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A NECESSARY POLICY TO PREVENT DISCRIMINATION AND INEQUITIES
A DISCRIMINATIVE AND INEQUITABLE POLCY
Historically, there have been arguments about what Affirmative Action (AA) really is. The basis of the argument for the most part, debates the goal(s) of AA. Is the goal of AA to erase past inequities for the disabled, minorities and/or women without protest? Or is Affirmative Action a culture or spirit that rewards diversity and differences? Basically there are two definitions or schools of thought for AA.
The first school of thought is that AA is an umbrella term for laws and policies that the United States Executive, Judicial, and legislative bodies have mandated. Specifically, AA is a series of social policies and statutes that regulate activities and laws with the primary intent to achieve equity and increase opportunity for all.
The second school of though is that AA is an umbrella term defining a broader set of activities whereby public and private institutions voluntarily incorporate practices and polices to increase diversity, opportunity and equity. Under this school of thought, AA is in spirit and an institutional policy.
The intent of this paper is to address the serious and profound arguments of both schools of thought. In addition, this paper will address issues relative to determining whether or not AA is necessary instrument for the demise of discrimination and the formation of justice and whether or not AA needs to be maintained, modified or terminated.
I. Affirmative Action Background
A. A Brief History of AA in the United States of American
Contrary to popular belief, the concept of AA actually began prior to the executive order signed by President John F. Kennedy in 1961. The concept of AA began upon the signing of Amendment XIII of the Constitution.
1. The Late 19the and Early 20th Century
America began to deal with the inequities and lack of justice for mean of African decent in the 1800s. In my opinion, the initial and most significant policy or law relative to AA was Amendment XIII to the Constitution. The 13th Amendment states, “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction” (US Constitution, Amendment 13, Section 1). Further cited, “Congress shall have power to enforce this article by appropriate legislation”, (US Constitution, Amendment 13, Section 2). While the intent of the 13th amendment was to abolish slavery and begin the long process of just and equal rights for all American citizens.
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Soon after the execution of the 13th Amendment, the governing forefathers once again determined and agreed that it was necessary to clarify citizen’s rights. Directly resultant, the 14th, 15th, 16th and 19th Amendments were executed. All of these amendments were necessary modifications to the highest law of the land to establish justice and equity for all Americans.
2. The Middle of the 20th Century
By the midpoint of the 20th century America still did not truly realize the intent and fruition of equal rights for all. As such, once again there was a need to clarify the rights of Americans. The late 1950s and early 60s there was a television in over 70% of homes in America. This forum of mass and popular media brought about an all time public knowledge of racial injustices. One could say that the television a proponent of civil rights, as directly resultant of its popularity, there were major changes in America’s views and attitudes on civil rights.
In 1961, President John F. Kennedy signed Executive Order (EO) 10925. This EO was significant, as it introduced the term “Affirmative Action” to America. The order instructed federal government contractors to “take affirmative action to ensure that applicants are treated equally without regard to race, color, religion, sex, or national origin” (Kennedy, EO 10925, 1961). The Kennedy EO also created the Committee on Equal Employment Opportunity.
While the Kennedy administration began AA, it was the Johnson administration that really added the provisions that would truly allow for effective implementation of AA. Under the Johnson administration, the US Government enacted the Civil Rights Act of 1064. This act was and still is considered landmark legislation, as it prohibited employment discrimination by large employers (a large employer is defined as an employer with 15 or more employees). The key was that the act governed all employers, not just government contractors like the Kennedy EO. The Civil Rights Act established the Equal Employment Opportunity Commission (EEOC). As a follow-up to the Civil Rights Act, Johnson issued EO 11246, which required expansion of job opportunities for minorities in government contracting firms. This order also established the Office of Federal Contract Compliance (OFCC) a division of the Department of labor, which was chartered to administer the order. Finally in 1967, Johnson amended the order to include women.
3. The 70s, 80s and 90s
There were quite a few AA executive orders, policies and laws issued under the Nixon administration. In the early part of his administration, Nixon and his administration, authorized flexible goals and timelines to correct under-utilization of minorities by federal contractors, in 1971 the order was amended to include women. Also in 1971, Nixon, under EO 11625 direct federal agencies to develop comprehensive plans and programs for Minority Business Enterprise (MBE) to enhance and promote minority business participation in government contracting programs. However, in 1973 Nixon, in what is considered one of Nixon’s “trickiest actions”, issued a memorandum identifying “Permissible Goals and Timelines in State and Local Government Employment Practices” (Memorandum, Nixon, 1973). This memorandum provided guidelines and policy that for corporations to use when implementing goals timetables and impermissible quotas. Clearly, this memorandum cited Nixon’s goal to eliminate the quota system initiated in 1969.
From 1978 until the present, there have been many Supreme Court rulings, Executive orders and other AA legislation in-acted. The 1980’s under both the Reagan and Bush administrations the focus was on economic empowerment and set the stage for future attempts at ending AA. Outside of Reagan’s 1983 EO 12432 execution, there were no material laws or policies in support of AA executed. The period ranging from 1984 through the mid 1990s it was an unpretentious era for AA. It was not until 1995 when President Clinton announced his “mend it, don’t end it” (Washington Post Archives, 1995) policy on AA did the fight to maintain AA revive.
Contrary to the Clinton Administration’s policy, in 1996 the state of California Proposition 209 was passed. This law, a definite blow to AA, permits gender and racial discrimination that is “reasonably necessary” to the “normal operation” of public education, employment and contracting (Clause (C) of Prop. 209, 1996) In 1998, the ban on AA went into affect at the University of California.
B. Affirmative Action Laws
AA laws prohibit discriminatory practices and bias treatment. AA laws are composed of federal and state statutes that are based upon the Constitution of the US. As noted above, AA laws are basically anti-discrimination policy and regulations that are executed at the federal, state and local government levels. These laws and regulations are designed and implemented in an attempt to prevent and in some cases “correct past” inequities and discrimination based upon a person’s race, sex, religion, creed, national origin, physical ability, and age. Just recently AA was expanded to include laws to prevent discrimination based upon sexual preference and orientation.
C. The effects of Affirmative Action on Women, African Americans and the Disabled
The enduring effect s of historical oppression include the losses of adequate education and honorable employment that has haunted the African American, disabled and women in America. AA preferential programs, laws and policies were established with the intent to “correct” the action s and behavior of those individuals and entities guilty of past unlawful discrimination. The AA Quota system was designed to redistribute the unjust enrichment of the past. Racial, gender and physically challenged preferences for societal re-balancing cannot be denied.
The implementation of AA has created cracks in the proverbial corporate glass ceiling. Women now constitute approximately 35% of the world’s labor force (Department of Labor Statistics, DOL Website, 1999). Labor trend analyzers cite that women of all racial and ethnic groups are more than likely to be employed in service industries, finance, real estate, wholesale and retail trade. While AA activities and provisions have effected progression for women in certain industries, America as a whole has a ways to go. The 1998 Gallup/Newsweek poll showed that between 1987 and 1997, the proportion of women holding the title of executive vice president rose from 7 to 12 percent. Those at the senior vice president level rose from 18 to 35 percent (Gallup/Newsweek, 1998, 6).
2. African Americans
AA laws and policies such as the Civil Rights Act of 1964, opened doors that were locked for African Americans. The “Quota” system, while controversial, insisted that corporations have a certain percentage of minorities in management level positions. In addition, AA laws allowed for minority student’s admission in schools that would not have been accessible otherwise. and
1. Lyberger-Ficek and Sternglanz (1975) uncited reference in Gross.R.D., (1987) Psychology: The Science of Mind and Behaviour, Hodder and Stoughton.
2. Condry, J., Condry, S., (1976) Sex Differences: A study in the Eye of the Beholder Child Development 47 (1976) 817 in Fausto Sterling, A., (1992) Myths of Gender, Biological Theories about Women and Men, (p150) New York: Basic Books