Position Paper about affirmative action

Note that I prepared these notes cover many complex issues very briefly: the main purpose is to orient you as you read other documents related to your case. If you cite it in your debate essay, you can just give the title, C. Magid, and say Course Document.

BACKGROUND ON AFFIRMATIVE ACTION:

HISTORY: Affirmative action developed as federal governmental policy dealing with government contractors, that is, with people who do business with the federal government. Affirmative action as we know it originated in a Presidential Executive Order 11246 (issued by President Lyndon Johnson, having the force of law). Johnson wanted to address discrimination outlawed in the Civil Rights Act of 1964 (and subsequent legislation.)

Johnson believed that fairness required more than a commitment to impartial treatment, that anti-discrimination laws alone would not break long-standing patterns of discrimination. In a speech at Howard University in 1965, Johnson said:

You do not take a person who for years has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, “you’r

e free to compete with all the others,” and still justly believe that you have been completely fair. Thus it is not enough just to open the gates of opportunity. All our citizens must have the ability to walk through those gates….We seek not…just equality as a right and a theory but equality as a fact and equality as a result. http://www.lbjlib.utexas.edu/johnson/archives.hom/speeches.hom/650604.asp

Contractors include not only businesses but also educational institutions which use government money. The government requires larger contractors to follow affirmative action if they want to do business with the federal government. (Note--these companies and institutions don't have to follow affirmative action-- but if they don't, they won't get government contracts.) Affirmative action is also required in hiring in many government jobs--state, federal, etc. (This is a case of the government requiring affirmative action of itself.) It can also be used voluntarily by businesses and educational institutions, and is sometimes part of union contracts. Affirmative action has also been imposed by courts in cases where discrimination has been proven.

USE IN GOVERNMENT CONTRACTS: Affirmative action is targeted at businesses and other institutions where few people of color or women have previously been hired, promoted, and/or admitted. If employers use affirmative action in connection with government contracts, they first examine their workforce to see how many and in what positions women and people of color are employed. They compare their results with numbers of women and people of color who might be expected to be in a fair applicant pool. If they are not hiring in comparable numbers, they set goals and timetables for future hiring to make progress towards such hiring. If they are government contractors, the government works with them to set appropriate goals and timetables and monitors their progress towards the goals. They are not required to hire to fit their goals, but they are required to show that they are making good faith efforts to hire qualified people.

How far do employers and educational institutions have to go for affirmative action if they are government contractors?

Affirmative action has had two related components:

(1) making special efforts to ensure equal opportunity for members of groups subject to discrimination--includes advertising positions and educational institutions, active recruitment, special training programs, attention to employment and admissions procedures to avoid discrimination.

(2) giving some degree of definite preference to women or people of color in determining access to positions from which group members were once excluded. This can involve favoring the woman or person of color where candidates are equally qualified. It can also involve favoring the woman or person of color where that person is less qualified than another candidate for the position, but still qualified.

TWO GOALS: Affirmative action in government contracting was designed to help end discrimination based on race or gender in employment or education. Employment discrimination can involve unequal opportunities in hiring, promotions and lay-offs. Discrimination in education involves unequal opportunities in admissions and access to financial aid and other resources. Starting with President Johnson, a major goal of affirmative action has been to work towards equality of opportunity in situations where racial and gender-based discrimination exist. In recent years, achieving diversity has also been seen as an equally or possibly more important goal.

AFFIRMATIVE ACTION IN HIGHER EDUCATION:

Once the federal government implemented affirmative action policies, many public and private colleges and universities used affirmative action in admissions. Although some educational institutions did so to meet their obligations as government contractors, often affirmative action was adopted as a voluntary policy to increase opportunity for disadvantaged students or to achieve the benefits of diversity. As a result of these policies, minority (and in some cases) female enrollment increased substantially. NOTE THAT THE UNIVERSITY OF MICHIGAN AFFIRMATIVE ACTION POLICY (DESCRIBED BELOW AND THE REASON FOR THE GRUTTER V BOLLINGER DECISION) WAS A VOLUNTARY POLICY.

SELECTED LEGAL DEVELOPMENTS IN HIGHER EDUCATION: The Supreme Court ruled on one affirmative action policy in 1978 after a challenge by Alan Bakke. Bakke was a white male who was not admitted to the Medical School at the University of California at Davis. The school had a policy of reserving 16 of its 100 applicant places for minorities. Bakke said that his test scores were higher than some minority students who were admitted under the school’s affirmative action policy. The Supreme Court ruled that the quota system used by the school was not constitutional, and ordered Alan Bakke admitted. However they did say that diversity had an educational benefit, and that race could be taken into account as one of a number of factors in student admissions to achieve diversity. Since 1978 many colleges and universities have followed these guidelines, making race a factor in admissions decisions.

In 1996, the 5th Circuit of the U.S. Court of Appeals (level below the Supreme Court) heard another case, Hopwood v. University of Texas Law School. In that case, the University of Texas Law School had used race as a factor in admissions decisions. The 5th Circuit Judges ruled that diversity is not a compelling interest in higher education to justify consideration of race in student admissions. The Supreme Court declined to review this on appeal, so the University of Texas had to give up its affirmative action policy. (Texas recently passed legislation that permits students from the top 10% of their graduating classes at all Texas high schools to be admitted to the University of Texas system. The goal was to retain a diverse group of students without making race a factor in admissions.)

Also in 1996, the voters of California passed a ballot initiative (Proposition 209) that banned race-conscious affirmative action in the public sector, including at public colleges. (This vote followed a 1995 vote by the University of California Board of Regents to drop affirmative action in admissions starting in 1997.) As a result of these developments, the University of California dismantled its affirmative action programs for college admissions. In 1998, the voters of Washington State passed a ballot initiative like California’s (Proposition 200).

THE UNIVERSITY OF MICHIGAN CASES: In 1997, the Center for Individual Rights filed two lawsuits in federal court on behalf of students denied admissions to the University of Michigan. They challenged the University of Michigan’s use of race as a “plus” factor in admissions decisions, claiming that it led to discrimination against white students. One lawsuit (Gratz v. Bollinger) was directed at the College of Literature, Science and the Arts (the most selective undergraduate college) and the other (Grutter v Bollinger) was directed at the Law School. Although both schools used race as a “plus” factor in admissions decisions as a way of achieving a diverse student body, there were important differences in their admissions processes. The undergraduate college had a point system in which all plus factors were awarded points—with 20 points given to students who were black, Hispanic or Native American. The Law School had a “holistic” approach: it looked at all aspects of each application together, considering student contributions to campus diversity as one factor in admissions decisions. NOTE THAT BOTH OF THESE ADMISSIONS POLICIES WERE VOLUNTARY—THE UNIVERSITY CHOSE TO USE THEM. THE LAWSUITS WERE CHALLENGING THE IDEA THAT A UNIVERSITY COULD MAKE THIS CHOICE.

THE 2003 SUPREME COURT DECISIONS IN GRUTTER V BOLLINGER AND GRAZ V BOLLINGER: These cases were decided by the U.S. Supreme Court in June 2003. The majority of the Court upheld the University of Michigan Law School admissions policy (Grutter) but struck down the undergraduate admissions policy (Graz) because of its use of a point system.

Writing for the majority, Justice O’Connor said that diversity is a compelling interest in higher education and that race could be used as a factor in admissions decisions because “the law school has a compelling interest in attaining a diverse student body” but that the use of race had to be “narrowly tailored” to achieve the interest in student body diversity and can’t be the only or determining factor in decisions. Essentially they said that “narrow tailoring” in admissions would require race or ethnicity to be a plus factor without point systems, dual admissions tracks, or quotas—instead schools had to use a holistic approach of the kind the Law School had used. They also said that they expected that affirmative action would not be needed in 25 years. (For details, see Decision and Dissent excerpts: http://www.nytimes.com/2003/06/24/us/supreme-court-excerpts-justices-opinions-michigan-affirmative-action-cases.html ) The University of Michigan subsequently revised its undergraduate admissions policy to conform to the Supreme Court ruling, as have many other educational institutions.

DEVELOPMENTS SINCE GRUTTER V. BOLLINGER:

ABOUT THE 2006 BALLORT INITIATIVE:

NOVEMBER 2006 BALLOT INITIATIVE AGAINST AFFIRMATIVE ACTION: PASSED: Opponents of affirmative action in college admissions and elsewhere gathered signatures and got an initiative on the Nov. 2006 Michigan State Ballot that would amend the state constitution to ban affirmative action, specifically “programs that give preferential treatment to groups or individuals based on their race, gender, color, ethnicity or national origin for public employment, education or contracting purposes.” (http://www.ewashtenaw.org/government/clerk_register/elections/el_novstateprops.html)

This initiative was passed by voters, 58% for and 42% opposed. One major purpose of the initiative was to ban affirmative action in admissions. The University of Michigan has been required to comply with this ban. (Note that comparable bans have been passed in some other states as well, including: Oklahoma, New Hampshire, Nebraska, Washington, and California, and defeated in Colorado.)

NOVEMBER 2006 BALLOT INITIATIVE OVERTURNED BY A 3-JUDGE APPEALS COURT PANEL (2011) on grounds that it was unconstitutional. This decision was upheld in 2012 by the full Court of Appeals (6th circuit). The U.S. Supreme Court has just agreed to hear and decide whether the Court of Appeals made the right choice in overturning the 2006 Ballot Initiative, so they will make their own (final) decision on that.

ABOUT UNIVERSITY ADMISSIONS POLICIES:

FISHER V UNIVERSITY OF TEXAS (2013) “affirmed major precedents going back 35 years. It asserted that a more diverse student body—and an admissions policy that helps produce one—serves a compelling interest of government by achieving educational and social benefits. Diversity, in turn, helps realize what the court has called ‘The dream of one nation, indivisible.’” (New York Times editorial

action.html?adxnnl=1&adxnnlx=1384022632-qFYBNiu/Lzq4lLZvDqs16w&pagewanted=print" http://www.nytimes.com/2013/06/25/opinion/a-reprieve-for-affirmative

action.html?adxnnl=1&adxnnlx=1384022632-qFYBNiu/Lzq4lLZvDqs16w&pagewanted=print ) This decision sent the admissions policies of the University of Texas back to lower courts to review and decide if the university was adhering to the standards of Grutter v Bollinger. For more on this see: New York Times explainer: http://www.nytimes.com/interactive/2013/06/24/us/annotated-supreme-court-decision-on-affirmative-action.html?_r=1&#page-39