Affirmative action (US English), or positive discrimination (British English), is a policy or a program providing advantages for people of a minority group who are seen to have traditionally been discriminated against. This consists of preferential access to education, employment, health care, or social welfare.
It is also known as reverse discrimination but in the United States this term is used solely by its detractors.
In employment, affirmative action may also be known as employment equity. In this context affirmative action requires that institutions increase hiring and promotion of candidates of mandated groups.
Critics often object to the use of racial quotas and gender quotas in affirmative action. Quotas are illegal in the United States, except when a judge issues an order for a specific institution to make up for extreme past discrimination. There is dispute over whether this de jure illegality prevents de facto quotas. Much time has been spent attempting to show that these "goals" are not quotas.
Critics of Affirmative Action programs believe that assumption behind such programs is that the economic percentage (or "share") of high status jobs, wealth, and power should be the same as the populations percentage of ethnic, racial, and sexual minority groups (sometimes called "preferred" or "protected"). Any discrepency is presumed to be the result of "bad" discrimination favoring non-preferred groups.
However, proponents of Affirmative Action programs claim they are based only on the assumption that certain groups have previously been disadvantaged or discriminated against in society, and therefore cannot compete on an equal basis with persons of the dominant group for jobs, educational opportunities, or promotions. For example, a black American is far less likely than a white American to have had a parent who has gone to college. Since many colleges have legacy programs for the children of former graduates, and the children of college attendees are more likely to attend colleges themselves. Affirmative action is intended to move those distributions to the point where preferred ethnicities, races, and/or sexes hold the same proportion of desirable positions as the percentage of persons eligible for promotion to that position. Failure to demonstrate clear movement toward this goal can be punished. Government agencies require annual reports of such change from all of their direct contractors and the sub-contractors of those contractors. Organizations which receive, directly or indirectly, federal funds are also required to report and to change those proportions in their workforce or student body.
There is strong competition for being included in the Government's preferred list since doing so means a significantly better economic future for a group's members. This also generates inter-group conflict and hostility. Preferred groups tend to support these programs while other groups tend to not support them.
Arguments against such favorable treatment have a long history, starting with President Andrew Johnson's veto of the legislation setting up the Freedmen's Bureau on the basis that the legislation only benefitted blacks. The veto was overriden by the Radical Republican Congress on the basis that only blacks had been slaves prior to 1865.
In some countries which have laws on racial equality affirmative action is rendered illegal by a requirement to treat all races equally. This approach of equal treatment is sometimes described as being race-blind. It tends to act against both discrimination and reverse discrimination.
In such countries the focus tends to be on ensuring equal opportunity and, for example, targeted advertising campaigns to encourage ethnic minority candidates to join the police force. This is sometimes described as "positive action", as opposed to "positive discrimination".
Affirmative Action exists to change the distribution of jobs, education, wealth, or other things, based on characteristics that usually include race, sex, and/or ethnicity.
A certain minority group or gender may be underrepresented in an arena, often employment or academia, in theory due to past or ongoing discrimination against members of the group. In such a circumstance, one school of thought maintains that unless this group is concretely helped to achieve a more substantial representation, it will have difficulty gaining the critical mass and acceptance in that role, even if discrimination against the group has ceased. For this reason, it is suggested that more effort must be made to recruit persons from that background, train them, and lower the entrance requirements for them.
Proponents of affirmative action argue that affirmative action is the best way to correct a history of discrimination against a minority group. In the view of advocates, affirmative action may be seen as redressing an otherwise unfair balance of historical wrongs and institutionalised disadvantages.
Opponents view affirmative action as government sanctioned racialism and reverse discrimination, as well as demeaning to members of minority groups. Many say that affirmative action sends a message to minorities that they are not capable enough to be considered on their own merits. Others note that the difference might be biological (hormonal differences between men and women, biological differences between Caucasians and African-Americans) or cultural. See Race and intelligence.
Though affirmative action in the US is primarily associated with racial issues, the American civil rights movement originally gave as its purpose the correction of a history of oppression against all working-class and low-income people.
Another more abstract form of affirmative action is in consultations, whereby institutions such as schools or health-care facilities are declared to be ethnocentric around the majority culture, and therefore consultation with other ethnic groups, especially indigenous groups, are specified as a remedy. This can cause accusations of double-standards, as in practice representatives of all ethnic groups except the majority group receive consultation on institutional workings. Proponents discount this as being irrelevant, as they claim consultation with the majority group is pointless, as the institution's management is centered around them anyway.
Charter of Rights and Freedoms
Section 15 of the 1982 Canadian Charter of Rights and Freedoms enshrines the following "Equality Rights":
- Subsection 1: Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.
- Subsection 2: Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because or race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.
Employment Equity Act
Recognizing that "systemic discrimination" was responsible for most of the inequality found in employment, the 1984 Royal Commission on Equality in Employment outlined a systemic response and chose the term "Employment Equity" to describe the process. "Employment Equity" was chosen to create a distinction between the primarily American "Affirmative Action" model as well as to move beyond the "Equal Opportunity" measures available in Canada at that time. As set out in the Canadian Employment Equity Act, Employment Equity is an on-going planning process used by an employer to:
- identify and eliminate barriers in an organization's employment procedures and policies.
- put into place positive policies and practices to ensure the effects of systemic barriers are eliminated.
- ensure appropriate representation of "designated group" members throughout their workforce.
The goal of Employment Equity is to:
- eliminate employment barriers for the four designated groups identified in the Employment Equity Act: women, persons with disabilities, Aboriginal people, and members of visible minorities.
- remedy past discrimination in employment opportunities and prevent future barriers.
- improve access and distribution throughout all occupations and at all levels for members of the four designated groups.
- foster a climate of equity in the organization.
The Employment Equity Act affects the following sectors:
- All federally regulated employers with 100 or more employees, including organizations in industries such as banking, communications, and international and interprovincial transportation.
- All federal departments. Other parts of the public service, including the Canadian Forces and the Royal Canadian Mounted Police may be specified by order of the Governor in Council, on the recommendation of the Treasury Board, as being required to comply with the Employment Equity Act.
Federal Contractors Program
Under the Federal Contractors Program, employers with 100 or more employees who have secured a federal goods or services contract of $200,000 or more are required to sign a certificate of commitment to fulfill their mandated goal of implementing employment equity in their workplace.
In the USA, Affirmative Action only applies at transition points -- times when individuals are changing their employment or enrollment. Thus the potential advantage or disadvantage predominately falls on working age adults who hope to improve their lot through employment or educational change. Established (and powerful) people are not required to redistribute their wealth, power or social position, but are included in calculations of outcomes. This focuses the greatest impact on young people while maintaining the status and position of established members of society. In the USA, this process was established by Presidential Decree in March of 1961 by President Kennedy and has been changed significantly over the decades since.
The Constitution of the USA as well as numerous laws outlaw discrimination against a group based on their race or ethnicity. Presumably, research showing negative outcomes for non-preferred people would mean these programs would have to be ended.
Basis in law
In the US Constitution, the equal protection clause of the Fourteenth Amendment mandates that no governmental entity burden a person or deny them benefits because they are members of a particular racial group (see Constitutional Law, Nowak and Rotunda).
The Johnson administration embraced affirmative action in 1965, by issuing United States Executive Order 11246, later amended by Executive Order 11375. The order, as amended, aims "to correct the effects of past and present discrimination". It prohibits federal contractors and subcontractors from discriminating against any employee or applicant for employment because of race, skin color, religion, gender, or national origin. The Order requires that contractors take affirmative action to ensure that "protected class, underutilized applicants" are employed when available, and that employees are treated without negative discriminatory regard to their protected class status.
The Order specifically requires certain organizations accepting federal funds to take affirmative action to increase employment of members of preferred racial or ethnic groups and women. Any organization with fifty or more employees and an aggregate revenue exceeding $50,000 from federal contracts during a twelve month period must have a written affirmative action plan. This plan must include goals and timetables for achieving full utilization of women and members of racial minorities, in quotas based on an analysis of the current workforce compared to the availability in the general labor pool of women and members of racial minorities.
The order is enforced by the Office of Federal Contract Compliance Programs of the Employment Standards Administration of the U.S. Department of Labor and by the Office of Civil Rights of the Justice Department.
Section 717 of Title VII of the Civil Rights Act of 1964 and Section 501 of the Rehabilitation Act of 1973 require all United States Federal Agencies to implement affirmative employment opportunity programs for all federal employees. EEOC Equal Employment Opportunity Management Directive 715 (MD 715) (http://www.eeoc.gov/federal/eeomd715.html) provides guidance as to how such programs are to be implemented. Although it is well known which ethnic groups and races are preferred or "protected" by the Government, almost no list or ennumeration is made in writing, presumably because of fear of Constitutional invalidation. These fears are founded, however, even though every American court has held racial discrimination illegal, as practiced by the USA Government, in over 40 years.
In the beginning, racial classifications that identified race were inherently suspect and subject to strict scrutiny. These classifications would only be upheld if necessary to promote a compelling governmental interest. Later the US Supreme Court decided that racial classifications that benefited underrepresented minorities were to only be upheld if necessary and promoted a compelling governmental purpose. (See Richmond v. JA Croson Co.) There is no clear guidance about when Government action is not "compelling", and such rulings are rare.
Individual US States e.g. Missouri (http://www.moga.state.mo.us/statutes/chapters/chap213.htm) also have orders that prohibit discrimination and outline affirmative action requirements with regard to race, creed, color, religion, national origin, gender, age, and disability status.
Implementation in universities
When minorities are actively sought or preferred, the reason given is usually that this is necessary to compensate for advantages to groups such as males or those of European descent from racism, sexism, results of historical circumstances, and institutional racism.
Some dissenters claim that racial preferences have in-effect caused a reverse discrimination against a historically-dominant group (white males in Europe and North America), and liken such preferences to apartheid.
In the US, the most prominent form of affirmative action centers around access to education, particularly entrance to university and other forms of tertiary instruction. Race, ethnicity, native language, class, geographic origin, parental attendance of the university in question (legacy admissions), and/or gender are often taken into account when assessing the meaning of an applicant's grades and test scores.
For example, a female university student college entrance viability will tend to be equal to that of a male student with SAT scores 50 points higher than hers.
Individuals can also be awarded scholarships and have fees paid on the basis of the hitherto-listed criteria.
In the United States, affirmative action programs at universities benefit mostly black African Americans, Hispanic Americans, and Native Americans. Asian Americans, although a racial minority, usually do not benefit at most colleges because their makeup in the student body exceeds their makeup in the general US population.
White-skinned people usually do not benefit in universities where their makeup in the student body is less than their makeup in the general US population, unless they're from an underrepresented geographic area, or have parents or other relatives who attended the university (legacy admissions).
Important Supreme Court cases
- The Supreme Court held that the UC Davis medical school admissions program violated the equal protection clause with the institution of quotas for underrepresented minorities. However, the court ruled that race could be one of the factors in university admissions.
- The Supreme Court ruled that race could be used as a criterion in school admissions and that it would not be in violation of the equal protection clause of the 14th Amendment. The Court found that the University of Michigan Law School's narrowly-tailored policy was constitutional and appropriate "to further a compelling interest in obtaining the educational benefits that flow from a diverse student body."
- The Supreme Court ruled that the University of Michigan's point-based undergraduate admissions policy that took race into account numerically was too mechanical and unconstitutional.
An attorney who filed an amicus brief on behalf of Pennsylvania legislators and former legislators in Grutter v. Bollinger, Rep. Mark B. Cohen of Philadelphia, said that "The cumulative effect of the Bakke, Grutter, and Bollinger cases is that no one has a legal right to have any demographic characteristic they possess be considered a favorable point on their behalf, but an employer has a right to take into account the goals of the organization and the interests of American society in making decisions. This is a moderate, inclusive position that ably balances the various legal interests involved."
- Greece: Greece has quotas setting a lower limit for women participating in election lists of political parties for most of the election processes.
- India: In order to redress historic inequity of the caste system, certain positions in university and government are reserved for the "untouchables".
- Malaysia: In Malaysia, the bumiputra laws are a form of affirmative action meant to provide more opportunity for the majority ethnic Malay population versus the historical financial dominance of the Malaysian Chinese and Indian populations.
- New Zealand: Individuals of Maori or other Polynesian descent are often afforded preferential access to university courses, and scholarships.
- Southeast Asia: In countries such as Indonesia, affirmative action programs give natives preference over Han Chinese who have immigrated into the country.
- South Africa: The Employment Equity Act aims to promote and achieve equity in the workplace, by encouraging equal opportunity amongst all workers. It includes efforts to identify reasons for inequalities and change the employment rates of previously underrepresented groups for a more equitable job market.
Critics point out that affirmative action has a negative effect on members of the non-preferred groups, and rewards those who are less capable and who have accomplished less. The experience of U.C. Berkeley, UCLA, Stanford, Harvard, Princeton and Brown in the 1970s are cited as examples, when the Asian student population rose to around 10%-15% on these campuses.
These universities soon began to put restrictions on the number of Asian students admitted. They began turning down qualified Asian students for less qualified Black and Latino students. The proportion of Asian Americans at institutions of higher learning is greater than their percentage of the population, which is often used to contrast with other minorities, suggesting it as evidence that no affirmative action is needed, but rather that minorities have the capacity to excel on their own. See model minority. Counterarguments include that Asians did not suffer through the trauma of slavery, and that the enormous size of the Asian ethnic groups in comparison to immigration quotas ensures that only elite members of those groups can enter the U.S. anyway. These arguments of course disregard Hispanics.
UCLA Professor Richard H. Sander published an article in the December 2004 issue of the Stanford Law Review critical of affirmative action in law schools. The article presents a study that concludes half of black students admitted to top law schools under affirmative action rank near the bottom of their classes and perform poorly on their bar exams. The article argues that black law school graduation rates in the United States would grow by eight percent if affirmative action programs at elite law schools were ended, as black students would instead attend less prestigious schools where they would perform better, would not become as discouraged about their performance and prospects, and would be less inclined to drop out or avoid entering the profession. The article has sparked heated initial reaction and controversy, and critics are reviewing the study's methodology. Sander, whose personal politics are reported to be somewhat liberal, previously helped develop a proposed plan for socioeconomically based rather than racially based admission of disadvantaged students to UCLA's law school, after the passage of Proposition 209 in 1996 which prohibited the use of racial preferences in California schools.
Another consequence of affirmative action as it is practiced in U.S. universities is that it widens the gap in academic qualifications between different ethnic groups attending the same university by granting admission to preferred students based on different, lower requirements. The smallest gap is usually found at the most prestigious universities, who actively recruit the most qualified students from preferred minorities. The smallest gap is found at Harvard, where the gap between African American and Asian American students is about 90 SAT points. UC Berkeley has one of the highest gaps at about 300 SAT points.
Differing entrance qualifications often do not translate into differing performance once at university however. Students from poor inner-city high schools are unlikely to arrive at college as educated as preperatory school attendees, but are also more appreciative of the access to resources and knowledge a university affords. The minority students at Berkely, despite their lower SAT scores, do as well in class, statistically, as their higher-scoring white counterparts.
In order to avoid a system of racial quotas, the State of Texas passed a law guaranteeing entry to any state university of a student's choice if they finished in the top 10% of their graduating class. Despite fears that this would lower standards, minority students from schools with lesser performances appear to do as well as students from better schools, and the average SAT and GPA scores of applicants to Texas universities continue to rise.
Texas was also the result of a unique experiment when a court ruled that a state medical school had to approximately double the number of students in an incoming class to meet anti-discrimination provisions. Not only were the grades of the second tier statistically indistinguishable from those of the first tier, there was actually no statistical difference between the second tier and the top 15% of applicants in the first tier.
One criticism of "Affirmative Action" is that it discriminates against people based on race and sex, and thus is simply a different form of "racism" and "sexism", that legal discrimination based on birth characteristics is State racism regardless of which State indulges in such stuff.
A different argument against affirmative action states that the minorities who are under-represented are inherently not as capable as the dominant groups. This argument has rarely been made openly in the past half-century. Proponents of this argument point out that even though affirmative action polices have been in place for 40 years the number of Black and Latino college students remains below their proportion of the total population.
Some view the disproportionate percentages of different races in schools and jobs as a reflection of minority cultures. Some cultures emphasize education and academic achievement less than others; for example, one might argue that education is highly prized in some Asian countries, whereas the streets of East Los Angeles are less likely to generate business magnates.
Another criticism of affirmative action asserts that these programs encourage economic discrimination in favor of wealthier members of minority groups, since such programs, at least the American versions, do not consider either social or economic class. Critics claim "Affirmative Action" proponents promote selecting a middle-class minority group member over a better qualified working-class member from the majority group. This is contrary to claims of "social justice" made by supporters. It also causes racism towards the preferred group among those excluded because they are members of a group not selected for "Affirmative Action" benefits. This can be seen to be both counter-productive and unfair. This problem is present in many college admission programs in the USA, especially ones adopting so-called need blind admissions policies. Thus "affirmative action" can be seen as promoting middle class minorities at the price of further handicaping poor non-minorities.
Proponent of Affirmative Action respond that such discrepancies are a result of residential segregation and disparate funding of school systems; in response, critics of affirmative action concede that those problems are valid issues which urgently require a solution, but argue that qualified members of the majority group should not be deprived of access to opportunities just because the larger society is unable to fix problems affecting its minority groups.
Many arguments against affirmative action gloss over the fact that until the 1960s, admission to many state universities were essentially "white only", even outside of the deep south. For example, in the early 1960's, the minimum qualification for admission to the University of California, Berkeley, when it was primarily a white institution, was approximately a C+. The least qualified minority applicant to California-Berkeley in recent years would have needed an A+ average just to be considered. One vocal proponent of affirmative action was Supreme Court Justice Thurgood Marshall, who was denied entry to the University of Maryland Law School on account of his race, and instead had to attend Howard University Law School in Washington D.C.
Another argument is that many of the state and city universities had much lower tuition during the time they were primarily for whites, while tuition at such institutions have grown faster than the rate of inflation now that more minorities are attending. Tuition at the City College of New York was free up until the 1960's when the students were primarily Italian and Jewish, but now rival those of state universities now that most of the students are Black or Hispanic. For example, had Thurgood Marshall had been admitted to Maryland, as a resident of Baltimore he would not have to have paid tuition. Howard, a private institution, had a substantial tuition, but was as the time (the 1930s) the only ABA accredited law program at a historically Black university.
Free market libertarians (that is, libertarians in the post-1950s, Anglo-American sense of the term) do not object to affirmative action on a voluntary basis any more than they object to any form of discrimination that individual people may freely choose to support, but they do object to state imposed requirements for affirmative action. They also point out that the individuals whose protections are reduced are identified by race and by sex, and that government force is used to enforce such reductions, because the program is involuntary.
They suggest that any form of unjustified discrimination is likely to lead to inefficiencies, and that a rational person would therefore be unlikely to seek to discriminate one way or another and should therefore be free to decide who to select.
- Shaheen Lakhan - Diversification of U.S. Medical Schools via Affirmative Action Implementation (http://www.biomedcentral.com/1472-6920/3/6). BMC Medical Education. 3:6. 2003.
- U.S. Department of Labor - U.S. Executive Order 11246 (http://www.dol.gov/esa/regs/compliance/ofccp/fs11246.htm) EEO and Affirmative Action Guidelines for Federal Contractors Regarding Race, Color, Gender, Religion, and National Origin
- U.S. Department of Labor - Executive Order 11246 (http://www.dol.gov/esa/regs/statutes/ofccp/eo11246.htm), As Amended
- Canadian Charter of Rights and Freedoms (http://laws.justice.gc.ca/en/charter/)
- Richard H. Sander, A Systematic Analysis of Affirmative Action in American Law Schools, 57 STAN. L. REV. 367 (2004), available at Richard Sander Homepage (http://www1.law.ucla.edu/~sander/Data%20and%20Procedures/StanfordArt.htm).