Affirmative Action

Affirmative Action in the United States

A program designed to remedy the effects of past discrimination. Affirmative Action programs are typically used in employment or educational situations and tend to offer advantage or preference to a particular group that has suffered previous discrimination. Racial minorities and women are most commonly targeted, although some programs focus on such groups as veterans or the handicapped. The Affirmative Action approach is advocated by those who wish to eliminate long-standing patterns of discrimination, particularly in the workplace. Affirmative Actions thus becomes remedial in that it is part of a process aimed at relieving members of particular groups from the effects of discrimination. Affirmative Action is compensatory. The principal justification advanced in its support is to remediate or compensate for past practices. Those critical of Affirmative Action, on the other hand, see it as race or gender preference that itself impinges on equality of opportunity. They see Affirmative Action as reverse discrimination—the relief of one wrong through the commission of another. Certainly the constitutional question raised by Affirmative Action is whether benevolent discrimination is permis-sible because of its compensatory or remedial character. Affirmative Action may be required by law for governmental agencies or established as a matter of operating policy by private entities. Affirmative Action is an approach that differs from equal opportunity laws in that the former attempts to require particular remedial measures while the latter prohibit discriminatory conduct.

See Also

Civil Rights (Judicial Effects and Policies) Equal Protection (Judicial Effects and Policies).

Analysis and Relevance

The issue of Affirmative Action has appeared before the U.S. Supreme Court on a number of occasions. The first important decision came in the case of Regents of the University of California v. Bakke (438 U.S. 265: 1978). In Bakke, the Court upheld the use of race-conscious admissions policies for a state university graduate program, although it disallowed the allocation of seats on a quota basis. The Court found that recruitment of a diverse or heterogenous student body was a substantial enough interest to allow race-conscious admissions. A more extensive program was permitted in United Steelworkers of America v. Weber (443 U.S. 1979), in which the Court allowed a private employer to give preference to unskilled black employees over white employees for training programs designed to elevate the unskilled workers to craft levels. The Court permitted the preferential treatment because racial discrimination had demonstrably disadvantaged black workers in the past. The use of “set-asides” was upheld by the Court as a remedial solution in Fullilove v. Klutznick (448 U.S. 448: 1980). A set-aside reserves a certain percentage of federal funds for minority businesses. The Court determined that Congress may allow narrowly tailored corrective actions to redress historical disadvantages. In 1989, however, the Court struck down a local “set-aside” plan in City of Richmond v.f.A. Crosan, Inc. (102 L. Ed. 2d 854: 1989) on the grounds that it was not limited or “narrowly tailored” enough. The Court was also dissatisfied with the supporting data Richmond used in attempting to establish that such a remedial initiative was necessary. As a rule, the Court has been receptive to Affirmative Action efforts undertaken by parties as a result of settling a challenge to employment practices. Often such agreements are embraced in court orders called consent decrees. In Local #28, Sheetmetal Workers v. Equal Employment Opportunity Commission (478 U.S. 421: 1986) , the Court upheld an Affirmative Action plan contained in a consent decree that produced benefits to individuals who were not themselves victims of discrimination. Similar support of programs designed to produce promotions for minorities and women already on the job was revealed in United States v. Paradise (480 U.S. 149: 1987) and Johnson v. Transportation Agency (480 U.S. 616: 1987). Greater uncertainty about Court-approved plans, however, was prompted by the decision of Martin v. Wilks (104 L. Ed. 2d 835: 1989). Here the Court permitted people who were not parties to original agreements contained in consent decrees to challenge them at a later date. All that is clear is that the issue of Affirmative Action will remain before the courts for some time to come.

Notes and References

  1. Definition of Affirmative Action from the American Law Dictionary, 1991, California

Affirmative Action in the United States

Affirmative Action

Affirmative Action, policies used in the United States to increase opportunities for minorities by favoring them in hiring and promotion, college admissions, and the awarding of government contracts. Depending upon the situation, “minorities” might include any underrepresented group, especially one defined by race, ethnicity, or gender. Generally, affirmative action has been undertaken by governments, businesses, or educational institutions to remedy the effects of past discrimination against a group, whether by a specific entity, such as a corporation, or by society as a whole. (1)

In this Section: Affirmative Action, Affirmative Action Controversy, Affirmative Action Legislation and Supreme Court Rulings and Affirmative Action Developments.

Concept of Affirmative Action in Political Science

The following is a very basic definition of Affirmative Action in relation to the election system and the U.S Congress: A policy to increase employment for minorities

Affirmative Action Background

Resources

Notes and References

  1. Encarta Online Encyclopedia

See Also

Affirmative Action in the United States

Minority Rights Affirmative Action

In the context of Civil Rights and Civil Liberties in the United States: the Minority Rights Affirmative Action.
An important constitutional issue that has caused public controversy is whether, and to what degree, public and private institutions may use affirmative action to help members of minority groups obtain better employment or schooling. In the Regents of the University of California v. Bakke case in 1978, the Supreme Court held that it was unconstitutional for the University of California Medical School at Davis to set an absolute quota for the admission of minority candidates, but said that race can be taken into account for the setting of numerical goals that were not disguised quotas. The Court later ruled that racial preferences by a private corporation designed to remedy prior discrimination did not violate the Civil Rights Act.

A changing political climate in the 1980s and 1990s, however, led to the repeal of many affirmative action programs. In 1995 the Court said that all public affirmative action plans must be strictly scrutinized. The Court hinted strongly that only those plans designed to remedy past acts of discrimination would survive. Furthermore, many lower courts began to openly reject the finding in the Bakke case that colleges and universities were permitted to seek racial diversity among their student bodies by giving special consideration to minority applicants.

Nevertheless, in the first major decision on affirmative action since the Bakke case in 1978, the Supreme Court in 2003 reaffirmed racial diversity as a goal of college and university admissions programs. The case involved the University of Michigan Law School’s admission program, which considered race, among other qualities, in evaluating each applicant. In a 5 to 4 decision the Supreme Court upheld the law school’s affirmative action program, finding that there was a “compelling public interest” in achieving diversity as long as quotas were not used. The decision in Grutter v. Bollinger came despite briefs filed against affirmative action by the administration of President George W. Bush. The decision did not rescind state laws that forbid affirmative action programs, such as those passed by popular initiative in California and Washington. Civil rights organizations hailed the ruling as a historic victory. Opponents of the decision took note of the Court’s opinion that affirmative action should only be necessary for another 25 years. (1)

In this Section about Civil Rights and Civil Liberties: Civil Rights and Civil Liberties, Religious Freedom, Freedom of Speech, Press and Assembly, Criminal Trials and Due Process of Law, War on Terror, Privacy, Minority Rights Civil Rights for Blacks, Affirmative Action, Civil Rights for Hispanics and Asian Americans, Rights of Women and Minorities. For an overview of Civil Rights and Civil Liberties in the world, read here.

Concept of Affirmative Action in Political Science

The following is a very basic definition of Affirmative Action in relation to the election system and the U.S Congress: A policy to increase employment for minorities

Affirmative Action Background

Resources

Notes and References

  1. Encarta Online Encyclopedia

See Also

Affirmative Action

United States Constitution

According to theEncyclopedia of the American Constitution, about its article titled AFFIRMATIVE ACTIONThe Supreme Court’s momentous decisions in brown v. board of education and bolling v. sharpe (1954) , and its subsequent implementation decision in Brown II (1955) , were followed by a long string of rulings designed to render meaningful and effective the egalitarian promise
(read more about Constitutional law entries here).

Some Constitutional Law Popular Entries

Affirmative Action

United States Constitution

According to theEncyclopedia of the American Constitution, about its article titled AFFIRMATIVE ACTION Do constitutional guarantees of equal protection command that government must be “color-blind” or only that government may not subordinate any group on the basis of race? The Supreme Court’s equal protection decisions have long straddled these two different principles.
(read more about Constitutional law entries here).

Some Constitutional Law Popular Entries

Affirmative Action in State Statute Topics

Introduction to Affirmative Action Programs

The purpose of Affirmative Action is to provide a broad appreciation of the Affirmative Action legal topic. Select from the list of U.S. legal topics for information (other than Affirmative Action).

Concept of Affirmative Action in Political Science

The following is a very basic definition of Affirmative Action in relation to the election system and the U.S Congress: A policy to increase employment for minorities

Affirmative Action Background

Resources

Further Reading

Affirmative Action

Affirmative Action, Sexual Behaviour and the Law

Affirmative Action

See Also

Discrimination

Further Reading

Affirmative Action in Labor Law

According to unr.edu, Affirmative Action is defined as: Specific actions in recruitment, hiring, upgrading and other areas designed and taken for the purpose of eliminating the present effects of past discrimination, or to prevent discrimination.

Affirmative Action in the International Business Landscape

Definition of Affirmative Action in the context of U.S. international business and public trade policy: A government program to promote actively the employment of protected classes of people rather than merely forbidding discrimination against them.

Affirmative Action in Labor Law

According to unr.edu, Affirmative Action is defined as: Specific actions in recruitment, hiring, upgrading and other areas designed and taken for the purpose of eliminating the present effects of past discrimination, or to prevent discrimination.

Affirmative Action: Open and Free Legal Research of US Law

Federal Primary Materials

The U.S. federal government system consists of executive, legislative, and judicial branches, each of which creates information that can be the subject of legal research about Affirmative Action. This part provides references, in relation to Affirmative Action, to the legislative process, the federal judiciary, and the primary sources of federal law (cases, statutes, and regulations).

Federal primary materials about Affirmative Action by content types:

Laws and Regulations

US Constitution
Federal Statutory Codes and Legislation

Federal Case Law and Court Materials

U.S. Courts of Appeals
United States courts of appeals, inclouding bankruptcy courts and bankcruptcy appellate panels:

Federal Administrative Materials and Resources

Presidential Materials

Materials that emanate from the President’s lawmaking function include executive orders for officers in departments and agencies and proclamations for announcing ceremonial or commemorative policies. Presidential materials available include:

Executive Materials

Federal Legislative History Materials

Legislative history traces the legislative process of a particular bill (about Affirmative Action and other subjects) for the main purpose of determining the legislators’ intent behind the enactment of a law to explain or clarify ambiguities in the language or the perceived meaning of that law (about Affirmative Action or other topics), or locating the current status of a bill and monitoring its progress.

State Administrative Materials and Resources

State regulations are rules and procedures promulgated by state agencies (which may apply to Affirmative Action and other topics); they are a binding source of law. In addition to promulgating regulations, state administrative boards and agencies often have judicial or quasi-judicial authority and may issue administrative decisions affecting Affirmative Action. Finding these decisions can be challenging. In many cases, researchers about Affirmative Action should check state agency web sites for their regulations, decisions, forms, and other information of interest.

State rules and regulations are found in codes of regulations and administrative codes (official compilation of all rules and regulations, organized by subject matter). Search here:

State opinions of the Attorney General (official written advisory opinions on issues of state law related to Affirmative Action when formerly requested by a designated government officer):

Tools and Forms

Law in Other Regions

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