What could a quota do for you?
“It might be insulting by some to be thrown into a pot”
The dark past of subjugation faced by minorities and women is a fundamental flaw in American history. While the thirteenth amendment seeks to acknowledge and to an extent remedy the atrocities of slavery, it had very little impact on eradicating the stigma and strife associated with “otherness” particularly for Blacks, living in American society. As the Supreme Court under Chief Justice Earl Warren opined about legal segregation and its impact on children of color—policies such as integration led to sweeping reforms in American schools and workplaces. Eventually, the Civil Rights Act of 1964 would address systemic injustice as statutory language such as Title VII prohibits employers from discriminating against diverse candidates—particularly on the basis of sex, race, color, national origin and religion.
Despite such progressive reform, it is nonsensical to think that a few court cases and some statutory language would change centuries of racism, hate, and systemic injustice. Consequently, affirmative action is seen by some as a next step, implemented with the “intention of remedying the results of any prior discrimination or identified underrepresentation of minorities”[1]. This post seeks to evaluate the impact that the aforementioned policies and precedent have on the legacy of affirmative action and diversity within the education sector. Through careful analysis of jurisprudence surrounding affirmative action policies, conclusions can be drawn about Title VII and its impact on achieving equity in schools—particularly for women and people of color.
In Justice Harlan’s dissent of Plessy v. Ferguson he states, “the white race deems itself to be the dominate race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty. […] In respect of civil rights, all citizens are equal before the law.[2]” Though this statement was made in 1896, its observations about the power and privilege accorded to “whiteness” remains true today.
The irony in this statement is Justice Harlan’s assertion that equality and supremacy can exist in the same space. Perhaps, a more accurate reflection of American society is a nuanced sense of equal opportunity where whiteness is a hegemonic force that stifles other races from achieving social or economic equity in any real and meaningful sense. The framework of American jurisprudence with respect to affirmative action is to blame for the persistent disadvantages for minority groups, as society tends to view discrimination as an individual tort rather than a systemic injustice that operates in every aspect of society[3]. Since race-conscious affirmative action programs are required to undergo the same strict scrutiny applied to Jim Crow laws the state is only allowed to remedy ongoing acts of discrimination or lingering effects of prior discrimination where permissible.
For example, under current law for government sponsored affirmative action programs, plaintiffs may sue under the Equal Protection Clause of the Constitution or Title VII. Plans must always serve a compelling government interest and be narrowly tailored to serve that interest. With respect to gender, an affirmative action plan must meet intermediate scrutiny by serving an important government objective and the plan must be substantially related to the achievement of those objectives.
While the Supreme Court’s opinion in Grutter v. Bollinger and Gratz v. Bollinger, made it clear that race may be a factor in an affirmative action scheme or program but cannot be the only factor, it begs to question how such programs lead to advancement for women or people of color. This is because in Grutter, the plan was considered narrowly tailored because the law school at the University of Michigan used race as a means to cultivate a class of a diverse set of students, while in Gratz, there was a point value assigned to students of color in making admissions decisions. Cultivating a class while Constitutional, is very subjective and has no specific means of ensuring inclusivity of people from diverse backgrounds other than relying on the universities good will and moral compass. While the facially neutral top-ten percent program implemented at the University of Texas is a step in the right direction, the arguments in Fisher v. University of Texas are troubling. This is because the argument surrounding whether or not a “critical mass” of minority students warranting a continuation of affirmative action programs ignores the disparities and systemic issues that continue to exist in this country, which decreases the likelihood of an African American or Hispanic student from being able to gain admission to such institutions.
While quotas are illegal and may not be the answer, ignoring that inequality exists only perpetuates the status quo. Minorities are not necessarily made smarter by attending universities with majority white student bodies (just ask any student that attends an HBCU). However, they likely benefit greatly from being a part of alumni networks and institutions with more access to opportunities. Hence, by focusing on the disparities that pervade this society and cultivating increased opportunities for minority access to majority opportunities simultaneously, affirmative action programs can truly achieve parity between the races and genders in a real and meaningful sense.
One method of achieving the parity discussed above can be seen in policy arguments set forth in Fair Measures: A Behavioral Realist Revision of Affirmative Action, by Jerry Kang and Mahzarin R. Banaji as both authors acknowledge that “the problem of discrimination and the solution of affirmative action is not straightforward”. Their solution to the affirmative action issue is to implement a debiasing agent—known as implicit association testing. Here, a test is administered that illustrates the ways in which a person has biases and may guide a person in understanding how those thoughts impact their behavior. The authors argue that to correct biases, decision makers in hiring, admissions, contractors and others must be made ware of their own flawed ideology in order to increase self-awareness by measuring associational preferences and comparing them to the baseline expectation of neutrality. If done correctly, as seen in examples in workplaces such as Deloitte and Touche, organizations can use such information to implement reforms, which increase equity for women and people of color.
Implementing fair measures and raising awareness about implicit bias and the lingering effects of this nation’s past is a great first step towards true affirmative action. This is because, the legal framework that affirmative action policies exist in do not truly address the legacy of slavery, Jim Crow laws, mass incarceration, or generations of racial subjugation. Incorporating remedial measures such as the aforementioned implicit association tests, raises the consciousness of the majority about the pervasiveness of their own privilege. Furthermore, it forces a reckoning that is long overdue in this country wherein "otherness" is finally acknowledged and appreciated. By design, racism divides. Such division creates and atmosphere where one group gets to remain comfortable in what criminal attorneys call willful blindness. Once the "reckoning" occurs ignorance is replaced with awareness that marginalized people are owed respect and reparations. Programs such as affirmative action are hands up, not hand outs because it is an acknowledgement that the system was built on our back. Through this "reckoning", there is some hope that “race or gender conscious will become presumably unnecessary when the nation’s implicit bias against those social categories goes to zero or its negligible equivalent[4]”. Maybe then will the government truly achieve the equality the Civil Rights Act seeks to create.
[1] Page 1, Taxman v. Board of Education of Township of Piscataway, 91 F3d 1547 (3rd Cir. 1996)
[2] Plessy v. Ferguson, 163 U.S. 537 (1896)
[3] Fair Measures: A Behavioral Realist Revision of Affirmative Action, 94 CAL. L. Rev. 1063(2006)
[4] Fair Measures pg. 18
Abigail Fisher, plaintiff in Fisher v. University of Texas at Austin