The callous opinions of unmoved minds regarding the value, or legitimacy, of Affirmative Action policies in the country today have always been controversial. While a most imperative requirement to sufficiently examine such an issue demands a strong evaluation of the historical conditions that brought affirmative action to bear in the first place, this research paper must remain within the confines of time and length constraints. How has affirmative action changed since the 1960s? Of course, the short answer might be that its policies are no longer exclusively applied to black people, since its original design was to establish legal protections against skin-color/ethnicity discrimination as a result of the Civil Rights movement. Obviously today, its application has applies to gender and religion protections, most notably. Nevertheless, the task herein is to explore how affirmative action has changed since the 1960s, and try to cogently answer whether or not present-day policies on affirmative action should still be used in the 21st Century.
One request of the reader, in the initial process of delving into this discourse, is that he or she would keep an open mind and never fail to remember the conditions of inequalities endured by former slaves and their progeny, in this land. Common knowledge dictates that the Civil Rights movement involved gaining normal human rights for black people not to be treated like dogs, in terms of engagement in simple things like parks and restaurants without being separated in dreary inferior spots. But equal opportunities in employment and education were the biggies. Keeping in mind the general concept of the conditions preceding Affirmative Action legislation and executive orders, what it was, and whom it was originally intended for, helps to garner reasonable thinking. Discrimination and prejudice go hand-in-hand. Clawson, Kleger, and Waltenburg (2003) in their article-section discussing “Group-Centrism, Policy Opinion, and the Court” suggest that when public policies are very important and controversial, it is the “attitudes” towards the “groups involved” that form divides of “support or opposition” (p. 292). If you think about it, the scholars’ observations make a lot of sense. For example, as a sidebar, the recent federal legislation allowing homosexual marriages legalized by the State has caused feelings of great joy, and sorrow – depending upon how a person may feel about the ‘group.’
In the same article, public policies that spark intense passions in the views of the populace give Supreme Court Justices much fodder for careful thought, when rendering their decisions. Clawson et al. (2003) specifically look at black persons’ opinions on both capital punishment, and affirmative action by recognizing that the former issue (capital punishment) is supposedly “a race-neutral policy,” but holds a disproportionate effect on black citizens (p. 292). The point is that issues of race are deeply entrenched in American social-group identification and public opinion even though there has been some progress for blacks, in a current situation of what some might view as a colorblind society. If it were truly a color-blind society, perhaps there would be no need for this paper at all – nor the repeated emergence of heated debate on the topic which apparently persists.
As time eased from the 1960s into the 1970s, affirmative action policies were firmly entrenched. Its applications centered on the areas of education and employment. The basis for a key turning point, ushering in the concept of so-called ‘reverse’ discrimination appeared with the U.S. Supreme Court case known as the Bakke decision. Chaires and Lentz (2001) comment upon Regents of the University of California v. Bakke which set a precedence for reverse discrimination, elevating the “constitutional standard” as requiring “the showing of extraordinary proof to justify voluntary affirmative action activities on the part of the traditionally excluded” (p. 44). Chaires et al. (2001) continue, perusing the legal history of affirmative action policy by examination of these types of Supreme Court cases, reflecting on what the climate in the 21st Century will be like – in terms of “the demographic face of America” when there is no oversight of federal law (p. 44). They maintain that there has been too much long historical experience with criminal justice to pretend that its organizational structure would enable agencies to “police themselves” (p. 45). Of course, not all agree or would choose this idea to investigate.
We have seen the pendulum of jurisprudence and opinion swing from affirmative action against discrimination of the traditional group, to include women and religious rights, and most dramatically sway towards upholding (what some would deem as ridiculous) reverse discrimination. It is important at this juncture to facilitate logic in understanding how closely employment opportunities and education are linked. One can exist without the other, in theory. But basically, a good education will almost guarantee an open door for a desirable level of job placement. If educational opportunities were shriveled, then obviously better jobs in professions will not be possible. Furthermore, taking a macro-perspective of the entire socio-political situation, one can smartly see that discrimination in housing, education, jobs, and all spheres of society perpetuates a cycle of economic depression for communities afflicted by prejudicial treatment.
Just in case the reader needs a refresher of the Bakke decision, here is what it actually entailed. Rostron (2013) mentions it in a recent article appearing in the Northwestern University Law Journal. The case, Rostron (2013) tells, involved Alan Bakke “a white male, claimed that the medical school at the University of California at Davis impermissibly discriminated against him by reserving 16 out of 100 seats in each entering class for applicants from disadvantaged minority groups” (p. 1038). One can easily observe how the decision angered many in the black and brown communities, while others cheered it on as an appropriate backlash against their thoughts of affirmative action being questionable, or wrong, in the first place. It seems that the originating spirit of affirmative action policies did not give those disadvantaged members of society the right to enter colleges, or professions, as unqualified. They had to be qualified, yet according to Rostron (2013) in the years since the controversial Bakke landmark opinion, Justice Powell argued that “the use of racial preferences will no longer be necessary” (p. 1039). Yet – in truth – is honing federal legislation and policies to help traditionally discriminated citizens, whom are qualified, creating standards of preference? It appears now, then, that policy and lawmakers are encumbered with the confrontation of deciding if affirmative action should still be used in the 21st Century.
The general flow of public sentiment, with regard to the mention of color or ethnic discrimination is often met with accusations of playing the ‘race’ card. But some would inquire, what about the rest of the deck? Yet, the youth of today have no memories of the ferocious battles of hatred patterns of discrimination that flared up in American history. Many of them simply do not care, and marry whomever they want, as many mixed couples are on the rise. Parry and Finney (2014) view the history of affirmative action legal decisions and policies as “schizophrenic,” commenting on a series of Executive Orders from the 1950s through 1960s, and quoting President Nixon as stating in 1978 “A good job is as basic and important a civil right as a good education is necessary and right. We would not impose quotas, but would require federal contractors to show affirmative action to meet the goals of increasing minority employment” (p. 240). The authors extensively explore the issue, citing Titles, Sections, cases, and historical demographic data, to paint a fuller picture of the background of the situation, noting that the term ‘affirmative action’ came on the scene with the Nixon Administration.
Affirmative action policies have greatly helped women in the workplace, as far as designed to help females receive equal pay for doing the same labor as men. White women have bountifully enjoyed the fruits of affirmative action in this framework, as commonly agreed. While it is true this research paper is not about the skewed numbers of men and women of color in prisons, a brief word on the imbalance in criminal law and incarceration may be worthwhile. It is no longer socially acceptable to mention race, as a clause for unequal treatment in American circles. Law Professor Michelle Alexander (2012), in her book The New Jim Crow, agrees and states “Rather than rely on race, we use our criminal justice system to label people of color ‘criminals’ and then engage in all the practices we supposedly left behind” (p. 2). The brilliantly compelling insight Alexander brings to the table, also notes that the former styles of discrimination against African Americans, has resurfaced as legalized discrimination against felons – who in post-incarceration life cannot vote, work (in de facto terms), get food stamps, and face housing discrimination. If a person becomes a felon and has served time, and reenters society, how can they survive if they can neither get a job, nor food stamps? He or she is nearly relegated to live a lifestyle of crime. Alexander’s point is that this new ‘Jim Crow’ criminal law/justice system effectively legalizes the old forms of discrimination.
In conclusion, one observer enumerates the myths associated with affirmative action. The first myth says that “the only way to create a color-blind society is to adopt color-blind policies” (“Ten Myths”). The younger generation of today may be increasingly proving this to be valid. Many date whom they please, marry and bear children with lovers of different skin-colors and backgrounds from themselves. It is not unusual to find many mixed-race families in America today. Another myth cited says that affirmative action policies have not made successful strides in increasing women and minorities’ representation in the labor force, and education. The data quotes that “several studies have documented important gains in racial and gender equality” in these areas (“Ten Myths”). In other words, policies cannot perfectly fix the problems of discrimination, but affirmative action mandates have made measurable differences in increasing minority, and black and white women gaining equality in the labor market.
References
Alexander, M. (2012). The new Jim Crow – Mass incarceration in the age of colorblindness. New York: The New Press.
Chaires, R.H., & Lentz, S.A. (2001). A divided land: Probable impacts of current affirmative action and employment law trends on criminal justice staffing patterns in 2010. Justice Professional, 14(1), 43.
Clawson, R.A., Kegler, E.R., & Waltenburg, E.N. (2003). Supreme Court legitimacy and Group-Centric forces: Black support for Capital Punishment and Affirmative Action. Political Behavior, 25(4), 289-311.
Moreno, P.B. (2003). A history of Affirmative Action law and its relation to college admission. Journal of College Admission, 179(14-21).
Parry, R.O., & Finney, T.G. (2014). Affirmative Action: A schizophrenic history. Southern Law Journal, 24(2), 237-265.
Rostron, A. (2013). Affirmative Action, Justice Kennedy, and the virtues of the middle ground. Northwestern University Law Review, 107(2), 1037-1044.
Understanding Prejudice. (2015). Ten myths about affirmative action [Data file]. Retrieved from http://www.understandingprejudice.org/readroom/articles/affirm.htm
