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Home , Affirmative action, Glass ceiling, Reverse discrimination

aclu position paper AMERICAN UNION UPDATED FALL 2000

points

Three Widespread Affirmative Action Myths:

MYTH #1: We don't need affirmative action any more. FALSE. Though progress has been made, people of color and women are still more likely to be unemployed, employed at lower , and hold with a lower base pay. The U.S. FFIRMATIVE ACTION is one of the most effective Department of Labor’s tools for redressing the injustices caused by our Commission Report of 1995 states that while white men make up 43% of Anation’s historic against people of the Fortune 2000 workforce, they hold color and women, and for leveling what has long been an 95% of senior management jobs. uneven playing field. A centuries-long legacy of and MYTH #2: Affirmative action favors has not been eradicated despite the gains made people of color and women, leading to . during the civil rights era. Avenues of opportunity for those previously excluded remain far too narrow. We need FALSE. Affirmative action merely enables people who might otherwise affirmative action now more than ever. be shut out, to get their foot in the door. Affirmative action permits According to 1998 U.S. Department of In 1998, women earned only 73% of the factors such as race, gender and Labor statistics, blacks are almost twice as wages earned by men, according to the national origin to be considered likely as whites to be unemployed. The Census Bureau. This pay gap exists even when hiring or admitting qualified rate is also higher for within the same occupation. Indeed, the applicants, keeping the doors of Latinos than for whites. Blacks and Latinos average woman loses approximately opportunity open. generally earn far less than whites. In 2000, $523,000 in wages over a lifetime due to pay the median weekly earning for blacks was disparities. In many sectors, MYTH #3: Affirmative action really $459; for Latinos, it was $395. In that bars women from high- earning oppor- means quotas. period, average income for whites was tunities. Low-paying, dead-end occupations $590. Workers of color are still concentrat- such as domestic and secretarial work FALSE. Quotas are illegal. With ed in the less well-paying, unskilled sector. remain heavily female. Sexism and racism affirmative action, federal contractors In 1993, black and Latino men were half as create a for women of color. and employers must establish goals likely as whites to be employed as man- In 2000, black women earned a median and timetables and make good agers or professionals and much more like- weekly income of $458 compared to $523 faith efforts to meet them. But a legal ly to be employed as machine operators for white women and $717 for white men. affirmative action plan does not and . Barriers to equality also Latina women’s median weekly income was include quotas. remain for women. even lower, at $373. 1 ACLU: Affirmative Action

Opponents of affirmative was calling for color-blind solutions Affirmative Action action deliberately distort the defi- for our nation’s ills when he said, nition and goals of this legal reme- “men should be judged by the con- Timeline dy. They contend that the practice is tent of their character, not the color unfair, that it leads to preferential of their skin.” This implication does 1791 “Original Sin” of the Constitution treatment and reverse discrimina- a severe disservice to the legacy of and Bill of Rights legitimizes tion, and that it relies on quotas. one of our nation’s major heroes in . Affirmative action programs neither the struggle for equal justice. Dr. grant preferences based on race, nor King knew, as we know today, that 1860s Although the Thirteenth create quotas. The law states that there is no sidestepping color and Amendment of 1865 abolishes affirmative action programs must gender in our society. slavery, southern states revive be flexible, using goals and timeta- The National Urban Institute slavetime codes, creating unat- bles, but not quotas; protect senior- proved this theory recently, when it tainable prerequisites for blacks ity and not interfere with the legiti- sent equally qualified pairs of to live, work or participate in mate seniority expectations of cur- applicants on a series of interviews society. The Civil Rights Act of rent employees; be temporary and for entry-level jobs. The young men last no longer than necessary to were coached to display similar levels 1866 invalidates these codes, remedy discrimination. of enthusiasm and “articulateness.” conferring “the rights of Certainly, unfair preferences in The young white men received 45% citizenship” on all people. The hiring and admission do exist for more job offers than their African Fourteenth Amendment grants some groups, but, in fact, such pref- American co-testers; whites were citizenship to everyone born in the erences almost always favor white offered the job 52% more often than U.S., forbids states from denying men. “Preferences” have been shown Latino “applicants.” “life, liberty or property” without for veterans, for children of alumnae, Many people of color are keen- due process of law, and guarantees and for the offspring of managers ly aware of such disparities, equal protection under the laws. and peers. although many whites are not. A Indeed, the argument that affir- poll commissioned by The National 1870s The Fifteenth Amendment of mative action is “unfair” suggests Conference, a workplace 1870 gives freedmen the right to that without such programs, every- organization, found that 63% of vote, and the 1875 Civil Rights one, including women and people of whites thought Act guarantees equal access to color, would be treated equally. Not have , whereas public accommodations regardless even the most optimistic – or mis- 80% of African Americans felt they of race or color. White supremacist guided – observer of our nation’s do not. Furthermore, if one factors groups, however, embark upon a history or contemporary society in the so-called war on crime, which could make that claim in good faith. disproportionately targets young campaign of terror against blacks Race and gender should not be men of color, and the recent wave of and their white supporters. the sole selection criteria (that anti-immigrant laws, it is clear that would be a quota system), but they solid legal protection from discrimi- 1896 In Plessy v. Ferguson, the do deserve to be among the many nation is our only hope for creating Supreme Court holds that “sepa- factors that are taken into account equal opportunity for all. rate but equal” accomodations are in hiring, college admissions, and constitutional, legitimizing Jim awarding grants and other types of Crow laws. Segregation, lynch- financial aid. Harvard University Corporate America is for ings, severe economic hardship, and other schools, for example, Affirmative Action and political powerlessness for assess race as a factor among others, will begin to reach including geographical region – pro- Many U.S. companies have adopted all time-highs, with few political vided the applicant meets other affirmative action policies voluntari- or legal barriers. admissions criteria. ly, because they know diverse work- forces are better at tailoring their 1954 Brown v. Board of goods and services for a diverse ends legal school segregation and To Be Colorblind national and global market. Diversity, they attest, is good for the sets a precedent for widespread Foes of affirmative action frequently bottom line. On the other hand, busi- desegregation. One year later, misinterpret Dr. Martin Luther nesses that resist affirmative action 4.9% of college students aged King, Jr.’s famous “I Have a Dream” often have had such programs 18-24 are black. speech. They assert that Dr. King imposed on them by the courts.

2 students were black. In the 1978 University of v. Bakke Timetable, continued... decision, the Court ruled that while 1961 President Kennedy issues “racial and ethnic dis- , tinctions of any sort prohibiting discrimination in are inherently sus- federal government hiring on pect,” a university the basis of race, or could take race into national origin. account under appro- priate circumstances. By 1990, over 1964 The Civil Rights Act seeks to 11% of college stu- end discrimination by large private dents were black, a employers on the basis of race number that comes and gender whether or not they Whether a company adopts an close to being representative of the have government contracts. Title affirmative action policy voluntarily percentage of blacks in the U.S. pop- VII of the Act establishes the or by court order, the sheer number ulation as a whole. Soon thereafter, Equal Opportunity of minorities and women is meaning- however, a backlash against affirma- Commission (EEOC). less unless it is accompanied by a tive action in higher education took comprehensive and ongoing diversity hold. The state of Texas scaled back 1965 The term “affirmative action” is management program. Many com- opportunity dramatically in 1996 used for the first time, by panies remain riddled with sexual when the U.S. Court of Appeals for President Johnson in E.O. 11246, harassment, racism, and unequal the Fifth Circuit ruled in Hopwood v. requiring federal contractors to opportunity despite the presence of UT that the University of Texas Law take “affirmative action” to large numbers of female and minori- School’s affirmative action program ensure equality of employment. ty employees. was unconstitutional. As a result of This Executive Order is extended Companies doing business with this decision, Latino and African to women in 1968. the federal government are obliged to American admissions plummeted by meet federal affirmative action 64% and 88% respectively in just requirements. And several federal one year. 1969 President Nixon’s “Philadelphia programs assist minority-owned California’s Proposition 209 Order” presents “goals and businesses through contract set- produced equally nefarious results timetables” for reaching equal asides, procurement goals, technical in our nation’s largest public uni- employment opportunity in assistance, grant and loan programs, versity system: law school admis- construction trades. It is extended and other forms of development aid. sions among blacks dropped nearly in 1970 to non-construction federal Proactive efforts, diversi- 72%, and Latino admissions fell contractors. By this time, 7.8% of ty programs, and safeguards such as 35% following passage of the anti- college students aged 18-24 are the EEOC all help to level an unfair affirmative action ballot measure. black. 1972 Title IX of the playing ground, foster improved Overall admissions of blacks, Education Amendments Act workplace relations – and provide Latinos and Native American stu- prohibits discrimination against recourse for workers who feel they dents were cut in half at the UC girls and women in federally have suffered from discrimination. Berkeley campus. Though the num- funded education, including bers of minority admissions are athletic programs. rebounding in the UC system as a Affirmative Action in whole, a two-tiered system is 1978 University of California v. Education quickly developing. The numbers Bakke sets the parameters of are still decreasing at Berkeley and During the 30 years following the Los Angeles, the two flagship cam- educational affirmative action, passage of the Civil Rights Act, the puses, with most minority students saying that quotas are university community took steps to being redistributed to less competi- unconstitutional, but that recruit and admit more minorities. tive campuses. minority status can be used In 1955, one year after the Brown v. In 1997, the Texas Legislature as a factor in admissions. Board of Education Supreme Court adopted a Ten Percent Plan, enti- decision, less than 5% of college tling high school seniors in the top

3 ACLU: Affirmative Action

ten percent of their classes to attend the Resources: University of Texas or Texas A&M – Timetable, continued... the flagship campuses – or any other George E. Curry, ed. The Affirmative state university. In Florida, Governor Action Debate, Harper Collins, 1998. 1990s As black college enrollment issued Executive Order 99- reaches an all-time high The Network Newsletter, The 281, ending affirmative action in state (11.3% in 1990), a backlash contracting and university admissions. Workplace Diversity Network. against affirmative action Instead, the One Florida Plan will guar- Cornell/ILR and the National Conference. Volume 1, Number 1, begins. In Richmond v. J.A. antee state admissions to high school April 1995. seniors in the top 20% of their classes. Croson Co., the Supreme Court rules set-aside However, both plans have their U.C. Santa Barbara Affirmative Action share of problems. In Texas, the per- and Diversity Project website: programs unconstitutional centage of students of color in 1999 aad.english.ucsb.edu. unless specific industry-wide reached the levels that they were in discrimination can be proven. 1996 – pre-Hopwood. But upon clos- Association of American Universities Statement on the Importance of er inspection, the number of students Diversity in University Admissions. 1995 In Adarand Constructors v. of color who applied also increased in April 14, 1997. Pena, the Supreme Court 1999. Meanwhile, in Florida, many issues a “strict scrutiny” students of color attend substandard American Association of University standard for proving race- K-12 public schools that do not offer Women, “Affirmative Action: Myth vs. based discrimination, a ruling Reality,” January 2000: www.aauw.org. the courses required by the state’s which critically undermines university system. Furthermore, the Commission on Civil affirmative action. Plan does not require the state’s flag- Rights, “Toward an Understanding of ship institutions to admit the top Percentage Plans in Higher Education: 1996 The U.S. Court of Appeals, in 20%, potentially creating a two- Are They Effective Substitutes for Hopwood v.University of tiered system similar to the University Affirmative Action?” Texas School of Law, rules of California. www.usccr.gov/percent/stmnt.htm that UT’s affirmative action Standardized tests still carry dis- Leadership Conference on Civil Rights proportionate weight in university program is unconstitutional. and Leadership Conference Education Latino admissions drop 64% admissions, yet many high schools Fund: www.civilrights.org serving students of color do not pro- and African American vide the resources students need to Bureau of Labor Statistics, “Work admissions drop 88% in achieve on these tests; many even fail Experience Summary 1998” and one year. to offer Advanced Placement (AP) “Usual Weekly Earnings Summary First courses to their excelling students. Quarter 2000,” 1997 The anti-affirmative action www.stats.bls.gov/newsrels.htm One lawsuit addressing these dis- initiative Proposition 209 parities alleges that Berkeley’s under- National Committee on Pay Equity, narrowly passes in California. graduate admissions guidelines dis- “The Wage Gap: 1993.” Enrollment of students of criminate against minority students by color in the University of giving bonus grade points for AP class- Federal Glass Ceiling Commission: California system declines “Good for Business: Making Full Use es. The suit points out that many within one year. minority students do not have access of the Nation’s Human Capital,” 1995. to AP courses and cannot earn a grade 1998 Washington State passes point average higher than 4.0. In I-200, a similar anti- another suit, the ACLU argues that the affirmative action initiative. State of California discriminates against students and schools in minor- ity and low-income neighborhoods by E-Mail: [email protected] 1999 Governor Jeb Bush of Florida offering far more AP courses in www.aclu.org issues Executive Order 99-281, ending affirmative schools in affluent areas, disadvantag- American Civil Liberties Union ing low-income and minority students 125 Broad Street, 18th floor action in state contracting and in college admissions. Equal opportu- New York, NY 10004 higher education. nity in education remains a crucial concern for the future of our nation.

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