Affirmative Action for the Future

Affirmative Action for the Future

James P. Sterba
Copyright Date: 2009
Edition: 1
Published by: Cornell University Press
Pages: 144
https://www.jstor.org/stable/10.7591/j.ctt7v6t2
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  • Book Info
    Affirmative Action for the Future
    Book Description:

    At a time when private and public institutions of higher education are reassessing their admissions policies in light of new economic conditions, Affirmative Action for the Future is a clarion call for the need to keep the door of opportunity open. In 2003, U.S. Supreme Court's Grutter and Gratz decisions vindicated the University of Michigan Law School's affirmative action program while striking down the particular affirmative action program used for undergraduates at the university. In 2006 and 2008, state referendums banned affirmative action in some states while upholding it in others. Taking these developments into account, James P. Sterba draws on his vast experience as a champion of affirmative action to mount a new moral and legal defense of the practice as a useful tool for social reform.

    Sterba documents the level of racial and sexual discrimination that still exists in the United States and then, arguing that diversity is a public good, he calls for expansion of the reach of affirmative action as a mechanism for encouraging true diversity. In his view, we must include in our understanding of affirmative action the need to favor those who come from economically disadvantaged backgrounds, regardless of race and sex. Elite colleges and universities could best facilitate opportunities for students from working-class and poor families, in Sterba's view, by cutting back on legacy and athletic preferences that overwhelmingly benefit wealthy white applicants.

    eISBN: 978-0-8014-5884-2
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Preface
    (pp. ix-xii)
  4. Introduction
    (pp. 1-5)

    In Grutter v. Bollinger (2003)—the U.S. Supreme Court’s most important decision on affirmative action—Justice Sandra Day O’Connor, writing for the majority, seemed to put a time constraint on the justification of race-based affirmative action. She ended her opinion with the claim “we expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”¹ Although at least one of her colleagues on the Court, Justice William Rehnquist, interpreted O’Connor’s decision to mean that the Court’s approval of race-based affirmative action will simply expire in 2028, this was not...

  5. 1 Current Racial and Sexual Discrimination
    (pp. 6-14)

    Surveys in the United States today show that white Americans overwhelmingly publicly ascribe to principles of racial equality and integration.¹ At the same time, 80 percent of whites recently surveyed deny that racial discrimination against people of color is a significant problem.² In another survey, 70 percent of whites believe that blacks are treated equally in their communities. In this survey, 80 percent of whites also thought that underrepresented groups, such as blacks and Latinos, receive equal, if not preferred, treatment in education.³ Another recent survey found that 68 percent of whites think that blacks have the same or more...

  6. 2 A Legal History of Race- and Sex-Based Affirmative Action
    (pp. 15-30)

    The first use of the phrase “affirmative action” in the United States is commonly attributed to Executive Order 10925, issued by President John Kennedy in 1961.¹ Two years later, when Kennedy proposed the legislation that became the Civil Rights Act of 1964, he and leading liberals of the 1960s assumed that by simply banning discrimination government could create a level playing field where equal opportunity prevailed. It was an assumption that they borrowed from baseball, where Jackie Robinson and other black players had eventually thrived once racial barriers were removed, and from school desegregation cases in the South that were...

  7. 3 How Best to Define Affirmative Action
    (pp. 31-35)

    The degree to which people in general are in favor of affirmative action largely depends on how that policy is described. For example, a Los Angeles Times poll showed that 58 percent of African Americans “opposed special preferences based on race and not merit,” and a Washington Post/ABC poll showed that roughly two out of three women “oppose preferential treatment for women.” On the other hand, according to pollster Lou Harris, every poll that has asked the simple question as to whether people “favor or oppose affirmative action—without strict quotas” has obtained a similar result: people favor affirmative action...

  8. 4 A Defense of Outreach Affirmative Action
    (pp. 36-37)

    Outreach affirmative action is easily the most defensible form of affirmative action. Even strong critics, like Louis Pojman, Thomas Sowell, and Carl Cohen defend this particular form of affirmative action. Thus, Pojman supports what he calls “weak affirmative action,” which includes the “widespread advertisement to groups not previously represented in certain privileged positions.” Similarly, Sowell holds that

    Racial discrimination is [an] obvious area where merely to “cease and desist” is not enough. If a firm has engaged in racial discrimination for years and has an all-white force as a result, then simply to stop explicit discrimination will mean little as...

  9. 5 A Defense of Remedial Affirmative Action
    (pp. 38-53)

    Although the U.S. Supreme Court has adopted different positions at different times, it has always held that it is permissible to adopt remedial affirmative action as compensation for identifiable acts of purposeful discrimination committed by that very institution. Of course, it is rare for an institution that is engaging in affirmative action to actually admit that it has committed identifiable acts of purposeful discrimination, or that it did so in the recent past. This is because such an admission would render the institution vulnerable to claims of compensation from other victims. Consequently, institutions frequently engage in remedial affirmative action only...

  10. 6 Objections to Remedial Affirmative Action
    (pp. 54-65)

    The remedial affirmative action that I have defended in the previous chapter has been criticized in various ways. Specifically, critics have claimed that it is objectionable for the following reasons:

    It is not required to compensate for unjust institutions of the distant past.

    It confuses the legitimate goal of eliminating discrimination with the illegitimate one of seeking certain proportionate outcomes.

    It requires group rights that are immoral.

    It is directed at the wrong people.

    It is illegal and unconstitutional.

    Let me consider each of these objections in turn.

    With respect to the first objection that affirmative action is not required...

  11. 7 A Defense of Diversity Affirmative Action
    (pp. 66-83)

    Unlike remedial affirmative action, diversity affirmative action is not grounded in the ideal of remedying discrimination, whether present or past. Rather its goal is diversity, which in turn is justified in terms of either the educational benefits it provides or its ability to create a more effective work force in such areas as policing and community relations, or achieving equal opportunity. The legal roots of this form of affirmative action in the United States are most prominent in Regents of the University of California v. Bakke (1978).

    In Bakke, Justice Powell argued that the attainment of a diverse student body...

  12. 8 Objections to Diversity Affirmative Action
    (pp. 84-96)

    The diversity affirmative action that I have defended in chapter 7 has been criticized in various ways. Specifically, critics have claimed that this form of affirmative action is objectionable for the following reasons:

    It harms those who receive it.

    It is unfair to the white males against whom it discriminates.

    It is illegal and unconstitutional.

    Let me address each of these objections.

    In support of the first objection, Charles Murray claims that affirmative action harms those who receive it by placing women and minorities into positions for which they are not qualified.¹ Murray cites examples, from his personal experience and...

  13. 9 Affirmative Action around the World
    (pp. 97-100)

    In his 2004 book, Affirmative Action Around the World, Thomas Sowell argues that not only are the consequences of affirmative action bad for the United States, but also that a study of affirmative action in other countries suggests that things could get worse for the United States if it pursues its misguided policy.

    More specifically, Sowell summarizes what he thinks we can learn from viewing affirmative action around the world:

    Preceding chapters have shown, time and again, intergroup violence arising from majority groups that no one has discriminated against, and preferences and quotas being given to such groups, whose only...

  14. Conclusion
    (pp. 101-104)

    Following the U.S. Civil War, there was a flurry of legal activity that attempted to remedy the injustices of slavery. The withdrawal of federal troops from the South in 1877, together with new oppressive state laws and supportive Supreme Court decisions, however, ushered in a period of Jim Crow laws, culminating in the Supreme Court’s separate but equal decision of Plessy v. Ferguson (1896). It was not until the Brown v. Board of Education decisions in 1954 and 1955, the Civil Rights Acts of 1964 and 1972, and a number of Supreme Court decisions on affirmative action—Griggs (1971), Bakke...

  15. Notes
    (pp. 105-122)
  16. Bibliography
    (pp. 123-128)
  17. Index
    (pp. 129-132)