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Affirmative Action and Reverse Discrimination Essay

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Updated: Aug 30th, 2021

The subject of affirmative action policies has been one of great debate within the past four decades. There are individuals who claim that affirmative action is a means of leveling the playing field for all Americans while there are others who view it as reverse discrimination. In order to conceptualize this debate and firmly establish my stance against affirmative action, it is prudent that I first offer definitions of affirmative action policies.

Overall, there have been five key definitions given for affirmative action over the past 40 years. First, affirmative action is a set of policies designed to advertise all openings as widely as possible as well as to monitor job appointments and promotions to ensure that the process is fair and non-discriminatory (Cohen & Sterba, 2003; Mosley & Capaldi, 1996). Second, affirmative action consists of policies or programs ordered by the court to rectify proven cases of individual discrimination, in which there are numerical objectives for an institution to achieve a more equitable number of minorities during a specific period (Cohen & Sterba, 2003; Mosley & Capaldi, 1996).

Third, affirmative action is congressionally mandated rules concerning federal contracts and involving a specific percentage of contracts to be set aside for minority contractors (Cohen & Sterba, 2003; Moore, 2005; Mosley & Capaldi, 1996). Fourth, affirmative action is a policy designed to redress alleged cases of past discrimination, in which the injured members of the discriminated group are placed in the position they would have been in but for the discriminatory actions (Cohen & Sterba, 2003; Mosley & Capaldi, 1996). Finally, affirmative action is any policy that is not based on a causal claim of discrimination but is meant to produce a social goal by invoking quotas to achieve group representation (Cohen & Sterba, 2003; Moore, 2005; Mosley & Capaldi, 1996).

Although the original purposes for, and definitions of, affirmative action policies appear to represent what is good for maintaining a fair and just society, there have been numerous reasons given for why affirmative action should be eliminated. Probably the most obvious criticism regarding affirmative action is that it is illegal. According to the Fourteenth Amendment of the United States Constitution, no state can deny any person within its jurisdiction the equal protection of the laws. When people oppose affirmative action policies, they typically cite the equal protection clause to bolster the idea that the amendment protects individual rights, not group rights (Mosley & Capaldi, 1996).

Similarly, Titles VI and VII of the Civil Rights Act set forth that federally funded institutions and employers in the private or public sector are forbidden from discriminating on the basis of race, color, religion, sex, or national origin (Civil Rights Act of 1964, Section 601 of Title VI; Civil Rights Act of 1964, Section 703 of Title VII). Critics argue that these specific sections of the Civil Rights Act make race-conscious affirmative action policies and programs illegal.

Another sharp attack against affirmative action is that it is immoral. Cohen & Sterba (2003) opined that affirmative action violates the basic equality principle – some receiving a public benefit that others do not receive is clearly unequal treatment. Critics continue to believe that affirmative action is synonymous with preferential treatment (Moore, 2005). Additionally, critics argue that affirmative action was meant to be a temporary fix in an effort to strive for a color-blind society that recognizes individuals, not to adopt race consciousness as a norm for groups of minorities (Mosley & Capaldi, 1996).

In the dissent in Plessy v. Ferguson (1896), Justice Harlan strongly argued the point that the U.S. Constitution is color-blind and does not recognize groups, just individuals. In opposition to the separate-but-equal doctrine, Justice Harlan warned against making race classifications because “the destinies of the two races, in this country, are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law” (Plessy v. Ferguson, 1896, p. 559).

Affirmative action is seen as wrong because it has all of the ingredients for the making of immorality because it repeats an American history that began with racism and discrimination. Cohen & Sterba (2003) illustrated this sentiment quite well when they stated.

The most gruesome chapters in human history – the abomination of black slavery, the wholesale slaughter of the Jews – remind us that racial categories must never be allowed to serve as the foundation for official differentiation. Nations in which racial distinctions were once embedded in public law are forever shamed. Our own history is by such racism ineradicably stained. The lesson is this: Never again. Never, ever again. What is loosely called “affirmative action” sticks in our craw because it fails to respect that plain lesson (p. 25).

Researchers have agreed that the United States history of racial oppression hovers over all the arguments for or against affirmative action – making distinctions based on race can have good effects given American history of oppression and bad effects given the future of America striving to be a color-blind society (Cohen & Sterba, 2003; Moore, 2005; Mosley & Capaldi, 1996). Two other common arguments have been waged against race-based affirmative action:

  1. Black people and other disadvantaged racial minorities are stigmatized for being recipients of affirmative action, rather than qualified individuals, and
  2. the playing field has been leveled between racial minorities and Whites.

Specifically, some critics say that affirmative action reinforces the idea that blacks and other racial minorities can only succeed if held to lower or different standards (Mosley & Capaldi, 1996). In other words, affirmative action makes racial minorities feel inferior and not worthy of what they have received because of their racial or ethnic background. Furthermore, those in opposition often claim that the Civil Rights Act of 1964 and affirmative action policies have been in effect for more than 40 years, so that has been more than enough time to level the playing field (Cohen & Sterba, 2003; Moore, 2005). More blacks and racial minorities go to college and have well-paying professional careers; therefore, there is no longer a need for preferential racial policies like affirmative action (Moore, 2005).

No one can doubt that the intent of affirmative action was honorable but theory proves to deviate from practice in that theoretically affirmative action works but when attempting to practically apply those policies one can see that it can facilitate a form of reverse discrimination. This is evident in the evolution of federal race-conscious affirmative action legal cases in higher education and anti-affirmative action policies over the past 40 years has revealed a constant increase in legal claims, the number of plaintiffs, and contempt for any use of race in admissions.

For instance, in the earlier cases of the 1970s, each of the two Supreme Court cases involved one White male bringing traditional individual discrimination claims under the Equal Protection Clause of the Fourteenth Amendment and the Civil Rights Act of 1964. The plaintiff in DeFunis, et al. v. Odegaard, et al. (1974) and the defendant in Regents of the University of California v. Bakke (1978) simply sought admittance into the institution of higher education that they were suing through mandatory injunctions.

From the 1990s and forward, the reverse discrimination lawsuits and state anti-affirmative action policies occurred more often and in a steady fashion. From 1994 to 2003, federal legal cases and anti-affirmative action referenda and policies arose every one or two years. Additionally, the typical reverse discrimination complaint and request for an injunction that was present in the 1970s cases soon were replaced with complicated lawsuits concerning multiple plaintiffs and criminalizing claims.

Specifically, the 1990s and 2000s consisted of class action lawsuits, primarily lead by White women, as well as state action claims, which are more criminal-like claims, and requests for punitive damages to punish the universities for having race-based policies in place. Furthermore, the late 1990s and 2000s took a dislike for race-conscious affirmative action policies to another level when entire states moved to eliminate all types of affirmative action policies and programs, with the focus being on ending racial quotas. Not surprisingly, the evolution of the legal debates showed some consistency in most of the cases, which was the familiar plaintiff argument that higher education admissions decisions should concentrate on test scores and ignore the Bakke holding that permits race to be used as a “plus” factor in the admissions process.

Finally, no examination of the constructs of affirmative action and reverse discrimination is complete without a discussion of comparative worth. The concept of comparative worth speaks to the notion of equal compensation within an organization for work which proves to have an equal value to the organization. Theoretically, this concept is one that proves to be extremely simplistic but when one examines it in light of race/ethnicity or gender, one can clearly see that there is a disparity within the American workforce.

This disparity is most evident when one examines the pay gap across genders. Typically women are paid less than men and individuals who are employed in fields dominated by women are paid significantly less than those employed in male-dominated fields. This has very little to do with education or skill level and the significant differences can be attributed to gender-based differences (Ferber, 1986). Defenders of this principle argue that in lieu of attempting to integrate occupations through affirmative action programs, there is a need to objectively analyze the components of the job such as skill, educational and hazard levels when determining pay scale. Such an analysis would work to eliminate any consideration of race/ethnicity or gender when assessing the pay scale.

References

Cohen, C. & Sterba, J. P. (2003). Affirmative action and racial preference. New York, NY: Oxford University Press, Inc.

Ferber, M.A. (1986). What is the worth of ‘comparative worth’. Journal of Economic Education, 17(4), 267-282.

Moore, J. (2005). Race and college admissions: A case for affirmative action. Jefferson, NC: McFarland & Co., Inc.

Mosley, A. G. & Capaldi, N. (1996). Affirmative action: Social justice or unfair preference? Lanham, MD: Rowman & Littlefield Publishers, Inc.

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