Last week I wrote about the difficult issue of reparations. It’s an issue that has dogged this nation since Reconstruction failed to restore and unify the nation after the division of the Civil War.
Many have argued that in its own way, affirmative action has been the primary form of reparations for slavery and Jim Crow in this nation. They would also argue alternately that in the 50 years since the passage of the Civil Rights Act, the legislation has both served its purpose and been a colossal failure. They claim that affirmative action is merely a method to implement identity politics which unfairly grant an unearned benefit to some, while taking away opportunities from those who are far better qualified.
There are many who swear that they’ve been denied opportunities, access to higher education, or access to job options but for the fact that they are not part of a protected minority class and that this is inherently unfair. Consequently, they have grown bitter and resentful at all efforts to correct and repair the centuries-long imbalance in education, lack of access to loans and capital, and inability to achieve prosperity that has continued to plague many minority citizens.
Affirmative action has become a divisive and frustrating issue, but is it possible that it has no valid purpose or positive impact today?
In order to determine the truth about affirmative action, we have to go back to its origins and look clearly and accurately at what these programs do and what they don’t do under the two executive orders that started the program.
Executive Order 10925, signed by President John F. Kennedy on March 6, 1961, required government 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."[1] It established the President's Committee on Equal Employment Opportunity (PCEEO), which was chaired by then Vice President Lyndon Johnson.[2] Vice Chair and Secretary of Labor Arthur Goldberg was in charge of the Committee's operations.[2] This first implementation of affirmative action was intended to give equal opportunities in the workforce to all U.S. citizens, not to give special treatment to those discriminated against.[3]
Following passage of the Civil Rights Act of 1964 (which went into effect a year later on July 2, 1965) and President Johnson's Executive Order 11246 (which was signed on September 24, 1965), the Committee's functions were divided between the Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance(which in 1975 was renamed the Office of Federal Contract Compliance Programs).[4]
[...]
Executive Order 11246, signed by President Lyndon B. Johnson on September 24, 1965, established requirements for non-discriminatory practices in hiring and employment on the part of U.S. government contractors. It "prohibits federal contractors and federally assisted construction contractors and subcontractors, who do over $10,000 in Government business in one year from discriminating in employment decisions on the basis of race, color, religion, sex, or national origin."[1] It also requires contractors to "take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin."
The first important thing to note about these two executive orders is the fact that they impact federal employment and federal contractors, requiring them to be non-discriminatory. The orders are limited to these federal agencies and contractors only; private agencies are not included within this order and not required to take any actions at all, affirmative or not. Private corporations or schools are not required to implement affirmative action. In fact, there are currently eight states that ban the use of affirmative action in school admissions, including California, Washington, Michigan, Nebraska, Arizona, and Oklahoma, all of which passed voter referendums against it.
Th second thing that is noted in the executive orders is that race is not the only element included within these actions. Affirmative action, including efforts to reach out to a wider array of people on the basis of religion, sex, and national origin, was included from the beginning and subsequent laws such as the Americans With Disabilities Act have added the classes of disabled citizens as well as veterans.
Neither of these orders require federal agencies or their contractors to discriminate against anyone. Neither of them require them to deny a opportunities to a qualified applicant. Part of the goal here is to ensure that there are no “blind spots” within the pool of applicants.
Within the EEOC, there are fairly restrictive rules on how affirmative action has been implemented.
The U.S. Equal Employment Opportunity Commission (EEOC) today published regulations explaining what federal agencies must do to comply with their legal obligation to engage in affirmative action in employment and otherwise serve as "model employers" for individuals with disabilities. The regulations do not impose any obligations on private businesses or state and local governments. EEOC has also published a question-and-answer document on the regulations.
Section 501 of the Rehabilitation Act requires federal agencies to create affirmative action plans for the employment of people with disabilities, and to submit those plans to EEOC for approval. On May 15, 2014, EEOC published an Advance Notice of Proposed Rulemaking (ANPRM) asking for public input on how the EEOC should revise its regulations to clarify what an affirmative action plan must include. On Feb. 24, 2016, the Commission proposed regulations based on the input received, and sought further public comment on their proposals in a Notice of Proposed Rulemaking.
Today, the final regulations reaffirm the federal government's commitment to being a model employer of people with disabilities. The rule consolidates existing requirements from a variety of sources, such as the existing requirements that federal agencies have written reasonable accommodation procedures and seek out qualified job applicants with disabilities. The regulations also include new representation goals for employees with disabilities in the federal workforce and enhanced support requirements that will enable more persons with disabilities to seek federal employment.
When you look at the Office of Federal Compliance, it utilizes a method of implementing affirmative action that doesn’t actually change hiring practices at all. Instead, it focuses on the issue of widening the pool of recruitment.
For federal contractors and subcontractors, affirmative action must be taken by covered employers to recruit and advance qualified minorities, women, persons with disabilities, and covered veterans. Affirmative actions include training programs, outreach efforts, and other positive steps. These procedures should be incorporated into the company�s written personnel policies. Employers with written affirmative action programs must implement them, keep them on file and update them annually.
Also, there are in fact differences between affirmative action and plans to implement diversity goals.
Equal employment opportunity (EEO) means freedom from discrimination on the basis of protected classes such as race, color, sex, national origin, religion, age, disability or genetic information. EEO rights are guaranteed by federal and state fair employment laws and are enforced by the Equal Employment Opportunity Commission (EEOC) and its state counterparts.
Affirmative action plans (AAPs) define an employer's standard for proactively recruiting, hiring and promoting women, minorities, disabled individuals and veterans. Affirmative action is deemed a moral and social obligation to amend historical wrongs and eliminate the present effects of past discrimination. AAPs include numerical measures with the intent of increasing the representation of minorities. Federal contractors above certain dollar limits are required to institute AAPs, and the Office of Federal Contract Compliance Programs is charged with enforcing contractor affirmative action mandates. Without violating Title VII of the Civil Rights Act of 1964, other employers may institute voluntary AAPs to remedy past discrimination if certain conditions are met.
Diversity initiatives are goals devised to measure acceptance of minorities by embracing cultural differences within the workplace. Diversity initiatives are twofold: valuing diversity and managing diversity. The value of diversity is achieved through awareness, education and positive recognition of the qualities, experiences and work styles that make individuals unique (e.g., age, race, religion, disability, ethnicity) within the workplace. The management of diversity expounds upon the experience and establishes the business case for diversity that is closely aligned with an employer's organizational goals.
More specifically, affirmative action programs are simply a requirement to try to give a fair chance to all applicants while taking steps to ensure that there is diversity in the applicant pool, using outreach under the Federal Code of Regulations.
§60-2.10 General purpose and contents of affirmative action programs.
(a) Purpose. (1) An affirmative action program is a management tool designed to ensure equal employment opportunity. A central premise underlying affirmative action is that, absent discrimination, over time a contractor's workforce, generally, will reflect the gender, racial and ethnic profile of the labor pools from which the contractor recruits and selects. Affirmative action programs contain a diagnostic component which includes a number of quantitative analyses designed to evaluate the composition of the workforce of the contractor and compare it to the composition of the relevant labor pools. Affirmative action programs also include action-oriented programs. If women and minorities are not being employed at a rate to be expected given their availability in the relevant labor pool, the contractor's affirmative action program includes specific practical steps designed to address this underutilization. Effective affirmative action programs also include internal auditing and reporting systems as a means of measuring the contractor's progress toward achieving the workforce that would be expected in the absence of discrimination.
(2) An affirmative action program also ensures equal employment opportunity by institutionalizing the contractor's commitment to equality in every aspect of the employment process. Therefore, as part of its affirmative action program, a contractor monitors and examines its employment decisions and compensation systems to evaluate the impact of those systems on women and minorities.
(3) An affirmative action program is, thus, more than a paperwork exercise. An affirmative action program includes those policies, practices, and procedures that the contractor implements to ensure that all qualified applicants and employees are receiving an equal opportunity for recruitment, selection, advancement, and every other term and privilege associated with employment. Affirmative action, ideally, is a part of the way the contractor regularly conducts its business. OFCCP has found that when an affirmative action program is approached from this perspective, as a powerful management tool, there is a positive correlation between the presence of affirmative action and the absence of discrimination.
It adds up to a lot of words, but basically it means that federal agencies and contractors are required to take steps to make sure that they aren’t discriminating against anyone unfairly and that they are reaching out to as wide a group of applicants and candidates for advancement as possible.
It doesn’t mean that they have to hire any specific number of minority applicants. In fact, it doesn’t mean they have to hire any minority applicants, at all. It only means that they have to have a wide pool of applicants.
The reality of federal affirmative action is that hiring and opportunities can not be offered to a person of protected class to the detriment of another. This is further limited by Supreme Court decisions such as 1978’s Bakke v. Regents of the University of California, which banned the use of quotas or racial points systems in school admissions.
Allan Bakke, a thirty-five-year-old white man, had twice applied for admission to the University of California Medical School at Davis. He was rejected both times. The school reserved sixteen places in each entering class of one hundred for "qualified" minorities, as part of the university's affirmative action program, in an effort to redress longstanding, unfair minority exclusions from the medical profession. Bakke's qualifications (college GPA and test scores) exceeded those of any of the minority students admitted in the two years Bakke's applications were rejected. Bakke contended, first in the California courts, then in the Supreme Court, that he was excluded from admission solely on the basis of race.
[...]
Four of the justices contended that any racial quota system supported by government violated the Civil Rights Act of 1964. Justice Lewis F. Powell, Jr., agreed, casting the deciding vote ordering the medical school to admit Bakke. However, in his opinion, Powell argued that the rigid use of racial quotas as employed at the school violated the Equal Protection Clause of the Fourteenth Amendment. The remaining four justices held that the use of race as a criterion in admissions decisions in higher education was constitutionally permissible. Powell joined that opinion as well, contending that the use of race was permissible as one of several admission criteria. So, the Court managed to minimize white opposition to the goal of equality (by finding for Bakke) while extending gains for racial minorities through affirmative action.
In this decision, the Supreme Court affirmed that race-conscious measures could be used in school admissions, but that quota systems to achieve race-based goals were inherently unfair and could not be used.
As a result of Bakke, quotas or quota-like systems have been banned from affirmative action for the past 40 years. That is separate from the question of whether affirmative action has had any positive impact at all.
According to a study from Yale, it has.
The idea behind Affirmative Action requirements is that, by promoting interactions across people of different groups, stereotypes against minority groups will decrease, and thus, in the long run, so will discrimination. It is not obvious that this is the case today as theoretical models suggest.
Suppose employers associate the “minority” label with lower quality training and thus, minority workers find it harder to get a job they are qualified for. In this scenario, a minority worker would potentially benefit significantly from being hired at a regulated firm. Indeed, once he holds a job at a regulated firm, he possesses a new signal that can outweigh the “minority” label that he carries. This credential may give him an advantage to move forward as other firms may now disregard the label and offer him a new job; helping him climb the ladder. In this case, Affirmative Action fulfills its purpose. Now suppose that firms assume that if the job is held at a firm that is regulated, then the worker is actually not as good as majority workers with his credentials. Instead, employers assume that the minority worker was hired to comply with the regulation. So even if the worker is hired and promoted because of his performance, he may find hard to convince other employers of his skills, probably even more so than in the absence of Affirmative Action.
There is substantive evidence that Affirmative Action regulation has played an important role in reducing differences in wage and in unemployment rates between white men and women, and between majority and minority workers. However, many questions about this regulation remain open: does Affirmative Action affect workers only when they work for a regulated firm or can the regulation impact them even after that? If effects persist, are they all positive? For how long and how are they propagated?
Still, we often see and hear the common refrain that any type of program which takes race into account in inherently unfair, particularly to non-minorities, and that all of these programs should be ended completely. This has led to further court challenges such as Fisher v. University of Texas in 2016.
Abigail Fisher, a white female, applied for admission to the University of Texas but was denied. She did not qualify for Texas' Top Ten Percent Plan, which guarantees admission to the top ten percent of every in-state graduating high school class. For the remaining spots, the university considers many factors, including race. Fisher sued the University and argued that the use of race as a consideration in the admissions process violated the Equal Protection Clause of the Fourteenth Amendment. The district court held that the University’s admissions process was constitutional, and the U.S. Court of Appeals for the Fifth Circuit affirmed. The case went to the Supreme Court, which held that the appellate court erred by not applying the strict scrutiny standard to the University’s admission policies. The case was remanded, and the appellate court reaffirmed the lower court’s decision by holding that the University of Texas’ use of race as a consideration in the admissions process was sufficiently narrowly tailored to the legitimate interest of promoting educational diversity and therefore satisfied strict scrutiny.
Unfortunately for Abigail, the court ruled against her largely because she certainly wasn’t among the most qualified. She wasn’t among one of the top 10 percent of students in the state, and she wasn’t simply denied admission because she was white, despite her claims to the contrary.
In 2008, the year Fisher sent in her application, competition to get into the crown jewel of the Texas university system was stiff. Students entering through the university's Top 10 program — a mechanism that granted automatic admission to any teen who graduated in the upper 10 percent of his or her high school class — claimed 92 percent of the in-state spots.
Even among those students, Fisher did not particularly stand out. Court records show her grade point average (3.59) and SAT scores (1180 out of 1600) were good but not great for the highly selective flagship university. The school's rejection rate that year for the remaining 841 openings was higher than the turn-down rate for students trying to get into Harvard.
As a result, university officials claim in court filings that even if Fisher received points for her race and every other personal achievement factor, the letter she received in the mail still would have said no.
It's true that the university, for whatever reason, offered provisional admission to some students with lower test scores and grades than Fisher. Five of those students were black or Latino. Forty-two were white.
The school did consider race and social status as a factor in admissions but it was far from a deciding factor, considering there were far more white students than students of color admitted with lower scores than Fisher. Consequently, she lost her case.
The University of Texas’ use of race as a consideration in the admissions process did not violate the Equal Protection Clause of the Fourteenth Amendment. Justice Anthony M. Kennedy delivered the opinion for the 4-3 majority. The Court held that the University of Texas’ use of race as a factor in the holistic review used to fill the spots remaining after the Top Ten Percent Plan was narrowly tailored to serve a compelling state interest. Previous precedent had established that educational diversity is a compelling interest as long as it is expressed as a concrete and precise goal that is neither a quota of minority students nor an amorphous idea of diversity.
Fisher’s case was intended to be a classic example of so-called “reverse racism,” where a white student was being denied an earned slot by the identity politics of affirmative action. However, that simply wasn’t the case. Since quotas are banned and only efforts of outreach and recruitment are legally allowed under affirmative action programs which are mostly limited to federal agencies and contractors, there is very little room left to allow a negative impact on non-minority applicants.
There are always the anecdotal stories where people claim there were told that they would have had this job, or gotten into this school, “if only they were a minority.” Strangely, these people can’t seem to document their claim. And if they choose to bring the case to court to have it adjudicated they tend to lose, like Fisher did, because for the most part the “reverse racism” they’re talking about doesn’t really exist.
If there is a business or a school that is literally blocking male or white applicants from having a fair shot, that is a clear violation of the Civil Rights Act. That is a crime.
I, for one, believe that anyone with a valid claim of discrimination, regardless of their race, gender, or religion, should fight hard for their rights to be protected and restored, including in court, if they have a valid case. Unfortunately, not everyone does.
When you look at the long litany of biased, bigoted, and discriminatory actions which I listed last week as I documented the many reasons why we should at least consider some form of reparations and/or remedial actions to correct the imbalances created over the last few centuries, these programs are a fairly limited and thin set of efforts to fix or correct any of it.
I would submit they hardly make any real difference at all, compared to what’s really needed.
As minor and ineffective as these programs have been, there are still those on the right who’ve been very vocal about arguing that any mention or use of race by government at all is inherently problematic and dangerous. That includes people like Dinesh D’Souza and Ward Connerly.
Ward Connerly opposes affirmative action out of what he calls a "passion for fairness." He believes race-based remedies only prolong America's racial divisions and inequities.3 In his memoir, Creating Equal, Connerly says race is "a scar" in America that he first saw as a toddler in the segregated South. He yearns for race consciousness to dissolve in America's melting pot, but without government turning up the heat. "Left to their own devices, I believe Americans will merge and melt into each other. This is as it should be," he writes.4
D’Souza made a similar argument in his book The End of Racism, saying that the only real remaining vestige of racism was the government’s own tendency to document and track people by their race itself. He went somewhat further than Connerly and actually argued that the Civil Rights Act itself was the source of the problem, and that it should be repealed so that the “market” could be allowed to solve the problem.
Of course, D’Souza ignores and fails to explain why between the passage and ratification of the 14th Amendment in 1868 and the Civil Rights Act in 1964, his and Ward Connerly’s “natural melting” never took place. He and Connerly would ban the ability of government to take any positive or corrective actions against private discrimination, not just on the basis of race, but also gender, religion, disability, and for veterans who are all included in current affirmative action programs.
We can tell what would happen without the Civil Rights Act by looking directly at what occurred in California after Connerly’s ban on affirmative action in the state’s universities took effect.
Since the passing of Proposition 209 — a ballot initiative that amended the California Constitution to prohibit discrimination on the basis of race, sex or ethnicity — the number of Black students admitted and enrolled to UC Berkeley has dropped despite an increase in applications, according to a UC Office of the President fact sheet.
According to the fact sheet, Black students made up 6.7 percent of all enrolled California resident freshmen in 1995, but this figure dropped to 3.7 percent in 1998 — just two years after Prop. 209 had taken effect. In contrast, 29.5 percent of California resident freshmen consisted of white students in 1995, and this figure only dropped to 28.2 percent in 1998.
Over the past two decades, the population of Black students on campus has decreased slowly to plateau at 3 percent — a figure that Shelby Mayes, membership development director for the Black Student Union, or BSU, said she finds “disappointing.”
“The campus population is less than 3 percent Black, while the U.S. population is 16 (percent),” Mayes said. “Campus is not at all accurate to what the real world looks like.”
When Prop. 209 was implemented, the University of California system was supposed to come up with a program to have some of their own staff go around the state and mentor the faculty of schools that were having the greatest difficulty bringing their graduates up to being fully ready to qualify for the UC system based entirely on their own need, instead of the students’ race.
That program was never implemented.
All the while that African Americans and Latinos are being commonly questioned on whether they are truly qualified to enter a particular school, or are really qualified for the job they got, many highly ranked schools still have “legacy admissions” where the offspring of prior alumni are openly given priority.
Forty-two percent of private institutions and 6 percent of public institutions consider legacy status as a factor in admissions, according to a 2018 survey of admissions directors by Inside Higher Ed.
At Columbia University, legacy status may provide a "slight advantage" when similarly qualified applicants are competing. That's also the case at the University of Virginia.
Other schools that consider legacy include Auburn University, the University of Tennessee, Knoxville, Indiana University, Bloomington, the University of Alabama and Stanford University, according to each institution's common data set.
But unlike Harvard, it's still unclear exactly how each school uses legacy in their admissions process.
Today, Harvard and other elite American universities say they rely on legacy status in the same way they use race or other student characteristics: as a means of fostering a healthy and diverse campus and alumni community.
Critics say the practice tends to favor affluent white students, and that ending it could help make room for students who have more to gain from a prestigious degree.
Rarely, if ever, do you hear the D’Souzas and Connerlys of the world jumping up and down over the inherent “unfairness” of legacy admissions. Almost no one suggests that these students have benefited from an unfair “handout.”
And as Campaign Zero’s Sam Sinyangwe points out., Harvard accepts far more legacy applicants than they do black and minority students.
Sinyangwe notes that even beyond the legacies, you also have situations where rich parents are donating millions to some schools in order for their children to be allowed to attend. That includes parents like Jared Kushner’s father.
In 2006, ProPublica editor Daniel Golden stumbled on Kushner’s admission while writing a book about how wealthy donors to elite colleges routinely get their kids who otherwise wouldn’t make the cut into those schools. While investigating Harvard’s Committee on University Resources, a.k.a. donors, for The Price of Admission, Golden discovered that both Kushner’s parents, Charles and Seryl, were members. He also found that in 1998, when then-unknown New Jersey high school student Jared was looking at colleges, Charles Kushner pledged a gift of $2.5 million to Harvard, to be paid in annual installments of $250,000. Jared eventually graduated from the college in 2003.
Which seemed like an extraordinary feat to those who knew Kushner in high school: “There was no way anybody in the administrative office of the school thought he would on the merits get into Harvard,” a former official at The Frisch School in Paramus, New Jersey, told Golden. “His GPA did not warrant it, his SAT scores did not warrant it. We thought for sure, there was no way this was going to happen. Then, lo and behold, Jared was accepted. It was a little bit disappointing because there were at the time other kids we thought should really get in on the merits, and they did not.”
More recently, we’ve had some affluent parents literally cheating and paying for fake SAT tests and photoshopped images to get their kids into school.
Fifty people, including Full House actress Lori Loughlin and actress Felicity Huffman, are facing federal fraud charges after an FBI investigation into an elaborate scheme to get their children into elite universities.
The Department of Justice, which announced the charges Tuesday, says Loughlin, Huffman, and dozens of others allegedly paid millions of dollars in bribes to get their children admitted to Yale, Stanford, and other schools.
The plot allegedly involved cheating on standardized testing exams like the ACT and having the children of wealthy parents falsely designated as athletes — even paying hundreds of thousands of dollars to make coaches claim the children were being recruited to play sports for their schools.
Affirmative action remains a contentious subject even though it has been repeatedly limited and is still approved by the Supreme Court as a weak measure to take fairly small steps to make some things a little more fair. It has been helpful, but if the argument is that it has somehow generated widespread unfairness against non-minorities; or that it has somehow managed to “balance the scales” after decades upon decades of open bigotry and discrimination that existed prior to when the initial executive orders were signed by Presidents Kennedy and Johnson; or that it has been an effective “reparation” for what happened before or what continues to happen to date, that argument is hogwash.
We need to continue affirmative action, at the very least. Frankly, we should frankly do far, far more.