A Rhyme and a Reason for Affirmative Action

The only thing more detrimental to a nation-state than an uninformed citizen is a citizen that is equipped with misinformation. In the past decades that have passed since the Civil Rights era of the 1960s, American society has viewed a plethora of federal government actions that have dealt with the constitutionality of favorable and race-conscious decisions; however, none more important or controversial than that of the federal government approval and enforcement of affirmative action. In short, affirmative action is the policy of promoting education or employment to members of groups that have been disenfranchised and provide equal access and opportunity into institutions that are historically known to be discriminatory in practice (Carr 746).

Taking into account the delayed reaction by the United States in regards to its history of discrimination, especially towards African-Americans, the Civil Rights Act of 1964 was essentially created to provide the opportunity of equality to all individuals regardless of race, color, sex, religion, or national origin. Therefore, affirmative action is a product of such an act created and acknowledged by the United States Supreme Court, which actively takes steps to ensure equal treatment and opportunity; whereas, on the other hand, many people might assume that the policy is intended to favor one individual minority over another majority individual. With this in mind, the affirmative action policy is not something that has widely been accepted by all of American society. In fact, over the past recent years, it would appear as though no other policy has been debated more intensely than this one, yet studies are consistently showing that there is increased public support for federally funded social safety nets (Pew Research Center). Moreover, some critics strongly feel as though this policy attempts to fight discrimination with discrimination. Not to mention that the current Presidential administration has even made attempts to shave Obama-era affirmative action regulations, claiming that though the policy may have been needed a few decades ago, it is no longer needed in a "racist-free twenty-first-century society, deeming the policy improper.

Consequently, all of these reasons/cases are inherently weak because they all heavily rest its facts and evidence upon myths and misunderstanding. In this essay I will discuss a half of century's worth of case laws since the era of Civil Rights that makes it clear ethnicity and race can be of many considerations that universities and companies take into regard during the admission and/or hiring process. Important to note that the public can seamlessly trace the practice of discrimination and the lasting need for policies such as affirmative action all the way, starting from the colonial period and continuing through the official birth of the United States of America in 1776. This thread needs to begin from America's long age of enslavement of Africans and its unwilling history to move away from such hateful, barbaric, and legally accepted forced labor practices and towards the goal of racial equality because the policy of affirmative action cannot be divorced from its historical context. The fact is, American society has and always will be influenced by its long history of racism. Slavery existed in the United States for over two centuries and even after the federal constitutional eradication of the practice, black people were still not treated equally. Martha West concurs that affirmative action is not a way to compensate for the centuries of enslavement of African Americans and the abhorrent treatment that they have continued to endure.

Moreover, West ruminates upon the basic importance of why this policy is needed because there has been a significant impact in how society cannot or does not want to, articulate the reality in the United States, which includes the racial superiority of white Americans and the racial inferiority of people with darker skin (West).

Accordingly, in the post-Civil War era, American society could not come to terms with the idea that African Americans were more than three-fifths of a person. This led to the imminent creation of Jim Crow Laws, decided upon in the case Plessy v. Ferguson (1896), that solely and intentionally affected the social, economic, and political standing of black people in America. The principle that arose from Plessy (1896) was the idea that separate was still equal on a national scale and lasted until 1954. However, visceral reactions were instilled in a society that derived from years of segregation due to this case law and what the United States Supreme Court deemed constitutionally acceptable. Furthermore, the significance of the cases Plessy v. Ferguson (1896) and Brown v. Board of Education of Topeka (1) (1954) lies in the way the Supreme Court viewed racial segregation in a legally sanctioned doctrine. In the former, the state of Louisiana had enforced the Separate Car Act, which mandated that whites and blacks must occupy separate railway cars. Homer Plessy, who was 7/8th (a majority) white, agreed to participate in a test that challenged the act. A Committee of Citizens that wanted to repeal the act asked Plessy, who was essentially black under the social and legal principle one-drop blood rule, to sit in the whites-only car section. When Plessy was told to exit the car, he refused and was arrested. Plessy's lawyer argued the act violated the 13th and 14th amendment, however, he was still convicted in the lower courts (O'Brien 1368). Likewise, the Supreme Court reviewed Plessy's case and found that the separate car act was not in violation of the 14th amendment. With a 7-1 holding, a majority opinion was issued by Chief Justice Brown, which upheld the state-imposed racial segregation and recognized that the Equal Protection Clause enumerated in the 14th amendment did not protect minorities in this instance. Given that one of the defining principles of federalism states that the United States Supreme Court, historically, differs to the interpretation of the state courts, it was not unexpected for the Court to come to this conclusion (Aughenbaugh).

However, the justices of the court were still subscribing to the belief that whites were the superior race. Continuously, in Justice Harlan's dissent, he claimed that the constitution and quote, "is color blind" yet in this dissent, he still recognizes the widely held belief that whites will continue to dominate in America because of their privilege, education, wealth, and power (West 609). Institutions that held beliefs such as these, created a landscape for an opportunity where white supremacy could thrive and would not be questioned, which in turn created an oppressive discourse in American society that was blindly accepted (Lain). A point often overlooked in the debate over affirmative action is that white people, especially white males, have never been denied the right to an education in America. Historically, this demographic of people have never had to worry about their socio-economic situation when concerning themselves with applying to and/or attending a university. That is not to say that white men do not experience poverty, because they undoubtedly do, but it is to highlight that their race nor gender plays a role in the reason for why they are in that situation. In the article "The Deserving Poor" it is suggested that the affirmative action policy would trigger in some, what is known to be poverty exhaustion, which causes one to view programs such as affirmative action as tools of anti-poverty and essentially pervasive (Bridges 1085).

For instance, a wealthy student might have feelings of resentment to their communities, universities, and even the government for giving their seat away to an economically disadvantaged student, though this is suggestive of an extensive thought that these openings are somehow owed to them. Nevertheless, the reasoning is much more complex than rich versus poor and requires an in-depth understanding of differing socio-economic situations. Moreover, the affirmative action policy can extend outside the bounds of higher education and employment. According to the article "Born in the Red" on average, black and Hispanic Americans have lower credit scores than white and Asian Americans, resulting in millions of Americans putting themselves in debt trying to pay excess fees and interest due. Therefore, credit ratings should account for more than just numbers, as universities do, specifically because solely looking at numbers usually leads to a disparate impact on a group of minorities (Mack 1180). Furthermore, in the book The Case Against the Supreme Court, the main claim concerns itself with ethics and what the United States Supreme Court ought to do, which should be to protect discrete and insular minorities from the repressive majority; however, Chemerinsky implies that the court has failed time and again in completing such a deed (Chermerinsky 15).

In view of this opinion, what America and its courts really needed was for another case that would change the social and political discourse to being more race-conscious, that will ultimately be reflected in the ruling of Brown v. Board of Education of Topeka (1) (1954). Continuously, the notable case that marked the significant transition of America being blatantly racist into a society of "color blindness" Harlan's dissent being just fifty-eight years too early, was distinguished in the landmark case of Brown v. Board of Education of Topeka (1) (1954) that overruled Plessy v. Ferguson (1896). The Supreme Court unanimously decided that separate was, in fact, not equal. Henceforth, K-12 schools and public universities now had to integrate their students in order to receive federal funding. Nevertheless, there was still a strong aversion from those in power towards accepting minorities. Scare tactics were used to deny minority's access to equal education and equal employment, cultivating a pervasive sense of fear if they were to enter these alleged white only spaces.

For this reason, in order to enforce the ruling of Brown v. Board of Education Topeka (2) across the board, the modern class action rule was designed to sanction civil rights (Malveaux 2017). The modern class action rule held the capacity to challenge racial inequality and subordination. Brown (1954) was a case that was a result of a culmination of other cases from South Carolina, Kansas, Virginia, Delaware and Washington D.C., that concerned themselves with the segregation of public schools on the basis of race. African American students who had been denied admittance to schools in these states argued that such segregation was in violation with the Equal Protection Clause under the 14th amendment, however, they were denied relief in the lower courts citing the precedent of Plessy (1896) (O'Brien 1404). Furthermore, while the National Association for the Advancement of Colored People (NAACP) were arguing this case, they were able to acknowledge the United States Supreme Court's tendency of taking into account historical precedence and debated the legitimacy of education reform in reference to Plessy v. Ferguson (1896) (Ricks).

As a result, the Supreme Court unanimously held that, yes, the segregation of public education violated the Equal Protection Clause. Chief Justice Earl Warren wrote the majority opinion requiring that all parties must comply with the new law with deliberate speed. Indeed, the years of the Warren court without a doubt were more inclined to find discriminatory practices unconstitutional and to expand on applying remedies to rights that established a preference for one group over another. Much of the reform and policies the public sees in both secondary and tertiary education is owed to the NAACP's success in winning the Brown case (Ricks). What observers and critics may take away from both of these cases is that they set a framework for how and why the United States Supreme Courts view the policy of affirmative action as legally valid in fields of education and employment. In order to provide a deeper historical and constitutional context of the affirmative action policy, it is important to take notice of Title VII of the Civil Rights Act of 1964. It covers issues of employment, which also included the creation and further implementation and enforcement of the Equal Employment Opportunity Commission (EEOC) (Kravitz). The intended goal of Title VII was that it would eliminate the many forms of disparities that included flagrant forms of discrimination, as well as protect against micro aggressions, which were forbidden and/or condemned. Title VII was specially created to provide an avenue for equal opportunity and to ensure that the equal treatment of individuals provided for an impartial, fair, and equal outcome (Kravitz). Regardless of the authority that Title VII held, an executive order was still needed to implement the affirmative action policy.

Moreover, executive orders are specifically issued by Presidents, without the need for approval from the United States Congress, and still carry the weight of the law. As with Title VII, executive order 11246 (EO11246), created by President Lyndon B. Johnson, and enforced by the agency of Office of Federal Contract Compliance Programs (OFCCP) a subdivision of the Department of Labor, strictly prohibits discrimination on the grounds of race, color, religion, sex, and national origin (Kravitz). The primary duty of the OFCCP is to make sure that employers adequately use the policy of affirmative action. However, in 1968, the language that OFCCP used began to show signs of change, where the agency started to require a written affirmative action compliance program and a mandate to increase the employment of minorities and women at all levels of the workforce (Kravitz). Unlike Title VII, EO11246 only applies to federal government contractors, which tend to be private companies that produce goods and services for the use of public government agencies. The executive order also includes a provision that employers use the affirmative action policy to ensure they are partaking in non-discriminatory practices. Due to the landmark case Griggs v. Duke Power Company (1971), it is now mandatory for employers to create an affirmative action plan for their company. The case of Griggs (1971) is significant because it accepted a fundamental change in the definition of employment discrimination. Continually, William Griggs filed a class action on behalf of several fellow African-American employees, against the employer Duke Power Company. Griggs challenged the company's insider transfer policy, which required all employees who wanted to work above the lowest paying Labor Department, to register a minimum score on two separate aptitude tests and to show a completion certificate from high school. Griggs claimed that the company was discriminating against African American employees and, therefore, in violation of the Title VII of the 1964 Civil Rights Act (Kravitz). The Supreme Court unanimously came upon the ruling that Duke Power Company's intradepartmental transfer policy did indeed violate the Title VII of the 1964 Civil Rights Act.

To clarify, Duke Power Company's standardized testing requirement prevented a disproportioned number of African-American employees from either being hired altogether or advancing to higher paid department positions. Moreover, the high school graduation requirement and the aptitude tests were not intended to measure an employee's ability but displayed the subtle yet still illegal purpose of these requirements where the sole intention was to protect the company's long-standing policy of hiring only white candidates for higher paid positions (Kravitz). This case illuminated a strategic practice, which resulted in exposing the unequal treatment across demographic groups and unveiled the frequently used claim by employers who said the act of discrimination was not intentional; however, because of Griggs (1971), that is no longer seen as a substantial defense in the eyes of Supreme Court.

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