The Development of Affirmative Action Policy

This investigation argues that a landmark decision handed down in the Supreme Court case of Bakke v. the Reagents of the University of California (1978) notably retracted the scope of affirmative action legislation as set forth by President Johnson. Through a careful consideration of the development of affirmative action as established under Executive Order 11246 and a consideration of the impact of the Bakke decision, it will be possible to demonstrate that the current problems that exist with respect to the development of affirmative action policies are attributable to the specific mandates that were set forth in the Supreme Court in this case. By examining the manner in which the Bakke case continues to shape the development of affirmative action policy it will be possible to demonstrate that this particular ruling has had an irrevocable impact on the ability of organizations to effectively ensure positive outcomes from affirmative action.

The History of Executive Order 11246

In order to begin this investigation, in his first helpful to first consider the legislative history of affirmative action, which begins with Executive Order 11246. Turner (1990) and his investigation of Executive Order 11246 notes that when the legislation was signed into effect by President Johnson in 1965 its intent was as follows:

...An order which, as amended, bars discrimination on the basis of race, color, sex, or national origin by certain federal government contractors. This Order and its implementing regulations require federal government agencies to include in contracts with businesses an equal employment opportunity clause, which commits those firms to treat job applicants and employees without regard to their status or membership in the aforementioned groups. In addition, the Order required government contractors to take affirmative action to ensure that the nondiscrimination goal is met (p. 87).

Although the basic context of the law appears to be quite straightforward, Turner does note that as established Executive Order 11246 only provided a broad overview of the scope and breadth of antidiscrimination policies. In short, while Executive Order 11246 effectively set forth the specific goals that were to be achieved with respect to discrimination in employment it did not provide a salient means for organizations to effectively implement policies that were geared toward meeting the mandates of this executive order.

Taking his analysis one step further, Turner goes on to argue that Executive Order 11246 contained what has become known as a nondiscrimination clause. Is in this clause that the title of affirmative action becomes applied to the specific actions that must be taken by the employer to ensure that discrimination does not occur. Specifically, Turner notes that the non-discrimination clause of Executive Order 11246 states that employer shall not discriminate against employees based on race, color, religion, sex, or national origin and further that employees will take appropriate "affirmative action" to ensure that discrimination in the workplace does not occur. The executive order goes on to define affirmative action as follows: "employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship" (p. 88). Here again, it becomes quite evident that while the government provides general guidelines for developing affirmative action policies he scope and breadth of these policies are not clearly delineated under Executive Order 11246.

The policy of affirmative action as created under Executive Order 11246 appears to establish a formidable means for the government to ensure that racial discrimination in employment could be eliminated altogether. Turner argues that the specific language developed and implemented utilized in the establishment of affirmative action represents considerable efforts on the part of the federal government to effectively legislate the elimination of racism in society. Up until the time the affirmative action policy was put in force by the federal government, Turner argues that much of the racial discrimination that had taken place in society involved with the Supreme Court noted to be disparate treatment. In the context of disparate treatment, an individual was treated unfavorably simply because of his or her ethnics status. This disparate treatment was believed to be one of the most pertinent causes of the social, political and economic disparities that existed primarily between whites and African-Americans.

With the issue of disparate treatment viewed as the principal cause of racial discrimination, the federal government felt that a policy to ensure the protection of minorities from this disparate treatment was the best means to ensure that all individuals were treated equally regardless of their race. Turner does note that there were other theories about racial discrimination in the United States. However, many of these theories were consistently trumped when the issue of disparate treatment was held up in comparison. Based on this specific theory of racial discrimination, Executive Order 11246 was established in an effort to ensure that disparate treatment of racial minorities would not continue as a means for justifying employment. The issue of disparate treatment is critical because it effectively elucidates the motivation behind the development and establishment of affirmative action as a legal statute by the federal government.

Executive Order 11246 Until Bakke

With the basic context of the theoretical development of Executive Order 11246 examined it is now possible to consider a brief review of the history of affirmative action for the time of its inception until the Bakke case in 1978. A critical review of what has been written about affirmative action between 1965 and 1978, it becomes evident that many of the cases that were brought before state and federal courts focused on the employer's unwillingness to effectively implement the rules of affirmative action that had been established by the federal government. For instance, Cohen and Sterba (2003) in there investigation of affirmative action history make note of some of the more prominent judicial cases that came to light between the years of 1965 and 1978. Among these are included:

- In 1970 a case was filed against the State of Alabama for its consistent use of discrimination policies in hiring state troopers. Through an investigation of the Alabama state trooper organization, a Federal District Court found that in more than 37 years of operation the organization had never hired an African-American trooper. Even after the establishment of affirmative action policies by the federal government state trooper association failed to hire any minority applicants. The Federal District Court imposed a rule which mandated the association had to hire minority applicants until the force consisted of at least 25% minorities.

-In 1974, Kaiser Aluminum, in its efforts to ensure compliance with affirmative action policies, developed a program to ensure that the workforce at the company's Gramercy Louisiana plant was comprised of at least 50% minorities. The organization had noted that by only allowing skilled applicants to apply for positions at the plant, the organization had less than 1% of minorities working in a highly ethnically diverse community. This program was subsequently challenged by those who argued that the program favored minority applicants. The Supreme Court ruled that the program was lawful.

-In 1975, a Federal District Court ruled against Local 28 of the Sheet Metal Workers' International Association. The court found that the organization's policies on recruitment, training and admittance to the union were discriminatory against nonwhite applicants. In an effort to ensure that the organization would comply with the court's ruling, a 29% membership goal for minorities was set by the court.

What exhibit overall, it becomes evident that most of the cases that were brought before the courts in the period between the inception of affirmative action and 1978 focused primarily upon the unwillingness of employers and organizations to effectively develop and implement affirmative action policies. When placed in this context, it seems reasonable to argue that the affirmative action policy had become effective for alleviating the disparate treatment that had been identified as the core reason for discrimination in the process of employment. Individuals or groups that felt they had been discriminated against were able to effectively protect against discrimination by applying the basic premise of affirmative action. Overall, what this history seems to suggest is that affirmative action as developed under Executive Order 11246 had been effective.

Bakke and Equal Protection

Although affirmative action, as developed under Executive Order 11246, appeared to be providing the "level playing field" that was considered to be necessary to ensure the end of racial discrimination in employment the Bakke case against the Reagents of the University of California which took place in 1978, and forced both of the judicial system and society to look at the policies of affirmative action three different lens. In order to illuminate the impact that the Bakke case had on the development and implementation of specific affirmative action policies, in his first helpful to consider the context of the case, the arguments that were presented on both sides and the ruling that was finally handed down by the Supreme Court. Only by understanding the context of this case will it be possible to elucidate and the implications that this case had for shaping affirmative action policies in the 1980s and 90s.

Swink (2003) in her examination of the Bakke case notes that Allan Bakke, a 35-year-old white male, who had twice applied for admission to the University of California's medical school program was denied admission into the program. Bakke claimed that in both instances his test scores, GPA and recommendations were all higher than those of seven minority applicants that had been granted admission to the medical school program under the university's of affirmative action policy. In order to ensure that it met the federal guidelines for affirmative action, the University of California had instituted a quota policy that would enable administrators to create diversity in the school's academic programs. Bakke's attorney argued that the quota system instituted by the University of California violated Bakke's right to equal protection guaranteed under the Fourteenth amendment to the Constitution.

The University of California, in its defense of its quota system argued that there were several issues that clearly established the constitutionality of its methods. First, the University of California argued that its decision to develop and implement a quota system was based on the desire for the institution to increase overall diversity on campus. In addition, the university argued that its application of a quota system to the medical school program was an effort to ameliorate the past discrimination that had taken place with respect to admissions policies at the University of California. Overall, the university maintained the position that the quota system developed for its medical school program did not violate the equal protection clause of the Constitution. Rather, the organization argued that the use of a quota system was only to protect and ensure that the affirmative action policies outlined by the federal government were upheld by the University (Swink, 2003).

In handing down its decision in the Bakke case, the Supreme Court offered little guidance for either the University or other organizations facing the dilemma of implementing affirmative action policies. With respect to the issue of whether or not the quota system instituted by the University violated Bakke's right to equal protection under the Fourteenth amendment to the Constitution, the Supreme Court agreed that this was indeed the case. Organizations could not institute formal quota policies that could violate the rights of non-minority applicants. Although this ruling appears to clearly and definitively eradicate the problems associated with affirmative action, the Supreme Court took a truly one step further and argued that institutions such as the University could utilize race as a mitigating factor for determining admission (Swink, 2003). What this effectively suggests is that while a formal quota system could not be utilized for selecting applicants for admission, the University was still aloud to utilize race when considering which candidates would be granted admission.

Arguably, the decision of the Supreme Court to allow race to remain a mitigating factor in the admission or employment process is one that reflects the challenges faced when it comes to protecting the rights of all individuals versus protecting the rights of minority groups. While the Supreme Court recognized that a full quota system markedly diminished and the ability of non-minority applicants to gain "fair and equitable" access to employment or admission, the Supreme Court also recognized the perils of handing down a ruling which did not codify the importance of race in the context of employment or admission decisions. If the Supreme Court had simply ruled in favor of Bakke stating that affirmative action policies that utilize quotas violate the equal protection clause of the Constitution, all affirmative action policies that have been put in place would have lost their integrity. In an effort to prevent this from happening, the Supreme Court argued that the issue of race could still be used in facets of employment and admission decision making. The problem is that the Supreme Court did not provide justification as to how this was to be accomplished.

The Aftermath of Bakke

In the aftermath of the Bakke decision, the University of California had to redesign its admissions program such that it did not utilize a formal quota system. Although one may naïvely assumed that this was the only change that occurred as a result of this ruling, the reality is that because quota systems were now viewed by the Supreme Court as in violation of the equal protection rights of all individuals, institutions that utilize quota systems as a means for hiring or admission now had to reconsider what specific methods they could utilize to ensure that affirmative action mandates were followed while still ensuring the protection of equal rights. This dilemma is one that spawned considerable controversy over how admission and implement policies could be developed to best suit the needs of affirmative action while still ensuring that constitutional rights were not violated.

In an effort to illustrate the problems that developed as a result of the Bakke case, it is pertinent to consider what scholars have noted about the history that has occurred in the years since this landmark ruling. DeVille (2003) in his examination of the 25 years that have passed since the Bakke case makes the argument that the ruling passed down by Justice Powell has created considerable confusion and social contention about the process of affirmative action. As noted by this author:

The fragility of Powell's diversity justification has become more evident and relevant as affirmative action programs in higher education have come under increasing legal and political attack. Contentious questions about its meaning and limits shape the philosophical and legal debates over the justification for race related preferential admissions to medical and other professional schools. The issues raised, explicitly and implicitly, in public debate and judicial development are of profound importance since they involve how one visualizes and promotes compensatory justice, equality of opportunity, professional standards of mission, and the good society (490).

Overall, DeVille contends that the ruling in Bakke has created a conundrum for educational intuitions that has been difficult to reconcile. These issues become even more exacerbated when public opinion on the issue is infused into the debate. Organizations-educational institutions and businesses-must develop an institute policies that effectively address the issue of racial inequality while still ensuring that constitutional rights are protected.

Wu (1998) in his examination of the impact of the Bakke case on the Civil Rights movement, contends that, " Retrospectively, Bakke may represent the beginning of the end for the civil rights movement because the Supreme Court signaled, at best, a begrudging acceptance of remedies for racial discrimination that themselves took race into account" (p. 64). Wu goes on to argue that the Bakke case brought to light the challenges that exist when it comes to legislating a social problem such as racial inequality. Although affirmative action policies were originally developed to create a colorblind society in which all individuals were treated equal, it effectively created a system in which minorities were given preferred status. When this occurred, a system of a "reverse discrimination" was established. Wu argues that implementing affirmative action policies in concrete measurable ways could simply not be justified. As a result, the Supreme Court chose to address the issue in a relatively ubiquitous way that neither affirmed nor denied the constitutionality of potential methods that could be utilized to include race as a factor for university admissions.

The question issues that have been raised as a result of the ruling handed down in the Bakke case have created a stir of controversy over what specific affirmative action programs are appropriate to ensure that the rights of all individuals are protected. In addition, in the aftermath of the Bakke case, the public's response to affirmative action became significantly distressed. Sigelman (1997) in his examination of the public opinion that has been expressed in relation to the issue of affirmative action makes the following observations: "Condemned by its detractors as an unnecessary, demeaning affront to the principle of equality, affirmative action is defended by its advocates as the only realistic means of overcoming long-standing social and economic inequalities based on race and gender" (p. 1011). Sigelman goes on to argue that public opinion of affirmative action continues to wax and wane in favor of the process. However, growing discontent over the issue has pushed many scholars and laymen to argue in favor of efforts to revamp affirmative action such that it meets the needs of all citizens.

Reforming Affirmative Action

Critically examining what has been written about social and political movements to reform the policy of affirmative action, it becomes evident that President Clinton's 1995 mantra of "mend it, don't end it" has become a central focus of arguments that have been offered to reform affirmative action. Many scholars contend that ending affirmative action would have a detrimental impact on the development of racial equality in United States. For this reason alone, steps must be taken to preserve affirmative action while insuring and that it provides equitably for all citizens (Jackson, 1995). Interestingly, when considering the specific reasons that have been offered for reforming affirmative action, it becomes evident that there are a number of notable problems that have developed with respect you affirmative action in recent years.

For example, Staples (1995) and his examination of current affirmative action policies maintains that the inability of organizations to effectively implement affirmative action has created a situation in which "affirmativeaction is inadequately enforced and too narrowly applied" (p. 5). This author goes on to note that: "Blacks hold only 4 percent of professional and managerial positions in the US and are a fraction of 1 percent of senior managers in America's major corporations. At the same time, almost a majority of black males are not in the civilian labor force. About 25 percent of young black males are in prison, on probation or parole" (p. 5). What is effectively demonstrates is that even went affirmative action policies in place, African-Americans have not been able to garner the overall benefits of establishing a level playing field for equal access to employment and other social resources.

Not surprisingly, other authors have made similar observations about the overall effectiveness of affirmative action policies. Curry (1996) in his examination of the overall effectiveness of affirmative action policies reports that "African-American families not only inherit much less wealth; they are hit daily by institutional inequality and discrimination. For years, they were denied life insurance policies by white firms. They are still denied home mortgages at twice the rate of similarly qualified white applicants. African-Americans have been less likely to receive government-backed home loans" (p. 13-4). Curry goes on to argue that at the present time, affirmative action policies do not have the support and strength that they need in order to provide minorities with the protection that they need to ensure that racial discrimination does not occur. Although current affirmative action policies attempt to address racial discrimination, it becomes evident that the policies that have been developed do not provide a clear pathway for ensuring that all individuals will be treated equally, regardless of race.

Beckwith and Jones (1997) in their investigation of affirmative action policies that have been developed in recent years argued that he specific restrictions that have been placed on affirmative action policies have led to the development of two different types of affirmative action programs: weak and strong. As noted by these authors, weak affirmative action policies "stress equal opportunity, an opportunity to compete without irrelevant characteristics being taken into consideration. The stress is not on equal results" (p. 11). On the other hand, strong affirmative action polices "stress equal results (or at least some goal or pattern which ought to be achieved) by using timetables, goals, or quotas as criteria by which to judge whether one has achieved fairness" (p. 12). While both strong and weak policies appear to have their advantages and disadvantages for carrying out the mandates of affirmative action as set forth by the government, it becomes evident that neither one of these affirmative action policies appears to hit at the heart of the principal theory upon which affirmative action was developed by the federal government: i.e. disparate treatment.

Defining Affirmative Action

When the issue of disparate treatment is raised in the context of current methods to develop affirmative action debates, it becomes evident that the basic context of this issue has been lost: not only in the current of the development of current affirmative action policies, but also in the context of public perception of what affirmative action policies should be able to accomplish. Modern perceptions of affirmative action as created in the context of the Bakke case, the fine and interpret affirmative action as a means to advance the needs of the minority applicant regardless of issues such as qualification or ability to perform a specific job. When placed in this perspective, the problem of affirmative action is one in which the basic premise of the affirmative action as exists today is different from the premise that was defined by the federal government under Executive Order 11246.

Unfortunately, when the issue of reforming affirmative action is developed in the context of the argument proposed above, reforming affirmative action also means redefining what affirmative action means and the specific goals that affirmative action policy should attempt to achieve. As developed and defined under Executive Order 11246, affirmative action was supposed to protect minorities from the specific act of disparate treatment. Overall, it seems feasible to argue that as a society, the United States has made a number of corrections to ensure that disparate treatment of ethnic minorities is not occur. Despite these changes however it is evident in that a more subtle form of racial inequality still exists in the United States. The question that remains is how affirmative action policies can be defined and developed such that they address this subtle, and even perhaps unconscious, racism that remains a pervasive part of social development in United States.

Arguably, the easiest answer to this question is to put measurable systems in place that ensure that ethnic minorities are being treated fairly and equitable. However, the direct ruling made in the Bakke case creates a situation in which social institutions and organizations are prohibited from utilizing direct that set aside "quotas" or "slots" to ensure that ethnic minorities are given fair and equitable treatment. When placed in his context, the dichotomy of truly defining affirmative action policies that will work for the United States is one that is quite significant. At the present time, the judicial system has created such a debacle when it comes to the institution of policies that will have a salient impact on outcomes for ethnic minorities that organizations simply cannot develop and implement affirmative action policies that are effective toward protecting minorities from discrimination.

Abolishing Affirmative Action

In contrast to opinions that have been offered that affirmative action policies should be reformed, some scholars have insistently argued that affirmative action policy should be abolished altogether. Cohen and Sterba (2003) and their examination of the affirmative action debate note that abolition of affirmative action would ensure that organizations do not have to worry about maintaining policies that effectively do nothing to promote racial equality in the organization. According to Cohen and Sterba, those who favor abolishing affirmative action policies believes that organizations would be able to strengthen their position by ensuring that policies put in place will not violate the rights of any individual working in the organization. In short, my abolishing affirmative action policies, organizations would not have to worry about litigation that may arise either in the context of direct discrimination or the reverse discrimination which was identified in the Bakke case.

Although Cohen and Sterba are able to provide a formidable argument which demonstrates clear reasons for a push toward the abolition of affirmative action, the ramifications of undertaking such a significant change in social policy could be detrimental overall. At the present time it is quite evident that affirmative action policies as they are developed do not provide the comprehensive protection needed to ensure that ethnic minorities are not discriminated against. However, the decision to abolish affirmative action policies would remove any layer of protection that ethnic minorities currently have under a weakened affirmative action policies. Therefore, movements to abolish affirmative action policies appear to present more problems than they actually solve a. As such, there is no salient evidence which suggests that affirmative action policy should be completely dismantled.

Conclusion

In concluding this investigation, it becomes evident that there are a host of problems that exist with respect to affirmative action. Unfortunately, at the present time resolving these issues remains a pervasive challenge for both political and social leaders. Arguably affirmative action policies are necessary to provide ethnic minorities with some degree of protection from racial discrimination. While it is quite evident that affirmative action policies as they are currently developed do not fully provided for the protection of minorities against discrimination, the current system is clearly better than no system at all.

When the current problems associated with affirmative action are examined the true nature of the impact of the Bakke case on the development of affirmative action in the past 25 years can clearly be delineated. The Bakke case significantly weakened the ability of organizations and social institutions to implement crawled affirmative action policies that would effectively protect minorities from racial discrimination. Although one may be tempted in this case to argue that Bakke himself is responsible for the problems that have resulted in the context of affirmative action, the reality is the scope and definition of affirmative action as developed under Executive Order 11246 could not have possibly conceptualized the issue of reverse discrimination. As developed in the executive order, affirmative action was developed as a means to stop disparate treatment. As such, the specific issues raised in the Bakke case clearly stood outside of what legislators hoped to achieve through the development and implementation of affirmative action policies.

In this context, it seems feasible to argue that the most pertinent method that could be utilized to reestablish the providence of affirmative action would be to effectively redefine the goals and intentions of affirmative action given the problems that have developed as a result of issues of reverse discrimination. While the issue of reforming affirmative action appears to be the most salient means to ensure that this policy continues to protect minorities against racial discrimination, there's considerable controversy over the specific methods that should be utilized to reform program. As such, the problems that exist with respect to affirmative action appeared to be quite complex and intricate overall. Dividing these issues and creating a situation in which affirmative action can be developed into an effective social policy remains questionable. Despite this however given the magnitude of the situation there is a clear impetus to move forward and make some attempt to rectify the current problems that exist with respect to affirmative action.

In the end, the Bakke case continues to define how affirmative action policies are developed and implemented. Although the Bakke case is clearly the departure point for redefining of the intentions of affirmative action policies, social and political leaders have an obligation to address these issues and create at affirmative action policy that ensures racial equality. While the task is quite daunting, the end results are critical for equitable social, economic and political development.

References

Beckwith, F.J., & Jones, T.E. (1997). Affirmative Action: Social Justice or Reverse Discrimination. Amherst, NY: Prometheus Books.

Cohen, C., & Sterba, J.P. (2003). Affirmative Action and Racial Preference: A Debate. New York: Oxford University Press.

Curry, G.E. (1996). The Affirmative Action Debate. Cambridge, MA: Perseus.

DeVille, K. (2003). Diversity, trust, and patient care: Affirmative action in medical education 25 years after Bakke. The Journal of Medicine and Philosophy, 28(4), 489-516.

Jackson, J. (1995). Race-based affirmative action: Mend it or end it? Black Scholar, 25(3), 30-43.

Staples, R. (1995). Black deprivation-white privilege: The assault on affirmative action. Black Scholar, 25(3), 2-7.

Swink, D.R. (2003) Bake to Bakke: Affirmative action revisited in educational diversity. Brigham Young University Education & Law Journal, 1, 311-257.

Turner, R. (1990). The Past and Future of Affirmative Action: A Guide and Analysis for Human Resource Professionals and Corporate Counsel. New York: Quorum Books.

Wu, F.H. (1998). The pragmatism of Bakke. Black Issues in Higher Education, 15(9), 64.