The term affirmative action describes many policies aimed at a historically socio-politically non-dominant group (typically, minority men or women of all racial groups) intended to promote its access to education or employment. Motivation for affirmative action is a desire to redress negative effects of actual or perceived, past or current discrimination that is regarded as unfair by relevant legislative bodies. It also serves to encourage public institutions such as universities, hospitals and police forces to be more representative of the populations they serve .
This is commonly achieved through targeted recruitment programs aimed at applicants from socio-politically disadvantaged groups. In some cases affirmative action involves giving preferential treatment to these groups. Opponents of affirmative action policies argue that they are based on collectivism and merely another equal form of discrimination because they can result in qualified applicants being denied entry to higher education or employment because they belong to a particular social group (usually the historically socio-politically dominant group; typically majority races and men, regardless of social standing or financial need.) Opponents also argue that preferential treatment should not be based upon the social and economical standing of one's ancestors, therefore arguing against the possibility of residual effects of past injustices. Some opponents say affirmative action devalues the accomplishments of people who are chosen because of the social group they belong to rather than their qualifications.
An in-depth examination of the legal status
of affirmative action, as well as the different kinds of programs that exist and their pros and cons, can be found in a paper written for the United Nations Sub-Commission on the Promotion and Protection of Human Rights
by one of its members, Marc Bossuyt
The International Convention on the Elimination of All Forms of Racial Discrimination stipulates (in Article 2.2) that affirmative action programs may be required of countries that have ratified the convention, in order to rectify systematic discrimination. It states, however, that such programs "shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved." The United Nations Human Rights Committee states, "the principle of equality sometimes requires States parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant. For example, in a State where the general conditions of a certain part of the population prevent or impair their enjoyment of human rights, the State should take specific action to correct those conditions. Such action may involve granting for a time to the part of the population concerned certain preferential treatment in specific matters as compared with the rest of the population. However, as long as such action is needed to correct discrimination, in fact, it is a case of legitimate differentiation under the Covenant.
Much of 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 minorities
at the expense of lower class whites. This argument supports the idea of solely class based affirmative action. America’s poor is disproportionately made up of minorities, so class-based affirmative action would disproportionately help minorities. This would eliminate the need for race based affirmative action as well as reducing any disproportionate benefits for middle and upper class minorities.
Proponents of affirmative action generally advocate it either as a means to address past discrimination or to enhance representation of racial, ethnic, gender, or another diverse group. They may argue that the end result—a more diversified and representative student body, police force or other group—justifies the means, despite the text of the Equal Protection Clause, and regardless of the adverse discrimination against European Americans or Asian Americans. Proponents also argue that affirmative action is needed since institutions are inherently biased towards whites.
Some opponents of affirmative action call it reverse discrimination because affirmative action requires the very discrimination it is seeking to eliminate. According to these opponents, this contradiction makes affirmative action counter-productive because it promotes prejudice by increasing resentment toward those who are the beneficiaries of affirmative action from those who have been adversely affected by the policy. Other opponents say affirmative action causes unprepared applicants to be accepted in highly demanding educational institutions or jobs which result in eventual failure. (See, for example, Richard Sander's study of affirmative action in Law School, bar exam and eventual performance at law firms). Other opponents say that by lowering the bar, affirmative action denies those who strive for excellence on their own merit the sense of real achievement. (See, for example, Clarence Thomas' "My Grandfather's Son: A Memoir".) Some argue that affirmative action itself has some merit when it is targeted to true cause of social deprivation such as poverty while race, ethnicity or gender based affirmative action is misguided. The underlying assumption in these arguments being that race, ethnicity or gender cannot contribute to social deprivation.
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 groups 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.
Opponents further claim that affirmative action has undesirable side-effects and that it fails to achieve its goals. They argue that it factors race into the decision-making process, perpetrates new wrongs to counter old ones, and undermines the achievements of minorities. It may increase racial tension and benefit the more privileged people within minority groups at the expense of the disenfranchised within majority groups (such as lower-class whites). In the British 2001 Summer of Violence Riots in Oldham, Bradford, Leeds and Burnley, one of the major complaints voiced in poor white areas was alleged discrimination in council funding which favored minority areas. There has recently been a strong push among American states to ban racial or gender preferences in university admissions, in reaction to the controversial and unprecedented decision in Grutter v. Bollinger. In 2006, nearly 60% of Michigan voters decided to ban affirmative action in university admissions. Michigan joined California, Florida, Texas, and Washington in banning the use of race or sex in admissions considerations. Some research has indicated that as many as 15 percent of freshmen enrolled at some of America's most selective colleges are wealthy white teens who failed to meet their institutions' minimum admissions standards, furthermore these wealthy white teens outnumber students who benefit from affirmative action.
How the media portray affirmative action and affirmative action cases plays a role in how the public responds to affirmative action. There are claims that the practice is racist or sexist, or both, depending on how one defines those concepts (for instance, the offering of extra college scholarships to black students and Hispanic students (regardless of race, thus including White Hispanics) as opposed to European American or Asian American students appears overtly racist). Others believe that programs may be motivated by political considerations.
Some states aim to implement ballot measures Fall of 2008 that would eliminate affirmative action. Many of these anti-affirmative action campaigns are spearheaded by the founder of the American Civil Rights Institute, Ward Connerly.
In some countries which have laws on racial equality, affirmative action is rendered illegal by a requirement to treat all races equally. This approach of equal treatment is sometimes described as being "color blind
", in hopes that it is effective against discrimination without engaging in reverse discrimination
In such countries, the focus tends to be on ensuring equal opportunity and, for example, targeted advertising campaigns to encourage ethnic minority candidates to join the police force. This is sometimes described as "positive action" or "positive discrimination".
- Brazil. Some Brazilian Universities (State and Federal) have created systems of preferred admissions (quotas) for racial minorities (blacks and native Brazilians), the poor and people with disabilities. There are already quotas of up to 20% of vacancies reserved for the disabled in the civil public services.
- Canada. The Canadian Employment Equity Act requires employers in federally-regulated industries to give preferential treatment to four designated groups: Women, people with disabilities, aboriginal people, and visible minorities. Some provinces and territories also have affirmative action-type polices. For example, in Northwest Territories in the Canadian north, aboriginal people are given preference for jobs and education and are considered to have P1 status. Non-aboriginal people who were born in the NWT or have resided half of their life there are considered a P2, as well as women and disabled peoples. Men receive the lowest priority, P3.
- China. "preferential policies" required some of the top positions in governments be distributed to ethnic minorities and women. Also, selected universities give preferred admissions to ethnic minorities.
- Finland. In certain university education programs, including legal and medical education, there are quotas for Swedish-speaking applicants. The aim of the quotas is to guarantee that a sufficient number of Swedish speaking professionals are educated, thus safeguarding the linguistic rights of the Swedish-speaking Finns. The quota system has met with criticism from the Finnish speaking majority, some of whom consider the system unfair. In addition to these linguistic quotas, women may get preferential treatment in recruitment for certain public sector jobs if there is a gender imbalance in the field.
- France. No distinctions based on race, religion or sex are allowed under the 1958 French Constitution. Since the 1980s, a French version of affirmative action based on neighborhood is in place for primary and secondary education. Some schools, in neighborhoods labeled "Prioritary Education Zones", are granted more funds than the others. Students from these schools also benefit from special policies in certain institutions (such as Sciences Po). The French Ministry of Defense tried in 1990 to give more easily higher ranks and driving licenses to young French soldiers with North-African origins. After a strong protest by a young French lieutenant in the Ministry of Defense newspaper ("Armées d'aujourd'hui"), this driving license and rank project was canceled. After the Sarkozy election, a new attempt in favour of Arabian-French soldiers in ongoing.
- Germany. Article 3 of the German constitution provides for equal rights of all people regardless of sex, race or social background. In recent years there has been a long public debate about whether to issue programs that would grant women a privileged access to jobs in order to fight discrimination. There are programs stating that if men and women have equal qualifications, women have to be preferred for a job. This is typically for all positions in state and university service as of 2007, typically using the phrase "We try to increase the percentage of females in this line of work"
- Japan. Admission to universities as well as all government positions (including teachers) are determined by the entrance exam, which is extremely competitive at the top level. It is illegal to include sex, ethnicity or other social background (but not nationality) in criteria. However, there are informal policies to provide employment and long term welfare (which is usually not available to general public) to Burakumin at municipality level.
- Republic of Macedonia. Minorities, most notably Albanians, are allocated quotas for access to state universities, as well as in civil public services.
- Malaysia. The Malaysian New Economic Policy or NEP serves as a form of affirmative action. It promotes structural changes in various aspects of life from education to economic to social integration. Born after the race riots of 1969, it sought to address the significant imbalance in the economic sphere where the minority Chinese population had substantial control over commercial activity in the country. The dissatisfaction this caused among the native Malay resulted in the race riots of May 13, 1969. Tun Abdul Razak who took over the premiership from the country's first PM, Tunku Abdul Rahman, initiated the NEP. Since then racial violence has subsided but there are continued and persistent attacks on the policy from the Chinese and Indian community, claiming that it gives Malays an unfair advantage and is self-defeating, as it arguably makes Malaysia less economically competitive compared to its neighbors and entrenches structural privileges not based on merit. According to the government's own study, the policy has yet to achieve its target of redistributing 30 percent of national wealth to the Malays which constitute 50 per cent of the population. However, there are studies that contradict this and there are questions pertaining to each study's methodology. Malaysia is a multiethnic country, with Malays making up the majority, close to 52% of the population. About 30% of the population are Malaysians of Chinese descent. Malaysians of Indian descent comprise about 8% of the population. However, 99% of Petronas directors are Malays, only 3% of Petronas employees are Chinese, only 5% of all new intakes for government army, nurses, polices, are non-Malays, just 7% of government servants in the whole government are ethnic Chinese (2004), drop from 30% in 1960, and 95% of all government contracts are given to Malays.
- New Zealand. Individuals of Māori or other Polynesian descent are often afforded preferential access to university courses, and scholarships.
- Norway. All public company (ASA) boards with more than five members, must have at least 40 % women (can not be made up of more than 60%). This affects roughly 400 companies.
- Slovakia. The Constitutional Court declared in October 2005 that affirmative action i.e. "providing advantages for people of an ethnic or racial minority group" as being against its Constitution.
- South Africa. The Employment Equity Act and the Broad Based Black Economic Empowerment Act aim to promote and achieve equality in the workplace (in South Africa termed "equity"), by not only advancing people from designated groups but also specifically dis-advancing the others. By legal definition, the designated groups include all people of color, white females, people with disabilities, and people from rural areas. The term "black economic empowerment" is somewhat of a misnomer, therefore, because it covers empowerment of any member of the designated groups, regardless of race. However, government’s employment legislation reserves 80% of new jobs for black people and favours black owned companies. It is quota-based, with specific required outcomes. By a relatively complex scoring system, which allows for some flexibility in the manner in which each company meets its legal commitments, each company is required to meet minimum requirements in terms of representation by previously disadvantaged groups. The matters covered include equity ownership, representation at employee and management level (up to board of director level), procurement from black-owned businesses and social investment programs, amongst others. In 2008, the High Court in South Africa has ruled that Chinese South Africans are to be reclassified as black people. As a result of this ruling, ethnically Chinese citizens will be able to benefit from government Black Economic Empowerment (BEE) policies.
- Sri Lanka. In 1971 the Standardization policy of Sri Lankan universities was introduced as an affirmative action program for students from areas which had poor educational facilities due to 200 years purposeful discrimination by British colonialists. The British had practised communal favoritism towards Christians and the minority Tamil community for the entire 200 years they had controlled Sri Lanka, as part of a policy of divide and conquer. This is one of the reasons for the Sri Lankan Civil War.
- Sweden. Swedish democracy, although very solicitous about minorities' rights and integration, does not allow affirmative action, which is considered almost a kind of discrimination, and although aimed at strengthening workers' rights it is considered unfair. Affirmative action is also regarded as emphasizing minorities' identity as a different, separate body, actually making the weak feel even worse and stigmatizing them, as they are given entitlements on the basis of their ascribed characteristics.
- United Kingdom. Positive Discrimination is unlawful in the UK and quotas/selective systems are not permitted. An exception to this is a provision made under the 1998 Good Friday Agreement which requires that the Police Service of Northern Ireland recruit equal numbers of Catholics and non-Catholics. Positive action in encouraging people from under-represented backgrounds to apply for jobs is permitted, but it is illegal to discriminate in favour of them in awarding employment. A form of affirmative action is used by the governing Labour Party, which uses All women shortlists to ensure that more women are selected as election candidates. Controversial proposals to allow affirmative action in employment are currently being debated as part of a revising of the Equality Bill.
- United States. The intended beneficiaries of affirmative action in the United States include disadvantaged ethnic minorities, women, people with disabilities, and veterans. Affirmative action has been the subject of numerous court cases, and has been contested on constitutional grounds.
Notes and references