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Introduction and background
Affirmative Action (referred to as ‘AA’ for later) is an executive order issued by President John F. Kennedy in 1961 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’ (Birnbaum 17). While few challenge Kennedys morality for AA, many question the efficacy of his policy. Popularly believed to aim at amending identity-based disparities, AA has sparked controversies around a possibly compromised aim. Concepts like reverse discrimination suggest AA is now a politically correct but practically fallacious policy. Many lawsuits against colleges and corporations urge to repeal AA lest it downgrade competence as an admission factor.
Still, other voices abound in favor of AA. It is believed that historical oppressions are still prevalent today despite sentiments of color blindness, a term coined by AA critics to argue that racism and other identity-based disparities are irrelevant today about social mobility and equality. Proponents on the other hand refute such a view, pointing to its prejudiced nature after a structural analysis based on the theory of intersectionality, which states overlap of various social identities can constitute a specific type of systemic oppression.
Personal views
In reality, my personal experience with AA cannot be easily captured by any of the above positions. As an international student whose national origin is foreign and nonetheless receiving American higher education, I found equity and equality as circumscribed by AA to exclude my interests. These include two layers of complication, namely the ‘AA applicable’ and ‘AA non-applicable’ layers.
The ‘AA applicable’ layer refers to my racial identity as Asian, gender identity as male, and sexual orientation as straight. These interests are not favored because Asians as a race are overrepresented in American higher education, males are considered historically favored in terms of prospects for higher education, and heterosexuality is thought to constitute oppression against people of other sexualities (Younies). Therefore, a careful evaluation by the college admission office naturally deems my profile as not subject to identity-based disparities compared to the general applicant pool.
The ‘AA non-applicable’ layer refers to my nationality as Chinese and my native language as Mandarin. To be fair, both Chinese nationalities and Mandarin speakers were historically discriminated against in America (see Chinese Exclusion Act of 1882). AA, however, does not seem to alleviate standards for non-American students whose primary language is not English, let alone do justice to their history of oppression. It instead regards them as culturally and linguistically equivalent to those born and raised in the U.S. These are identity-based disparities since no serious educator or policymaker would argue that nationality and language are meaningless social identities. And, notably, no educated American today would deny the history of oppression experienced by Chinese nationalities and Mandarin speakers.
Therefore a fundamental problem emerges: the range of identity-based disparities addressed by AA is limited and lawmakers have not, despite President Obamas inclusion of LGBTQ communities as applicable subjects under AA, made any progress to address identity-based disparities experienced by Chinese nationalities and Mandarin speakers.
Societal curriculum as a source for my views
Before discussing solutions to a flawed AA, I would like to analyze the formation of my views. To begin with, the ‘AA applicable’ layer of my view is rooted partially in societal curriculum defined as the massive ongoing, informal curriculum of family, peer groups, and other social forces that educate us (Cortés 103). In my case, I am influenced by the societal curriculum. After personally hearing about complaints from Asian students on a tilted college admission process as well as media portrayal of a group of Asian American applicants suing Harvard for the same reason, I began to empathize and consequently sympathize with their experience. Therefore, peer groups and media have served as my informal societal curriculum about AA by appealing to my ethnicity.
In addition to the informal education from the societal curriculum, I have established the remaining components of my view by receiving formal multicultural education. It was in the history class I took last semester that I learned about the systemic sexism embedded in American history. It then came as a revelation to me that as a male I am receiving higher education in a country where there used to be few female counterparts who were endowed with the same privilege. I then empathize very concretely with what it means for my gender identity to be male. Finally, I have received education the same way regarding the LGBTQ+ community and deepened my understanding of my straight identity.
In the remainder of this paper, I shall discuss in detail the challenges faced by AA and conclude the essay with my improved understanding of the issue.
AA: Timeline and facts
The concept of AA was introduced in the early 1960s in the United States, as a way to combat racial discrimination in the hiring process, with the concept later expanded to address gender discrimination. AA was first created from Executive Order 10925, which was signed by President John F. Kennedy on March 6, 1961, and required that government employers ‘not discriminate against any employee or applicant for employment because of race, creed, color, or national origin’ and ‘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’.
On September 24, 1965, President Lyndon B. Johnson signed Executive Order 11246, thereby replacing Executive Order 10925 and affirming the Federal Government’s commitment ‘to promote the full realization of equal employment opportunity through a positive, continuing program in each executive department and agency’. AA was extended to women by Executive Order 11375 which amended Executive Order 11246 on 13 October 1967, by adding ‘sex’ to the list of protected categories. In the U.S., AA’s original purpose was to pressure institutions into compliance with the nondiscrimination mandate of the Civil Rights Act of 1964 (Birnbaum 17). The Civil Rights Acts do not cover veterans, people with disabilities, or people over 40. These groups may be protected from discrimination under different laws.
AA has been the subject of numerous court cases and has been questioned upon its constitutional legitimacy. In 2003, a Supreme Court decision regarding AA in higher education (Grutter v. Bollinger, 539 US 244 Supreme Court 2003) permitted educational institutions to consider race as a factor when admitting students. Alternatively, some colleges use financial criteria to attract racial groups that have typically been under-represented and typically have lower living conditions. Some states such as California (California Civil Rights Initiative), Michigan (Michigan Civil Rights Initiative), and Washington (Initiative 200) have passed constitutional amendments banning public institutions, including public schools, from practicing AA within their respective states (Teles 236). Conservative activists have alleged that colleges quietly use illegal quotas to increase the number of minorities and have launched numerous lawsuits to stop them.
Most recently on July 21, 2014, President Obama, apparently frustrated with Congress unsuccessful attempts to address the rights of the LGBT population in the workplace, signed Executive Order 13672. E.O. 13672 amended Executive Order 11246, one of the pillars of AA (Younies). E.O. 11246 forbids discrimination in employment by federal contractors based on race, color, religion sex, or national origin. President Obamas new Executive Order 13672 now adds sexual orientation and gender identity to the list of protected categories. In this Order, the President also directed the Secretary of Labor to prepare regulations implementing the new protections.
Critical points of view
There are two major positions taken regarding the validity of AA. The first position is characterized as progressive and inclusion-minded and is held by activists who feel AA is inadequate to protect minorities. This may come as a surprise to some skeptics of affirmative action, including those in the Trump administration, who see such efforts as having remade the admissions landscape to the detriment of Asian-Americans and whites. But on campuses across the country, many admissions officials say that affirmative action as it is traditionally understood considering race when assessing applications falls short as a diversity strategy and that farther-reaching efforts are needed to recruit a student body that even comes close to reflecting the countrys demographics. Nationwide, 15 percent of 18-year-olds were black and 22 percent were Hispanic in 2015, according to federal data. At the elite colleges examined by The Times, 6 percent of noninternational freshmen were black and 13 percent were Hispanic (Goldstein).
However, AA critics do not find this evidence satisfactory. They believe the cons of affirmative action outweigh its pros. Academic mismatch perpetuates low grades and high dropout rates for minority students who need a racial preference to gain admission. Basing admissions on race rather than merit also contributes to the dearth of minorities in STEM fields. No person should be disadvantaged by the color of his or her skin, no matter how sincere the intentions of affirmative action proponents (Slattery). The justices of the Supreme Court should bear this in mind when they consider Abigail Fishers challenge to the University of Texas at Austins pernicious use of racial preferences. The Court should heed Chief Justice John Roberts advice: The way to stop discrimination based on race is to stop discriminating based on race.
Equality of opportunity and institutional discrimination
What about the Fisher case? Who is she and which perspective is she coming from? Fisher said she brought the case because she wanted to stop the university from using race in the admissions process, arguing that as a white woman, she had lost out on a place because preferential treatment was given to black and other minority students. The critical identity concerning Fisher here is interestingly race, but that of a dominant position in American society. Since the Caucasian population in American history had been oppressive to racial minorities, the concept of a white student being discriminated against, or reverse discrimination, seems bizzare.
But whats not so bizarre is the idea of competence. It is agreeable to most that competence is one of the core qualities in the process of admission to any institution. Can we say AA should be prioritized before competence is measured? To ask this question is to choose between two sets of standards or two frames of reference, that is, equality and equity.
Fisher, typical of AA critics, stands on the ground of equality of opportunities. If we speak alone of this position, it does seem reasonable that everyone is created equal and thus should enjoy equal access to resources. But whats forgotten here is that present societal institutions do not reflect past conditions under which their members developed. Take the example of Plessy v. Ferguson. It was ruled that the separate but equal doctrine should be applied to all members of American society in terms of education and career. But in reality, discriminatory policies applied to these separate institutions prevented racial minorities from receiving the same level of welfare enjoyed by members of the dominant group. In the long run, these discrepancies in resources, though improved dramatically today, left behind a weakened prospect of competence among minorities. And this, critically, cannot easily sync with the updated societal institutions.
Therefore, it is not hard to see that AA critics believe affirmative action is an action taken solely on societal institutions. This viewpoint, once taken, naturally leads to the conclusion that those who are preferred in the process of admission are privileged compared to the dominant group. This view, however, is a product of limited exposure to issues affecting the historically disadvantaged groups and cannot indeed be blamed on the dominant group itself but the fact education regarding the subject remains inadequate.
Summary and reflection
All these debates eventually return to the fundamental divide between equality and equity. Admittedly, more and more people have begun to consider the fact that historically damaged equity cannot disappear overnight despite an overall improved status quo, which makes affirmative action all the more crucial for minorities and American society in general. However, few, if any, have explored different aspects of multicultural identity extensively to come up with a more adaptive range of identities AA should include and protect. Nationality and language remain disregarded by the dominant social climate but should not stay this way any longer.
Contrary to an equality of opportunities mindset, my reasoning aligns more closely with the sustainability of social institutions. If we can learn from history regarding the fallacy of separate but equal, we too can now learn that more identities than we think are victimized by historical oppressions, which we must not hesitate to bring to the table for a solution. Only by providing everyone with the resources and opportunities they deserve both equality and equity, can American society continue to adapt to an increasingly multicultural globe.
After committing time and energy to research and finishing this assignment, I have learned that empathy is key in terms of finding solutions to the most pressing problems. Too often people are caught up with present concerns and completely disregard other points of view. This is detrimental to constructive dialogues. Before I learned about the Fisher case and tried to understand the reasoning of AA critics, I too was a victim of groupthink and the polarizing nature of societal curriculum. But now I realize that we cannot expect AA to be just an antidote to flawed institutions, which are largely improved, but most importantly to historically identity-based disparities. If pro-AA policymakers regard the policy as only to improve societal institutions, we too would not develop the right understanding of equality in the process of social change. AA critics, despite my initially hostile attitude, remind me of the original aim of affirmative action, that is, to build a fair and just community for every American.
Works Cited
- Birnbaum, Owen. ‘Equal Employment Opportunity and Executive Order 10925.’ U. Kan. L. Rev. 11 (1962): 17.
- Cortés, Carlos E. The making, and remaking, of a multiculturalist. Vol. 13. Teachers College Press (2002): 103.
- Goldstein, Dana. When Affirmative Action Isn’t Enough. The New York Times, The New York Times, 17 Sept. 2017, https://www.nytimes.com/2017/09/17/us/affirmative-action-college.html
- Slattery, Elizabeth. How Affirmative Action at Colleges Hurts Minority Students. The Heritage Foundation, The Heritage Foundation, 2 Dec. 2015, https://www.heritage.org/courts/commentary/how-affirmative-action-colleges-hurts-minority-students
- Teles, Steven M.(2010). The Rise of the Conservative Legal Movement: The Battle for Control of the Law. Princeton University Press. pp. 23537. ISBN 978-1400829699.
- Younies, Ahmed. Affirmative Action Laws Now Protect LGBT Employees of Federal Contractors. Hrunlimitedinc, HR Unlimited, 5 Dec. 2014, https://www.hrunlimitedinc.com/affirmative-action-laws-now-protect-lgbt-employees-of-federal-contractors
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