The last six years haven't been kind to affirmative action. Ever since the University of California (UC) board of regents made the surprise decision to ban race as a consideration for school admittance in 1995, the outreach initiative has been a favorite punching bag of state conservatives. But is affirmative action on the ropes or playing rope-a-dope?
Recent legislation, newly announced higher-education programs and increased public interest hint that the beleaguered minority program might still have some life in it.
For those who haven't been following the fight, here's a recap. In 1996, the California electorate voted in favor of Proposition 209, a measure to dismantle race and gender-based affirmative action programs in the public sector. In 1997, the Ninth Circuit Court overruled an injunction on 209, officially making the proposition law. That same year, the first public agencies began to dismantle their affirmative action programs. In 1998, Governor Wilson halted race and gender data collection in the state's public contracting system and UC Berkeley enrollments of black students fell from 515 the previous year to 157. In 1999, a white man was awarded $2.75 million in a reverse discrimination suit against San Francisco State University and Governor Davis vetoed a bill that would have declared outreach programs permissible despite Prop 209. During the 1999-2000 UC school year, new hires of faculty women dropped to 25 percent from 36 percent in 1995-96. In November of 2000, the California Supreme Court upheld the constitutionality of 209, essentially ending the debate over the proposition's legality.
Where It Stands Now
The setbacks have had an obvious impact on outreach programs.
"There is hardly any affirmative action left in public agencies and public educational institutions," laments Donya Fernandez, project attorney at the Employment Law Center in San Francisco.
Rosa Colquitt, board member and advocate with the American Association for Affirmative Action, has also noticed the change. Her organization helps companies implement affirmative action plans. She admits positions requiring specialists in affirmative action and equal employment opportunity are rapidly emerging among corporations, secondary and higher education, social service institutions, and government agencies. But she also states that because the courts have struck down several affirmative action-related cases, many affirmative action offices think they can relax their practices.
"I have noticed there is an orientation to protect management rather than being a neutral party advocating employee rights," she attests. "That is disheartening to see."
Opponents of affirmative action claim diversity and outreach programs undermine the fundamental principle of equal opportunity. Fernandez sees a more complex issue. She contends bias is often on a subconscious level and not the type of problem that can easily be remedied by any way other than affirmative action. It forces companies to look at their workforce and at the percentages of Asians, African Americans and Latinos and see if there is a problem.
"The problem is that we all grew up with the images and thoughts that qualified people [for any type of job] are the people we have seen in those positions before," she states. "For example, I tend to represent Latino and Asians with slight accents which will cause employers to think they are not acceptable or qualified for the job.
"It (affirmative action) is getting better at a very slow rate," Fernandez declares. "But it will take a very long time to have equal representation for people of color in the workplace."
Public and Legislature See Future for AA
But not all the news is negative. Public sentiment towards the value of affirmative action appears to be growing more positive. The Americans for Fair Chance (AFC), a consortium of six of America's leading civil rights legal organizations, released polling results last June indicating 64 percent of Americans support overall affirmative action for women and minorities.
One possible reason for the changing perception about affirmative action is the increased efforts of its proponents to educate the public. The common misconception that affirmative action is simply a means of implementing quotas is being supplanted by a broader understanding that the program intends to open opportunities to qualified people who traditionally have been left out. Those in favor of affirmative action insist it is not about quotas but about outreach, recruitment, training and promotion, and holding employers and educational institutions accountable.
"Affirmative action definitely assisted in making sure minorities were employed because it opened a door to companies who had never hired minorities," declares Ida Sydnow, president of the Sacramento Branch of the National Association for the Advancement of Colored People (NAACP).
Last year, the state legislature gave footing for the future of affirmative action in the public sector. Assembly Bill 1084, which became law earlier this month, restores race and gender data collection to the state's public contracting system, essentially overriding Governor Wilson's 1998 edict. More bills favoring outreach efforts are expected to be introduced this year.
Back to the Beginning
Ironically the future of affirmative action looks to be returning to where the fight first started, the UC school system. Although this time administrators have switched sides.
In June of last year, the University of California regents repealed their ban on affirmative action. The action is more symbolic than substantive since Proposition 209 still prohibits any race-conscious policies. The board hopes the action will set a more inviting tone for minorities. "This sends an incredibly important message to the children of California," regent Judith Hopkinson told reporters. "We are an open and welcoming university."
Now the question is - does everyone else feel the same?
SIDEBAR: History of Affirmative Action
Our Constitution and our earliest laws codified discrimination. Blacks were property, women could not vote and Native Americans were not included in our democracy. From the end of the Civil War until the middle of the 20th Century, no laws protected minorities and women from biased employers who were free to pass over a black worker in favor of a white worker or to reserve better paying jobs for white men only.
The Civil Rights movement, with victories won by marches and sit-ins, and paid for with mass arrests, beatings and cruel murders, paved the way for a new era of equal opportunity.
The movement changed many laws in the United States and, through the Civil Rights Act of 1964, Congress officially barred discrimination based on race and gender. Anti-discrimination laws alone were not enough to correct or compensate for the present effects of past discrimination; therefore in 1965, President Lyndon Johnson issued Executive Order 11246 prohibiting federal agencies from contracting with firms that were not committed to equal opportunity affirmative action.
In a speech at Howard University, President Johnson said, "Freedom is not enough. You do not wipe away the scars of centuries. You do not take a man who for years has been hobbled by chains, liberate him, bring him to the starting line of a race saying, 'You are free to compete with all the others,' and still justly believe you have been completely fair. Thus it is not enough to open the gates of opportunity."
Initially, the concept of affirmative action specifically targeted African-Americans, who bore the unique burden of slavery and its legacy. The concept evolved, however, as women and other groups expanded the 1960s civil rights movement to demand recognition of their own discrimination and exclusion.
The Nixon Administration, on the advice of the heads of several hundred large corporations, introduced the concept of using "goals and timetables" to make federally contracted construction companies more racially diverse. In 1970, President Nixon included women in federal affirmative action programs.
In 1978, Regents of the University of California v. Bakke became the first major US Supreme Court case diluting affirmative action. Bakke holds that although the university's special admission program setting aside a quota for places at its medical school in Davis violated federal law, race could lawfully be considered as one of the criteria for admission.
By 1989, a new majority on the Supreme Court issued a series of decisions that narrowed the reach of affirmative action and civil rights laws. The most significant was Richmond v. Croson, invalidating a minority business set-aside program. The Court ruled that a racial classification cannot be used unless it is intended to remedy specifically identified discrimination. Generalized society-wide discrimination is not sufficient justification for race-based remedies. The courts are continually narrowing the limits of equal opportunity affirmative action programs.
Source: American Association for Affirmative Action