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Reply #137: Affirmative Action and its opponents [View All]

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Brewman_Jax Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Jul-03-08 03:27 PM
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137. Affirmative Action and its opponents
Affirmative Action has been defined as "any measure, beyond simple termination of a discriminatory practice, adopted to correct or compensate for past or present discrimination or to prevent discrimination from recurring in the future." (U.S. Commission on Civil Rights, Statement on Affirmative Action, October 1977.) Affirmative action means taking positive steps to end discrimination, to prevent its recurrence, and to creative new opportunities that were previously denied minorities and women.

Affirmative Action, as it pertains to black people, is not a 20th Century concept, nor is it not, as some critics charge, a uniquely modern concept fashioned by contemporary liberals in defiance of history or tradition. Although the techniques that we now call "affirmative action" are of fairly recent design, the conceptual recognition of the need to take affirmative, or positive legal action to redress discrimination's impact, rather than simply ending discrimination, has been around since the Civil War. During Reconstruction (the period immediately after the Civil War), the Constitution was amended and other federal initiatives, such as the creation of the Freedman's Bureau, were undertaken to establish equal opportunity for the former slaves. These initiatives were at least modestly successful, bringing about African American participation in elections for the first time.

Sporadic efforts to remedy the results of hundreds of years of slavery, segregation and denial of opportunity have been made since the end of the Civil War.

A significant number of African Americans held public office, including two U.S. senators and 20 members of the House, between 1870 and 1900. But when the federal government withdrew its support for Reconstruction in the late 1800s, the gains made by African Americans were quickly stripped away and replaced by a patchwork system of legal segregation (including, in some instances, legal segregation of Latinos, Asians, and Native Americans as well). By 1896, in Plessy v. Ferguson, the Supreme Court had upheld the cornerstone segregationist doctrine of "separate but equal" - i.e., ruling that the Constitution permitted governments to require separation of the races in schools, public transportation, and elsewhere, so long as the opportunities offered the separate races were characterized as equal.

Affimative Action, has its legal basis in the modern era with President Kennedy's Executive Order #10925 of 1961, the Civil Rights Act of 1964, and President Johnson's Executive Order #11246.

The Civil Rights Act of 1964, Section 703, forbids discrimination by an employer on the basis of race, color, religion, sex, or national origin.

Kennedy's order required not only that federal contractors pledge non-discrimination but that they "take affirmative action to ensure" equal opportunity, that the now-fractious phrase came into popular discourse. Kennedy's order also included penalties -- including suspension of a contract -- for non-compliance. Johnson's executive order directed the creation of the Office of Federal Contract Compliance in the Department of Labor to enforce its non-discrimination and affirmative action requirements. The Executive Order was amended in 1967 to include prohibitions on sex discrimination by federal contractors, along with a requirement that they engage in good faith efforts to expand job opportunities for women. Executive Order 11246 remains among the most effective and far-reaching federal programs for expanding equal opportunity.

As President Lyndon Johnson said in 1965, "You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say you are free to compete with all the others, and still just believe that you have been completely fair."

President Johnson's speech eloquently stated the rationale behind the contemporary use of affirmative action programs to achieve equal opportunity, especially in the fields of employment and higher education.

The emphasis is on opportunity: affirmative action programs are meant to break down barriers, both visible and invisible, to level the playing field, and to make sure everyone is given an equal break. They are not meant to guarantee equal results -- but instead proceed on the common-sense notion that if equality of opportunity were a reality, African Americans, women, people with disabilities and other groups facing discrimination would be fairly represented in the nation's work force and educational institutions.

The continuing need for affirmative action is demonstrated by the data. For example, the National Asian and Pacific American Legal Consortium reports that although white men make up only 48% of the college-educated workforce, they hold over 90% of the top jobs in the news media, 96% of CEO positions, 86% of law firm partnerships, and 85% of tenured college faculty positions. There are studies and reports in the 1990's and 2000's that show regular on-going systemic discrimination against people of color in all major social, economic, scientific, and political areas. The need for it is increasingly pertinent now with the distinct possibility of a non-white male President for the first time in US history. Discrimination will not magically end should Senator Obama be elected President of the US anymore than it did when the Civil War ended, or with the passage of the 13th, 14th, and 15th Amendments, or the Brown vs. Board of Education Court decision. Power will not concede willingly; the Jim Crow era is glaring proof of that.

In the modern era, the concept of affirmative action was reborn on June 25, 1941, when President Franklin Roosevelt -- seeking to avert a march on Washington organized by civil rights pioneer A. Philip Randolph -- issued Executive Order 8802 requiring defense contractors to pledge nondiscrimination in employment in government-funded projects. Two years later, President Roosevelt extended coverage of the executive order to all federal contractors and subcontractors. In a 1947 report, the President's Committee on Fair Employment Practices found that, while African Americans comprised only three percent of the workers in defense industries in 1942, their number had increased to eight percent in 1945. But it also found "the wartime gains of Negro, Mexican-American and Jewish workers . . . began to disappear as soon as wartime controls were relaxed."

Implementation of affirmative action started slowly, with the construction industry the site of one of the first tests. In 1965 the Office of Federal Contract Compliance created government-wide programs to redress the years of discrimination in the construction industry. The series of affirmative action programs was designed to boost minority employment by emphasizing hiring results in federally funded construction jobs.

In the 1970s, The Vietnam Era Veterans Readjustment Assistance Act of 1972 called for "the preferential employment of disabled veterans and veterans of the Vietnam era ... who are otherwise qualified." The act was amended a year later to require federal agencies and contractors to take affirmative action in employment and promotion for people with disabilities. These changes underscored the use of affirmative action as a balancing of competitive interests. Affirmative action was understood to be the creation of opportunities to compete and not an assurance of outcome or success.

The various programs culminated in the "Philadelphia Plan," implemented under President Nixon. This plan required contractors doing business with the federal government to commit themselves to self-determined numerical goals for minority. By withstanding challenges both in Congress and the courts, the Philadelphia Plan helped establish affirmative action as a way of life for American employers. Indeed, employers often embraced affirmative action as a good business practice, enabling them to tap into larger, more diverse, and more qualified pools of talent.

A key example of business support for affirmative action came early in Ronald Reagan's second term and from what would be considered a very unlikely source -- the conservative National Association of Manufacturers (NAM), which represents 13,500 companies. At issue was a split in the administration over proposals by President Reagan's most conservative appointees to revise and weaken Executive Order 11246 requiring employers with federal contracts to take positive steps -- including establishing goals and timetables -- to include minorities and women in their work force.

NAM, much to the surprise of the administration's conservatives, weighed in on behalf of keeping the executive order intact. In a letter to President Reagan, the business group said it "believes the current executive order provides the framework for an affirmative action policy" and argued that "the business. community is concerned that the elimination of goals and timetables could result in confusing compliance standards on federal, state and municipal levels and a proliferation of reverse discrimination suits."

Affirmative Action has been under legal assault almost from its inception. Decisions and appeals usually have to go to the Supreme Court for final resolution. The make-up of the Court is critical to the use or amending of affirmative action measures due to the precident set by the case brought before it. Important cases will be in follow-on entries.



http://www.civilrights.org/research_center/civilrights1...
http://www.blackcommentator.com/284/284_btl_will_black_...
http://www.ourdocuments.gov/doc.php?flash=true&doc=97&p...
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