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, with the aim of creating a more egalitarian society. This consists of preferential access to education, employment, health care, or social welfare.
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.
Affirmative action is controversial, and critics often regard affirmative action as racialism and reverse discrimination, arguing that it takes a situational stand against racial/gender preference (supporting it in some situations but not others) instead of a principled stand (always objecting to it). Another criticism is the claim that affirmative action is anti-meritocratic (reward being based on merit), reducing incentive for productive work, and that part of demographic differences actually arise from cultural differences. Critics are also concerned that affirmative action may encourage animosity both ways, as well as encourage tribalistic thinking.
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The terms "affirmative action" and "positive discrimination" originate in law, where it is common for attorneys to speak of "affirmative" or "positive" remedies that command the wrongdoer to do something. In contrast, "negative" remedies command the wrongdoer to not do something or to stop doing something.
The initial successes of the civil rights movement brought about negative remedies that said to majority ethnic or racial groups, "thou shalt not discriminate." However, by the mid-1960s, when such prohibitions failed to ameliorate existing structural inequities, many liberals began to argue that governments should actively intervene, or take affirmative action, to compensate for the lingering effects of past harms.
Affirmative action originally began as a government remedy for past government injustices. Affirmative action exists to change the distribution of jobs, education, wealth, or other things, based on characteristics that usually include race, sex, or ethnicity.
A certain minority group or gender may be less proportionately represented in an area, often employment or education, due predominantly, in the view of proponents, to past or ongoing discrimination against members of the group. In such a circumstance, proponents believe government action giving members of the group preferential treatment is necessary in order to achieve a proportionate distribution.
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.
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".
Another more abstract form of affirmative action is in consultations, whereby institutions such as schools or health-care facilities are viewed as 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 their culture anyway.
In the U.S., affirmative action only applies at transition points — times when individuals are changing their employment or enrollment. Thus, any potential advantage or disadvantage is predominately conferred upon working age adults who hope to improve their lot through a change in employment or the pursuit of educational opportunities.
This arrangement focuses the greatest impact on young people while maintaining the status and position of established members of society. This overall framework was established by Presidential Decree in March of 1961 by President Kennedy and has evolved significantly over the decades since.
The Constitution of the United States, as well as numerous laws, outlaw discrimination against a group based on their race or ethnicity. Proponents believe affirmative action programs shouldnt be ended until research were to conclusively show negative outcomes for non-preferred people.
Basis in law
In the U.S. 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 U.S 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) 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 enumeration is made in writing, presumably because of a fear that such a list would be held unconstitutional as a form of invidious discrimination against groups not on the list.
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 U.S. 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 U.S. states e.g. Missouri 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.
In the U.S., the most prominent form of affirmative action centers around access to education, particularly admission to universities 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, the college admission chances of a female university student 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 African Americans, Hispanic Americans, and Native Americans. Asian Americans, although a racial minority, do not benefit at most colleges because the rate of college education among Asian Americans is higher than the other racial groups (including whites). See model minority for more information.
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.
- Grutter v. Bollinger, 2003
- 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."
- Gratz v. Bollinger, 2003
- 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."
Other important cases:
- Adarand Constructors v. Peña, 515 U.S. 200 (1995) (establishing strict scrutiny standard of review for race and ethnic-based Federal Affirmative Action programs).
- City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) (strict scrutiny standard to state and local programs).
- Greece: Greece has quotas setting a lower limit for women participating in election lists of political parties for most of the election processes.
- Europe (EU): 2000/43/EU, from 2000, June, 29, about the application of the principle of equality without regard to race or ethnic origin (ABl. EU Number L 180 p. 22), so-called anti-racism directive. To be implemented in national law of the member states.
- 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.
- United Kingdom: Under the 1998 Good Friday Agreement the law requires that the Police Service of Northern Ireland recruit equal numbers of Catholics and Protestants (including Anglicans).
- 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.
- Germany: article 3 of the German constitution provides for equal rights of all people regardless of sex or race. In recent years there has been a long public debate about whether to issue programs that would grant women a priviledged access to jobs in order to fight discrimination. There were programs stating that if men and women had equal qualifications, women had to be prefered for a job. The anti-discrimination law (Antidiskriminierungsgesetz – ADG), which is yet to pass, aims at improving the protection of minorities.
- Japan: the Law on Securing, Etc. of Equal Opportunity and Treatment between Men and Women in Employment issued first in 1972, provided that men and women should have equal chances in employment. Most workers are still male.
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 minority groups 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.
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 are claimed to do as well as students from better schools, and the average SAT and GPA scores of applicants to Texas universities has reportedly not fallen.
Some opponents view affirmative action as government sanctioned racialism and reverse discrimination, and also believe that its demeaning to members of minority groups, that affirmative action wrongly sends a message to minorities that they are not capable enough to be considered on their own merits.
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.
Cultural or biological differences
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. Since 2004, comedian Bill Cosby has become the most prominent advocate of this view. He has repeatedly called upon inner-city African-Americans to develop a culture that celebrates academic achievement (as opposed to denigrating "geeks" or "nerds" for "acting white").
Some critics believe that the demographic differences might have a biological influence. Examples include hormonal and neural differences between men and women, and possible biological differences between groups, such as Asian-Americans and African-Americans). (See Race and intelligence)
Proponents of these two arguments point out that even though affirmative action polices have been in place for 40 years, the number of Black and Latino college students remains proportionately lower.
Disadvantaging working-class non-minorities
Another criticism of affirmative action in employment and education claims that these programs encourage socioeconomic discrimination in favor of middle-class members of minority groups over better qualified but working-class members from the majority group, since such programs do not consider socioeconomic class. In essence, middle-class minorities with greater oppurtunities and resources at their disposal, are favoured of over members of the working poor who happen to not be minorities. This criticism, which comes mainly from the left, believes this is contrary to claims of "social justice" made by supporters.
Proponents of affirmative action often contend that racial diversity is intrinsically in the interest of an academic environment and as such a university is justified in taking means to ensure a racially diverse campus. This notion is mere assertion. Japan is perhaps the most racially homogenous nation on the planet and yet manages to have the highest per capita GDP. Relatively homogenous nations such as Germany, Korea and China are also uninhibited by their lack of diversity. The notion that racial diversity is necessary to enhance the quality of a campus atmosphere can not be substantiated by quantitative evidence. It's probably a nice idea, but it has no real basis and is surely poor justification to discriminate against qualified applicants on the basis of their race.
Affirmative action in the United States was originally concieved as a means to compensate African Americans for centuries of slavery, as newly granted legal equality was considered insufficient to redress African American grievances. However, the inititative quickly balooned to encompass various other racial minorities that had never suffered from slavery. In addition, newly immigrated Africans without any enslaved ancestors benefit as well. Thus the original justification, which the potential victims of affirmative action were intitially compelled to accept, has been abandoned.
Criticism from Dutch Martin
Dutch Martin, an African-American, claims that the following are problems with affirmative action, based on his review of Affirmative Action Around the World: An Empirical Study (ISBN 0–30010–199–6, 2004) by African-American economist Dr. Thomas Sowell:
- They encourage non-preferred groups to designate themselves as members of preferred groups [i.e. primary beneficiary of affirmative action] to take advantage of group preference policies;
- They tend to benefit primarily the most fortunate among the preferred group (e.g. black millionaires), oftentimes to the detriment of the least fortunate among the non-preferred groups (e.g. poor whites);
- They reduce the incentives of both the preferred and non-preferred to perform at their best — the former because doing so is unnecessary and the latter because it can prove futile — thereby resulting in net losses for society as a whole; and
- They engender animosity toward preferred groups as well as on the part of preferred groups themselves, whose main problem in some cases has been their own inadequacy combined with their resentment of non-preferred groups who — without preferences — consistently outperform them.
Sowell also argued:
- What about the notion that affirmative action has helped blacks rise out of poverty? The black poverty rate was cut in half before affirmative action — and has barely changed since then.
- What about the notion that blacks would not be able to get into colleges and universities without affirmative action? After group preferences and quotas were banned in California's state universities, the number of black students in the University of California system has risen.
Proponents 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 don't seem to consider 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 believe 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.
- Equal Employment Opportunity Commission
- Office of Fair Housing and Equal Opportunity
- Institute for Justice
- Political correctness
- Model minority – A minority group thats highly successful despite a history of discrimination (e.g. Asian Americans)
- Affirmative action bake sale A critical bake sale organized on college campuses demonstrating affirmative action pricing structures.
- Jewish quota (historically restricting number of Jews)
- Race and intelligence
- Shaheen Lakhan – Diversification of U.S. Medical Schools via Affirmative Action Implementation. BMC Medical Education. 3:6. 2003.
- U.S. Department of Labor – U.S. Executive Order 11246 EEO and Affirmative Action Guidelines for Federal Contractors Regarding Race, Color, Gender, Religion, and National Origin
- U.S. Department of Labor – Executive Order 11246, As Amended
- Canadian Charter of Rights and Freedoms
- Richard H. Sander, A Systematic Analysis of Affirmative Action in American Law Schools, 57 STAN. L. REV. 367 (2004), available at Richard Sander Homepage.
- Stanford Enclycopedia of Philosophy entry
- Cato Institute Policy Analysis 540