Educational Law Term Paper

Pages: 12 (3482 words)  ·  Style: APA  ·  Bibliography Sources: 5  ·  File: .docx  ·  Topic: Race

Educational Law

HOW LAWFUL? HOW FAIR?

Educational Law: Affirmative Action and Discrimination in Employment

Affirmative Action consists of positive steps to increase the representation of certain groups in employment, education or business where they have been historically excluded (Stanford Encyclopedia of Philosophy 2005). These steps involve preferential selection according to race, gender or ethnicity.

According to a1999 poll, a majority of Americans believe affirmative action programs have improved the lives of Black Americans in recent years (Paul 2003). A 2001 Gallup survey revealed a majority of Americans think affirmative action has done good for the country. Fifty-six percent of the respondents said that such programs are needed to help affected groups or sectors deal with discrimination. More than half of all the surveyed believe that these programs will always be needed (Paul).Download full Download Microsoft Word File
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TOPIC: Term Paper on Educational Law Assignment

At a commencement speech at Howard University in 1965, President Lyndon Johnson discussed race, fairness and affirmative action (Katznelson 2006). This was almost a year after the enactment of the Civil Rights Act of 1964. The Civil Rights Act of 1964 provided, among other things, for injunctive relief to prevent discrimination in federally assisted programs and to establish a Commission on Equal Employment Opportunity (RBP Associates, Inc., 1996). President Johnson explored the reason for the widened gap between Blacks and white in the two decades after World War II. He observed that the majority of Negro Americans were, and still are, another nation despite court orders, laws and legislative wins to incorporate them. He recognized this as an American failure. He noted that the rate of unemployment for Negroes and whites was roughly the same. In 1965, that for the Negroes was two times higher. In 1948, unemployment for Negro teenage boys was actually less at 8% than for whites. In 1964, it went up to 23% as compared to 13% for whites. Negro incomes decreased in every section of the country between 1949 and 1959. From 1952 to 1963, the median Negro family income fell from 57to 53%. Johnson also noted that the number of white poor families decreased by 27 since 1947, while the number of poor non-white families decreased by only 3%. He wondered about the cause of the trend. Then he explored what could be done to compensate this inequality in race. He thus first introduced the concept of affirmative action in order to address and close the racial gap. But four decades after, efforts of affirmative action advocates have not found common ground (Katznelson).

Records show affirmative action to have begun in the early 60s when the federal government instituted policies in dealing with employment discrimination. These policies would include improving working conditions and circumstances for African-Americans. But these policies had progenitors during the New Deal and Fair Deal period of the 30s and the 40s. The exclusion of many Black Americans from the benefits of public policy of the time and the management of important, large-scale, national programs became new sources and grounds for racial inequality. The federal government functioned understandably as an instrument to privilege the whites. Legislations needed the assent of members of Congress from the racist South. Public policy was shaped to suit its preferences, specifically to protect Jim Crow (Katznelson). Jim Crow was a racial caste system, which was primarily followed in the Southern and border States from 1877 and mid-60s (David Pilgrim 2000). It legitimized anti-Black racism, reducing African-Americans as second-class citizens. Many Christian ministers of those times taught that Whites were the chosen people, the Blacks were cursed as servants and that God Himself favored racial segregation. The system held sway over 17 American States and Washington DC. It dictated the direction and content of social security, major labor legislations, the GI bill and other landmark laws. All these created a white middle class, which protected what legislators refer to as "the Southern way of life (Pilgrim)."

But affirmative action is corrective justice (Katznelson 2006). Corrective justice is different from the fair distribution of goods, according to philosopher Jules Coleman.

It compensates deprived groups for previous losses to gains unfairly obtained by others through government action. It seeks out interventions, which would repair past unjust decisions. But advocates must contend with matters involving fairness and legitimacy. So far, they have not come up with clear and defensible principles to match the arguments and rhetoric of opponents. Advocates have developed only broad claims for compensation for a long history of slavery, segregation and other forms of racism. Their reasoning is usually less developed and convincing than that of their opponents. Their theory has been hardly articulated, much less defined. Even their arguments in the Supreme Court have been one-sided and cannot pit strength with the sharp, tried and pragmatic position of their opponents. This was demonstrated in the case filed by United Steelworkers vs. Weber in 1979. The Supreme Court favored the employer's voluntary agreements to reserve half of all craft training positions until its African-American laborers matched the percentage of Blacks in the local labor force. The employer invoked Title VII of the Civil Rights Act on Equal Employment Opportunities regarding the adoption of racial quotas to remedy racial one-sidedness. Weber argued that racial quotas should be permissible as there was no proof of intentional wrongdoing or active discrimination. Justice William Brennan and the majority of Supreme Court justices decided that prohibiting hard targets for the sake of the Civil Rights Act of 1964 would be too ironic. He did not think that the country's concern over racial injustice should deter "race-conscious efforts at... racial segregation and hierarchy (Katznelson).

Court decisions have been dismayingly inconsistent. The 1984 court ruling on Firefighters v Stotts that white firefighters could not be laid off to make way for more junior Blacks (Katznelson 2006). Just two years later, it decided in Wygant v Jackson Board of Education that minority employment was not strong enough to override white teachers' seniority. It also upheld the right to racial quota in Local 28, Sheet Metal Workers' International Association v EEOC. It judged that numerical goals could be spread out to put an end to the steep under-representation of African-Americans and Hispanics in the firm. This was the court's position although International Union disapproved racial restrictions since 1946. In United States v Paradise and Johnson v Transportation Agency, the court upheld promotion quotas and voluntary plans on account o under-representation of minorities over direct discrimination. Justices have used inconsistent language in dividing the arguments of supporters and opponents. Opponents of affirmative action found it wrong as a constitutional doctrine and principled tenets. Justice Clarence Thomas, an African-American appointed to the Supreme Court, disagreed in Grutter v Bollinger in June 2003. He upheld racial preferences in admissions to the Michigan Law School. Sandra Day O'Connor, the first woman justice, decided otherwise. She decided that compensatory steps by affirmative action in higher education would be a social good. These would allow qualified and talented persons, whatever their race, to develop into leaders (Katznelson).

Justice Lewis Powell agreed affirmative action in the 1978 Regents of the University of California v Bakke (Katznelson 2006). He determined that it established clear and principled standards. Four justices decided that the University of California's admissions process breached civil rights laws, which prohibit racial discrimination. But four other justices opposed that position. They contended that race-blind policies in a society that is race-conscious will make access difficult for minorities. Justice Powell voted that the University violated the equal protection provision of the Constitution. On voting, Bakke won and was admitted to the medical school (Katznelson).

The wording of the Fourteenth Amendment has been the springboard of resistance to the way affirmative action has been applied since 1965 (Katznelson 2006). The issue has not been prejudiced treatment but preferential treatment for a group on the basis of race. Powell authorized affirmative action within the provisions of equal protection and under stiff conditions. He said that changes to color-blind policies could remedy the disadvantages under two conditions or they are unlawful. The remedies must link up tightly and clearly with specific historical disadvantages on account of race. General claims on racism would be insufficient. Affirmative action could not be vague or only moderately important. All in all, he required that clear and specific racial harms and a convincing public purpose for applying remedies. But Antonio Scalia countered that Powell was wrong in upholding affirmative action in any form. Scalia found restorative justice to be inherently neither right nor constitutional (Katznelson).

All the dispute over diversity led Justice O'Connor to suggest that diversity should stop being enforced in 25 years (O'Sullivan 2003). Some believed that if the diversity principle or trend proceeded unchecked, the human resources department would be the most important decision-maker in a corporation. Justice Ruth Bader Ginsburg wondered why race preference should not be openly supported rather than uselessly disguised as "individual" assessments. Many commentators replied that the disguises were essential because very large majorities of Americans rejected race preferences (O'Sullivan).

Liberals contend that every deep passion is guaranteed by the Constitution… [END OF PREVIEW] . . . READ MORE

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