Affirmative Action
What is it, where did it come from?
Affirmative action can be traced to a very basic premise: "All men are created equal."
When the colonialists declared that "these United Colonies are, and of right ought to be, free and independent States" absolving themselves from allegiance to the British crown, the basic premise of that action was that all men are created equal and have certain unalienable rights.
To secure these rights, governments are instituted among men. The new government of the United States of America was created as a means to provide these basic freedoms to every citizen of the new republic. From that point onward began the effort to translate the ideal of equal rights into a reality for all American citizens.
No effort is more basic to who we are as people or as a nation. It touches all aspects of life: how people transact business; what they can learn; where they reside, eat, or play. In any of these settings, there are certain characteristics about a person that should not affect decisions impacting that person’s right to life, liberty or pursuit of happiness. The basic underlying objective has been and will always be to treat all people equally.
To achieve this objective, we as a nation have enacted laws that specifically tell us certain factors we cannot consider when making decisions that affect others. These factors are called protected classes categories. For a list of these categories, link to who’s protected or to timeline, which indicates when each category was given legal protection in Connecticut.
With time, lawmakers realized that just forbidding wrong behavior wasn’t enough. Illegal discrimination continued, and case by case prosecution wasn’t getting us closer as a nation to the reality of treating everyone equally. Consequently, affirmative action measures were established as a tool to fight against the present effects of past illegal discrimination. They were intended to provide a widespread, proactive approach to combat illegal discrimination. Their ultimate objective, however, has always been to make equal opportunity a reality.
Affirmative Action: leveling the playing field.
The phrase affirmative action was first used officially by the government in 1961 by President Kennedy in Executive Order 10952, which created the Equal Employment Opportunity Commission. He went on to declare that federal contractors shall "take affirmative action to ensure that applicants are employed, and employees are treated during their employment, without regard to race, creed, color or national origin."
Laws barring discrimination took quantum leaps during the 1960’s. In 1964, the Civil Rights Act prohibited discrimination in public facilities, federally funded programs and by public and private employers. The Voting Rights Act of 1965 gave greater access to the rights to vote, to hold a job, and to go to school.
Also in 1965, President Johnson issued Executive Order 11246, which many point to as the beginning of affirmative action as we know it today. Executive Order 11246 shifted affirmative action enforcement to the Department of Labor, which led to federal regulations. These regulations essentially gave birth to affirmative action plans.
Also in 1965, President Johnson gave the commencement speech at Howard University where he articulated the reasoning behind these new affirmative action measures. He said: a legal right...
"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. All our citizens must have the ability to walk through those gates. This is the next and more profound stage of the battle for civil rights. We seek not just freedom, but opportunity – not just legal equity but human ability – not just equality as a right and a theory, but equality as a fact and as a result."
Affirmative Action: remedial action.
A remedy is a legal means of preventing or correcting a wrong, or enforcing a right. Affirmative action programs try to prevent the wrong of discrimination, or correct the entrenched systems of racism, sexism and segregation that lead to it, in order to prevent future discrimination. Making equal treatment a reality is the objective.
Racism, rather than being self-correcting, is self-perpetuating. The disadvantages to people of color and the benefits to white people will be passed on to each succeeding generation unless remedial action is taken. The disadvantages to people of color become built into institutional practices which may be race neutral in intent, yet adversely affect people of color. It’s necessary to take positive steps to eliminate and compensate for these institutional effects of racism, even when there isn’t any discernible discriminatory intent.
Former U. S. Supreme Court Justice Blackman stated that we cannot eradicate caste without the system of preferences that affirmative action entails, and that, ultimately, we cannot get beyond racism without taking race into account. Affirmative action measures are by their very nature remedial.
Does Affirmative Action substitute one discrimination for another?
Affirmative action initiatives, by their nature, create a tension with equal opportunity laws. Equal opportunity laws say don’t consider the protected class characteristics of an individual, while affirmative action programs, by their nature, consider them. The resolution of this dichotomy is at the heart of the issues in the developing body of affirmative action law.
The issue was directly addressed in 1979 in the case of United Steelworkers v. Weber. The question before the U.S. Supreme Court was whether Title VII of the Civil Rights Act of 1964 allowed employers to take race-conscious steps to eliminate racial imbalances. The Court declared that race-conscious affirmative action plans were allowed.
There are these issues to consider in determining whether prescribed affirmative action is proper. First, there must be sufficient evidence of a history of discrimination in the particular setting at issue. If so, the proscribed affirmative action must further a compelling governmental interest and must be narrowly tailored to meet that interest.
Today, a narrow majority of the Court seems to be indicating that taking race into account to break down the patterns of segregation can be as bad as segregation itself.
However, the government has not been totally disqualified from considering race in responding to racism. What the Court has done is apply greater scrutiny when deciding whether particular affirmative action initiatives are sufficiently narrowly tailored to meet the compelling governmental interest of equal enjoyment of life and liberty by the citizens of the United States.