Affirmative Action in the United States

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by Michael Werz and Julie Margetta Morgan

Diversity is the litmus test for a modern society. The degree to which ethnic and racial differences are embraced and seen as strength rather than weakness discloses the democratic substance in any given country. The United States has struggled with the issue of race and diversity since its earliest days. With the election of Barack Obama this conflict has not come to a close, but his unexpected electoral success is an indicator that in the United States, descent is not synonymous with destiny any more. Such advances are important tests for contemporary societies and their competitiveness in the 21st century. The capacity to recognize diversity as something positive and bring it to the forefront in education, politics, and business is a crucial asset for modern civilizations.

Diversity is an omnipresent and contemporary issue in the United States. Few former colonial nations have abolished slavery within their own borders; the U.S. is one of those few and ultimately worked to abolish legally-sanctioned racial and ethnic discrimination. It is important to remember that only fifty-three years ago the U.S. President had to send paratroopers to a little town in Arkansas to make sure that nine black children were able to go to school. Seven of them attended the inauguration of Barack Obama as 44th president of the United States in January 2009.

However, concerns about losing ground to segregation and other racial or ethnic injustices are very much alive today. When Barack Obama delivered his iconic speech on race relations, referring to the Constitution’s call to “form a more perfect union,” his universalist pledge did not pass unheard. The notion that Americans “may not look the same and we may not have come from the same place, but we all want to move in the same direction” touched upon contemporary experiences shared by many. Within two months, his speech was downloaded more than 4.5 million times on YouTube, and a Gallup poll revealed that more than 85 percent of all Americans had heard about his speech. These historic experiences distinguish the United States - although the U.S. should not be seen as the ideal model, its history of racial conflict and affirmative action can serve as a valuable archive of political experiences.

In recent years, many member states in the European Union have initiated intense policy debates about “positive action measures”, followed by significant expansion of legislation at the European level. However, very few practical procedures have been implemented through national legislation so far.  Where positive measures are undertaken, it is done primarily on the basis of non-binding equality policies, or through the mission statements of individual organizations and corporations. The most comprehensive study, a 2009 report by the European Commission on “International perspectives in positive action measures”, states that legislation has been the main driver, but there are many barriers to their successful introduction. Obstacles include limited human and financial resources, the lack of systematic monitoring, and the need to develop better evaluation tools. Furthermore, Europe has no legal definition of “positive measures,” resulting in inconsistent interpretations of the term among European policymakers.

Diversity and Civil Rights - A Unique American History

In comparison to the European experience, the debate about equal opportunity and affirmative action began a lot earlier in the United States and was led with great intensity. At the height of the political protest movements, the U.S. government undertook one of the most critical steps toward acknowledging diversity by the Civil Rights Act of 1964, which prohibited discrimination in public and private employment and in institutions receiving federal financial aid. The judicial system played its part, ruling on the desegregation of schools. Although measures to thwart discrimination on the basis of race and gender brought about fundamental changes in American society, a more difficult conversation began to emerge about the difference between equal rights under the law and equality of opportunity. Men and women who were subjected to discrimination had been denied opportunities in both work and education that could not be remedied simply by prohibiting segregation. In acknowledgement of the need to redistribute opportunity to those who had been historically disadvantaged, affirmative action programs were instituted to increase academic and professional opportunities for minorities and women. The common goal was the diversification of schools, universities, federal agencies, and the institutions governed by them. The mandates were wide-reaching and gave authority to individual departments to implement minority hiring programs.

Although the courts played the most crucial role in protecting the rights of minorities, they were not the only guardians of equal opportunity legislation. The executive branch, by virtue of its executive prerogative, also actively pursued diversity policy. A legendary Executive Order issued by President Lyndon B. Johnson in 1965 required organizations that accepted federal funds to implement “affirmative action” and thus increased employment opportunities for minorities and women. Ever since, organizations receiving federal contracts have to formulate a written affirmative action plan, including goals, timetables, and progress statements for achieving the full recruitment and utilization of minorities. The goal of diversity for government hiring is summarized in Executive Order 11478, as issued by Republican President Richard Nixon in August 1969. Section 1 states:

It is the policy of the Government of the United States to provide equal opportunity in Federal employment for all persons … and to promote the full realization of equal employment through a continuing affirmative program in each executive department and agency. This policy of equal opportunity applies to and must be an integral part of every aspect of personnel policy and practice in the employment, development, advancement, and treatment of civilian employees of the Federal Government.

Section 2 further directs:
It is the responsibility of each department and agency head, to the maximum extent possible, to provide sufficient resources to administer such a program in a positive and effective manner; assure that recruitment activities reach all sources of job candidates; utilize to the fullest extent the present skills of each employee; provide the maximum feasible opportunity to employees to enhance their skills so they may perform at their highest potential and advance in accordance with their abilities; … assure participation at the local level with other employers, schools, and public or private groups in cooperative efforts to improve community conditions which affect employability; and provide for a system with the department or agency for periodically evaluating the effectiveness with which the policy of this Order is being carried out. (E.O.11478, Sections 1 and 2)

These measures, which were never voted upon by U.S. policymakers, have dramatically impacted American society. They have changed the face of businesses and the federal government, but the debate about the legitimacy of these practices has continued ever since. Although affirmative action has been particularly successful in higher education, this is also where is has been the most controversial.

Affirmative Action in Higher Education

The movement toward affirmative action in higher education evolved out of a desire to address effects of past discrimination and segregation on the achievement of minority students and to increase diversity in higher education. The key argument was that a more diverse student body promotes democratic values, cross-racial tolerance and understanding, as well as the preparation of leaders who are equipped to compete in a global marketplace. In the wake of the global student movements and the protest against the Vietnam War during the late 1960’s, colleges began instituting admissions policies that gave preference to minority students over other applicants. Depending upon the circumstances, these policies ranged from an unsophisticated “quota” system for racial and ethnic minorities to more nuanced admissions policies that consider race only one among a variety of factors identified in a more broadly defined concept of diversity. From their inception, affirmative action policies in higher education have been controversial; even though the ultimate goal of diversity may be agreeable to most Americans, the methods of achieving it generated both constitutional questions and concerns about the consequences of race-based preferences for minority students.

Constitutional challenges to affirmative action began almost immediately, resulting in the 1978 Supreme Court decision of Regents of University of California v. Bakke, in which a white applicant to University of California at Davis Medical School was denied admission two years in a row. Allan Bakke sued the University, claiming that he was rejected as a result of a policy that reserved up to sixteen slots in each incoming class of students to minority applicants. In a divided opinion, the Supreme Court concluded that an admissions program that involves a racial quota and preferences racial diversity over all other admissions qualifications is a violation of the Constitution’s Equal Protection Clause. However, the Court indicated that a more nuanced admissions program aimed at increasing the educational benefits that flow from diversity may be permissible: “…the State has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin.” (Bakke, 439 U.S. 265, 320 (1978). Such a program was the subject of the 2003 case Grutter v. Bollinger, in which a group of law students who were denied admission to the University of Michigan Law School claimed that its admission policy violated the Equal Protection Clause. The Law School’s admission policy considers diversity as part of an individualized review of each applicant’s qualifications; diversity received “substantial weight,” but was not limited to solely racial or ethnic diversity. The Supreme Court upheld this admissions policy, stating that the Law School was pursuing a compelling interest in the educational benefits of diversity through a program that ensures an individual review of each applicant without making ethnicity or race the sole determining factor of admission or rejection.

Affirmative action policies in U.S. higher education admissions began from a simple desire to increase racial diversity and equality of opportunity, but the methods used have been far from simple. One reason for this is the constitutional barriers outlined by the Supreme Court’s formalistic interpretation of the U.S. Constitution’s guarantee of equal protection under the law resulted in limiting the public university’s ability to address diversity directly, by stating that race may not be the sole deciding factor in an admissions decision. In comparison, Canada’s constitution includes the same guarantee of equality, but it allows for programs that ameliorate disadvantages. As Canadian justice Frank Iacobucci stated in Lovelace v. Ontario, Canadian law views affirmative action as “an expression of equality rather than an exception to it.”
Another reason for the limited reach of affirmative action in public higher education, evident in the ballot initiatives in states like California and Michigan, is a public ambivalence toward the notion of racial preferences. The public response may be due to misconceptions about affirmative action that paint the policies as vehicles to admit under-qualified minority applicants and deny qualified Caucasian applicants. It may also be motivated by an increasing desire to see American society as colorblind and meritocratic, and to view the effects of past discrimination against minorities as simply social conditions for whom no one is to blame.

Although the Supreme Court decision in the case Grutter v. Bollinger opened the door for the use of race in university admissions, it also constrained institutions’ abilities to increase diversity. The kind of individualized, holistic review of applicants, in which grades and test scores are important, but “soft” factors like diversity, talent, and potential to contribute to learning are also considered is not possible at larger institutions that must review more than ten thousand applications each fall. Rather than using racial or ethnic preferences in admissions, some postsecondary institutions have taken a broader look at programs to increase diversity, including targeted recruitment of minority students and partnering programs with local high schools.

Another obstacle to promoting racial diversity in higher education has been statewide ballot initiatives or other laws that outlaw the use of racial or ethnic preferences. In reaction to the national debate over affirmative action and public legal disputes like Bakke and Grutter, a small number of states have instituted ballot initiatives to outlaw the use of racial preferences in areas such as public university admissions, government contracting, and hiring public employees. California initiated this trend in 1996 with the California Civil Rights Initiative (Proposition 209), and states such as Michigan, Nebraska, and Washington followed suit over the past two decades. Many of these initiatives can be traced to the efforts of Ward Connerly, founder of the American Civil Rights Institute. Connerly engages in a state-by-state battle against racial preferences, and the result has been a distinct drop in the number of minority students enrolled at public universities in those states. To combat the effects of these bans and anticipate further restriction on the use of affirmative action, institutions increasingly use socioeconomic status or other measures of educational opportunity as a proxy for race.

Whatever the reason, as affirmative action efforts in public universities and colleges have been stymied or limited, higher education institutions are not likely to meet Justice O’Connor’s expectation expressed in Grutter that within twenty-five years (now, eighteen years), racial preferences will no longer be necessary to achieve diversity. Researchers have suggested that colleges could increase diversity and steer clear of constitutional challenges by looking more deeply at the roots of the lack of diversity in American higher education. One suggestion is to look at the extent to which socioeconomic status and race overlap; socioeconomic factors could be used as a proxy for race in admissions. Another is to consider the fact that patterns of raising selectivity and requiring better test scores from applicants has significantly hampered their ability to recruit a diverse student body. Still, recent research suggests that though socioeconomic factors could help increase diversity, they simply are not a substitute for race.

Affirmative Action in the Diplomatic Service

Another interesting field is the U.S. Diplomatic Service, run by the U.S. Department of State. Long dominated by white men from New England, in recent years the State Department has been run by diverse Secretaries of State that have not shied away from making their opinions on the issue public. Only three days after being appointed, Colin Powell said that “America overseas ought to look more like America at home.” The State Department uses a number of strategies to comply with this demand: active recruitment efforts include the Diplomat in Residence Program, which sends employees to minority colleges to act as employment recruiters. These diplomats visit typically black, hispanic, asian, and women-only universities to teach, consult with, and advise college students on careers within the State Department. Due to the presence of minority-oriented universities within the United States, the possibility of having such a program may be uniquely American; however, it is important to note the degree to which the Department of State is willing to reach out to a diverse student population. In addition, the Department also sends employees to major state college like the University of California in Los Angeles. This might be a viable model in Europe, which would allow institutions to target larger universities with a diverse array of students but without a particular governmental or foreign policy focus.

Other successful recruitment programs that target minorities and are run outside traditional hiring practices include fellowships, internships, and apprenticeships. The Department also encourages minorities to organize into groups, with the goal of increasing minority representation. Proactive recruitment efforts serve as supplements to the regular Foreign Service hiring process.

These efforts are backed by the Foreign Service Act of 1980 under which the State Department currently operates, and which replaced the initial Foreign Service Acts of 1924 and 1946. The document states:
The objective of this Act is to strengthen and improve the Foreign Service of the United States by–(2) fostering the development and vigorous implementation of policies and procedures, including affirmative action programs, which will facilitate and encourage (A) entry into and advancement in the Foreign Service by persons from all segments of American Society, and (B) equal opportunity and fair and equitable treatment for all without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, or handicapping condition. (Section 101 (b) (2))

Federal affirmative action mandates are wide-reaching and gives authority to the heads of executive institutions, such as the Secretary of State, to pursue a broad-based approach to minority hiring, including supplemental training and recruitment efforts. The attempt to integrate minorities in all economic and social spheres is thus being achieved at the government level by nondiscrimination litigation, and through affirmative action programs that actively encourage minority hiring and training. Both of these principles are embraced by the Department of State and the Foreign Service in their official policies.

In addition, the Foreign Service encourages a diverse and representative employee base as a crucial part of its operating mission and charter. The formal prose, however, is also backed by accountability to Congress: The Secretary of State must submit to the chairman of the Committee on Foreign Relations, the speaker of the House, and the Equal Employment Opportunity Commission, a report on the State Department’s affirmative action and minority recruitment programs, to be delivered once a year. In the past 30 years, federal agencies have implemented numerous programs to encourage minority hiring, often against their own institutional cultures. In doing so, they have changed norms to the extent that it is possible for the Secretary of State to be, as she is now, a woman, or as with the last two, African American.

Diversity as Institutional Self Interest

Former Executive Director Mark Chichester of the Institute for International Public Policy describes that affirmative action is diminishing at the same time that a culturally diverse environment is developing. He argues that “institutional self-interest is moving away from the individual perspective of affirmative action and individual opportunity,” and toward the development of a U.S. policy of “cultural competence,” which goes beyond racial and ethnic diversity. It embraces a “broader conception of diversity of experience and perspective that allows individuals to communicate and function effectively across cultures” (IIPP, 25). The U.S. tradition of affirmative action and its criticism has not only produced a high level of public awareness. It has also created a fairly broad consensus that “institutional diversity” is needed and beneficial in several ways. With a more diverse workforce, institutions can harvest social and cultural skills that are present in modern society in a more systematic way, broadening their vision through a multitude of perspectives and experiences and readying themselves for the challenges of the twenty-first century.

But there is a more fundamental dimension as well. Societies at large can learn from the immigrant or minority communities. Acceptance of diversity is part of contemporary enlightened self-interest, a realization that greater diversity touches the core interest of modern institutions: cultural competencies, language skills, and different visions of the world. It took a long time to get to this point, and now the United States is readying itself for the next step: Due to demographic shifts and continuing immigration, the country may be a “community of minorities” as soon as 2040 — where no single ethnic group can claim majority status.

 

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Michael Werz is a Senior Fellow at the Center for American Progress and Julie Margetta Morgan is a Policy Analyst at the CAP.

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