\American Civil Liberties Union Briefing Paper Number 17
From the end of the Civil War up until the middle of the 20th century,
discrimination in many forms was a pillar of the American way of life.
No laws protected racial minorities and women from biased employers, who
were free to pass over a black worker in favor of a white worker or to
reserve better-paying jobs for white men only. Women were even barred
by law from various jobs and professions.
The modern-day civil rights movement that began officially with the
founding of the National Association for the Advancement of Colored
People in 1909 finally culminated in the U.S. Supreme Court's Brown v.
Board of Education decision of 1954, which declared racially segregated
public schools unconstitutional. Ten years later, Congress passed the
Civil Rights Act of 1964 -- the first truly effective law enacted since
Reconstruction. Title VII of that law prohibits employment discrimination,
in both the public and private sectors, based on race, gender, national
origin or religion.
The Act opened a new era in the pursuit of equal opportunity by allowing
legal challenges, on the federal and state levels, to entrenched
patterns of discrimination. In 1965, President Lyndon Johnson issued an
Executive Order prohibiting federal agencies from contracting with firms
that were not committed to "affirmative action," meaning conscious and
deliberate efforts to bring qualified people of color into jobs and
educational institutions from which they had been largely excluded for
centuries. President Johnson explained his order in a speech at Howard
| Freedom is not enough. You do not wipe away |
| the scars of centuries by saying: Now, you |
| are free to go where you want, do as you |
| desire, and choose the leaders you please. |
| You do not take a man who for years has been |
| hobbled by chains, liberate him, bring him |
| to the starting line of a race, saying, |
| "you are free to compete with all the |
| others," and still justly believe you have |
| been completely fair. Thus it is not enough |
| to open the gates of opportunity. |
These remarks set a tone that elicited support for affirmative action
from the majority of Americans.
Initially, as President Johnson's statement indicates, the concept of
affirmative action specifically targeted African Americans, who are
uniquely disadvantaged by their history of enslavement and its
burdensome legacy. The concept evolved, however, as women and other
groups expanded the 1960s civil rights movement to demand recognition of
their own experiences with discrimination and exclusion.
In the next few years, landmark legal victories won under Title VII
moved the nation closer to the goal of equal opportunity. In 1971, the
Supreme Court ruled in Griggs v. Duke Power Co. that hiring standards
that effectively excluded minorities were illegal unless employers could
show them to be a job-related business necessity. The following year,
Congress passed Title IX of the Educational Amendments of 1972, which
prohibits sex discrimination in federally-funded education programs.
And in 1976, the Supreme Court upheld the University of California
Medical School's affirmative action plan in Regents of University of
California v. Bakke, allowing the temporary use of numerical goals to
correct race and gender imbalances where past discrimination had
been proven, and where other remedies had been ineffective. Justice
Harry A. Blackmun, in a powerful concurring opinion, wrote: "In order to
get beyond racism, we must first take account of race... We cannot -- we
dare not -- let the Equal Protection Clause [perpetuate] racial
Federal support for civil rights eroded sharply in the 1980s with the
advent of Presidents Ronald Reagan and George Bush, who both vetoed
major civil rights bills, discouraged vigorous enforcement of existing
civil rights laws and eliminated various programs and services created
during the 1960s for Native Americans. At the same time, the Supreme
Court moved to reverse the gains of the previous two decades. In 1989,
several of the Court's decisions gravely weakened protection for
minorities and women. One ruling, in Wards Cove v. Atonio, effectively
reversed Griggs by shifting the burden of proof from employers to
employees, making it extremely difficult for employees to challenge
workplace discrimination. Another, in Martin v. Wilks, made it harder
for Asian Americans to be included in affirmative action policies. The
statutory civil rights protections destroyed by Wards Cove were restored
when Congress passed the Civil Rights Act of 1991 over intense
opposition from President Bush.
Despite setbacks, the legal edifice of discrimination is gone, and the
participation of minorities and women in the life of the nation has
increased substantially. Nonetheless, stark inequalities remain.
<> Women earn 55 to 75 percent of men's salaries. <> Many Latino and
Asian workers face bias because they look or sound "foreign," according
to a report published by the federal General Accounting Office.
Stricter immigration laws have also triggered discrimination by
employers, who, presuming that Latinos or Asian Americans are illegal
aliens, often refuse to hire them. <> The face of poverty is
disproportionately female and non-white. For example, 70 percent of
black women hold "typically female," low-wage jobs. <> The federal
Commission on the Cities, convened in 1988, found that today's poor are
poorer, and have less chance of escaping poverty, than 20 years ago.
<> One third of all African American, and one-fourth of all Latino,
families live in poverty, compared to one-tenth of white families.
Native Americans remain the most impoverished minority in North
America. Their communities are plagued with disproportionately high
rates of unemployment, infant mortality, alcoholism and suicide.
<> The unemployment rate for racial minorities is double that of whites.
<> One in four African American males is in prison, on parole or on
probation -- more than are in college.
The ACLU believes that even though no single measure can eradicate
discrimination, affirmative action remains a moral imperative and an
indispensable strategy for giving those disadvantaged by discrimination
a temporary leg up. In addition, the unique diversity of its human
resource pool gives our nation enormous potential for developing
solutions to all the problems it confronts -- in education, criminal
justice, childcare and affordable housing, to name a few. The key to
maximizing that potential is an end to discrimination and fulfillment of
the Constitution's promise of freedom and equality, so that all
Americans can have a chance to live productively and contribute to
Here are the ACLU's answers to some questions frequently asked by the
public about the ongoing effort to ensure equal opportunity for all
Isn't affirmative action essentially a quota system?
Not at all. Calling it a "quota system" distorts the reality of both
what affirmative action intends and how it actually works. Affirmative
action, which simply takes race and sex into account, is in some cases a
_legal remedy_ applied to a specific case of discriminatory exclusion,
and in others a _compensatory opportunity_ that an institution or
employer provides voluntarily and temporarily to members of groups
disadvantaged by discrimination.
When a court orders an affirmative action plan as a _legal remedy_, it
usually does so only after proof that persistent discrimination has
resulted in total or near total exclusion of racial minorities or women,
and only after other methods of achieving equality have failed.
For example, in the 1974 case of Morrow v. Crisler, a federal court
ordered the Mississippi Highway Patrol to make the hiring ratio of
whites to blacks more equal. At the time, African Americans were 36.7
percent of the state population, yet not one black officer served on the
Patrol. In 1979, the underrepresentation of Asian Americans on the San
Francisco police force prompted a lawsuit that resulted in court-ordered
goals and timetables for hiring officers who could speak both English
and Chinese. In both cases, the courts'decisions came only after the
hiring practices were found to be discriminatory, and only after other,
voluntary measures for promoting equality had proved ineffective.
In cases where discrimination has been found to be extreme, the only
reasonable way of remedying it is to set numerical goals that can
reasonably be met within a prescribed period of time. Such goals, in
effect, estimate the circumstance that would most likely prevail were
there no discrimination. Seeking to discredit affirmative action, some
critics insist on equating these remedial goals with "quotas." That
equation is utterly false. The truth is that such goals are flexible,
temporary and are remedial instruments of _inclusion_, while quotas are
fixed, intended to be permanent and were used historically to _ex_clude
members of some ethnic groups from jobs and education.
When used as a _compensatory opportunity_, affirmative action provides
broad opportunities to racial minorities and women to make up for
disadvantages they have long suffered because of discrimination.
Universities and employers are asked to make an extra effort to seek out
applicants whom they would not likely find through traditional methods
of recruitment. Compensatory affirmative action sometimes means that a
qualified candidate from a disadvantaged group is chosen instead of a
candidate who is white and/or male.
Affirmative action is only one method -- and not a perfect method -- of
fighting a multifaceted, difficult problem. But the ACLU believes that
affirmative action is a fair and moral remedy for institutionalized
racism and sexism that must be used on an interim basis, where
appropriate, if we are serious about achieving an equitable society.
Affirmative action has existed since the 1960s.
How successful has it been?
Affirmative action policies and guidelines have resulted in greatly
expanded opportunities for racial minorities and women. People who
would otherwise not have had the chance to acquire skills and build
productive lives have gained increased access to employment, higher
education and housing. <> Among public sector employers, most of whom
are required by law to follow affirmative action guidelines, total black
employment expanded more than 15 percent between 1970 and 1980. <> In
the private sector, too, the black employment rate has increased
significantly among companies who, by court order or voluntarily, have
practiced affirmative action. At AT&T, between 1973 and 1983 the number
of black craft workers almost doubled, and the number of black managers
tripled, due to the company's six-year agreement with the Equal
Employment Opportunity Commission (EEOC) to counteract past
discrimination in hiring. The same agreement has also dramatically
increased the number of women at AT&T. <> Similarly, at IBM affirmative
action guidelines spurred an increase in minority employment from 750 in
1962, to 7,251 in 1968, to 16,546 in 1980.
During the Reagan/Bush presidencies, a weakened EEOC's less than
vigorous enforcement of affirmative action directives prompted much
backsliding. Given its proven effectiveness in combatting the impact of
racism and sexism, surely what we need today is an _increased_
commitment to affirmative action.
Isn't affirmative action "reverse discrimination" against
white men? Why should someone's race or gender be made an
issue in jobs or education anyway?
Affirmative action policies have not made issues of race and gender.
Rather, longstanding policies and practices that discriminate against
non-white people and women are what have made issues of race and
gender. Affirmative action aims to remedy such discrimination.
Second, while it's true that white males in any given era may not all
have been responsible for excluding people of color and women, all white
males have benefited unjustly from that historical exclusion. Just by
being white and male, they have automatically enjoyed privileged status
and an unfair advantage. Affirmative action seeks to eliminate the
age-old, unearned benefits and privilege enjoyed by white males. Such a
strategy, one that seeks to level the playing field, is not
discrimination, "reverse" or otherwise.
Taking race and gender into consideration temporarily for remedial
purposes is only fair, given the enormous burden that centuries of
subjugation and exclusion have placed on minorities and women. To argue
against affirmative action is to argue, in essence, for retention of
white male privilege and for continuing the effects of discrimination
against racial minorities and women.
But is it right to fire white male workers and give their
jobs to racial minorities or women?
No, that wouldn't be right, and the ACLU would never support such a
policy. The way affirmative action works is that qualified minorities
and women may be given preference when jobs become available.
Preferential treatment is nothing new in the United States. For
example, universities often give admission preference to the children of
alumni, or to out-of-state students. Why is "affirmative action" to
promote geographic diversity acceptable, but affirmative action to
promote racial and sexual equality is not?
In the 1940s and '50s, the G.I. Bill of Rights gave World War II
veterans -- the vast majority of whom were white men -- various
educational and economic benefits, including preference when they
applied for certain available civil service jobs. These dispensations,
which acknowledged the disadvantages many veterans had endured, applied
to all veterans regardless of whether they had enlisted or been drafted,
seen combat or not or been economically disadvantaged by their military
service or not. Veterans of various wars fought by the U.S. still
receive special benefits. The national consensus has been that, for a
certain period of time, veterans should receive assistance in
reconstructing their civilian lives so that they can compete on an equal
basis with people who have not served.
Don't affirmative action remedies force firms to employ unqualified
workers, or universities to accept incompetent students, simply
because they happen to be non-white or female?
Absolutely not. Affirmative action has never been about hiring or
admitting people _solely_ because of their color or sex, without concern
for any other factors. Affirmative action guidelines urge employers to
make a sincere effort to find and train qualified people who have
historically experienced exclusion from many occupations and
professions. Or they urge universities to enhance their recruitment
methods in order to find qualified African American, Latino, Native
American and Asian American students, who generally have far less access
to higher education than whites.
In addition, employers are asked to drop "qualifications" that are
unrelated to a job, but that have had the effect of excluding certain
people. Such irrelevant standards include: requiring applicants for
manual labor jobs to have high school degrees; experience requirements
that largely disqualify women who apply for traditionally male jobs like
truck-driving, and tests requiring high proficiency in English that
screen out people for whom English is a second language. For example,
in 1990 some Cambodian immigrants charged that several industrial
employers in the vicinity of Lowell, Massachusetts imposed English
language-based tests and high school diploma requirements for manual
labor positions, among other arbitrary standards, to avoid hiring
Cambodian applicants. Affirmative action policies that have challenged
employers and schools to bring their standards into stricter line with
the actual skill requirements of jobs and educational programs have
reduced discrimination and made hiring and admissions processes fairer
Finally, it must be said that the widespread juxtaposition of
affirmative action with "unqualified" itself reflects the pervasiveness
of racial and sexual stereotypes in our society. Studies have shown
that women and people of color, just by virtue of who they are, are
automatically assumed to be less competent than white males for _any_
task. This presumption of inferiority is so entrenched that even a
woman or person of color who is actually more qualified is often
perceived as being less so. Only by increasing diversity in American
workplaces and on campuses will such stereotyping die out.
Doesn't affirmative action breed a sense of inferiority in its
_Enduring discrimination_ is what engenders feelings of inferiority.
Societal presumptions that racial minorities and women are inferior, and
that equate female and minority identity with incompetence, existed long
before affirmative action.
Veterans who receive preferential treatment have never complained of
being made to feel inferior by their benefits. Nor have white male
workers or students who benefited down through the ages from
discrimination against people of color and women complained of feeling
inferior on account of their special privilege. On the contrary, they
have felt superior. As scholar Philip Green observed in 1981:
Do all those corporate directors, bankers, etc., who got their jobs
for extraneous reasons -- first, because they were somebody's son,
second, because they were male, third, because they were Protestant, and
fourth because they were white -- feel demeaned thereby?... Clearly
implicit in this standard critique of affirmative action is a notion
that whereas it's never painful to be rewarded because you are in the
majority or the established elite, it's always painful to be rewarded
because you're in the minority, or in a marginal group.
Blaming the remedy -- affirmative action -- for "feelings of
inferiority" is like blaming the victims of discrimination for their
Do affirmative action policies benefit our whole society, and if so, how?
By the year 2000, five out of six people in the job market will be
people of color, female and immigrant. If employers continue reserving
the most and best jobs for white men, the talents of a majority of the
labor force will go untapped and our society will squander the vast
human resources it possesses.
The more diverse a society is, and the more people within it of all
backgrounds who have access to the means of fulfilling their individual
potential, the greater is that society's potential for attaining
excellence in every field of endeavor. As the world's most racially and
ethnically diverse nation, and as a nation founded on constitutional
principles of freedom and equality, the United States is ideally
positioned to advance if only it can overcome the scourge of
discrimination. Affirmative action policies are indispensable in that
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