Affirmative Action

There was a time four or five years ago, when it seemed like I couldn't go online without seeing some post, essay, or article about the evils of affirmative action. Maybe I've tuned it out or maybe people today are preoccupied with more pressing issues like healthcare reform. But for whatever reason it seems like bashing affirmative action isn't quite as sexy as it used to be. That said, as a young(ish) African American I can usually rely on some  . . .

. . . ahem . . .

 . . . conservative . . . attempting to confront me about the alleged grave injustice of affirmative action, as surely as I can rely on the Wizards stankin' up the Verizon Center. It's not a matter of "if" but rather "when" and it's usually not worth reminding the intrepid interrogator that I neither make U.S. policy or speak for all Black people. So in the interest of getting that discussion out of the way here on One Drop, let's take a look at affirmative action in the U.S.

Affirmative Action is a policy that allows race, gender, or ethnicity to be taken into consideration for the purpose of increasing diversity and equal opportunity in employment and education. The term "affirmative action" was first used as a a part of U.S. policy in 1961 when President John F. Kennedy issued Exeutive Order 10925 mandating that all government contracting agencies 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." Why would JFK issue such an order? The short answer is: because of the history of Black people's struggle in this country.

The vestiges of slavery in the U.S. included laws and actions that segregated and discriminated negatively against African Americans. There is a long history of legal decisions and laws that have been established to undo the negative impacts of slavery. The specific foundations of Executive Order 10925 can be found in President Franklin D. Roosevelt's 1941 Executive Order 8802, The Fair Employment Act which outlawed segregationist hiring policies by defense-related industries holding federal contracts as well as the 1953 President Harry S. Truman Committee on Government Contract Compliance which urged the Bureau of Employment Security "to act positively and affirmatively to implement the policy of nondiscrimination . . . ."

President Lyndon Johnson continued JFK's efforts to enfranchise Blacks through Executive Order 11246, which further barred discrimination in government contracting and again required contractors to take affirmative action to ensure employment and non-discriminatory treatment. Johnson, elaborated on the concept of affirmative action several times. At the 1965 Howard University Commencement ceremony, he said:

"Nothing is more freighted with meaning for our own destiny than the revolution of the Negro American...In far too many ways American Negroes have been another nation: deprived of freedom, crippled by hatred, the doors of opportunity closed to hope...But freedom is not enough. You do not wipe away the scars of centuries by saying: Now you are free to go where you want, and do as you desire, and choose the leaders you please. You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, 'you are free to compete with all the others,' and still justly believe that you have been completely fair...This is the next and the more profound stage of the battle for civil rights. We seek not just freedom but opportunity. We seek not just legal equity but human ability, not just equality as a right and a theory but equality as a fact and equality as a result...To this end equal opportunity is essential, but not enough, not enough . . ." 

After Johnson, President Richard Nixon (of all people) expanded affirmative action through the Revised Philadelphia Plan and Executive Order 11625. [Hull note of skepticism: given Tricky Dick Nixon's tricky dickness, I have to wonder whether his expansion of affirmative action was really meant to provide fuel for affirmative action opponents as opposed to actually supporting greater inclusion of minorities. . . hmm . . .]

It should be immediately clear that affirmative action was not some boondagle created by African Americans as a trick to "get the man."

Affirmative action was created by U.S. presidents in an effort to enfranchise Black people.

In the years since Nixon's executive order, affirmative action has undergone many challenges and clarifications. One of the most significant clarifications of affirmtive action came in the1978 Regents of the University of California v. Bakke decision (Bakke [pronounced Baa-kee] decision for short). Bakke outlawed quota systems for admission of minorities in higher education, while still affirming that affirmative action was legal. The effect of Bakke has been that colleges may take race into consideration when admitting students but can't set aside a certain number of slots or a quota for minorities.

Ok, so what's the problem? Well, there are several. The first revolves around a reading of law. The backbone of LBJ and JFK's executive orders is a clause that states:

[contractors must] 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

The Civil Rights Act of 1964 contains similar language stating that it is unlawful for an employer to:

discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin

Based on this language, opponents of affirmative action argue that discrimination on the basis of race is illegal. Period. This discrimination on the basis of race includes disrimination that favors minorities and it includes discrimination against white people. This argument has even been espoused by Supreme Court Chief Justice Roberts who claims that, "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Very clever.

I would answer Roberts and other opponents of affirmative action by noting that in many cases law and rules are understood through their practice and that the words of a law are oftentimes insufficient to determine the effect of a law. For example, we all know that freedom of speech is protected by the First Amendment. We also know that we can't just say anything and expect to be immune from prosecution. We can't yell "fire" in a crowded theater and expect not to be arrested for causing a panic. We can't tell national secrets and expect not to get sent to prison. In the case of the "without regard" clause, I think history and context make it clear that the phrase and concept are meant to convey that hiring and admissions will be conducted without NEGATIVE regard for race, ethnicity, etc. In other words, don't discriminate in ways that hurt people. If discrimination on the basis of race was meant to be outlawed completely as opponents of affirmative action argue, then how could we have a Census??? You have to discriminate on the basis of race to have any kind of study of or discussion of race. Or consider the case of an employer that is overwhelmingly staffed by one racial group. Should that employer not have the option of considering race in hiring or promotion . . . ever? What if this company serves a minority community?

Opponents also argue that affirmative action lowers standards by forcing schools and employers to accept applicants who are not necessarily the most qualified. They further argue that affirmative action prevents the United States from becoming a truly color-blind society. Finally, showing their sincere altruism, opponents argue that affirmative action is condescending and demeaning to minorities in that it implies that minorities cannot succeed without some extra assistance.

I find it hard to believe that the minorities who benefit from affirmative action are somehow lowering standards in any kind of significant way. A minority is literally a smaller group; in the case of Blacks that smaller group is about 11% of the U.S. population and the segment of that group that is competing for admissions at selective universities and high end employers is a still much smaller group.

As for the color blind society: A color-blind society is a society that ignores the identities of its people. I have no interest in being color-blind because I enjoy and appreciate the cultural differences between us. It's not your awareness of my race that bothers me, it's the mistreatment that I'm not feelin'.

And condescension? It's not like the people who mistreat minorities are gonna start acting all warm and fuzzy because affirmative action has been eliminated. Haters gonna hate. That's just how it is. I would feel very comfortable making $800k/year and having my office mates think I got there because of affirmative action. Driving home in a Maybach kind of takes the sting out of something like that. I expect that the benefit of being able to feed my family would outweigh the horrible condescension of some @ss who was going to hate me regardless of whether I received affirmative action consideration or not.

Having said all of that, I'm actually willing to let affirmative action go.

Look, the Civil Rights Act and LBJ's Executive Order have been around since 1964. Forty-five to 46 years is a substantial length of time. We've litigated affirmative action cases and have a firm body of law to rely upon should acts of invidious discrimination arise. I think society as a whole frowns on invidious discrimination. We all understand that affirmative action should probably be diminished or eliminated at some point because the scars and impacts of slavery must necessarily diminish over time. Time does indeed heal all wounds. So, we can end it today or we can end it in ten years, or fifty years, but at some point we should probably move on.

To me, though, the most important reason to retire affirmative action is that I'm just freakin tired of talking to conservatives about it. My god, you would think we were interning white males in camps the way some of these cats squeal about the "great injustice" done to them by affirmative action. It's not worth arguing about anymore. Affirmative action did not save any lives taken by Katrina or stop terrorists on 9/11. Affirmative action has no impact on the HIV/AIDS rate in Black communities. It's a distraction at this point and if it'll get some conservatives to STFU I'm all for letting it go. Sphere: Related Content