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Affirmative Action PROS AND CONS, THE ORIGINS OF, LEGAL TREATMENT OF, POLITICAL AND SOCIAL DEBATES, THE FUTURE http://encyclopedia.jrank.org/articles/pages/5916/Affirmative-Action.html Affirmative action means taking positive steps to improve the material status of the less advantaged in society, usually through the provision of educational or economic benefits. In the United States, affirmative action usually takes place through the provision of government or private benefits in education, employment, or contracting. Affirmative action is controversial, particularly when the beneficiaries are women or people of color. Affirmative action can take many forms—ranging from rigid quotas to targeted outreach meant to encourage minorities to apply—but all have in common the effort to increase the number of minorities in educational institutions, in the workplace, or in receiving contracts. Affirmative action programs differ in terms of how much weight they give to race as a factor in decision making and the extent to which they require results. For example, rigid quotas or set-asides that mandate that a certain percentage of beneficiaries be members of designated racial groups are very different from programs that use race as one factor among many in decision making. Likewise, there is a significant difference between the government’s setting targets or goals and the government’s mandating that there be specific results. PROS AND CONS Several justifications can be offered for affirmative action. Because, by definition, affirmative action involves working to assist society’s less-advantaged members, one reason to promote affirmative action policies is to remedy the effects of past discrimination. This remedial justification of affirmative action recognizes that wrongs have been committed in the past and acknowledges a moral obligation to set things right. Opponents of affirmative action do not contest the moral obligation to remediate past harm. Their objection to remedial policies is frequently centered on the claim that specific affirmative action policies will not help those who have in fact been harmed, but will sweep too broadly and provide benefits to those who do not deserve them. Sometimes opponents of affirmative action argue that the harm to be remediated did not occur, or if it did occur—as in the case of racial discrimination in the United States—the harm has dissipated so that remedial measures are no longer necessary. Another important justification for affirmative action is the so-called diversity rationale. Advocates for the diversity rationale argue that society as a whole benefits when affirmative action is used to maintain diverse schools, workplaces, and businesses. According to this argument, people from different backgrounds, cultures, and genders bring complementary skills that collectively enrich the places where they work and learn. Some affirmative action opponents reject the diversity argument outright. They claim there is no inherent social benefit to diverse work-places or schools. Others accept the assertion that diversity is a social benefit, but express doubt over whether racial or gender characteristics provide a meaningful basis on which to assess diversity’s social benefit. This latter claim is related to what is arguably the most important objection to affirmative action. Opponents of affirmative action argue that it is wrong to allocate social benefits on the basis of immutable characteristics, such as race or gender. They claim that affirmative action is itself a form of racial/gender discrimination that discriminates against white males, contrary to historic forms of discrimination that were targeted against women and people of color. Thus the charge is often made that affirmative action is in fact “reverse discrimination.” Supporters of affirmative action argue that the claim that affirmative action is discriminatory is overly formalistic. Although admitting that affirmative action does discriminate in a technical sense, supporters claim affirmative action is morally justified because its goal is not to harm the white majority, but to provide social justice for those who have been deprived of opportunity in the past. THE ORIGINS OF AFFIRMATIVE ACTION The concept of affirmative action can be traced to efforts after the Civil War to remedy the devastating effects of slavery. Government efforts, such as the creation of the Freeman’s Bureau, unquestionably were forms of affirmative action in that they provided benefits to racial minorities. The term affirmative action apparently was first used in the National Labor Relations Act (29 U.S.C. §§151–169), adopted in 1935. The context was not race, but rather the affirmative duty of employers to remedy discrimination against union members and union organizers. Employers found to have engaged in such discrimination were required to remedy this by taking steps to ensure that the employers were in the same position in which they would have been had there been no discrimination. The term apparently was first used in the race context by President John F. Kennedy. In 1961, three years prior to the enactment of the first major post-Reconstruction civil rights law, President Kennedy issued an executive order preventing race discrimination by federal agencies. Executive Order 10,925, promulgated in 1961, mandated “affirmative action to ensure that the applicants are employed, and that employees are treated during employment without regard to race, color, creed, or national origin.” President Lyndon Johnson extended this policy, though without using the phase affirmative action, when he issued Executive Order 11,246, demanding that all executive departments and agencies “shall establish and maintain a positive program of equal employment opportunity.” The 1964 Civil Rights Act (42 U.S.C. §2000[e]) implemented this prohibition of race discrimination by statute. Title II of the 1964 act prohibited places of public accommodation, such as restaurants or hotels, from discriminating based on race. Title VII prohibited employers from discriminating on the basis of race, gender, or religion. The act did not speak directly to affirmative action, but it did prohibit discrimination and open the door to claims that affirmative action was essential to meet the statutory prohibition against discrimination. It was quickly realized that prohibiting discrimination is not enough to achieve equality. Positive steps toward remedying the legacy of discrimination and enhancing diversity are essential. Thus affirmative action programs of all sorts began to proliferate and flourish in the 1970s. LEGAL TREATMENT OF AFFIRMATIVE ACTION U.S. courts have addressed the question of whether the use of affirmative action to help a disadvantaged group is as objectionable as the use of race or gender to harm or subjugate socially disfavored groups. Dominated since the 1980s by conservative judges appointed by Presidents Ronald Reagan and, later, George H. W. Bush, the courts have concluded that “any” use of affirmative action is a form of racial discrimination. In the courts, invidious racial discrimination must meet strict scrutiny ; that is, it must be necessary to achieve a compelling government purpose. Strict scrutiny is a very rigorous level of judicial review that is rarely met. Indeed, Stanford law professor Gerald Gunther once famously claimed that strict scrutiny was “strict in theory, but fatal in fact.” In Adarand Constructors, Inc. v. Pena , in 1995, the Supreme Court said: “All racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny.” Those who are opposed to affirmative action argue that the Constitution requires that the government treat each person as an individual without regard to his or her race; strict scrutiny is used to ensure that this occurs. Justice Clarence Thomas, in Adarand , espoused this view: “In my mind, government-sponsored racial discrimination based on benign prejudice is just as noxious as discrimination inspired by malicious prejudice. In each instance, it is racial discrimination, plain and simple.” Moreover, supporters of strict scrutiny for affirmative action argue that all racial classifications stigmatize and breed racial hostility, and therefore all should be subjected to strict scrutiny. Justice Sandra Day O’Connor stated: “Classifications based in race carry a danger of stigmatic harm. Unless they are strictly reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to politics of racial hostility.” On the other side of the debate, supporters of affirmative action argue that there is a significant difference between the government’s use of racial classifications to benefit minorities and the government’s use of racial classifications to disadvantage minorities. There is a long history of racism and discrimination against minorities, but no similar history of persecution of whites. Those in favor of affirmative action point to the tremendous continuing disparities between blacks and whites in areas such as education, employment, and public contracting as necessitating remedial action. Supporters also argue that there is a major difference between a majority discriminating against a minority and the majority discriminating against itself. John Hart Ely explains in a 1974 article: When the group that controls the decision making process classifies so as to advantage a minority and disadvantage itself, the reasons for being unusually suspicious, and consequently, employing a stringent brand of review are lacking. A White majority is unlikely to disadvantage itself for reasons of racial prejudice; nor is it likely to be tempted either to underestimate the needs and deserts of Whites relative to those of others, or to overestimate the cost of devising an alternative classification that would extend to certain Whites the disadvantages generally extended to Blacks. In the Rehnquist court of the 1990s the Supreme Court was split, five to four, between these two views. The majority—Chief Justice William Rehnquist, and Justices O’Connor, Antonin Scalia, Anthony Kennedy, and Thomas—adopted strict scrutiny in evaluating racial classifications benefiting minorities. The dissenters—Justices John Paul Stevens, David Souter, Stephen Breyer, and Ruth Bader Ginsburg—would use intermediate scrutiny, a less stringent standard of review. POLITICAL AND SOCIAL DEBATES Affirmative action has been tremendously divisive. Opponents of affirmative action embrace the noble-sounding rhetoric of color-blindness and maintain that it is wrong for a person to lose out on something valuable solely because of his or her race. Supporters of affirmative action point out that it is designed to remedy a long history of discrimination and ensure racial equality in the long term. One manifestation of the political and social debate is the initiatives that have been adopted across the country limiting affirmative action. In 1996 California voters passed Proposition 209, the so-called California Civil Rights Initiative. The initiative amended the state constitution to bar discrimination or preferences on the basis of race in government contracting, education, or employment. A similar initiative was adopted almost simultaneously in Washington state. In November 2006, Michigan voters passed Proposition 2, which was almost identical to California Proposition 209 in banning discrimination or preference based on race. These initiatives reflect the public’s disapproval of affirmative action. The rhetoric that the government should be color-blind is appealing and allows for people to limit (or eliminate) affirmative action while feeling noble. On the other hand, those who believe that affirmative action is essential to remedy past discrimination and achieve diversity have had a hard time overcoming the impression that such programs are reverse discrimination. THE FUTURE Affirmative action remains enormously controversial, and political and legal battles over the issue are sure to continue. In the courts, challenges to affirmative action programs may gain additional momentum with a change in the composition of the Supreme Court. With the departure of Justice O’Connor from the High Court, opponents of affirmative action are sure to look for test cases to bring the issue back for reconsideration. The Supreme Court has limited, but not ended, affirmative action as reflected in the Grutter decision. The survival of government affirmative action programs is a topic likely to be considered again in the years ahead.