\American Civil Liberties Union Briefing Paper Number 17 +-------------------+ AFFIRMATIVE

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\American Civil Liberties Union Briefing Paper Number 17 +-------------------+ AFFIRMATIVE ACTION +-------------------+ 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 University, stating: +-------------------------------------------------+ | 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 supremacy." 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 society. Here are the ACLU's answers to some questions frequently asked by the public about the ongoing effort to ensure equal opportunity for all Americans. ==================================================== 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 for all. 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 beneficiaries? ============================================================== _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 mistreatment. ========================================================================= 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 effort. ACLU American Civil Liberties Union, 132 West 43rd Street, New York, N.Y. 10036 ============================================================== ACLU Free Reading Room | A publications and information resource of the gopher://aclu.org:6601 | American Civil Liberties Union National Office ftp://aclu.org | mailto:infoaclu@aclu.org | "Eternal vigilance is the price of liberty"

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