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April 25, 2014

Continuing Divisive Action No More

Joe Charlebois

The Supreme Court of the United States, in a six-to-two ruling, decided in favor of the right of the citizens to determine if affirmative action policies could be ended or extended in their own jurisdictional boundaries.


Many of those who agree with the dissenting opinion from Justice Sonia Sotomayor look at this ruling as a setback for the rights of minorities. What the majority opinion states is actually a return to common sense.


It wasn’t too long ago that American citizens where held back, looked over, ignored or even outright dismissed based on one determinant – the color of their skin. Qualified applicants for jobs or college admissions were denied employment or acceptance due to discriminatory practices and prejudices based on stereotypical grounds or outright racism.


Barely three months into his administration, President John F. Kennedy signed Executive Order 10925 to promote “affirmative steps” to more fully realize a national policy on nondiscrimination within the Executive Branch. This order established the Equal Employment Opportunity Commission (EEOC); it called for studies on hiring practices by the federal government, and it set up guidelines for contractors to eliminate discriminatory practices.


President Kennedy wasn’t the first president to attempt to end discrimination within the federal government. Both Harry S Truman and Dwight D. Eisenhower issued executive orders requiring fair employment “without discrimination because of race, color, religion, or national origin.”


In 1965 – months before he would issue Executive Order 11246 – President Lyndon B. Johnson spoke of why he would be requiring the steps that President Kennedy spoke of and put the force of government behind them. Speaking to the graduating class of Howard University, he said: “This is the next and more profound stage of the battle for civil rights. We seek not just freedom but opportunity – not just legal equity but human ability – not just equality as a right and a theory, but equality as a fact and as a result."


As with many well-intended actions, the consequences of the heavy hand of government were unforeseen. In the 70’s the University of California instituted two candidate pools. One was for white applicants, while the other was for economically disadvantaged or minority applicants.


A quota based system was established that would require a specific number of applicants come from economically disadvantaged or minority student pool even if their qualifications were inferior to those of the other pool of candidates. One specific case that addressed this was heard before the Supreme Court.


Allan Bakke – a white student – was twice turned away from admission to UC-Davis Medical School even though many of the separate minority pool applicants that were accepted had significantly lower scores. In Regents of the University of California v. Bakke, the Supreme Court ruled that although race could be considered in the application process, the use of strict quotas was an illegitimate policy.


In the 1980’s the Jackson, Michigan Board of Education and it’s teacher’s union agreed to adding a provision to the collective bargaining agreement that stated in the event of layoffs the most senior teachers would be retained with the effect that minority teachers could not be laid off at a greater percentage than the current workforce. Since many of the newer teachers were considered minorities, this had a disproportionate effect on more senior teachers who were not considered minorities.


The non-minority teachers affected by the layoffs, who also held seniority over the minority teachers with lesser seniority, sued the Jackson Board of Education. After several appeals, the case – Wygant et al v. Jackson Board of Education – reached the U.S. Supreme Court. The court overturned the lower court rulings by ruling narrowly in their favor.


There are many other examples that could illustrate the “eliminating discrimination by creating discrimination” problem with affirmative action policies, but the continued promotion of opportunities to “disadvantaged” minority groups through proactive programs and initiatives that have as the effect an unfair advantage for any American on the basis of skin color – by its very nature – is one of the many factors that continue to divide Americans on the basis of race.


Decisions in regard to hiring practices or acceptance into a university should never be based on the color of one’s skin. These decisions should only be based on merit and/or need.


We may live in a society where prejudices based on race still exist, but we must stop continuing to treat people of color as second class citizens. We live in an era where we have elected a bi-racial president born of a Kenyan father and American mother.


Since the Civil Rights movement progress of the 60s established equal rights, there have been three successive “generations” of Americans born color-blind. We haven’t known a United States that doesn’t offer the same opportunities to all of her citizens. We are not so naïve that we don’t realize that there are pockets of prejudice and racism still in existence today, but to say there exists a broad culture of racism is in itself naïve.


Should laws continue to protect Americans based on race, religion, ethnicity and sex still exist? Absolutely! Should affirmative action programs that actively promote one person over another based solely on skin color or minority status still exist? No.


President Bill Clinton agreed. In a memorandum regarding affirmative action in July 1995, he sought the end of any program that "(a) creates a quota; (b) creates preferences for unqualified individuals; (c) creates reverse discrimination; or (d) continues even after its equal opportunity purposes have been achieved."


Although the ruling of the Supreme Court this week focused on the rights of citizens to determine how or if they will establish an affirmative action program in their own state, it clearly sent a message that addresses President Clinton’s directive that these programs should cease after equal opportunity purposes have been achieved.


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