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Affirmative Action, first introduced as a Federal policy by President John F. Kennedy in 1961, has had a tumultuous and fiercely debated history, especially in California where rulings and initiatives have had a critical impact on affirmative action across the nation. This paper will examine the effect of affirmative action and mandatory equal employment requirements on the public service workforce in the U.S., and where current trends seem to direct the future of public service employment with regard to diversity and race.
A Brief History of Affirmative Action, in the U.S. and California
On March 6, 1961, President John F. Kennedy issued Executive Order 10925, which created the Committee on Equal Employment Opportunity. More importantly, it required all projects financed with federal funds to "take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin." This is the first reference to affirmative action as a part of official Federal government policy. Three years later, the landmark Civil Rights Act was passed, a key piece of legislation that helped put an end to America's "Jim Crow^" era of legal racial discrimination. In 1965, a year after signing the Civil Rights Act, President Johnson issued Executive Order 11246, which further strengthened Executive Order 10925 adopted by President Kennedy regarding the Government's enforcement of affirmative action practices, especially for government contractors (Brunner, 2005a,b).
Although attempts to implement affirmative action had been made in the past, these key actions ushered in the era of affirmative action in America. Following these executive orders, affirmative action policies were quickly adopted throughout the country, especially in public colleges and universities. A number of institutions utilized "quotas" or reserved positions in hiring/admissions in order to meet affirmative action goals (Anderson, 2005).
However, in 1978, the expansion of affirmative action policies hit a major speed bump in the landmark case of University of California v. Bakke (Anderson, 2005). In that case, Allan Bakke, a white male, had applied to the UC Medical School and had been rejected twice, although less qualified minority applicants had been accepted. Bakke argued this was because the school had a separate admissions policy for minorities, reserving 16 out of 100 spots for minority students. The Supreme Court's ruling banned quotas as a means to implementing affirmative action programs, however they did not rule that affirmative action was illegal (Brunner, 2005b).
Despite Bakke, affirmative action programs continued. Also, despite Bakke, the derogatory term "quota" continued to be used by opponents of affirmative action, and the backlash against affirmative action continued to grow. President Reagan's administration was openly hostile to affirmative action policies throughout the l98o's and worked to take advantage of the growing resentment against what some considered "reverse discrimination" (Anderson, 2005). However, at the end of the decade, after congressional hearings and rollbacks of affirmative action policies, affirmative action had become entrenched in the way America worked, and many business and institutions kept their policies in place regardless of government regulation (Anderson, 2005). Another important outgrowth of the civil rights efforts of the l98o's was the push for "diversity" in schools, governments, and businesses. This call would flourish in 1990's.
As the concept of "diversity" gained political and cultural currency in the 90's, the backlash against "political correctness" and efforts to legislatively end mandatory affirmative action also grew. One of the most astonishing and significant setbacks to affirmative action was the passage of Proposition 209 in California in November of 1996. The so-called "Civil Rights Initiative," which California voters passed 54%-46%, essentially banned affirmative action in all public institutions throughout the State of California (Douglass, 1998).
The shockwaves were felt throughout the country. Ward Connerly, the University of California Regent that helped to spearhead Prop 209, predicted anti-affirmative action initiatives would have momentum "like a freight train" (Mukherjee, 2000). Within a few years of the passage of Prop 209, similar measures indeed were attempted in at least 21 other States as well as the Federal level, although in the end results were mixed (Mukherjee, 2000). Interestingly, initiatives clearly identified as repealing affirmative action typically lost, unlike Prop 209, which never referred to affirmative action and instead only referred to "preferences" and "quotas" (Mukherjee, 2000). This reinforces polls which show that most Americans still support the concept of affirmative action - the language that is used to describe the programs have a lot to do with how the public reacts (Rubenfeld, 1997; Mukherjee, 2000).
However they are described, correlative data showed that affirmative action programs did have an effect, and that they are likely still needed. In California, Prop 209's ban on affirmative action had severe effects on the composition of freshmen in the State's Colleges and Universities. Black, Latino, and Native American students, previously 23% of the undergraduate class at UC Berkeley, quickly dropped to 10%. At the law schools of Berkeley and UCLA, the effects were even more pronounced: an 80% decline in the number of blacks admitted, and a 50% decline in the number of Hispanics admitted (Anderson, 2005).
In the aftermath of Prop 209 and the bolster of anti-affirmative action advocates, a recent court ruling has reaffirmed the need for affirmative action as well as its constitutionality. In 2003, the U.S. Supreme Court heard arguments in the most significant case related to affirmative action since Bakke in 1978. The case involved the University of Michigan's affirmative action policies, which two women argued had unfairly discriminated against them and kept them from being accepted to the school. In a landmark 5-4 decision, the Supreme Court upheld the legality of affirmative action policies in admissions to higher education. The Supreme Court ruled that although affirmative action was no longer justified as a way of redressing past oppression and injustice, it promoted a "compelling state interest" in diversity at all levels of society (Brunner, 2005a,b).
The close split among the Supreme Court justices in the University of Michigan case highlighted the divisiveness that has characterized the issue from its inception. In that same case. Justices also ruled 6-3 that the University could not use a "point system" for implementing their affirmative action policy, instead requiring a more individualized process be developed (Brunner, 2005b). The ruling suggests our present decade as one in which society values diversity and recognizes the need to take affirmative steps to ensure a healthy diversity, but shuns any formulaic or mandatory method of doing so. Justice O'Connor, writing for the majority, clearly identified the intangible but important benefits of affirmative action admissions policies, including better preparing students to interact and succeed in a global and diverse market (Witlin, Sloan, 2003).
What this means in practice is that public institutions cannot use quotas or any other set policies for increasing the number of minorities they hire or admit, however they can work to enhance the diversity of their workforce or student body, using race and gender as factor in those decisions. This creates a narrow path for public administrators to take. On the one hand, administrators must ensure their policies do not discriminate against minorities, on the other they cannot set explicit policies that give such minorities preferences, however they need to simultaneously work to achieve a diverse workforce or student body in order to stay competitive and balanced.
Most likely, the future will see a continuation of society's commitment to taking affirmative action to ensure all minorities have equal opportunity and that the diversity and cross-cultural growth of our society continues. This will require a consideration of race and gender in hiring and admission decisions, though not necessarily a concrete policy. The tremendous gains in civil rights must be taken into account in the new paradigm that currently exists in relation to affirmative action - we do not want to perpetuate policies designed to give historically underprivileged classes a hand up if they are unwarranted in specific cases. This is in line with the Supreme Court's direction, which shuns restrictive policies in favor of individual decisions made on a case-by-case basis. Hopefully, in the coming decades affirmative action will not be necessary to establish the result of a heterogeneous and diverse America.
Anderson, Terry H. (2005). The Pursuit Of Fairness: A History Of Affirmative Action. Oxford University Press.
Brunner, Borgna. (2005a). "Bakke and Beyond: A History and Timeline of Affirmative Action." Pearson Education, publishing as Infoplease. Retrieved June 03, 2005, from http://www.infoplease.com/spot/affirmativei.html
Brunner, Borgna. (20050). "Affirmative Action Timeline." Pearson Education, publishing as Infoplease. Retrieved June 03, 2005, from http://www.infoplease.com/spot/arfirmativetimelinei.html