Monday, May 12, 2008

Affirmative Action and Discrimination

Affirmative action entered the public forum in 1961, when John F. Kennedy issued an executive order (1) creating the, President’s Committee on Equal Employment Opportunity. This committee was directed, “immediately to scrutinize and study employment practices of the Government of the United States, and to consider and recommend additional affirmative steps which should be taken by executive departments and agencies to realize more fully the national policy of nondiscrimination within the executive branch of the Government.” (2) While the focus of this executive order was primarily on government contractors, the administrations purpose in forming the EEO was to expand nondiscrimination into US law. Three years later in 1964, the civil rights act was passed into law and the Equal Employment Opportunity Commission was formed.

The EEOC was to become the leading enforcement agency of civil rights laws. Though it lacked any real enforcement power, (such as the ability to fine or jail those found in noncompliance) the commission did make progress in desegregation. It focused on defining discrimination in the workplace, assisting private litigants in federal courts, and seeking conciliation with employers to desegregate their companies. The EEOC also expanded its efforts into educating the public, seeking voluntary compliance through print and video media, as well as hosting educational conferences. (3)

Both the necessity for and the good produced by affirmative action at its conception is undeniable. Almost 100 years after the civil war, and nearly 50 years after the nineteenth amendment was ratified (the amendment allowing women to vote), inequalities remained in many companies, educational institutions and in many areas of society. Without laws to protect the rights of minorities, and some form of accountability for institutions that violated those rights, change did not seem to be on the American horizon. The goal of affirmative action at its establishment is clear, the question remains however, has it worked?

There are a multitude of elements and arguments to consider in answering this question, however for the sake of brevity I will explore the three that I believe are key to illuminating this issue. These are: Can affirmative action achieve its goal of equality? Should affirmative action have an expiration date? And, What is the logical outcome of affirmative action? I will be focusing primarily on race-based affirmative action since to discuss it in its entirety would take a book not a paper. This is by no means an exhaustive study, but will serve as a foundation for the consideration of this important issue.

To begin, an important distinction needs to be made between two key terms that are sometimes conflated in this debate; nondiscrimination and affirmative action. Nondiscrimination is self-definitional, and is simply the act of not discriminating based on a person’s race, sex, religion, politics, etc. This is foundational to the Constitution, central to our American values, and is held in my estimation to be a nonnegotiable moral necessity. Affirmative action, which is sometimes wrongly used interchangeably with nondiscrimination, is actions taken to enforce nondiscrimination.

On the first question, can affirmative action bring about equality? I would argue that history has responded with a resounding NO. While affirmative action began nobly as a drive toward equality, it has become something very different. Instead of considering all people as equals, it divides people into categories based on all of the things that it contends at the same time people should not be judged on. This can be seen in many universities that maintain “quotas” for student enrolment. (While quotas are illegal in the US, the term is sometimes grayed by points systems that award students bonus points on applications based on race.) In short, it seeks to achieve racial equality through inequality. Further, if race is not an issue then why is race a question on virtually every college application?

To the next question, should affirmative action have an expiration date? The affirmative action that was created in the sixties to desegregate America has long since disappeared, and the affirmative action that has emerged in its place is divisive and should therefore expire. Equality through discrimination is a contradiction in terms, and that is what affirmative action has become today. The goal of affirmative action to protect the rights of minorities through state and federal laws has been achieved, but instead of fading into the background as progress is made, its advocates continue to divide America. Courts have gone from trying cases of discrimination, to cases of reverse discrimination. Instead of minimizing differences affirmative action serves only to magnify them, fanning the small flames of racial tensions that still exist.

Admittedly, there is much disagreement on what level or racial tension does exists today, and on this matter I believe good people can differ. Some like Rev. Jeremiah Write and Rev. Jesse Jackson view racism in America as endemic, while others like Justice Clarence Thomas and Sen. Barack Obama see racism as the aberration. Racism has always and likely will always exist to some degree, the question is, does it exist to a level that warrants affirmative action? I would argue that it does not, and that continuing focus on unimportant differences like race only serves to divides people.

To the last question, what is the logical outcome of affirmative action? Following affirmative action to its logical conclusion is a perpetuation of division. Affirmative action has suffered from what is known as the law of unintended consequences. What its founders intended to use as an axe to cut down our long past of racism, has become a wedge that threatens to keep us divided forever. Affirmative action and equality are mutually exclusive, and the inequality that it produces breeds racism. If preferential treatment is given to certain groups, how is one to view a person from that group who achieves success? The question in the back of many peoples' minds is was their success earned, or given? Preferential treatment not only devalues the success of minorities, but also sends a mixed message. Out of one side of our mouth we say that we are equal, and out of the other side that minorities can't achieve their goals without a handout.

On an emotional level affirmative action can be well argued as a moral good, but on an intellectual level its outcome is contrary to its intentions. This begs the question, what chance do we have at equality if we continue to focus on our differences? If equality is truly our intention, then it will only be fully realized by truly treating people as equals.

(1) Presidential E.O. 10925
(2) E.O. 10925 part 2 section 201