personal qualities, not according to his or her race, colour, ethnicity or sex. Therefore I strongly believe that the AA must be rejected as unjust and unethical except for extraordinary cases limited in time and scope.

Poznámky

1 Holzer, H.J.; Neumark, D.: Affirmative Action: What Do We Know? (2005), in: http://www.urban.org/UploadedPDF/1000862_affirmative_action.pdf, p. 1; || http://en.wikipedia.org/wiki/Affirmative_action

2 Holzer, H.J.; Neumark, D.: op. cit., p. 5

3 Skrentny, J.D.: The ironies of affirmative action : politics, culture, and justice in America, University of Chicago Press, Chicago (1996) pp. 7-8

4 Executive Order 10925 Establishing The President's Committee On Equal Employment Opportunity (1961), section 301 (1),

5 Civil Rights Act of 1964 (1964), section 706 (g)

6 Johnson, L.B.: Commencement Address at Howard University: "To Fulfill These Rights" (1965), in: http://www.lbjlib.utexas.edu/johnson/archives.hom/speeches.hom/650604.asp

7 Skrentny, J.D.: The ironies ...., pp. 7-8

8 Brunner, B.: Bakke and Beyond - A History and Timeline of Affirmative Action, in: http://permanent.access.gpo.gov/www.usccr.gov/aaction/supcourt.htm

9 Brunner, B.: op.cit. (web)

10 http://en.wikipedia.org/wiki/Affirmative_Action

11 Brunner, B.: op.cit. (web) || Holzer, H.J.; Neumark, D.: op.cit., p. 2-4 || The Supreme Court Revisits Affirmative Action: Will Grutter and Gratz Mean the End of Bakke?, U.S. Commission on Civil Rights analysis (2003) in: http://permanent.access.gpo.gov/www.usccr.gov/aaction/supcourt.htm

12 Holzer, H.J.; Neumark, D.: op.cit. 2-4 || http://www.nsba.org/site/doc.asp?TRACKID=&VID=2&CID=67&DID=31210 (web of the National School Boards Association) || The Supreme Court Revisits Affirmative Action… (quoted above, web)

13 Holzer, H.J.; Neumark, D.: op.cit., pp. 2-4

14 Blau, F.D.; Winkler, A.E.: Does affirmative action work? (2005) in: http://www.bos.frb.org/economic/nerr/rr2005/q1/section3b.pdf, pp. 1-3 || http://en.wikipedia.org/wiki/Affirmative_Action

15 Holzer, H.J.; Neumark, D.: op.cit., p. 37-40

16 Blau, F.D.: Winkler, A.E.: op. cit., p. 1-3

17 http://en.wikipedia.org/wiki/Affirmative_Action

18 Holzer, H.J.; Neumark, D.: Affirmative Action: What Do We Know? (2005), pp. 7-8

19 Blau, F.D.; Winkler, A.E.: op. cit., pp. 1-3

20 Skrentny, J.D.: The ironies ..., pp.7-8

21 Holzer, H.J.; Neumark, D.: Affirmative Action: What Do We Know? (2005), pp. 7-8

22 Jacoby, J.: On flattering minorities, (2004) in: http://www.townhall.com/opinion/columns/jeffjacoby/2004/03/19/11123.html || Blau, F.D.; Winkler, A.E.: Does affirmative action work? (2005), pp. 1-3

23 Ward Connerly interviewed by A.Montgomery (2000), http://archive.salon.com/politics2000/feature/2000/03/27/connerly/index.html?CP=SAL&DN=110

24 John David Skrentny (ed.): Color lines - affirmative action, immigration, and civil rights option for America, University of Chicago Press, Chicago (2001), p. 4

25 John David Skrentny (ed.): Color lines ..., p. 4

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