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FDR Forbids Discrimination - History

FDR Forbids Discrimination - History

June 25, 1941: President Franklin Roosevelt signed an executive order forbidding discrimination in the defense industries and government training programs. Roosevelt signed the order after he was unable to convince Black leaders, led by A. Philip Randolph, to stop organizing a march on Washington by Blacks. When Roosevelt signed the order, the Black leaders called off their march.

Executive Order 8802: Prohibition of Discrimination in the Defense Industry (1941)

In June of 1941, President Roosevelt issued Executive Order 8802, banning discriminatory employment practices by Federal agencies and all unions and companies engaged in war-related work. The order also established the Fair Employment Practices Commission to enforce the new policy.

In early July 1941, millions of jobs were being created, primarily in urban areas, as the United States prepared for war. When large numbers of African Americans moved to cities in the north and west to work in defense industries, they were often met with violence and discrimination. In response, A. Philip Randolph, president of the Brotherhood of Sleeping Car Porters, and other black leaders, met with Eleanor Roosevelt and members of the President’s cabinet. Randolph presented a list of grievances regarding the civil rights of African Americans, demanding that an Executive order be issued to stop job discrimination in the defense industry. Randolph, with others, threatened that they were prepared to bring "ten, twenty, fifty thousand Negroes on the White House lawn" if their demands were not met. After consultation with his advisers, Roosevelt responded to the black leaders and issued Executive Order 8802, which declared, "There shall be no discrimination in the employment of workers in defense industries and in Government, because of race, creed, color, or national origin." It was the first Presidential directive on race since Reconstruction. The order also established the Fair Employment Practices Committee to investigate incidents of discrimination.


Franklin D. Roosevelt

Why Famous: Previously a member of the New York State Senate, the Assistant Secretary for the Navy and the Governor of New York, Roosevelt defeated Herbert Hoover in the 1932 presidential election.

The early years of his presidency took place in the midst of the Great Depression. To combat this he instituted his wide-ranging New Deal policies, which included a large number of programs to produce relief in the form of government jobs for the unemployed, recovery through spurring economic growth and reform through new Wall Street regulations.

As World War II approached, Roosevelt's initial policy was neutrality, but he supported the Allies with armaments and financial payments. Following Japan's attack on Pearl Harbor, which he declared a "date which will live in infamy", he declared war on Japan, and Germany declared war on the United States in return.

In this position he oversaw the successful American war effort. By the time of his unexpected death in April 1945, Germany was days from final surrender and Japan was also nearing defeat.

Born: January 30, 1882
Birthplace: Hyde Park, New York, USA
Star Sign: Aquarius

Died: April 12, 1945 (aged 63)
Cause of Death: Stroke


Early political activities

Motivated by his cousin Theodore, who continued to urge young men of privileged backgrounds to enter public service, Roosevelt looked for an opportunity to launch a career in politics. That opportunity came in 1910, when Democratic Party leaders of Dutchess county, New York, persuaded him to undertake an apparently futile attempt to win a seat in the state senate. Roosevelt, whose branch of the family had always voted Democratic, hesitated only long enough to make sure his distinguished Republican Party relative would not speak against him. He campaigned strenuously and won the election. Not quite 29 when he took his seat in Albany, he quickly won statewide and even some national attention by leading a small group of Democratic insurgents who refused to support Billy Sheehan, the candidate for the United States Senate backed by Tammany Hall, the New York City Democratic organization. For three months Roosevelt helped hold the insurgents firm, and Tammany was forced to switch to another candidate.

In the New York Senate Roosevelt learned much of the give-and-take of politics, and he gradually abandoned his patrician airs and attitude of superiority. In the process, he came to champion the full program of progressive reform. By 1911 Roosevelt was supporting progressive New Jersey Gov. Woodrow Wilson for the Democratic presidential nomination of 1912. In that year Roosevelt was reelected to the state senate, despite an attack of typhoid fever that prevented him from making public appearances during the campaign. His success was attributable in part to the publicity generated by an Albany journalist, Louis McHenry Howe. Howe saw in the tall, handsome Roosevelt a politician with great promise, and he remained dedicated to Roosevelt for the rest of his life.

For his work on behalf of Wilson, Roosevelt was appointed assistant secretary of the navy in March 1913. Roosevelt loved the sea and naval traditions, and he knew more about them than did his superior, navy secretary Josephus Daniels, with whom he was frequently impatient. Roosevelt tried with mixed success to bring reforms to the navy yards, which were under his jurisdiction, meanwhile learning to negotiate with labour unions among the navy’s civilian employees.


The Nightmare World of Anti-Discrimination Law

The United States today has employment discrimination laws that could have been written by the Queen of Hearts in Alice in Wonderland. They are a tangle of contradictions that stand the most elementary notion of fairness on its head. They are the all-too-real horrors that govern employment decisions every day in America.

The law, in its majesty, specifically forbids an employer to discriminate by race. Yet, the law punishes an employer who does not discriminate by race. The law specifically forbids racial quotas in hiring. Yet it punishes those who do not hire by racial quota.

The law is in manifest contradiction with itself because what its language requires — non-discrimination — will never produce what social dogma demands: equal results. Whenever the law of non-discrimination conflicts with the dogma of equal results, it is the law that must be changed, reinterpreted, or simply ignored. Thus, in the name of non-discrimination America practices discrimination in the name of equality it practices injustice. The results are hypocrisy, cynicism, and a seething resentment that will only grow with the passage of time.

The Theory of Non-Discrimination

Though scarcely anyone dares take this position any longer, there is much to be said for giving employers the freedom to discriminate entirely as they see fit, and letting the laws of the market punish those who make irrational choices. Americans lost this freedom nearly 30 years ago, and ever since the Civil Rights Act of 1964, it has been illegal for an employer to consider race as a criterion for employment. Most Americans have been taught to think that this is fair.

It was about the time of the Civil Rights Act that it became obligatory for Americans to believe that people of all races are equally capable in every field. Inherent equality, combined with equal treatment under the law, would quickly produce a society in which there were just as many blacks as whites who were doctors, lawyers, and millionaires.

This theory had an important corollary that few people understood at the time: For as long as there continued to be disproportionately more white lawyers and doctors, it would be proof that white racism was holding blacks back. This is the crucial assumption behind today’s employment laws. They are based on a syllogism that is almost never made explicit and certainly must never be examined: All races are inherently equal whites are better off than blacks therefore, the difference must be due to racism.

This explains why our employment laws are such a swamp of contradictions. They require equal treatment of the races and equal results. Since this is impossible, they require equal results and the pretense of equal treatment. Maintaining the pretense of equal treatment is a matter of definitions. Any selection process, no matter how fair it may appear to be, is discriminatory by definition if it results in success rates that differ by race. This is one of the unquestioned dogmas of American employment law, and has given rise to such doubtful and even hilarious notions as “test bias” (see following article) and “disparate impact.”

Disparate impact doctrine was built up through court decisions in the early 1970s, and formalized as law in the Civil Rights Act of 1990. It ensures that employers get minimally qualified workers, and it works like this. If an employer requires that his clerks be high school graduates, and if he selects those clerks without regard to race from among the available pool of high school graduates, he is probably guilty of racial discrimination. The reason is that more whites than blacks graduate from high school. Requiring clerks to have a diploma has a “disparate impact” because it keeps out more blacks than whites.

Congress passes another civil rights bill.

Obviously, there must be job standards of some kind. Clerks should presumably be able to read, but must they be high school graduates? The employer might prefer that they be, but the 1990 law requires that all employment standards be “job related” and have a significant relationship to “business necessity.” No one knows exactly what these phrases mean, but Congress was trying to codify the thinking of dozens of court decisions. It will take years of litigation to tease out the ultimate legal definition of “business necessity,” but the end result will be that employers must lower hiring standards to the minimum. Anything else will be seen as discrimination against blacks, since blacks are less qualified, across the board, than whites.

A society not obsessed with equal results would want job standards to be as high as possible. There is nothing racially discriminatory about requiring clerks to have not just a high school diploma but a college degree. In today’s America, that would not be considered an attempt to get the finest possible workforce. It would be clear evidence of racial discrimination, since more whites than blacks have college degrees.

Since the 1970s, when “disparate impact” slipped into the corporate lexicon, many companies have sidestepped the question by quietly establishing hiring quotas. So long as blacks are present in the workforce in the same proportion as in the surrounding population, the question of “disparate impact” does not usually arise.

Most companies also got rid of job tests, since they had disparate impacts, just like standards. Unless an employer could show in court that a test measured the rock-bottom, minimum requirements for the job — and nothing else — it was racially discriminatory if it had a disparate impact. Any meaningful test has a disparate impact, and the only way that could be justified was by using a separate, narrow, specific, lawyer-proof test for every different job — an approach that was killingly expensive.

In the case of job standards, sometimes the doctrine of disparate impact simply led to their elimination. For example, most fire and police departments used to turn away applicants who had been dishonorably discharged from the military or who had criminal records. As a legal manual for fire departments explains, that would now be racial discrimination:

The EEOC has ruled that a requirement that applicants who have served in the armed forces must have an honorable discharge is not a valid prerequisite. The reason is that twice as many blacks receive dishonorable discharges as whites, indicating “racism” as the most significant factor in this disparity. The commission also has ruled that arrest records cannot be used to disqualify applicants, as experience shows blacks are arrested substantially more frequently than whites in proportion to their numbers. (Callahan & Bahme, Fire Service and the Law, p. 56.)

The EEOC has also ruled that it is discriminatory to examine an employee’s credit history, which is something a company might do if the employee were to be given financial responsibility. Blacks have poorer credit histories than whites — which proves only that credit histories are “racist” — so credit histories can no longer be consulted. Taken to its limit, the logic of disparate impact requires the elimination of every standard, qualification, or test that gives different results by race. Nearly all do, so the effect has been the steady wearing away of standards of any kind.

Race-norming to the Rescue

One of the cleverest and most logical ways America found to get around the problem of disparate impact was “race-norming.” This is a technique that combines the objectivity of standardized testing with guaranteed racial quotas. It was indeed a miracle, but one of duplicity rather than of test-making.

The General Aptitude Test Battery (GATB) is a standardized test that, until recently, was widely used to evaluate potential employees. As with all standardized tests, whites score higher on it than blacks. Since it is a test of general ability, and not one that measures the precise, minimal qualifications for a specific job, the GATB ran afoul of the doctrine of disparate impact. Nevertheless, various versions had been in use since 1947, and it is widely acknowledged to be an excellent way to pick employees for a large number of jobs. It would have been a shame to junk it, just because of the new doctrine.

In 1981, the U.S. Department of Labor skirted the problem by establishing a new way to score the test. If a black, a Hispanic, a white, and an Asian each got the same raw score of 300, for example, the black would be ranked in the 87th percentile, the Hispanic in the 74th, with the white and the Asian together in the basement in the 47th percentile. According to the Department of Labor, the test could then be used to give the job to the black, since the bias that gave rise to disparate impact had been corrected by race-norming.

The arithmetic of race-norming was simplicity itself. All applicants were compared only with people of their own races. Thus, a black who scored 300 really was in the 87th percentile — for blacks. The white who scored 300 was likewise in the 47th percentile — for whites. Thus, any employer who used race-normed scores was guaranteed to get a perfectly race-balanced workforce.

By 1986, 40 American state governments and a myriad of private companies were race-norming test results. Of the estimated 16 million candidates whose scores have been adjusted this way [Robert G. Holland, Dirty secrets,Chronicles, Feb. 1992, p. 44.], virtually none was ever told about it. Many employers who hired through state employment agencies — companies like Philip Morris, Canon, Nabisco, and Anheuser-Busch — got race-normed candidate profiles whether they knew it or not. As a result, less qualified blacks and Hispanics got the jobs that should have gone to whites and Asians. [Race-norming, WSJ, April 8, 1991, p. A18.]

A few whites eventually got wind of this system and began to complain. Race-norming got some publicity — all of it bad — and the Civil Rights Act of 1990 banned it [Timothy Noah, Agency declines to ban use of test with disparities,WSJ, Dec. 16, 1991, p. A16.] — about the only good thing the Act did.

Nevertheless, what our sage legislators didn’t realize was that forbidding disparate impact and banning race-norming were two contradictory exercises within the same law. People understand race-norming. They understand it and they don’t like it. Even some congressmen don’t like it, so when the public complained about it, it was banned. Virtually no one, certainly not a congressman, understands that the prohibition of disparate impact — the very purpose of the 1990 law — is just a different form of race-norming. It makes employers hire by racial quota. Race-norming was simply the slickest, “fairest” way to ensure competition (if only within each race) and racial quotas too. Most congressmen probably didn’t realize that by voting to ban race-norming they were banning standardized employment tests.

Racial balance and standards too.

Therefore, although the 1990 law essentially forces employers to hire by quota in order to avoid lawsuits, it deprives them of the best way to do it. Tests like the GATB have a huge disparate impact, but since they can’t be race-normed any more, it is illegal to use them.

Employers like standardized tests. They give a better prediction of how an employee will turn out than interviews, letters of recommendation, or anything else. Given the choice between doing without tests completely, and cooking the scores, employers would rather cook the scores. They know that they are going to have to hire by rough racial quota anyway, and race-norming at least lets them judge blacks against blacks, whites against whites, etc.

One of the great, unsung ironies in all this is that standardized tests were devised so that employers could make decisions according to objective standards rather than subjective preference. Now, America has returned to the days of subjective preference, but with the added bother of racial quotas.

Beyond Disparate Impact

Racial quotas? Really? Today there is not a single law on the books that requires racial hiring quotas. In fact, the Civil Rights Law of 1990 forbids them — a provision its defenders point to with some smugness. However, this prohibition is like ordering the power company to run cables underground but forbidding it to dig holes. Everyone agrees to pretend that the cables somehow got underground without any digging.

“Racial discrimination” suits are now brought strictly on the basis of numbers. It is common to read about companies that have settled “discrimination” cases with large, expensive cash settlements. Intentional discrimination is almost never proven and sometimes it is not even claimed. The charge is usually “unintentional” discrimination, and if a company’s workforce is disproportionately white, it is usually guilty without appeal. Since all races are equal, any disproportion must be the result of prejudice.

A recent suit against Northwest Airlines is entirely typical. In 1991, it gave up its battle with the EEOC and agreed to spend $3.5 million to accelerate the hiring and promotion of blacks. It also agreed to finance scholarships for black trainees, and to pay hundreds of thousands of dollars to blacks who claimed discrimination. It also agreed to pay for hearings in which thousands of non-white employees would have a chance to argue that they should have gotten jobs or promotions. The airline admitted no discrimination the case against it was based on numbers. [Airline creates affirmative action program to settle job bias suit, NYT, May 12, 1991.] It is entirely possible that Northwest never discriminated at all by race. However, the terms of its settlement require that in the future it will discriminate.

Most of the time, when companies are sued for discrimination on the basis of numbers, it is cheaper for them to negotiate a settlement rather than to do battle in court. One company that valued its good name more than the cost of defending it was Sears Roebuck. It spent 15 years fighting discrimination charges brought by the Equal Employment Opportunity Commission (and financed by the taxpayer). Its actual court trial alone, in 1984 and 1985, lasted more than ten months. The trial was not about discrimination it was about statistics. When it was over Sears had spent more than $20 million to get a verdict of innocent. [Frederick A. Lynch, Invisible Victims, (New York: Praeger Publishers, 1989), p. 145.] Is it any surprise that companies would rather buy their way out of a suit than litigate to the bitter end?

Even when a company goes out of its way to hire blacks it can still get in trouble with the law. Liberty National Bank & Trust Co. of Louisville (KY) has long had a reputation as an aggressive employer of minorities. In 1989, it made a concerted effort to hire black tellers and clerical staff. Sixteen percent of the 200 such employees the bank hired that year were black. Since this was a higher percentage than the proportion of blacks in the Louisville workforce, the bank thought it had done very well.

Not so. The Labor Department discovered that 32 percent of the applicants for those jobs were black, so the bank broke the law by hiring too few of them. In 1991, Liberty National was ordered to offer jobs to 18 blacks it had turned down two years previously. Whether or not they accepted the jobs, they were to be paid the amount of money they would have earned if they had gone to work at Liberty National in 1989 — a total of $277,833 — minus whatever money they might have made if they had, in the meantime, taken other jobs.

The bank did not discriminate against black applicants in fact it made a special effort to attract them. Yet, it found itself judged by a standard it had never anticipated. Having attracted a large number of black applicants, it “discriminated” by not having hired more of them. Merely by turning away those whom it thought unsuited for employment, it was guilty of racial discrimination. [How the right thing went awry, Business Week, July 8, 1991, p. 56.]

America’s anti-discrimination laws and the mechanisms whereby they are enforced are now in an advanced state of lunacy. After the Civil Rights Act of 1964, many American companies tried very hard not to discriminate by race. They followed hiring criteria that were race-neutral. They almost invariably ended up with a disproportionate number of white employees.

By the mid-1970s it had become clear that such companies could be sued for discrimination — not because they had discriminated, but because they had not. Because they had failed to practice affirmative action, and had failed to grant race-based preferences to non-whites, they had too many white workers. By that time, the dogma of racial equality was so firmly established that such companies had no way out. If they had a disproportionate number of white workers, it could only be because they had discriminated against non-whites. Many companies paid up others wised up.

Today, there are few major companies left in America that do not systematically slant their hiring practices in favor of non-whites. In a 1989 survey of Fortune 500 executives, only 14 percent reported that they ignored race and hired strictly on the basis of merit. The EEOC would love to know which companies were in that 14 percent. They are perfect targets for discrimination suits.

Free to Choose

Should there be laws against racial discrimination in employment? Most Americans think so. They have been persuaded to forget that discrimination is a form of freedom — and an important one.

The essence of freedom is choice. People choose their employers, their neighborhoods, their pastimes, and their spouses for whatever reasons they like. They needn’t justify those choices to anyone, and certainly not to some busybody from the government.

A decision to take employment, like the decision to take a spouse, is a private one. A man can turn down a job, just as a woman can turn down a marriage proposal, for absolutely any reasons. Those reasons may seem irrational to someone else, but they are certainly not illegal.

Why should people who offer employment have their choices circumscribed by law? Why must an employer justify his choices to the government or to anyone else? Most people are not employers, so they never think about the freedoms that employers have lost. A company can no longer simply hire the people it wants it must hire only those people whom the government permits it to hire.

The same is true for dismissing employees. In most cases, a worker is free to quit at any time for any reason. Equal freedom for the employer would be the right to fire a worker at any time for any reason. Employers lost that freedom long ago.

In conditions of real liberty, an employer is free to hire only left-handed people over six feet tall, if that is what he wants. And, of course, in conditions of real liberty an employer may hire only whites or only blacks, if that is what he wants. Americans had that freedom until the Civil Rights Act of 1964 was passed.

Did they exercise it? Some did, and some did not. The laws of supply and demand have a remarkable power to match workers with jobs, without regard to race. The reason Jim Crow laws were passed to ban blacks from certain jobs is that was the only way to keep them out. Even in the South of 50 or 60 years ago, whites could not be counted on to put racial solidarity ahead of profits if they could find a black man who could do the job.

More recently, South Africa has had similar laws for similar reasons. Until they were dismantled along with Apartheid, job reservation laws had to be strictly policed. White employers routinely broke them and were fined for doing so. The vast majority of employers are more interested in getting the job done than in keeping the work force white.

Therefore, although popular mythology has it that blacks got white-collar jobs only after the passage of anti-discrimination laws, that is not true. There were innumerable black entrepreneurs and professionals, and some held high positions. Franklin Roosevelt appointed the first black federal judge in 1937, and a black congressman became head of the Government Operations Committee in 1949. In 1940, Richard Wright’s Native Son was a Book-of-the-Month Club selection, and in 1950 Gwendolyn Brooks won the Pulitzer Prize for poetry. During the Second World War, four Merchant Marine ships had black captains who commanded white crews, and in 1945, a black officer was given command of an American military base for the first time. [National Research Council, A Common Destiny, Blacks in American Society (Washington: National Academy Press, 1989), pp. 64ff, 101, 241.]

In pre-Civil Rights days, whites hired blacks and associated with them only if they wanted to. Some did and some didn’t. That is called choice. Blacks rose to high positions because they were capable, not because they were black. Some blacks were doubtless shut out of opportunities because they were black, but at least there was freedom — the freedom to discriminate.

Anti-discrimination is now a national obsession. What we have forgotten, in the Land of the Free, is that discrimination is a form of choice, and that choice is the essence of freedom.


Home Owners’ Loan Corporation (HOLC)

During the late 1930s, the HOLC—a federal agency—was created under the New Deal. The New Deal was a series of programs enacted by President Franklin Delano Roosevelt intended to help the U.S. recover from the Great Depression. The HOLC drafted “Residential Security” maps of major cities as part of its City Survey Program.

To create the maps, HOLC examiners classified neighborhoods on a “perceived level of lending risk” based on information they gathered from local appraisers, bank loan officers, city officials, and real estate agents. According to the National Community Reinvestment Coalition, the examiners graded the neighborhoods based on factors such as:  

  • The age and condition of the housing
  • Access to transportation
  • The closeness of popular amenities such as parks
  • Proximity to undesirable properties such as polluting industries
  • The residents’ economic class and employment status
  • The residents’ ethnic and racial composition

The neighborhoods were color-coded on maps, with each color representing the area’s perceived risk to lenders.  

HOLC Maps
Color Grade HOLC Description
Green A “Best” HOLC described A areas as “‘hot spots’…where good mortgage lenders with available funds are willing to make their maximum loans…—perhaps up to 75-80% of appraisal.”
Blue B “Still Desirable” HOLC described B areas as “still good” but not as “‘hot’ as A areas.” “They are neighborhoods where good mortgage lenders will have a tendency to hold commitments 10-15% under the limit,” or around 65% of appraisal.
Yellow C “Definitely Declining” C neighborhoods were characterized by “obsolescence [and] infiltration of lower grade population.” “Good mortgage lenders are more conservative in Third grade or C areas and hold commitments under the lending ratio for the A and B areas.”
Red D “Hazardous” HOLC described D areas as “characterized by detrimental influences in a pronounced degree, undesirable population or an infiltration of it.” It recommended lenders “refuse to make loans in these areas [or] only on a conservative basis.”

Neighborhoods with predominantly minority populations were colored red—hence, “redlined.” These areas were considered high risk for lenders. According to the University of Richmond’s Mapping Inequality project, “Conservative, responsible lenders, in HOLC judgment, would refuse to make loans in these areas [or] only on a conservative basis.”  


America’s tragic history of discrimination against Asian-Americans

The United States of America was founded on the noble premise that all men are created equal. This right is so important that we fought a Civil War over the principle. Following that war, the Fourteenth Amendment was added to our Constitution to ensure that state and local governments must also treat all individuals equally before the law.

Despite the promise of this inalienable individual right, governments of all levels have—and continue to have—a sordid history of treating individuals unequally along racial and ethnic lines. Jim Crow laws immediately and rightly come to mind. Less reported, however, is state-sponsored discrimination against Asian-American individuals.

In the 1850s, the United States saw an influx of Chinese immigrants in search of work in the mining and railroad industries. With railroad expansion, this new infrastructure offered new opportunities for immigrants looking to better their lives and grab their slice of the American Dream.

These jobs were high risk and came with low wages, but many Chinese immigrants were willing to accept these terms in exchange for a better life in a country that prides itself on being a land of opportunity.

But some Americans were not waiting to embrace the surge of Chinese immigrants with open arms. Instead, the belief that Asians were coming to steal “white jobs” spread like wildfire.

These anti-Chinese sentiments pervaded the justice system—the very institution that was supposed to uphold equality under the law. In the 1854 case of People v. Hall, the California Supreme Court ruled that an individual of Asian descent could not testify against a white person in court.

In that case, George Hall shot and killed Ling Sing, a Chinese immigrant. The primary witness to the crime was also Chinese, rendering him/her unable to legally testify.

Imagine that you witness a violent crime and are legally forbidden from testifying against the attacker. This seems unfathomable in the land of the free, but this is exactly what happened when the California justice system failed to uphold the promise of equal protection.

In 1871, the “Chinese Massacre” occurred in California and 17 Chinese men and boys were lynched. The violence was the result of an altercation between two rival Chinese groups. A white man got caught in the middle and was killed, resulting in more than 500 white and Hispanic rioters surrounding and attacking a Chinese community in Los Angeles.

For a split second, it looked like some justice would be served when eight of the rioters were convicted of manslaughter. But their convictions were soon overturned, and no one else faced repercussions for the lynching.

In 1875, the United States passed the first restrictive immigration law in history. The law restricted the entry of Chinese women and was rationalized as being a safeguard against the belief that these women were “temptations for white men.”

As the 1870s dragged on, the U.S. economy took a turn for the worse. Looking for a scapegoat, the public cast blame on Chinese immigrants. The situation did not improve as America entered the 1880s.

As the mining industry continued to boom out West, Chinese immigrants continued to be demonized by some Americans who claimed they were stealing their jobs.

The Chinese Exclusion Act of 1882 passed with overwhelming support, prohibiting the immigration of all Chinese individuals for 10 years.

In 1885, Rock Springs, Wyoming, set the stage for the next act of mass violence against Chinese Americans miners when a mob of around 150 people surrounded the mine and killed 28 people and burned nearly 30 homes.

In the midst of the chaos, many Chinese miners were able to escape the violence by fleeing to a nearby town to wait out the storm. This offered only a false sense of security, as those seeking protection were told that a train was waiting to take them farther away from the fighting. Instead, it took them back to the center of the violence.

Eventually, federal troops were brought in to impose order, a protection that did not end for 13 years.

As if the 1882 Chinese Exclusion Act wasn’t bad enough, the Geary Act of 1892 prolonged the prohibition of Chinese immigrants for an additional 10 years. The law also required Chinese immigrants to carry IRS-issued “certificates of residence” with them at all times. An individual caught without the proper documentation faced deportation or hard labor. Bail was a possibility, but only if a “credible” white witness spoke on their behalf.

In 1900, bubonic plague made a resurgence in San Francisco. Its origins were traced back to an Australian who came to America via ship, but the first person to contract the plague in the United States was an immigrant from China.

Immediately, the public turned against the entire community. Police swarmed Chinatown, forbidding residents from leaving. But not all residents were kept under such prohibitive laws—white residents could come and go as they pleased.

Chinese residents, on the other hand, had to undergo random searches of their homes and the destruction of personal property—the very same grievance that American colonists endured at the hands of British soldiers, contributing to the start of the Revolutionary War.

The internment of Japanese-Americans by Franklin Delano Roosevelt in the wake of the attack on Pearl Harbor is probably the most well-known instance of government-sanctioned discrimination against Japanese-Americans.

After the attack, racist propaganda depicting Japanese immigrants as potential spies and a threat to American freedom became prominent. Pictures instructing Americans how they could tell the difference between Japanese immigrants and “friendly” Chinese immigrants were even featured in an issue of LIFE magazine.

The Supreme Court upheld the internment of Japanese-American in an awful 1943 decision that was explicitly overruled only in 2018.

The post-Vietnam War era saw an uptick in Vietnamese-American discrimination. While many Vietnamese immigrants fled communism in search of safety and a better life in America, they were instead met with hostility.

Many settled in Texas, where they started their own shrimping businesses. This resurrected the belief that immigrants were coming to steal white jobs. The Ku Klux Klan was quick to respond, donning their white hoods and setting shrimping boats on fire under the cloak of night.

It would be wonderful to conclude this story with a triumphant ending in which discrimination was stopped. But it continues today.

The history of discrimination against Asian-Americans has been driven by pernicious stereotypes. Many of those stereotypes persist today in the context of admissions to public and publicly funded schools.

Pacific Legal Foundation is involved in a series of cases filed against educational institutions that have changed their admissions policies in deliberate attempts to restrict the number of Asian-American students accepted to their schools. This is done in the name of “equity.”

At prestigious academic institutions like Harvard and Yale, Asian-American racism is common. Many of the progenitors of these policies claim they boost racial equity. But their policies to racially balance the schools specifically discriminate against Asian-American individuals and deny them their fundamental right to equality before the law.

Equality before the law for all individuals ought to be, in Thomas Jefferson’s words, self-evident. It is the promise of the Declaration of Independence and the Fourteenth Amendment. It is written into the fabric of America. But when one group is favored or disfavored because of race, ethnicity, nationality, or skin color, we have failed in our national promise.

This is why PLF is fighting for all individuals to be treated equally under the law. Discrimination against Asian-Americans is all too prevalent and has been tolerated for too long.

As PLF attorney Wen Fa said in his testimony before the House Subcommittee on the Constitution, Civil Rights, and Civil Liberties on the rise of Asian-American discrimination:

“One of the most important features of our republic is that we are governed by the rule of law. And there is no rule of law without equality before the law. That principle requires the government to treat us as individuals and recognizes that every individual is unique. It forbids the government from treating us differently and labeling us according to some arbitrary government-imposed stereotype. As the late Justice Scalia put it, ‘In the eyes of government, we are just one race here. It is American.’”


Contents

Origins Edit

The policy now called affirmative action came as early as the Reconstruction Era (1863–1877) in which a former slave population lacked the skills and resources for independent living. [20] In 1865, General William Tecumseh Sherman proposed, for practical reasons, to divide the land and goods from Georgia and grant it to black families, which became the "Forty acres and a mule" policy. [20] The proposal was never widely adopted due to strong political opposition, and Sherman's orders were soon revoked by President Andrew Johnson. Nearly a century later (1950s–1960s), the discussion of policies to assist classes of individuals reemerged during the Civil Rights Movement. Civil rights guarantees that came through the interpretation of the Equal Protection Clause of the 14th Amendment affirmed the civil rights of people of color. [21]

Roosevelt administration (1933–1945) Edit

The first appearance of the term 'affirmative action' was in the National Labor Relations Act, better known as the Wagner Act, of 1935. [22] : 15 Proposed and championed by U.S. Senator Robert F. Wagner of New York, the Wagner Act was in line with President Roosevelt's goal of providing economic security to workers and other low-income groups. [23] During this time period it was not uncommon for employers to blacklist or fire employees associated with unions. The Wagner Act allowed workers to unionize without fear of being discriminated against, and empowered a National Labor Relations Board to review potential cases of worker discrimination. In the event of discrimination, employees were to be restored to an appropriate status in the company through 'affirmative action'. [24] While the Wagner Act protected workers and unions it did not protect minorities, who, exempting the Congress of Industrial Organizations, were often barred from union ranks. [22] : 11 This original coining of the term therefore has little to do with affirmative action policy as it is seen today, but helped set the stage for all policy meant to compensate or address an individual's unjust treatment. [25]

FDR's New Deal programs often contained equal opportunity clauses stating "no discrimination shall be made on account of race, color or creed", [22] : 11 but the true forerunner to affirmative action was the Interior Secretary of the time, Harold L. Ickes. Ickes prohibited discrimination in hiring for Public Works Administration funded projects and oversaw not only the institution of a quota system, where contractors were required to employ a fixed percentage of Black workers, by Robert C. Weaver and Clark Foreman, [22] : 12 but also the equal pay of women proposed by Harry Hopkins. [22] : 14 FDR's largest contribution to affirmative action, however, lay in his Executive Order 8802 which prohibited discrimination in the defense industry or government. [22] : 22 The executive order promoted the idea that if taxpayer funds were accepted through a government contract, then all taxpayers should have an equal opportunity to work through the contractor. [22] : 23–4 To enforce this idea, Roosevelt created the Fair Employment Practices Committee (FEPC) with the power to investigate hiring practices by government contractors. [22] : 22

Truman administration (1945–1953) Edit

Following the Sergeant Isaac Woodard incident, President Harry S. Truman, himself a combat veteran of World War I, issued Executive Order 9808 [26] establishing the President's Committee on Civil Rights to examine the violence and recommend appropriate federal legislation. Hearing of the incident, Truman turned to NAACP leader Walter Francis White and declared, "My God! I had no idea it was as terrible as that. We've got to do something." In 1947 the committee published its findings, To Secure These Rights. The book was widely read, influential, and considered utopian for the times: "In our land men are equal, but they are free to be different. From these very differences among our people has come the great human and national strength of America." The report discussed and demonstrated racial discrimination in basic freedoms, education, public facilities, personal safety, and employment opportunities. The committee was disturbed by the state of race relations, and included the evacuation of Americans of Japanese descent during the war "made without a trial or any sort of hearing…Fundamental to our whole system of law is the belief that guilt is personal and not a matter of heredity or association." The recommendations were radical, calling for federal policies and laws to end racial discrimination and bring about equality: "We can tolerate no restrictions upon the individual which depend upon irrelevant factors such as his race, his color, his religion, or the social position to which he is born." To Secure These Rights set the liberal legislative agenda for the next generation that eventually would be signed into law by Lyndon B. Johnson. [22] : 35–36

To Secure These Rights also called for desegregation of the Armed Forces. "Prejudice in any area is an ugly, undemocratic phenomenon, but in the armed services, where all men run the risk of death, it is especially repugnant." The rationale was fairness: "When an individual enters the service of the country, he necessarily surrenders some of the rights and privileges which are inherent in American citizenship." In return, the government "undertakes to protect his integrity as an individual." Yet that was not possible in the segregated Army, since "any discrimination which…prevents members of the minority groups from rendering full military service in defense of their country is for them a humiliating badge of inferiority." The report called for an end to "all discrimination and segregation based on race, color, creed, or national origins in…all branches of the Armed Services." [22] : 38–39

In 1947 Truman and his advisors came up with a plan for a large standing military, called Universal Military Training, and presented it to Congress. The plan opposed all segregation in the new post-war Armed Forces: "Nothing could be more tragic for the future attitude of our people, and for the unity of our nation" than a citizens' military that emphasized "class or racial difference." [22] : 39–40

On February 2, 1948 President Truman delivered a special message to Congress. It consisted of ten objectives that Congress should focus on when enacting legislation. Truman concluded by saying, "If we wish to inspire the peoples of the world whose freedom is in jeopardy, if we wish to restore hope to those who have already lost their civil liberties, if we wish to fulfill the promise that is ours, we must correct the remaining imperfections in our practice of democracy." [27]

In June, Truman became the first president to address the NAACP. His speech was a significant departure from traditional race relations in the United States. In front of 10,000 people at the Lincoln Memorial, the president left no doubt where he stood on civil rights. According to his speech, America had "reached a turning point in the long history of our country's efforts to guarantee freedom and equality to all our citizens…Each man must be guaranteed equality of opportunity." He proposed what black citizens had been calling for – an enhanced role of federal authority through the states. "We must make the Federal government a friendly, vigilant defender of the rights and equalities of all Americans. And again I mean all Americans." [22] : 40

On July 26, Truman mandated the end of hiring and employment discrimination in the federal government, reaffirming FDR's order of 1941. [22] : 40 He issued two executive orders on July 26, 1948: Executive Order 9980 and Executive Order 9981. Executive Order 9980, named Regulations Governing for Employment Practices within the Federal Establishment, instituted fair employment practices in the civilian agencies of the federal government. The order created the position of Fair Employment Officer. The order "established in the Civil Service Commission a Fair Employment Board of not less than seven persons." [26] Executive Order 9981, named Establishing the President's Committee on Equality of Treatment and Opportunity in the Armed Services, called for the integration of the Armed Forces and the creation of the National Military Establishment to carry out the executive order. [28]

On December 3, 1951 Truman issued Executive Order 10308, named Improving the Means for Obtaining Compliance with the Nondiscrimination Provisions of Federal Contracts, [29] which established an anti-discrimination committee on government contract compliance responsible for ensuring that employers doing business with the federal government comply with all laws and regulations enacted by Congress and the committee on the grounds of discriminatory practices. [29]

Eisenhower administration (1953–1961) Edit

When Eisenhower was elected President in 1952 after defeating Democratic candidate Adlai Stevenson, he believed hiring practices and anti-discrimination laws should be decided by the states, although the administration gradually continued to desegregate the Armed Forces and the federal government. [22] : 50 The President also established the Government Contract Committee in 1953, which "conducted surveys of the racial composition of federal employees and tax-supported contractors". [22] : 50–51 The committee, chaired by Vice President Richard Nixon, had minimal outcomes in that they imposed the contractors with the primary responsibility of desegregation within their own companies and corporations. [22] : 51

Kennedy administration (1961–1963) Edit

In the 1960 presidential election, Democratic candidate and eventual winner John F. Kennedy "criticized President Eisenhower for not ending discrimination in federally supported housing" and "advocated a permanent Fair Employment Practices Commission". [22] : 59 Shortly after taking office, Kennedy issued Executive Order 10925 in March 1961, requiring government contractors to "consider and recommend additional affirmative steps which should be taken by executive departments and agencies to realize more fully the national policy of nondiscrimination…. The contractor will 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". [22] : 60 The order also established the President's Committee on Equal Employment Opportunity (PCEEO), chaired by Vice President Lyndon B. Johnson. Federal contractors who failed to comply or violated the executive order were punished by contract cancellation and the possible debarment from future government contracts. The administration was "not demanding any special preference or treatment or quotas for minorities" but was rather "advocating racially neutral hiring to end job discrimination". [22] : 61 Turning to issues of women's rights, Kennedy initiated a Commission on the Status of Women in December 1961. The commission was charged with "examining employment policies and practices of the government and of contractors" with regard to sex. [22] : 66

In June 1963, President Kennedy continued his policy of affirmative action by issuing another mandate, Executive Order 11114. The order supplemented to his previous 1961 executive order declaring it was the "policy of the United States to encourage by affirmative action the elimination of discrimination in employment". [22] : 72 Through this order, all federal funds, such as "grants, loans, unions and employers who accepted taxpayer funds, and other forms of financial assistance to state and local governments," were forced to comply to the government's policies on affirmative action in employment practices. [22] : 72

Johnson administration (1963–1969) Edit

Lyndon B. Johnson, the Texan Democrat and Senate Majority Leader from 1955–1961, began to consider running for high office, and in doing so showed how his racial views differed from those held by many White Americans in the traditional South. In 1957, Johnson brokered a civil rights act through Congress. The bill established a Civil Rights Division and Commission in the Justice Department. The commission was empowered to investigate allegations of minority deprivation of rights. [22] : 57

The first time "affirmative action" is used by the federal government concerning race is in President John F. Kennedy's Executive Order 10925, which was chaired by Vice President Johnson. At Johnson's inaugural ball in Texas, he met with a young black lawyer, Hobart Taylor, Jr., and gave him the task to co-author the executive order. "Affirmative action" was chosen due to its alliterative quality. The term "active recruitment" started to be used as well. This order, albeit heavily worked up as a significant piece of legislation, in reality carried little actual power. The scope was limited to a couple hundred defense contractors, leaving nearly $7.5 billion in federal grants and loans unsupervised. [22] : 60

NAACP had many problems with JFK's "token" proposal. They wanted jobs. One day after the order took effect, NAACP labor secretary Herbert Hill filed complaints against the hiring and promoting practices of Lockheed Aircraft Corporation. Lockheed was doing business with the Defense Department on the first billion-dollar contract. Due to taxpayer-funding being 90% of Lockheed's business, along with disproportionate hiring practices, black workers charged Lockheed with "overt discrimination." Lockheed signed an agreement with Vice President Johnson that pledged an "aggressive seeking out for more qualified minority candidates for technical and skill positions. [22] : 63–64 This agreement was the administration's model for a "plan of progress." Johnson and his assistants soon pressured other defense contractors, including Boeing and General Electric, to sign similar voluntary agreements indicating plans for progress. However, these plans were just that, voluntary. Many corporations in the South, still afflicted with Jim Crow laws, largely ignored the federal recommendations. [22] : 63–64

This eventually led to LBJ's Civil Rights Act, which came shortly after President Kennedy's assassination. This document was more holistic than any President Kennedy had offered, and therefore more controversial. It aimed not only to integrate public facilities, but also private businesses that sold to the public, such as motels, restaurants, theaters, and gas stations. Public schools, hospitals, libraries, parks, among other things, were included in the bill as well. It also worked with JFK's executive order 11114 by prohibiting discrimination in the awarding of federal contracts and holding the authority of the government to deny contracts to businesses who discriminate. Maybe most significant of all, Title VII of the Civil Rights Act aimed to end discrimination in all firms with 25 or more employees. Another provision established the Equal Employment Opportunity Commission as the agency charged with ending discrimination in the nation's workplace. [22] : 74

Conservatives said that Title VII of the bill advocated a de facto quota system, and asserted unconstitutionality as it attempts to regulate the workplace. Minnesota Senator Hubert Humphrey corrected this notion: "there is nothing in [Title VII] that will give power to the Commission to require hiring, firing, and promotion to meet a racial 'quota.' [. . .] Title VII is designed to encourage the hiring on basis of ability and qualifications, not race or religion." Title VII prohibits discrimination. Humphrey was the silent hero of the bill's passing through Congress. He pledged that the bill required no quotas, just nondiscrimination. Doing so, he convinced many pro-business Republicans, including Senate Minority Leader Everett Dirksen (IL) to support Title VII. [22] : 78–80

On July 2, 1964, the Act was signed into law by President Johnson. A Harris poll that spring showed 70% citizen approval of the Act. [22] : 82

Nixon administration (1969–1974) Edit

The strides that the Johnson presidency made in ensuring equal opportunity in the workforce were further picked up by his successor Richard Nixon. In 1969, the Nixon administration initiated the "Philadelphia Order". It was regarded as the most forceful plan thus far to guarantee fair hiring practices in construction jobs. Philadelphia was selected as the test case because, as Assistant Secretary of Labor Arthur Fletcher explained, "The craft unions and the construction industry are among the most egregious offenders against equal opportunity laws . . . openly hostile toward letting blacks into their closed circle." The order included definite "goals and timetables." As President Nixon asserted, "We would not impose quotas, but would require federal contractors to show 'affirmative action' to meet the goals of increasing minority employment." [30] It was through the Philadelphia Plan that the Nixon administration formed their adapted definition of affirmative action and became the official policy of the US government. The plan was defined as "racial goals and timetables, not quotas" [22] : 124

Ford administration (1974–1977) Edit

After the Nixon administration, advancements in affirmative action became less prevalent. "During the brief Ford administration, affirmative action took a back seat, while enforcement stumbled along." [22] : 145 Equal rights was still an important subject to many Americans, yet the world was changing and new issues were being raised. People began to look at affirmative action as a glorified issue of the past and now there were other areas that needed focus. "Of all the triumphs that have marked this as America's Century –. none is more inspiring, if incomplete, than our pursuit of racial justice." [31]

In the first half of the 20th century segregation was considered fair and normal. Due to changes made in American society and governmental policies the United States is past the traditional assumptions of race relations. [22] : 275

"Affirmative action is a national policy that concerns the way Americans feel about race, past discrimination, preferences, merit – and about themselves. This is why it is an American dilemma, and that is why we must understand how it developed and how its rationale and definition have changed since the 1960s." [22] : 283

Reagan administration (1981–1989) Edit

In 1983, Reagan signed Executive Order 12432, which instructed government agencies to create a development plan for Minority Business Enterprises. While the Reagan administration opposed discriminatory practices, it did not support the implementation of it in the form of quotas and goals (Executive Order 11246). [32] Bi-partisan opposition in Congress and other government officials blocked the repeal of this Executive Order. Reagan was particularly known for his opposition to affirmative action programs. He reduced funding for the Equal Employment Opportunity Commission, arguing that "reverse discrimination" resulted from these policies. [33] However, the courts reaffirmed affirmative action policies such as quotas. In 1986, the Supreme Court ruled that courts could order race-based quotas to fight discrimination in worker unions in Sheet Metal Workers' International Association v. EEOC, 478 U.S. 42. In 1987, in Johnson v. Transportation Agency, Santa Clara County, California, 480 U.S. 616, the Supreme Court ruled that sex or race was a factor that could be considered in a pool of qualified candidates by employers. [34]

Obama administration (2009–2017) Edit

After the election and inauguration of Barack Obama in the 2008 election, a huge excitement swept the nation for the first African-American president of the United States. Many supporters and citizens began to hope for a future with affirmative action that would be secure under a black president. However, progress was not as apparent within the first few years of president Obama's administration. In 2009, education statistics denote the problems of college admissions in the US: "The College Board recently released the average 2009 SAT scores by race and ethnicity. They found that the gap between Black and Latino student versus White and Asian students has widened, despite the College Board’s recent efforts to change questions to eliminate cultural biases." [35] To the administration, it was apparent that more work was needed to better the situation. The following year in 2010, Obama presented his plan regarding the past administration's policy, under George W. Bush, called the "No Child Left Behind Act." Unlike the No Child Left Behind Act, president Obama's policy would instead reward schools and institutions for working with minorities and oppressed students. Additionally, in an indirect manner, the Obama administration aimed to garner support for more federal money and funds to be allocated to financial aid and scholarships to universities and colleges within the United States. [35] They also have endorsed the decision of Fisher vs. University of Texas where the Supreme Court decision which endorses "the use of affirmative action to achieve a diverse student body so long as programs are narrowly tailored to advance this goal." [36]

Trump administration (2017–2021) Edit

The Trump administration supported rolling back Obama-era policies on affirmiation action, [37] and Trump advocated that institutions, including universities, colleges, and schools, should use "race-neutral alternatives" concerning admissions. The guidelines the administration set were aimed to curb the Supreme Court decision's in Fisher v. University of Texas. [36] [38] [39]

In 2019, the United States District Court for the District of Massachusetts ruled in Students for Fair Admissions v. President and Fellows of Harvard College, a lawsuit alleging discrimination in admission against Asian Americans by the college, that Harvard's system, while imperfect, nonetheless passed constitutional muster. [40] [41] The case has been appealed and some legal scholars predict that the lawsuit could reach the Supreme Court. [42]

Executive orders and legislation Edit

  • 1961 – Executive Order 10925, [43] issued by President Kennedy
  • 1964 – Section 717 of Title VII of the Civil Rights Act of 1964[44]
  • 1965 – U.S. Executive Order 11246 and Executive Order 11375
  • 1969 – Revised Philadelphia Plan
  • 1971 – Executive Order No. 11625, [49] issued by President Nixon
  • 1973 – Section 501 of the Rehabilitation Act of 1973
  • 1979 – U.S. Executive Order 12138 [51]
  • 1990 – Americans with Disabilities Act of 1990[52] — people with disabilities as a group were more fully recognized as being protected by this act.

Supreme Court cases Edit

  • 1971 — Griggs v. Duke Power Company, 401U.S.424 (1971) — established theory of disparate impact
  • 1974 — DeFunis v. Odegaard, 416U.S.312 (1974)
  • 1974 — Kahn v. Shevin, 416U.S.351 (1974)
  • 1974 — Morton v. Mancari, 417U.S.535 (1974)
  • 1975 — Schlesinger v. Ballard, 419U.S.498 (1975)
  • 1977 — Califano v. Webster, 430U.S.313 (1977)
  • 1978 — Regents of the University of California v. Bakke, 438U.S.265 (1978) — The UC Davis School of Medicine admissions program violated the Equal Protection Clause with the institution of quotas for underrepresented minorities. However, Justice Lewis F. Powell Jr.'s concurring opinion deemed diversity in higher education a "compelling interest" and held that race could be one of the factors in university admissions.
  • 1979 — United Steelworkers v. Weber, 443U.S.193 (1979)
  • 1980 — Fullilove v. Klutznick, 448U.S.448 (1980)
  • 1986 — Wygant v. Jackson Board of Education, 476U.S.267 (1986)
  • 1986 — Sheet Metal Workers v. EEOC, 478U.S.421 (1986)
  • 1986 — Firefighters v. City of Cleveland, 478U.S.501 (1986)
  • 1987 — United States v. Paradise, 480U.S.149 (1987)
  • 1987 — Johnson v. Transportation Agency, 480U.S.616 (1987)
  • 1989 — City of Richmond v. J.A. Croson Co., 488U.S.469 (1989) — state and local programs that use racial classifications must meet strict scrutiny
  • 1989 — Wards Cove Packing Co. v. Atonio, 490U.S.642 (1989) — revised the standards established by the 1971 Griggs decision.
  • 1990 — Metro Broadcasting, Inc. v. FCC, 497U.S.547 (1990)
  • 1992 — United States v. Fordice, 505U.S.717 (1992)
  • 1995 — Adarand Constructors, Inc. v. Peña, 515U.S.200 (1995) — federal programs that use racial classifications must meet strict scrutiny
  • 1996 — Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996) [53] — first successful legal challenge to race conscious admissions since Regents of the University of California v. Bakke
  • 2003 — Gratz v. Bollinger, 539U.S.244 (2003)
  • 2003 — Grutter v. Bollinger, 539U.S.306 (2003)
  • 2007 — Parents Involved in Community Schools v. Seattle School District No. 1, 551U.S.701 (2007)
  • 2009 — Ricci v. DeStefano, 557U.S.557 (2009)
  • 2013 — Fisher v. University of Texas I, 570U.S.297 (2013) — clarified Grutter v. Bollinger by stating that a university may not consider race as a factor in admissions unless "available, workable race-neutral alternatives do not suffice," and that such a decision warrants strict scrutiny.
  • 2014 — Schuette v. Coalition to Defend Affirmative Action, 572U.S.291 (2014) — upheld Michigan's ban on affirmative action for public institutions
  • 2016 — Fisher v. University of Texas II, No. 14-981, 579U.S. ___ (2016) — upheld the University's limited use of race in admissions decisions because the University showed it had a clear goal of limited scope without other workable race-neutral means to achieve it.
  • 2020 — Students for Fair Admissions v. President and Fellows of Harvard College, 980 F.3d 157 (1st Cir. 2020)

State cases and legislation Edit

Arizona Edit

In 2010, Arizona voters passed a constitutional ban on government-sponsored affirmative action known as Proposition 107. [56]

California Edit

  • 1946 – Mendez v. Westminster School District
  • 1967 – Penn/Stump v. City of Oakland
  • 1996 – Proposition 209
  • 2014 – Senate Constitutional Amendment No. 5
  • 2020 – Proposition 16

Florida Edit

Idaho Edit

Massachusetts Edit

Michigan Edit

Nebraska Edit

New Hampshire Edit

As of January 1, 2012 (House Bill 623), affirmative action is not allowed in college admissions and employment. [64]

Oklahoma Edit

During the November 6, 2012 election, a majority of Oklahoma voters voted to pass Oklahoma State Question 759, which ended affirmative action in college admissions and public employment. [65]

Texas Edit

Washington Edit

  • 1998 – Initiative 200
  • 2000 – Smith v. University of Washington 233 F.3d 1188 (9th Cir. 2000) [74]
  • 2003 – Parents Involved in Community Schools v. Seattle School District No. 1, 149 Wn.2d 660, 72 P.3d 151 (2003), 2003
  • 2019 – Referendum 88

President Kennedy stated in Executive Order 10925 that "discrimination because of race, creed, color, or national origin is contrary to the Constitutional principles and policies of the United States" that "it is the plain and positive obligation of the United States Government to promote and ensure equal opportunity for all qualified persons, without regard to race, creed, color, or national origin, employed or seeking employment with the Federal Government and on government contracts" that "it is the policy of the executive branch of the Government to encourage by positive measures equal opportunity for all qualified persons within the Government" and that "it is in the general interest and welfare of the United States to promote its economy, security, and national defense through the most efficient and effective utilization of all available manpower". [43]

Some individual American states also have orders that prohibit discrimination and outline affirmative action requirements with regard to race, creed, color, religion, sexual orientation, national origin, gender, age, and disability status. [75]

Proponents of affirmative action argue that by nature the system is not only race based, but also class and gender based. To eliminate two of its key components would undermine the purpose of the entire system. The African American Policy Forum believes that the class based argument is based on the idea that non-poor minorities do not experience racial and gender based discrimination. The AAPF believes that "Race-conscious affirmative action remains necessary to address race-based obstacles that block the path to success of countless people of color of all classes". The group goes on to say that affirmative action is responsible for creating the African American middle class, so it does not make sense to say that the system only benefits the middle and upper classes. [76]

A study conducted at the University of Chicago in 2003 found that people with "black-sounding" names such as Lakisha and Jamal are 50 percent less likely to be interviewed for a job compared to people with "white-sounding" names such as Emily or Greg. [77]

A 2010 study by Deirdre Bowen tested many of the arguments used by the anti-affirmative action camp. Her research showed that minority students experience greater hostility, and internal and external stigma in schools located in states that ban affirmative action—not the schools where students may have benefited from affirmative action admissions. [78]

Example of success in women Edit

Supporters of affirmative action point out the benefits women gained from the policy as evidence of its ability to assist historically marginalized groups. In the fifty years that disenfranchised groups have been the subject of affirmative action laws, their representation has risen dramatically [79] in the workforce:

Thanks in large measure to affirmative action and civil rights protections that opened up previously restricted opportunities to women of all colors, from 1972–1993:

– The percentage of women architects increased from 3% to nearly 19% of the total

– The percentage of women doctors more than doubled from 10% to 22% of all doctors

– The percentage of women lawyers grew from 4% to 23% of the national total

– The percentage of female engineers went from less than 1% to nearly 9%

– The percentage of female chemists grew from 10% to 30% of all chemists and,

– The percentage of female college faculty went from 28% to 42% of all faculty. (Moseley-Braun 1995, 8)

Furthermore, since only 1983, the percentage of women business managers and professionals grew from 41% of all such persons, to 48%, while the number of female police officers more than doubled, from 6% to 13% (U.S. Department of Commerce, Bureau of the Census 1995, Table 649). According to a 1995 study, there are at least six million women — the overwhelming majority of them white — who simply wouldn't have the jobs they have today, but for the inroads made by affirmative action (Cose 1997, 171). [80]

Need to counterbalance historic inequalities Edit

For the first 250 years of America's recorded history, Africans were traded as commodities and forced to work without pay, first as indentured servants then as slaves. In much of the United States at this time, they were barred from all levels of education, from basic reading to higher-level skills useful outside of the plantation setting. [81]

After slavery's abolition in 1865, Black-Americans saw the educational gap between themselves and whites compounded by segregation. They were forced to attend separate, under-funded schools due to Plessy v. Ferguson. Though de jure school segregation ended with Brown v. Board of Education, de facto segregation continues in education into the present day. [82]

Following the end of World War II the educational gap between White and Black Americans was widened by Dwight D. Eisenhower's GI Bill. This piece of legislation paved the way for white GIs to attend college. Despite their veteran status returning black servicemen were not afforded loans at the same rate as whites. Furthermore, at the time of its introduction, segregation was still the law of the land barring blacks from the best institutions. Overall, "Nearly 8 million servicemen and servicewomen were educated under the provisions of the GI Bill after World War II. But for blacks, higher educational opportunities were so few that the promise of the GI Bill went largely unfulfilled." [83]

According to a study by Dr. Paul Brest, Hispanics or "Latinos" include immigrants who are descendants of immigrants from the countries comprising Central and South America. [84] In 1991, Mexican Americans, Puerto Ricans, and Cuban Americans made up 80% of the Latino population in the United States. Latinos are disadvantaged compared to White Americans and are more likely to live in poverty. [84] They are the least well educated major ethnic group and suffered a 3% drop in high school completion rate while African Americans experienced a 12% increase between 1975–1990. [84] In 1990, they constituted 9% of the population, but only received 3.1% of the bachelors's degrees awarded. At times when it was favorable to lawmakers, Latinos were considered "white" under Jim Crow laws during Reconstruction. [84] In other cases, according to Paul Brest, Latinos have been classified as an inferior race and a threat to white purity. Latinos have encountered considerable discrimination in areas such as employment, housing, and education. [84] Brest finds that stereotypes continue to be largely negative and many perceive Latinos as "lazy, unproductive, and on the dole." [84] Furthermore, native-born Latino-Americans and recent immigrants are seen as identical since outsiders tend not to differentiate between Latino groups. [84]

The category of Native American applies to the diverse group of people who lived in North America before European settlement. [84] During the U.S. government's westward expansion, Native Americans were displaced from their land which had been their home for centuries. Instead, they were forced onto reservations which were far smaller and less productive. [84] According to Brest, land belonging to Native Americans was reduced from 138 million acres in 1887 to 52 million acres in 1934. [84] In 1990, the poverty rate for Native Americans was more than triple that of the whites and only 9.4% of Native Americans have completed a bachelor's degree as opposed to 25.2% of whites and 12.2% of African Americans. [84]

Early Asian immigrants experienced prejudice and discrimination in the forms of not having the ability to become naturalized citizens. They also struggled with many of the same school segregation laws that African Americans faced. [84] Particularly, during World War II, Japanese Americans were interned in camps and lost their property, homes, and businesses. [84] Discrimination against Asians began with the Chinese Exclusion Act of 1882 and then continued with the Scott Act of 1888 and the Geary Act of 1892. At the beginning of the 20th century, the United States passed the Immigration Act of 1924 to prevent Asian immigration out of fear that Asians were stealing white jobs and lowering the standard for wages. [84] In addition, whites and non-Asians do not differentiate among the different Asian groups and perpetuate the "model minority" stereotype. According to a 2010 article by Professor Qin Zhang of Fairfield University, Asians are characterized as one dimensional in having great work ethic and valuing education, but lacking in communication skills and personality. [84] [85] A negative outcome of this stereotype is that Asians have been portrayed as having poor leadership and interpersonal skills. This has contributed to the "glass ceiling" phenomenon in which although there are many qualified Asian Americans, they occupy a disproportionately small number of executive positions in businesses. [84]

Fair vs. equal/discrimination vs. inclusion Edit

Many proponents of affirmative action recognize that the policy is inherently unequal however, minding the inescapable fact that historic inequalities exist in America, they believe the policy is much more fair than one in which these circumstances are not taken into account. Furthermore, those in favor of affirmative action see it as an effort towards inclusion rather than a discriminatory practice. "Job discrimination is grounded in prejudice and exclusion, whereas affirmative action is an effort to overcome prejudicial treatment through inclusion. The most effective way to cure society of exclusionary practices is to make special efforts at inclusion, which is exactly what affirmative action does." [86]

Prominent people in support of affirmative action Edit

There are a multitude of supporters as well as opponents to the policy of affirmative action. Many presidents throughout the last century have failed to take a very firm stance on the policy, and the public has had to discern the president's opinion for themselves. Bill Clinton, however, made his stance on affirmative action very clear in a speech on July 19, 1995, nearly two and a half years after his inauguration. In his speech, he discussed the history in the United States that brought the policy into fruition: slavery, Jim Crow, and segregation. Clinton also mentioned a point similar to President Lyndon B. Johnson's "Freedom is not Enough" speech, and declared that just outlawing discrimination in the country would not be enough to give everyone in America equality. He addressed the arguments that affirmative action hurt the white middle class and said that the policy was not the source of their problems. Clinton plainly outlined his stance on affirmative action, saying:

Let me be clear about what affirmative action must not mean and what I won't allow it to be. It does not mean – and I don't favor – the unjustified preference of the unqualified over the qualified of any race or gender. It doesn't mean – and I don't favor – numerical quotas. It doesn't mean – and I don't favor – rejection or selection of any employee or student solely on the basis of race or gender without regard to merit…

In the end, Clinton stated that all the evidence shows that, even though affirmative action should be a temporary policy, the time had not come for it to be ended. He felt it was still a relevant practice and overall, the goal of the nation should be to "mend it, but don't end it." Clinton's words became a slogan for many Americans on the topic of affirmative action. [22]

Diversity Edit

The National Conference of State Legislatures held in Washington D.C. stated in a 2014 overview that many supporters for affirmative action argue that policies stemming from affirmative action help to open doors for historically excluded groups in workplace settings and higher education. [2] Workplace diversity has become a business management concept in which employers actively seek to promote an inclusive workplace. [87] By valuing diversity, employers possess the capacity to create an environment in which there is a culture of respect for individual differences as well as the ability to draw in talent and ideas from all segments of the population. [88] By creating this diverse workforce, these employers and companies gain a competitive advantage in an increasingly global economy. [88] According to the U.S. Equal Employment Opportunity Commission, many private sector employers have concluded that a diverse workforce makes a "company stronger, more profitable, and a better place to work." Therefore, these diversity promoting policies are implemented for competitive reasons rather than as a response to discrimination, but have shown the value in having diversity. [87]

In the year 2000, according to a study by American Association of University Professors (AAUP), affirmative action promoted diversity within colleges and universities. This has been shown to have positive effects on the educational outcomes and experiences of college students as well as the teaching of faculty members. [89] According to a study by Geoffrey Maruyama and José F. Moreno, the results showed that faculty members believed diversity helps students to reach the essential goals of a college education, Caucasian students suffer no detrimental effects from classroom diversity, and that attention to multicultural learning improves the ability of colleges and universities to accomplish their missions. [89] Furthermore, a diverse population of students offers unique perspectives in order to challenge preconceived notions through exposure to the experiences and ideas of others. [90] According to Professor Gurin of the University of Michigan, skills such as "perspective-taking, acceptance of differences, a willingness and capacity to find commonalities among differences, acceptance of conflict as normal, conflict resolution, participation in democracy, and interest in the wider social world" can potentially be developed in college while being exposed to heterogeneous group of students. [89] In addition, broadening perspectives helps students confront personal and substantive stereotypes and fosters discussion about racial and ethnic issues in a classroom setting. [90] Furthermore, the 2000 AAUP study states that having a diversity of views leads to a better discussion and greater understanding among the students on issues of race, tolerance, fairness, etc. [89]

Affirmative action has been the subject of numerous court cases, where it is often contested on constitutional grounds. Some states specifically prohibit affirmative action, such as California (Proposition 209), Washington (Initiative 200), Michigan (Michigan Civil Rights Initiative), and Nebraska (Nebraska Civil Rights Initiative).

Bias Edit

College Acceptance Rates (2005) [91]
Overall Acceptance Rate Black Acceptance Rate % Difference
Harvard 10.0% 16.7% + 67.0%
MIT 15.9% 31.6% + 98.7%
Brown 16.6% 26.3% + 58.4%
Penn 21.2% 30.1% + 42.0%
Georgetown 22.0% 30.7% + 39.5%

A 2005 study by Princeton sociologists Thomas J. Espenshade and Chang Y. Chung compared the effects of affirmative action on racial and special groups at three highly selective private research universities. The data from the study represent admissions disadvantage and advantage in terms of SAT points (on the old 1600-point scale):

  • Whites (non-recruited athlete/non-legacy status): 0 (control group)
  • Blacks: +230
  • Hispanics: +185
  • Asians: –50
  • Recruited athletes: +200
  • Legacies (children of alumni): +160 [92]

In 2009, Princeton sociologist Thomas Espenshade and researcher Alexandria Walton Radford, in their book No Longer Separate, Not Yet Equal, examined data on students applying to college in 1997 and calculated that Asian-Americans needed nearly perfect SAT scores of 1550 to have the same chance of being accepted at a top private university as whites who scored 1410 and African Americans who got 1100. [93]

Medical School Acceptance Rates (2009–11) [ citation needed ]
MCAT 24-26, GPA 3.20-3.39 MCAT 27-29, GPA 3.20–3.39 MCAT 27–29, GPA 3.40–3.59
Asian 7.7% 17.6% 30.0%
White 12.3% 24.5% 35.9%
Hispanic 36.0% 54.5% 68.7%
Black 67.3% 83.3% 85.9%
Medical School Acceptance Rates (2013–15) [94]
MCAT 24–26, GPA 3.20–3.39 MCAT 27–29, GPA 3.20–3.39 MCAT 27–29, GPA 3.40–3.59
Asian 6.5% 13.9% 20.4%
White 8.2% 19.0% 30.6%
Hispanic 30.9% 43.7% 61.7%
Black 58.7% 75.1% 81.1%

After controlling for grades, test scores, family background (legacy status), and athletic status (whether or not the student was a recruited athlete), Espenshade and Radford found that whites were three times, Hispanics six times, and blacks more than 15 times as likely to be accepted at a US university as Asian Americans. [95] Thomas Espenshade cautions though, “I stop short of saying that Asian-American students are being discriminated against in the college application process because we don't have sufficient empirical evidence to support that claim." [96]

Mismatch effect Edit

Richard Sander claims that artificially elevating minority students into schools they otherwise would not be capable of attending, discourages them and tends to engender failure and high dropout rates for these students. For example, about half of Black college students rank in the bottom 20 percent of their classes, [97] Black law school graduates are four times as likely to fail bar exams as are whites, and interracial friendships are more likely to form among students with relatively similar levels of academic preparation thus, Black and Hispanic people are more socially integrated on campuses where they are less academically mismatched. [98] He claims that the supposed "beneficiaries" of affirmative action – minorities – do not actually benefit and rather are harmed by the policy. [99] Sander's claims have been disputed, and his empirical analyses have been subject to substantial criticism. [100] A group including some of the country's lead statistical methodologists told the Supreme Court that Sander's analyses were sufficiently flawed that the Court would be wise to ignore them entirely. [101] A 2008 study by Jesse Rothstein and Albert H. Yoon confirmed Sander's mismatch findings, but also found that eliminating affirmative action would "lead to a 63 percent decline in Black matriculants at all law schools and a 90 percent decline at elite law schools." [102] These high numbers predictions were doubted in a review of previous studies by Peter Arcidiacono and Michael Lovenheim. Their 2016 article found a strong indication that racial preference results in a mismatch effect. However, they argued that the attendance by some African-American law students to less-selective schools would significantly improve the low first attempt rate at passing the state bar, but they cautioned that such improvements could be outweighed by decreases in law school attendance. [103]

Other scholars have found that minorities gain substantially from affirmative action. For example, the University of Michigan Law School found that their affirmative action programs have substantially increased the enrollment of African American students. [104]

Class inequality Edit

The controversy surrounding affirmative action's effectiveness is based on the idea of class inequality. Opponents of racial affirmative action argue that the program actually benefits middle- and upper-class African Americans and Hispanic Americans at the expense of lower-class European Americans and Asian Americans. This argument supports the idea of class-based affirmative action. America's poor population is disproportionately made up of people of color, so class-based affirmative action would disproportionately help people of color. This would eliminate the need for race-based affirmative action as well as reducing any disproportionate benefits for middle- and upper-class people of color. [105]

In 1976, a group of Italian American professors at City University of New York successfully advocated to be added as an affirmative action category for promotion and hiring. Italian Americans are usually considered white in the US and would not be covered under affirmative action policies, but statistical evidence suggested that Italian Americans were underrepresented relative to the proportion of Italian American residents in New York City. [106]

Libertarian economist Thomas Sowell wrote in his book, Affirmative Action Around the World: An Empirical Study, that affirmative action policies encourage non-preferred groups to designate themselves as members of preferred groups [i.e., primary beneficiaries of affirmative action] to take advantage of group preference policies. [107]

Prominent people against affirmative action Edit

Supreme Court Justice Clarence Thomas opposes affirmative action. He believes the Equal Protection Clause of the Fourteenth Amendment forbids consideration of race, such as in race-based affirmative action or preferential treatment. He also believes it creates "a cult of victimization" and implies blacks require "special treatment in order to succeed". Thomas also cites his own experiences of affirmative action programs as a reason for his criticism. [108] [109]

Frederick Lynch, the author of Invisible Victims: White Males and the Crisis of Affirmative Action, did a study on white males that said they were victims of reverse discrimination. [110] Lynch explains that these white men felt frustrated and unfairly victimized by affirmative action. [111] Shelby Steele, another author against affirmative action, wanted to see affirmative action go back to its original meaning of enforcing equal opportunity. He argued that blacks had to take full responsibility in their education and in maintaining a job. Steele believes that there is still a long way to go in America to reach our goals of eradicating discrimination. [111]

Terry Eastland, the author who wrote From Ending Affirmative Action: The Case for Colorblind Justice states, "Most arguments for affirmative action fall into two categories: remedying past discrimination and promoting diversity". [112] Eastland believes that the founders of affirmative action did not anticipate how the benefits of affirmative action would go to those who did not need it, mostly middle class minorities. Additionally, she argues that affirmative action carries with it a stigma that can create feelings of self-doubt and entitlement in minorities. Eastland believes that affirmative action is a great risk that only sometimes pays off, and that without it we would be able to compete more freely with one another. Libertarian economist Thomas Sowell identified what he says are negative results of affirmative action in his book, Affirmative Action Around the World: An Empirical Study. [107] Sowell writes that affirmative action policies encourage non-preferred groups to designate themselves as members of preferred groups [i.e., primary beneficiaries of affirmative action] to take advantage of group preference policies that they tend to benefit primarily the most fortunate among the preferred group (e.g., upper and middle class blacks), often to the detriment of the least fortunate among the non-preferred groups (e.g., poor white or Asian) that they reduce the incentives of both the preferred and non-preferred to perform at their best – the former because doing so is unnecessary and the latter because it can prove futile – thereby resulting in net losses for society as a whole and that they engender animosity toward preferred groups as well. [107] : 115–147

Diversity Edit

Critics of affirmative action assert that while supporters define diversity as "heterogeneous in meaningful ways, for example, in skill set, education, work experiences, perspectives on a problem, cultural orientation, and so forth", the implementation is often solely based on superficial factors including gender, race and country of origin. [113]

In the United States, a prominent form of racial preferences relates to access to education, particularly admission to universities and other forms of higher education. Race, ethnicity, native language, social class, geographical origin, parental attendance of the university in question (legacy admissions), and/or gender are sometimes taken into account when the university assesses an applicant's grades and test scores. Individuals can also be awarded scholarships and have fees paid on the basis of criteria listed above.

In the early 1970s, Walter J. Leonard, an administrator at Harvard University, invented the Harvard Plan, "one of the country's earliest and most effective affirmative-action programs, which became a model for other universities around the country." [114] In 1978, the Supreme Court ruled in Regents of the University of California v. Bakke that public universities (and other government institutions) could not set specific numerical targets based on race for admissions or employment. [115] The Court said that "goals" and "timetables" for diversity could be set instead. [115]

Dean of Yale Law School Louis Pollak wrote in 1969 that for the previous 15 years Yale "customarily gave less weight to the LSAT and the rest of the standard academic apparatus in assessing black applicants". He wrote that while most black students had "not achieved academic distinction", "very few have failed to graduate" and that "many black alumni have . speedily demonstrated professional accomplishments of a high order". Pollak justified the university's plans to increase the number of minority students admitted with lowered standards "in the fact . that the country needs far more—and especially far more well-trained—black lawyers, bearing in mind that today only 2 or 3 per cent of the American bar is black", and that if Yale could help "in meeting this important national need, it ought to try to do so". He believed that the "minor fraction of the student body"—up to two dozen in the class entering that year—with "prior educational deficiencies" was not likely to damage the school, and expected that the number of "well prepared" black applicants would greatly increase in the future. [116]

Scholars such as Ronald Dworkin have asserted that no college applicant has a right to expect that a university will design its admissions policies in a way that prizes any particular set of qualities. [117] In this view, admission is not an honor bestowed to reward superior merit but rather a way to advance the mission as each university defines it. If diversity is a goal of the university and their racial preferences do not discriminate against applicants based on hatred or contempt, then affirmative action can be judged acceptable based on the criteria related to the mission the university sets for itself. [118]

Consistent with this view, admissions officers often claim to select students not based on academic record alone but also on commitment, enthusiasm, motivation, and potential. [119] Highly selective institutions of higher learning do not simply select only the highest SAT performers to populate their undergraduate courses, but high performers, with scores of 2250 to 2400 points, are extraordinarily well-represented at these institutions. [120]

To accommodate the ruling in Hopwood v. Texas banning any use of race in school admissions, the State of Texas passed a law guaranteeing entry to any state university if a student finished in the top 10% of their graduating class. Florida and California also have similar college admission guarantees. Class rank tends to benefit top students at less competitive high schools, to the detriment of students at more competitive high schools. This effect, however, may be intentional since less-funded, less competitive schools are more likely to be schools where minority enrollment is high. Critics argue that class rank is more a measure of one's peers than of one's self. The top 10% rule adds racial diversity only because schools are still highly racially segregated because of residential patterns. [121] To some extent, the class rank rule has the same effect as traditional affirmative action. [121] From 1996 to 1998, Texas did not practice affirmative action in public college admissions, and minority enrollment dropped. The state's adoption of the "top 10 percent" rule has helped return minority enrollment to pre-1996 levels. [121] Race-conscious admissions continue to be practiced in Texas following Fisher v. University of Texas.

Effectiveness Edit

During a panel discussion at Harvard University's reunion for African American alumni during the 2003–04 academic year, two prominent black professors at the institution—Lani Guinier and Henry Louis Gates—pointed out an unintended effect of affirmative action policies at Harvard. They stated that only about a third of black Harvard undergraduates were from families in which all four grandparents were born into the African American community. The majority of black students at Harvard were Caribbean and African immigrants or their children, with some others the mixed-race children of biracial couples. One Harvard student, born in the South Bronx to a black family whose ancestors have been in the United States for multiple generations, said that there were so few Harvard students from the historic African American community that they took to calling themselves "the descendants" (i.e., descendants of American slaves). The reasons for this underrepresentation of historic African Americans, and possible remedies, remain a subject of debate. [122]

UCLA professor Richard H. Sander published an article in the November 2004 issue of the Stanford Law Review that questioned the effectiveness of racial preferences in law schools. He noted that, prior to his article, there had been no comprehensive study on the effects of affirmative action. [99] The article presents a study that shows that half of all black law students rank near the bottom of their class after the first year of law school and that black law students are more likely to drop out of law school and to fail the bar exam. [99] The article offers a tentative estimate that the production of new black lawyers in the United States would grow by eight percent if affirmative action programs at all law schools were ended. Less qualified black students would attend less prestigious schools where they would be more closely matched in abilities with their classmates and thus perform relatively better. [99] Sander helped to develop a socioeconomically-based affirmative action plan for the UCLA School of Law after the passage of Proposition 209 in 1996, which prohibited the use of racial preferences by public universities in California. This change occurred after studies showed that the graduation rate of blacks at UCLA was 41%, compared to 73% for whites.

A study in 2007 by Mark Long, an economics professor at the University of Washington, demonstrated that the alternatives of affirmative action proved ineffective in restoring minority enrollment in public flagship universities in California, Texas, and Washington. [123] More specifically, apparent rebounds of minority enrollment can be explained by increasing minority enrollment in high schools of those states, and the beneficiaries of class-based (not race) affirmative action would be white students. [123] At the same time, affirmative action itself is both morally and materially costly: 52 percent of white populace (compared to 14 percent of black) thought it should be abolished, implying white distaste of using racial identity, and full-file review is expected to cost the universities an additional $1.5 million to $2 million per year, excluding possible cost of litigation. [123]

A 2020 study by UC Berkeley Center Studies in Higher Education researcher Zachary Bleemer on the impact of California's ban on affirmative action on student outcomes using a difference-in-difference research design and a newly-constructed longitudinal database linking all 1994–2002 University of California applicants to their college enrollment, course performance, major choice, degree attainment, and wages into their mid-30s found “the first causal evidence that banning affirmative action exacerbates socioeconomic inequities.” [124] According to the study, the ban on affirmative action decreased Black and Latino student enrollment within the University of California system, reduced their likelihood of graduating and attending graduate school, and resulted in a decline in wages. At the same time, the policy did not significantly impact white and Asian American students.

Complaints and lawsuits Edit

Dean Pollak wrote of the Yale quota for black students in response to a letter from Judge Macklin Fleming of the California Court of Appeal. Fleming criticized the Yale system as "a long step toward the practice of apartheid and the maintenance of two law schools under one roof", with consequent "damage to the standards of Yale Law School". He warned that such an admission policy "will serve to perpetuate the very ideas and prejudices it is designed to combat. If in a given class the great majority of the black students are at the bottom of the class", it would result in racial stratification between students, demands by black students to weaken academic standards, and other racially based "aggressive conduct". Fleming noted that racial quotas were a zero-sum game, as "discrimination in favor of X is automatic discrimination against Y" Asians in California, for example, were overrepresented in engineering schools and would suffer if black and Mexican applicants received preferential treatment. He stated that a quota system violated "the American creed, one that Yale has proudly espoused . that an American should be judged as an individual and not as a member of a group". [116]

In 2006, Jian Li, a Chinese undergraduate at Yale University, filed a civil rights complaint with the Office for Civil Rights against Princeton University, claiming that his race played a role in their decision to reject his application for admission and seeking the suspension of federal financial assistance to the university until it "discontinues discrimination against Asian Americans in all forms" by eliminating race and legacy preferences. Princeton Dean of Admissions Janet Rapelye responded to the claims in the November 30, 2006, issue of the Daily Princetonian by stating that "the numbers don't indicate [discrimination]." She said that Li was not admitted because "many others had far better qualifications." Li's extracurricular activities were described as "not all that outstanding". [125] Li countered in an email, saying that his placement on the waitlist undermines Rapelye's claim. "Princeton had initially waitlisted my application," Li said. "So if it were not for a yield which was higher than expected, the admissions office very well may have admitted a candidate whose "outside activities were not all that outstanding". [126] In September 2015, the Department of Justice concluded its nine-year investigation into alleged anti-Asian bias at Princeton and cleared Princeton of charges that it discriminated against Asian American applicants. [127] Furthermore, the Department found that a number of Asian American students benefitted from race-conscious admissions. [128]

In 2012, Abigail Fisher, an undergraduate student at Louisiana State University, and Rachel Multer Michalewicz, a law student at Southern Methodist University, filed a lawsuit to challenge the University of Texas admissions policy, asserting it had a "race-conscious policy" that "violated their civil and constitutional rights". [129] The University of Texas employs the "Top Ten Percent Law", under which admission to any public college or university in Texas is guaranteed to high school students who graduate in the top ten percent of their high school class. [130] Fisher has brought the admissions policy to court because she believes that she was denied acceptance to the University of Texas based on her race, and thus, her right to equal protection according to the 14th Amendment was violated. [131] The Supreme Court heard oral arguments in Fisher on October 10, 2012, and rendered an ambiguous ruling in 2013 that sent the case back to the lower court, stipulating only that the university must demonstrate that it could not achieve diversity through other, non-race sensitive means. In July 2014, the US Court of Appeals for the Fifth Circuit concluded that UT maintained a "holistic" approach in its application of affirmative action, and could continue the practice. On February 10, 2015, lawyers for Fisher filed a new case in the Supreme Court. It is a renewed complaint that the U.S. Court of Appeals for the Fifth Circuit got the issue wrong—on the second try as well as on the first. [132] The Supreme Court agreed in June 2015 to hear the case a second time. In July 2016 a majority of the Court found in favor of the University of Texas at Austin, with Justice Kennedy finding for the Court that the university's affirmative action policies were constitutional, despite the requirement of strict scrutiny.

On November 17, 2014, Students for Fair Admissions, an offshoot of the Project on Fair Representation, filed lawsuits in federal district court challenging the admissions practices of Harvard University and the University of North Carolina at Chapel Hill. The UNC-Chapel Hill lawsuit alleges discrimination against white and Asian students, while the Harvard lawsuit focuses on discrimination against Asian applicants. Both universities requested the court to halt the lawsuits until the U.S. Supreme Court provides clarification of relevant law by ruling in Fisher v. University of Texas at Austin for the second time. [133]

In May 2015, a coalition of more than 60 Asian-American organizations filed federal complaints with the Education and Justice Departments against Harvard University. The coalition asked for a civil rights investigation into what they described as Harvard's discriminatory admission practices against Asian-American applicants. [134] [135] [136] [137] The complaint asserts that recent studies indicate that Harvard has engaged in systematic and continuous discrimination against Asian Americans in its "holistic" admissions process. Asian-American applicants with near-perfect test scores, top-one-percent grade point averages, academic awards, and leadership positions are allegedly rejected by Harvard because the university uses racial stereotypes, racially differentiated standards, and de facto racial quotas. [138] Harvard denies engaging in discrimination and said its admissions philosophy complies with the law. The school said the percentage of Asian-American students admitted has grown from 17% to 21% in a decade while Asian-Americans represent around 6% of the U.S. population. [139] The lawsuit against Harvard was heard in Boston federal court in October 2018. On October 1, 2019, judge Allison D. Burroughs rejected the plaintiffs' claims, ruling that Harvard's admissions practices meet constitutional requirements and do not discriminate against Asian Americans. [140] SFFA filed an appeal in the First Circuit Court of Appeals, with oral argument scheduled for September 2020. [21] [141] Some commentators expect the case to eventually reach the United States Supreme Court. [142]

In August 2020, the US Department of Justice notified Yale University of its findings that Yale illegally discriminates against Asian American and white applicants and demanded Yale cease using race or national origin in its upcoming 2020–2021 undergraduate admissions cycles. [143] Yale has issued a statement viewing the allegation as "baseless" and "rushed" and "will not change its admissions processes in response to today’s letter because the DOJ is seeking to impose a standard that is inconsistent with existing law". [144]

Numerous myths and misperceptions regarding affirmative actions shape public opinion on the issue. [145] These misperceptions often shape public opinion on specific cases as well. For example, in Students for Fair Admissions, the conflation of two separate issues -- Harvard University's affirmative action policy and specific claims of discrimination by Harvard University – colors individuals judgements on affirmative action as a whole. [146] Such conflation allows "longstanding myths about affirmative action and socially salient racial stereotypes concerning who does, and does not, belong in elite institutions of higher education" to prosper. [147] Hence, it is often difficult for public opinion polls on cases, let alone the general issue of affirmative action, to be unaffected by such myths.

Public opinion polls on affirmative action have varied significantly. It is likely that survey design, the framing of the survey question itself, and other factors may have significant effects on the survey results. The following polls only discuss affirmative action in higher education. In general, "affirmative action" is supported by the general public, but "considerations based on race" are opposed.

In a survey conducted by Gallup in 2013, [148] 67% of U.S. adults believed college admission should be solely based on merit. According to Gallup: "One of the clearest examples of affirmative action in practice is colleges' taking into account a person's racial or ethnic background when deciding which applicants will be admitted. Americans seem reluctant to endorse such a practice, and even blacks, who have historically been helped by such programs, are divided on the matter. Aside from blacks, a majority of all other major subgroups believe colleges should determine admissions solely on merit."

In a national survey conducted by the Pew Research Center in 2014, among 3,335 Americans, 63% felt that affirmative action programs designed to increase the number of black and minority students on college campuses are a good thing. [149]

In February 2019, Gallup published the results of a November and December 2018 survey and found that support for affirmative action programs was growing. [150] They polled 6,502 Americans. Of survey respondents, 65% favored affirmative action programs for women and 61% favored affirmative action programs for minorities.

Also in February 2019, the Pew Research Center published the results of a January and February 2019 survey and found that 73% of its respondents said that race or ethnicity should not be a factor in college admissions decisions. [151] According to this survey's results, majorities across racial and ethnic groups agree that race should not be a factor in college admissions decisions. White adults are particularly likely to hold this view: 78% say this, compared with 65% of Hispanics, 62% of blacks, and 58% of Asians.


How a Segregationist Paved the Way for a Big Gay Rights Win in the Supreme Court

The Supreme Court on Monday handed down a momentous decision on gay rights, ruling that employers can&rsquot discriminate against their employees on the basis of their sexual orientation.

Those celebrating the decision can thank a segregationist.

The Supreme Court decided the case on a 6-to-3 majority, with conservative Justices John G. Roberts Jr. and Neil M. Gorsuch, the latter who wrote the opinion, joining the court&rsquos four liberal justices. Essentially, the decision says that Title VII of the Civil Rights Act of 1964, which outlaws discrimination based on &ldquorace, color, religion, sex, or national origin,&rdquo necessarily includes a prohibition on discrimination based on sexual orientation.

&ldquoAn employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex,&rdquo Gorsuch wrote. &ldquoSex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.&rdquo

What&rsquos notable here is that the Civil Rights Act didn&rsquot initially include the prohibition on sex discrimination. It wasn&rsquot added to the bill until the final day of debate by a segregationist congressman, Howard Smith (D-Va.).

On the eighth day of debate in the House, Smith rose to argue in favor of including sex in the bill. According to a 2017 book by Gillian Thomas, Smith read a letter from a female constituent asking him to &ldquoprotect our spinster friends&rdquo who were suffering from a shortage of eligible bachelors. Smith said: &ldquoI read that letter just to illustrate that women have some real grievances and some real rights to be protected. I am serious about this thing.&rdquo


Eleanor Roosevelt’s Battle to End Lynching

As we celebrate Black History Month, it is a good time to explore one of Eleanor Roosevelt’s most outspoken campaigns, and one of her greatest disappointments. Throughout American history issues of race and civil rights have challenged our most precious core principal – that all people are created equal. During the first half of the 20 th century, racial segregation and discrimination were the law in many states. The notorious Jim Crow laws in the South prevented African Americans from getting a decent education, from owning businesses and even from voting. Mrs. Roosevelt spoke out against all of these injustices.

The Democratic Party controlled most of the South, and many Southern Democrats held powerful senior positions in the House and Senate. Their intransigence prevented President Franklin Roosevelt from instituting wide ranging civil rights legislation. That opposition did not stop Eleanor Roosevelt, who strongly supported civil rights and was remarkably courageous in her words and actions supporting social justice for African Americans. In the 1950s her work so angered the Ku Klux Klan that they put a $25,000 bounty on her. She received death threats throughout her life because of her work.

Nothing reveals her commitment more than her efforts to outlaw lynching. The anti-lynching movement was as controversial then as the #blacklivesmatter movement is today. Between 1882 and 1968 more than 3,500 African Americans were murdered by lawless white mobs. There were 28 such murders in 1933 alone. The victims were often tortured, beaten, burned alive and hanged. Almost no one was arrested or convicted for these crimes.

In October of 1933, on Maryland’s eastern shore, George Armwood was lynched by “a frenzied mob of 3,000 men, women and children… who overpowered 50 State Troopers.” ( NY Times) The NAACP called on President Roosevelt to condemn the act. Then in November two white men were dragged out of a San Jose jail and hanged. On Dec. 6, 1933 in a nationally broadcast radio address FDR finally spoke his mind about lynching:

This new generation, for example, is not content with preachings against that vile form of collective murder – lynch law – which has broken out in our midst anew. We know that it is murder, and a deliberate and definite disobedience of the Commandment, “Thou shalt not kill.” We do not excuse those in high places or in low who condone lynch law.

Walter White. Photo: Library of Congress

In 1934, Mrs. Roosevelt joined the NAACP and started working with its leader Walter White to help pass federal anti-lynching legislation.

White had been fighting for this type of law since 1922, and helped get the Costigan-Wagner anti-lynching bill before Congress.

While the bill had strong support, without the President’s personal commitment it was unlikely to get to the floor for a vote. President Roosevelt desperately needed the powerful Southern Democrats in the Senate to pass his New Deal legislation and did not want to risk alienating them over the anti-lynching bill. Tensions were high and so were the stakes. White tried to get an appointment to see the President but was turned down. The President’s closest advisors opposed supporting the bill. White then turned to Mrs. Roosevelt, and she arranged for a private meeting at the White House on May 7, 1934.

Roosevelt friend and biographer Joe Lash later wrote that Mr. White arrived before the President had returned from an outing, and he sat with Eleanor Roosevelt and her mother-in-law Sara and had tea. As he describes it, FDR arrived in good cheer, having spent the afternoon on the Potomac River. But the mood soon changed. As the President explained his predicament, giving one reason after another why he couldn’t support the bill, White countered with detailed arguments. Finally, exasperated, FDR said:

Somebody’s been priming you. Was it my wife?” He looked accusingly at Mrs. Roosevelt.

He explained to White that “If I come out for the anti-lynching bill now, they will block every bill I ask Congress to pass the keep America from collapsing. I just can’t take the risk.” (Lash)

Then in October Claude Neal, an African American farm worker in Florida, was arrested for the rape and murder of Lola Cannady, a white woman. He was abducted from the jail where he was being held, and the leaders of the lynch mob notified the press that justice would be served at the Cannady farm. Hundreds of people turned out to watch the lynching. The mob was so unruly that Neal was taken to a secret location, brutally tortured, castrated and killed. His mutilated body was hung outside the county courthouse. Sheriffs buried Neal, but a large crowd gathered demanding to see the body and a riot broke out. Nearly 200 African Americans were attacked and injured during the riot. The National Guard was eventually brought in to control the mob. The lynching and subsequent riot attracted massive news coverage, and many Americans were outraged and disgusted.

The murder of Claude Neal helped shift public opinion in favor of the anti-lynching laws. It also increased tensions between Walter White and the President. Mrs. Roosevelt found herself a lone voice in support of the anti-lynching act inside the White House. To show her support she attended the NAACP’s exhibition “Art Commentary On Lynching” which graphically depicted white mob violence against African Americans.

The President’s many enemies attacked Mrs. Roosevelt’s actions, and spread vicious rumors about her friendships with African Americans. Even FBI Director J. Edgar Hoover is reported to have thought she had “black blood.” ( source – https://www.gwu.edu/

During January and February of 1935 Eleanor Roosevelt continually pressured the President to publicly support the Costigan bill. But when it came up for a vote, Southern Senators threatened a long filibuster that would effectively block everything on the calendar, including the Social Security Act, which was FDR’s most cherished accomplishment. Despite a heated campaign by White, President Roosevelt remained silent on the filibuster and the anti-lynching bill died without a vote.

The defeat was a bitter blow to Walter White and the NAACP. Mrs. Roosevelt herself was despondent over it. She wrote to Mr. White and told him that:

I am so sorry about the bill. Of course all of us are going on fighting, and the only thing we can do is hope that we will have better luck next time.

But “next time” was no better. In 1937 during another Senate filibuster of another anti-lynching bill, Eleanor Roosevelt sat in the Senate Gallery for days in silent rebuke of the shameful tactic. Once again the bill died without a vote. It was not until 2005 that the US Senate apologized formally for its shocking failure to pass any anti-lynching legislation “…when action was most needed.”

In her My Day column on Dec. 12, 1945, after seeing the Broadway play “Strange Fruit” she wrote this about lynching:

“We need to understand these circumstances in the North as well as in the South. There are mental and spiritual lynchings as well as physical ones, and few of us in this nation can claim immunity from responsibility for some of the frustrations and injustices which face not only our colored people, but other groups, who for racial, religious or economic reasons, are at a disadvantage and face a constant struggle for justice and equality of opportunity.”

Eleanor Roosevelt believed that lynchings and indeed ALL injustices targeting African Americans must be stopped. She believed strongly that black lives did matter. And she fought hardest and spoke out loudest for those who could not defend themselves or who had no voice. Ultimately her efforts to pass federal legislation to prevent lynchings were unsuccessful. But she continued her campaign for civil rights until she died in 1962.

Mrs. Eleanor Roosevelt, Mary McLeod Bethune and others at the opening of Midway Hall, one of two residence halls built by the Public Buildings Administration of the Federal Works Agency. Photo: NARA – 533032

Special thanks to Allida Black for her remarkable work on the Eleanor Roosevelt Papers Project. https://www.gwu.edu/

Sources:
Eleanor And Franklin – Joseph P. Lash
Eleanor Roosevelt Vol.2 – Blanche Wiesen Cook
The Eleanor Roosevelt Encyclopedia – Beasley, Shulman & Beasley


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