Affirmative Action: [References are mainly to the text by Tatalovich and Daynes but class lecture/discussion may also be included in places.]

Note opening lecture comments on “Race Matters”

• Black/White Race Quality and Status in Life:

– income

– education

– health

• Discrimination Today

– employment

– advancement

– social behavior [e.g., Do white residents go to black lawyers, call black electricians, use black funeral homes, etc.?]

– housing

1. Framing the Issue:
            --"affirmative action" or "reverse discrimination"?
--(Is it really reverse discrimination in the sense of the discrimination referred to as "invidious" discrimination?)

--"affirmative action" or "diversity initiatives"?

--“preferential treatment” or “accomplishing corporate, university, etc. goals/objectives such as diversity in education or appealing more to the minority consumer, etc.?

--“quotas” or “seeking an increase through more aggressive actions and using numbers only to track if increase or decrease”?

2. Values at Stake:
            --equal opportunity (Note that what is really "equal opportunity" is the subject of much philosophical debate and can cut both ways -- for and against affirmative action programs.)

--social harmony ("rancor" with it and rancor without it -- why?) -- author indicates apparently AA has increased racism and resentment among whites and encouraged victimization and possibility dependency on the part of recipients –however, arguments and evidence to the contrary also in the literature – see Cornell West Race Matters for criticism of those who see only victims and those who see none.

            --equal employment opportunity (see definition (p.37)-- discrimination on basis of race, color, national origin, religion and sex "are unconstitutional and morally unacceptable"
                    --"acceptable" for other value reasons? -- remedial? bring about equal opportunity by assuring it?

            --what is equality of results cf equality of opportunity?

            --sense of justice (cuts both ways) (This isn't discussed in book but think about it. This may produce a conflict of values with a sense of justice and injustice felt at the same time. )

--self-respect (AA hurts or helps?) [Note that a major study concerning Ivy League graduates indicates strongly that self-respect not damaged at all. ]

            --equal protection of the laws -- legal value/Constitution

            --individual cf group (race, gender, etc.) rights (Not discussed in book but part of the debate re: advantaging or disadvantaging a group, such as a right of compensation for past discrimination or a right of a group to be on equal footing with other groups economically.)

            --author in text concludes: affirmative action "expected to eliminate the effects of past discrimination, end racism, reduce poverty, and create opportunities for people of color. It should be no surprise that it has failed to do so." --Has it failed entirely or only partly given advances of minorities in social status, economic levels, and job positions? (E.g., increase in number of blacks on some police forces, increase in number of women in law firms and in management level jobs.) --- "Affirmative action is, in the short-run, sometimes a zero-sum game. In the long-run, however, an integrated, diverse society will be more humane and productive."

3. Terms/events. etc. to note:

            --affirmative action -- what is it? different definitions exist -- note carefully bottom of p. 65 and author's suggestion of different possibilities -- also how he links his thoughts to the notion of moral absolutes and the debate
                    --outreach programs?
--quotas?
--preference among equals?

            -- federalism

            --Civil Rights Act of 1964

            --Note 1995 and California Referendum on affirmative action (Prop. 209) -- re: public ed., public employment and public contracting

            --Philadelphia Plan

            --filibuster -- what is it, why used,( what relationship to "democracy"? --not discussed in text but think about it)

            --set-asides

            --statistical disparity

            --prima facie

            --qualifications -- what does "being qualified" mean? Not discussed in text but at the heart of many of the arguments, e.g., should not hire unqualified persons, or not admit to universities those less qualified

4. Congress:

            --CR Act of 1964: Note basic  provisions of this historic act.

           --Equal Employment Act of 1972
                    --vs cease and desist powers of EEOC and instead could go to federal courts -- note why southern Senators favored this  -- Note split between labor and civil rights groups and why

            --1970s and requirements for preferences by state hiring re: handicapped, veterans

            --1991 Civil Rights Act -- note politics bringing it about re: Bush, Clarence Thomas, David Duke and Congress

            --note analysis that Congress broadening coverage after Supreme Court narrowed it, thus overriding Court -- not overriding constitutional interpretation but statutory interpretation! Note the difference. Not indicated in text, thus ask in class if you aren't sure of the difference. ----Republic majority in 1994 went a different direction but then blocked by Clinton -- note politics and role of corporations and why not so supportive of Republican efforts (a good example of how Congress, President and lobbying interests interact and the motivating values)

5. Judiciary

            --criteria for determining when discrimination could be adjudged to have occurred --- define appropriate remedies  --- interpret actions of employers -- and indicate which employers and employment practices exempt from coverage

            --burden of proof -- see McDonald Corp. Case (1973)

            --preponderance of evidence cf. burden of explaining clearly the action

            --employment practices resulting in adverse impact -- Griggs case (1971)-- note caveat that tests to be invalid must by unrelated to measuring job capability

            --note question of statistical disparity and proof of discrimination

            --note court standards re: race conscious actions: compelling state interest, narrowly tailored, evidence of prior discrimination

            --rulings on seniority systems

            --responsibilities of employers:
                    --see Weber (1979)

            --Fullilove case and federal works set-asides (1980)

            --Carey case -- state legislative redistricting

            --Bakke decision Note Gratz and Grutter cases coming from U. of Michigan -- 2003. Point system not allowed Gratz but flexible “critical mass” approach to minority admission allowed in Grutter. 

            --note standard of "obvious imbalance" and what this allows

            --note standard of "strict scrutiny" and link to history of discrimination (City of Richmond case -- 1989)

--favoring minority ownership of radio and TV stations allowed?

            --set aside programs in federal highway grants allowed?

6. President -- Does it Make a Difference Who is President?

           --Nixon and Philadelphia Plan

            --Carter and link to Justice Department's aggressive action as proponent

            --Reagan approach

            --Clinton approach --"mend it, don't end it" -- what actions resulted?

--Bush position on the Supreme Court cases involving affirmative action?

7. Bureaucracy

            --Office of Federal Contracts Compliance and Philadelphia Plan -- good example of role of bureaucracy, use of statistical disparity and history of discrimination remedy -- note move to outreach and broadening of pool rather than requiring specific hiring (1995)

8. Interest Groups

            --labor, Jewish groups, white ethnic voters against [religious and white ethnic groups do not benefit from preferences

            --black (NAACP), Spanish-speaking, Asian groups tend to be for

            --Note that persons in all of these groups may take opposite positions to the majority of their groups, e.g., Ward Connerly, a driving force behind the effort to end racial preference in California is black, as is Justice Clarence Thomas on the Supreme Court, who vigorously opposed all affirmative action programs although he probably would not be on the Supreme Court if it were not for the racial preference of have at least one black justice on the Supreme Court (He took the seat formerly held by Thurgood Marshall, a very liberal black  member of the  Court coming out of the NAACP as one of its lawyers.)

--note that corporations often are favorable – why?

9. Public Opinion

            --shift toward more racial tolerance?

--public preference? Note importance of wording: "quotas" or "preferences" or "affirmative action" have different results -- opposition among white males seemed to have peaked from 67% in 1995 to 52% in 1996, why?

            --how is issue used by Republicans cf Democrats?