Affirmative Action- Team 1

Affirmative action can be defined as an action or policy favoring those who tend to suffer from discrimination, especially in relation to employment or education; positive discrimination.  There are opposing viewpoints on Affirmative Action.  

College Admission  Affirmative Action plans and Workplace Affirmative Action plans are two areas that have been in the spotlight over the last 50 years.  We have highlighted the opposing viewpoints as well as a timeline of Affirmative Action events below.  

Affirmative Action in School Admission Policy Timeline (selected cases):
1954 - The U.S. Supreme Court, in Brown v. Board of Education, rules that the "separate but equal" doctrine violates the Constitution.

1961 - President John F. Kennedy creates the Council on Equal Opportunity in an Executive Order. This ensures that federal contractors hire people regardless of race, creed, color or national origin.

1964 - The Civil Rights Act renders discrimination illegal in the workplace.

1978 - In Regents of the University of California v. Bakke, a notable reverse discrimination case, the Supreme Court rules that colleges can't use racial quotas because it violates the Equal Protection Clause. However, race can be used as one factor for admission.

1995 - The University of Michigan rejects the college application of Jennifer Gratz, a top high school student in suburban Detroit who is white.

October 14, 1997 - Gratz v. Bollinger, et al, is filed in federal court in the Eastern District of Michigan. The University of Michigan is sued by white students, including Jennifer Gratz and Patrick Hamacher, who claim the undergraduate and law school affirmative action policies using race and/or gender as a factor in admissions is a violation of the Equal Protection Clause of the Fourteenth Amendment or Title VI of the Civil Rights Act of 1964.

December 3, 1997 - A similar case, Grutter v. Bollinger, is filed in federal court in the Eastern District of Michigan. Barbara Grutter, denied admission to the University of Michigan Law School, claims that other applicants, with lower test scores and grades, were given an unfair advantage due to race.

December 2000 - The judge in the Gratz v. Bollinger cases rules that the University of Michigan's undergraduate admissions policy does not violate the standards set by the Supreme Court.

March 2001 - The judge in the Grutter v. Bollinger cases rules the University of Michigan Law School's admissions policy is unconstitutional.

December 2001 - The Sixth Circuit Court of Appeals hears appeals in both University of Michigan cases.

May 14, 2002 - The Sixth Circuit Court of Appeals reverses the district court's decision in Grutter v. Bollinger.

January 17, 2003 - The administration of President George W. Bush files a friend-of-the-court brief with the Supreme Court, opposing the University of Michigan's affirmative action program.

April 1, 2003 - The U.S. Supreme Court hears oral arguments on the two cases. U.S. Solicitor General Theodore Olson offers arguments in support of the plaintiffs.

June 23, 2003 - The Supreme Court rules on Grutter v. Bollinger that the University of Michigan Law School may give preferential treatment to minorities during the admissions process. The law school policy is upheld by a vote of 5-4.

June 23, 2003 - In Gratz v. Bollinger, the undergraduate policy in which a point system gave specific "weight" to minority applicants is overturned 6-3.

December 22, 2003 - The Supreme Court rules that race can be a factor in universities' admission programs but it cannot be an overriding factor. This decision impacts the Grutter and Gratz cases.

November 7, 2006 - The Michigan electorate strikes down affirmative action by approving a proposition barring affirmative action in public education, employment, or contracting.

January 31, 2007 - After the Supreme Court sends the case back to district court, the case is dismissed. Gratz and Hamacher settle for $10,000 in administrative costs, but do not receive damages.

2008 - Abigail Noel Fisher, a white woman, sues the University of Texas. She argues that the university should not use race as a factor in admission policies that favor African-American and Hispanic applicants over whites and Asian-Americans.

July 1, 2011 - An appeals court overturns Michigan's 2006 ban on the use of race and/or gender as a factor in admissions or hiring practices.

November 15, 2012 - The U.S. 6th Circuit Court of Appeals throws out Michigan's 2006 ban on affirmative action in college admissions and public hiring, declaring it unconstitutional.

June 24, 2013 - The Supreme Court doesn't rule on the school admission policy for the University of Texas; instead it sends it back to the lower court for further review.

October 15, 2013 - The U.S. Supreme Court hears oral arguments in a case concerning Michigan's 2006 law on affirmative action.

April 22, 2014 - In a 6-2 ruling, the Supreme Court upholds Michigan's ban of using racial criteria in college admissions.

CNN: Fast Facts (http://www.cnn.com/2013/11/12/us/affirmative-action-fast-facts/

Affirmative Action in the Workplace

The case of the New Haven 20 is an example of Affirmative Action in the workplace. This case was in regards to a test taken by the New Haven firefighters in efforts of obtaining a promotion. With the results coming in as follows, the test was thrown out due to the cities fear of disparate impact, and the city was sued:

  • The passage rate for the Captain exam was: 16 (64%) of the 25 whites; 3 (38%) of the 8 blacks; and 3 (38%) of the 8 Hispanics.[7] Under the City Charter's "Rule of Three" the top 9 scorers would be eligible for promotion to the 7 open Captain positions; the top 9 scorers consisted of 7 whites, 2 Hispanics, and no blacks.1
  • The passage rate for the Lieutenant exam was: 25 (58%) of the 43 whites; 6 (32%) of the 19 blacks; 3 (20%) of the 15 Hispanics. Under the City Charter's "Rule of Three" the top 10 scorers would be eligible for promotion to the 8 open Lieutenant positions; the top 10 scorers were all white.1

The primary defendant in this case, Frank Ricci, put forth the following efforts in preparation for this test  “Ricci gave up a second job to have time to study for the test. Because he has dyslexia, he paid an acquaintance $1,000 to read his textbooks onto audiotapes. Ricci also made flashcards, took practice tests, worked with a study group, and participated in mock interviews”1

Ricci took sixth place. He would've received a promotion.

The results of the case were as follows:

"The Supreme Court heard the case on April 22, 2009, and issued its decision on June 29, 2009. The Court held 5–4 that New Haven's decision to ignore the test results violated Title VII because the city did not have a "strong basis in evidence" that it would have subjected itself to disparate-impact liability if it had promoted the white and Hispanic firefighters instead of the black firefighters. Because the plaintiffs won under their Title VII claim, the Court did not consider the plaintiffs' argument that New Haven violated the constitutional right to equal protection."1

Reference:

1http://en.wikipedia.org/wiki/Ricci_v._DeStefano

Questions for the class:

  1. What theory, if any, would support the cities decision to throw out the test scores?
  2. Do you think this would’ve had the same outcome if the firefighters mission had included diversity?

Ethical arguments for affirmative action:

Ethical arguments for affirmative action:

Let us examine the ethical justification of affirmative action using five major categories of ethical theories.

  • 1. Justice
  • 2. Democracy
  • 3. Social Utility
  • 4. Feminist ethics of care
  • 5. Game Theory

Justice

According to L & Bowie, ethical theory and business and Howard”, they both argue that African Americans have suffered centuries of injustice; therefore they are underrepresented in economic activities and social opportunities. Their argument is based on the morale obligation to remedy an injury caused to an innocent individual by the perpetrator of a wrongdoing. They assets that the descendants of the victim of slavery and prejudice deserve reparation and restitution; however, when we analyze the issue on hand, we see that there are basically two opposing viewpoint as the individuals, who are compensated, are not the victims; and, the individuals, who pay the compensation, didn’t do anything discriminatory. In summary, the compensatory justice constitutes a strong view of affirmative action to remedy the situation through the direct intervention of the government and tide system of regulations, quotas, and taxation.

Democracy

The most common argument in favor of affirmative actions is based on the ideal of a democratic society. Many scholars have argued that creating the knowledge capital of all citizens will contribute to bridge the social and economic gap between the underrepresented minority groups and the majority. Without the affirmative action the colleges and universities will not be diverse enough to reflect different cultures in the society. Robert Post and Michael Rogin in their book “Race and Representation: Affirmative Action” continues to argue that, “A political culture without such participation would be neither democratic nor healthy, but merely repressive. In the United States racial and ethnic identities mark lines of intense political division. If the racial and ethnic rifts that divide us are to be transcended by a democratic state that is legitimate to all sides, there must be articulate participation in public culture that concomitantly spans the lines of controversies”. There is a democratic interest to promote social integrity and diversity. Thus, the citizens from different social and ethnic groups could share their viewpoints and life experiences with one another helping to have an open dialogue among all people from all backgrounds.

Social Utility

As we’ve outlined in our previous arguments in favor of preferential treatment from a compensatory justice perspective often called backward looking compensatory rationales. By opposition, forward looking argument can be made by aiming remedy against existing discrimination practices based on the idea of equality and principle of utilitarian ethics. For example, preferred treatment of women is given in many instances and that may be beneficial them from this to correct a sexist perception bias in the evaluation of female candidates at work or any social structure.

Feminist ethics of care

Simson RS in “Feminine Thinking - Social Theory and Practice,” explains “Over the past 25 or so years, women in the U.S. have benefited from the removal of most sex-based formal barriers to higher education and to well-paying jobs. Still, even the most privileged American women—that is, those not encumbered by disadvantages linked to race, class, and so on—continue to be underrepresented within the most influential ranks of American society. There are, no doubt, many complex reasons for this, but a good case can be made that one contributing factor is that the traditional predominance of men in powerful positions has resulted in masculine ways of thinking becoming accepted as standard. To be successful, women very often have needed to "think like a man." Although some women find masculine ways of thinking quite natural, many others find them alienating and frustrating and have difficulty using them with success.”

I think this summarize the advantage of having affirmative action based on feminist ethics of care.

Game Theory

The game theory provides guiding principles and rules to engage in many fields of economic activities and how-to play “the game”. The concept of a game suggests that one is not really concerned about the reality and the outcome of a game should not impact an individual well-being and moral characters, since it is understood that it is just a game and not reflection of a person over all status. The concept of the game theory to maximize someone beneficial position could lead a disaster from a society perspective. The game theory doesn’t take into consideration the complexity of social issues, and human behaviors. The fact that the women and minorities are underrepresented in the business activities and is compensated less than the majority of the population might not be a big deal for a game theorist. As Bertrand Russell said once, “we are not calculating creatures” and have ethical and moral concerns about people who being denied a fair share of economic prosperity and lack of basis rights and human dignity to have decent jobs, housing, medical care, education, and celebrated for their uniqueness and culture heritage.



Ethical Arguments against affirmative action:

Ethical Arguments against affirmative action

1. Kant argues that every person is worthy of respect, obviously affirmative action does not respect every person. Because the affirmative action treat people with same effort differently,  a white student can not get the same opportunity as minority students when they have the same effort.  So the affirmative action is actually a reverse discrimination that people used to fix past discrimination.

2. Kant also argues that "A good will is not good because of what it effects or accomplishes, it is good in itself." We have affirmative action because we want it to compensate those people who tend to suffer from discrimination, so we want the effects or accomplishes. The affirmative action itself is actually a discrimination, even it may be called positive discrimination, but it is still a discrimination, it is not good itself.

3. Treat persons as ends, Kant argues "every rational being, exists as an end in himself, not merely as a means for arbitrary use by this or that will".  When those university claim that their affirmative action policy is for providing the diversity of the campus or industry. They are treating those students not as ends but the means to create diversity.

4. Maximize the happiness. By doing affirmative action, we give happiness to those people who shouldn't get those happiness, but we also deprive the happiness form the people whose effort are deserve those happiness. We are not maximize the happiness by doing affirmative action, minorities and women from lower classes aren't helped by affirmative action, only those individuals from privileged backgrounds, and also Diversity of opinion isn't created by diversity of race or gender.

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