Monday, 28 April 2014

AFFIRMATIVE ACTION: Pros and Cons                 


Affirmative action is best described in the following manner. It is a series of voluntary and mandatory guidelines for businesses, government departments, and schools designed to encourage diversity and reduce discrimination based on ethnic background and skin color.  Many countries world-wide have some form of affirmative action laws in them even when some of them don’t use those specific words. Laws regarding quotas and affirmative action varies widely from nation to nation


The International Convention on the Elimination of All Forms of Racial Discrimination stipulates (in Article 2.2) that affirmative action programs may be required of countries that ratified the convention, in order to rectify systematic discrimination. It states, however, that such programs “shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved.”


The United Nations Human Rights Committee states that “the principle of equality sometimes requires States parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant. For example, in a State where the general conditions of a certain part of the population prevent or impair their enjoyment of human rights, the State should take specific action to correct those conditions. Such action may involve granting for a time to the part of the population concerned certain preferential treatment in specific matters as compared with the rest of the population. However, as long as such action is needed to correct discrimination, in fact, it is a case of legitimate differentiation under the Covenant.”


The equality section of the Canadian Charter of Rights and Freedoms explicitly permits affirmative action type legislation, although the Charter does not require legislation that gives preferential treatment. Subsection 2 of Section 15 states that the equality provisions do “not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” Ass an example, law schools don’t have to accept students who are mentally challenged.


The term "affirmative action" was first used in the United States in Executive Order 10925 and was signed by President John F. Kennedy on March 6, 1961. It was used to promote actions that achieve non-discrimination. In 1965, President Lyndon B. Johnson issued Executive Order 11246 which required government employers to take “affirmative action to hire without regard to race, religion and national origin.”  In 1967, sex was added to the anti-discrimination list.           

In the United States, the effect of affirmative action towards advancing black, Hispanic, and white women into management, professional, and technical occupations occurred primarily during the 1970s and early 1980s. But the positive effect of affirmative action vanished entirely in late 1980s, which may have been due to the slowdown into advanced occupation for women and minorities because of the political shift of affirmative action that was started by President Reagan. 

Many years ago, I responded to an ad in the newspaper that had advertised that a company needed someone to join the security department of a factory. When I met the Human Resources woman of the factory, she apologized and said that they needed a female security guard. She said that the reason why they couldn’t hire a man for the job was that their employees of the factory were all women. Was that in violation of affirmative action? Not really. The female employees were working on women`s clothes and naturally, if any of the employees had to be searched, the security personnel had to be women. Obviously there has to be exceptions to the Affirmative Action and this exception was a legitimate one.

Pros for Affirmative Action   

Diversity in schools and the workplace is always desirable and needs to be encouraged by all means possible as it may not happen by chance. Students from ethnic minority backgrounds need a helping hand to enjoy the kind of privileges taken for granted by white students and affirmative action policies encourage disadvantaged students to enter the higher educational system. Affirmative action is fair compensation for centuries of racial oppression and slavery that occurred previously in the United States.

Affirmative action in the workplace is the best way to ensure candidates from racial and ethnic minorities are given a chance to prove they are every bit as capable as white candidates. This applies to women also. 

Cons against Affirmative Action

Once an affirmative action policy has been put in place, it can be difficult to remove, even when the discrimination it sought to erase is no longer an issue.

Affirmative action is a twisted kind of reverse discrimination whereby racial and ethnic minorities are given unfair advantages over whites because of the colour of their skin.

Adoption of affirmative action policies in institutes of higher education lowers the standards expected of students from minority backgrounds applying for entry, as some may be less qualified to pass the exams.

Successes achieved because of affirmative action policies are less of an achievement than successes gained through sheer hard work and persistence.

Affirmative action policies in the workplace can lead to ludicrous decisions being made. For example, a perfectly suitable white candidate can be overlooked in favor of a less suitable candidate from a racial or ethnic minority group of people, simply to fill a quota of non-whites.

Questions relating to the color of one’s skin and one’s ethnic background should be removed from application forms, but until affirmative action policies are outmoded, this is never likely to happen.

The State of Michigan’s Affirmative Action ban

Fifty-eight percent of Michigan voters in 2006 passed Proposal 2, a ballot initiative that amended the state Constitution and made it illegal for state entities to consider race in admissions and hiring practices.

Why would it be “impossible to achieve diversity” without unfairly discriminating against some people and privileging others, based on their skin color, if there is no deliberate effort being made to keep minority students away?  Why not expect opponents of the affirmative-action ban to “mount a long, expensive, and uncertain campaign to overturn it?”  That’s how representative government works.  


The Sixth Circuit Court of Appeals ruled that requiring equal treatment was a violation of the Equal Protection Clause that is part of the Fourteenth Amendment to the United States Constitution. The meaning of the Equal Protection Clause has been the subject of much debate, and inspired the well-known phrase Equal Justice Under Law. This clause was the basis for Brown v. Board of Education (1954), the Supreme Court decision that helped to dismantle racial segregation, and also the basis for many other decisions rejecting discrimination against people belonging to various racial and ethnic groups.

The matter finally ended up in the Supreme Court of the United States. It upheld Michigan’s affirmative action ban, ruling that the state has the right to determine whether racial preferences can be considered in college or university admissions. In a 6-2 ruling on the 22nd of April, 2014, the justices said that a lower federal court was wrong to set aside the change as being discriminatory.

Justice Anthony Kennedy, writing for the majority, suggested that right extends even beyond college policies. He said in his decision;

“There is no authority in the federal constitution or in the courts’ precedents for the judiciary to set aside Michigan laws that commit to the voters the determination whether racial preferences may be considered in governmental decisions, in particular with respect to school admissions.” Kennedy also said that the Michigan voters chose to eliminate racial preferences because they deemed them unwise." unquote

He may very well be right when he said that racial preferences may be unwise. For example, suppose Affirmative Action in colleges and universities was the law and these institutions of learning couldn’t refuse admission to a black person whose grades in his high school were dismally low. Should that student be admitted as a student in a college or university at the expense of a white student who had top marks in his high school exams just to fulfil a quota of black students? I think not. To do so could result in the black student failing in his first year in the college or university he was admitted to and the white student ending up not being able to go to a college or university in his state.  That would not only be unfair, it would also be outright stupid. 

Why should an extremely intelligent student face officially-sanctioned discrimination merely because his or her skin happens to be white?

Admissions to colleges and universities are not solely based on the colour of one’s skin. That would be illegal. Admissions are based on ability.

University of Michigan President Mary Sue Coleman and admissions director Ted Spencer have decried the affirmative action ban, saying outright that the school cannot achieve a fully diverse student body with it in place. Spencer said, “It’s impossible,” to achieve diversity on a regular basis if race cannot be used as one of many factors.”

In dissent, Justice Sonia Sotomayor said the court’s decision tramples on the rights of minorities, even though the amendment was adopted democratically. “But without checks, democratically approved legislation can oppress minority groups,” said Sotomayor, who read her dissent aloud in the courtroom. Justice Ruth Bader Ginsburg sided with Sotomayor in dissent.

Justice Sotomayor also said, “The Constitution does not give the majority free rein to erect selective barriers against racial minorities.”  Does anyone have any solid evidence that the people of Michigan have been doing that? 

There are checks and balances.  If a court determines for example that a black student is denied an admission to a college or university solely on the colour of his or her skin, the court can overturn that decision. This being as it is, the minorities will not have their rights trampled on. 

Six justices voted to uphold the constitutionality of Michigan’s ballot initiative, albeit on different grounds. Justice Anthony Kennedy, joined by Chief Justice John Roberts and Justice Samuel Alito, concluded that the US Constitution does not preclude states from deciding whether to allow racial preferences through a ballot initiative. Justice Antonin Scalia, joined by Justice Clarence Thomas, went further, suggesting that the cases upon which the U.S. Court of Appeals for the Sixth Circuit had relied should be overruled.  Justice Stephen Breyer joined the result, but only insofar as it applied to the use of racial preferences to increase diversity in educational institutions.


There are basically two levels of argument here—an issue of state’s rights, and the larger question about whether race-based admissions policies are a good idea or not.  The concurring justices came together on the former point, but Scalia and Thomas wanted to go further.  Upholding the Sixth Circuit Court of Appeals ruling, which held that requiring equal treatment was a violation of the Equal Protection Clause, would have endorsed Justice Sotomayor’s argument that the people of individual states, and their representative governments, cannot be trusted to treat people equally; i.e. state governments are presumably vulnerable to being run by racists.

It would be impossible to achieve diversity without unfairly discriminating against some people and privileging others, based on their skin color, especially when there is no deliberate effort being made to keep minority students away.

Some states in the United States, in the past, had barriers that prohibited black students from attending colleges and universities. President Eisenhower even had to use members of the military to enforce the rights of black students. Those days are long gone. Affirmative Action solved the problem initially as it guaranteed all blacks (and other minorities) that they could go to schools of higher learning and they could find work if they were qualified but nowadays, Affirmative Action is no longer necessary. The Equal Protection Clause in the Fourteenth Amendment of the US Constitution is still in force and that is the guarantee of all peoples in the US the right to attend schools of higher learning and find work if they are otherwise qualified. 

I should add that in a case heard last June, the US Supreme Court said that race-conscious admissions policies is constitutionally permissible in states that choose to use them.

Racial discrimination still exists in the United States and elsewhere and probably will always raise its ugly head once in a while but the laws in the US and many other countries generally protect minorities.  For this reason, I think that Affirmative Action policy will finally go the way of the passenger pigeon—by way of extinction.     

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