Focus on Affirmative Action

Today's Guests Are:

Dennis Parker: Director of ACLU Racial Justice Program. Dennis Parker joined the ACLU as the Director of the Racial Justice Project in June of 2006. Prior to joining the ACLU, Parker was the Chief of the Civil Rights Bureau in the Office of New York State Attorney General Eliot Spitzer. He spent 14 years at the NAACP Legal Defense and Education Fund. Parker has also worked with the New York Legal Aid Society. He teaches Race, Poverty and Constitutional Law at Columbia University's School Law Institute and is a graduate of Middlebury College and Harvard Law School.

Marianne Lado: General Counsel to New York Lawyers for the Public Interest. Marianne supervises and administers the litigation and advocacy program. Marianne was previously a staff attorney at the NAACP Legal Defense and Educational Fund (LDF), where she worked on litigation and advocacy within LDF's Poverty & Justice Program, representing clients attempting to break barriers of access to health care and quality education. In this capacity Marianne was responsible for developing a health care docket aimed at addressing the scarcity of health resources in medically underserved communities; discriminatory practices by the health care industry, including nursing homes, and also managed care organizations; lack of access to reproductive health services; and related issues of environmental justice. Her many publications include "Unfinished Agenda: The Need for Civil Rights Litigation to Address Continuing Patterns of Race Discrimination and Inequalities in Access to Health Care," "Breaking the Barriers of Access to Health Care: A Discussion of the Role of Civil Rights Litigation and the Relationship Between Burdens of Proof and the Experience of Denial," and "A Question of Justice: African-American Legal Perspectives on the 1883 Civil Rights Cases."

MYTH: Existing anti-discrimination laws are adequate to create equal opportunity.

FACT: Anti-discrimination laws are an important but limited tool: they are primarily designed to address some forms of “in your face,” discrimination, but they cannot correct for the full range of discriminatory and unfair practices that limit opportunity in America. These laws are woefully inadequate to the task of ensuring equal opportunity to all Americans. Affirmative action complements these laws by correcting for other forms of discrimination that the law does not or cannot address, by providing a proactive and efficient way for institutions to overcome discrimination and bias in their hiring and admissions procedures.

Some critics of affirmative action believe that the Civil Rights Movement resulted in far-reaching anti-discrimination laws that are sufficient to advance equality. These critics believe that we should rely on federal and state laws that prohibit discrimination, rather than utilize affirmative steps for fostering equality. Unfortunately, anti-discrimination laws are insufficient to meet the task of creating equal opportunity in a society that has moved beyond explicit "Bull Conner"-style racism and that faces deeper and more subtle forms of racism. Let's look at some of the reasons that we cannot rely on anti-discrimination law.

LIMITED ENFORCEMENT

At their basic level, anti-discrimination laws set forth a blanket prohibition against discrimination, but they do not provide any mechanisms to prevent it. If an individual or group is discriminated against, anti-discrimination laws do not automatically impose a penalty. Rather, the law requires individuals take action in the form of lawsuits before something is done to stop the discrimination. Such lawsuits, however, are expensive to litigate and extremely difficult to win. In fact, discrimination suits are the most difficult suits to successfully prosecute, at least for female and minority plaintiffs. Only 15% of plaintiffs who raise discrimination claims in the workplace actually succeed (Click HERE for more information on this topic). Much of this difficulty has to do with anti-discrimination law’s outdated conception of what constitutes discrimination, with the exceptionally high burden of proof imposed on such plaintiffs, and with the misguided presumption among many judges that traditional discrimination is a thing of the past. White males, on the other hand, are far more likely than minorities and women to win discrimination suits.

Yet there is no evidence to suggest that after centuries of preference for white males across all American institutions they are suddenly the most likely victims of racial and gender discrimination. In fact, white males are still overrepresented in almost all of our key public and private sector institutions. So these surprising statistics suggest that their disproportionate success in the courts is probably attributable to a greater empathy for their claims on the part of the overwhelming white male bench, or perhaps it is due to the implicit biases of the judges hearing their cases.

Antidiscrimination law cannot possibly address and correct wide patterns of discrimination in the work force. Studies have repeatedly shown that there is measurable and predicable racial discrimination in basic entry level competition for jobs. For instance, researchers at MIT and the University of Chicago performed a study where they sent out résumés to local businesses that had advertised job openings. The résumés were all identical except for one feature: some of the résumés carried stereotypically white names, while others had stereotypically Black names. The researchers found that those résumés with white-sounding names had a success rate that was on average 50% higher than résumés with identical qualifications but Black-sounding names. Read about the résumé study HERE.

Another study, performed in New York, featured applicants for entry-level jobs. These applicants, some of whom were Black and some of whom were white, were coached so that they spoke and dressed in a similar fashion. Additionally, some of the men were given fictitious 18-month prison records for possession of cocaine. When the men went out to interview for jobs, researchers found that white men with prison records were more likely to receive callbacks than black men with no criminal records whatsoever. This means that in the employment arena, being Black is worse than having one penal strike against you! Read more about the hiring study HERE.

This is the kind of widespread discrimination--sometimes called "societal discrimination"-- that laws cannot address. First, most victims are likely to be unaware that they have been denied equal opportunity, but the effect of this denial is manifest in lower rates of employment, higher unemployment, and lesser economic attainment. Second, even when victims are aware of this discrimination, virtually no individual seeking such jobs is in a position to pay several thousands dollars to open such a case, much less prosecute it fully. Only large class actions are viable and lawyers are reluctant to take such cases due to their expense, the time investment required, and the increasing likelihood that they will fail. Obviously, our current anti-discrimination laws don’t allow us to correct for the sort of widespread, systemic, and covert racism that leads to outcomes like the those found in the studies mentioned above.

Simply put, there is a huge gap between what the law promises, and what equal opportunity requires. This is where affirmative action comes into play. By focusing on outcomes, it allows us to tailor our anti-discrimination tools to the needs of a given environment. Thus, when viewed in the proper light, we can see that affirmative action corrects for some of our society’s deep-seated and hardest to reach problems.

Some critics of affirmative action have suggested that antidiscrimination law should be strengthened to be more effective in creating equal access to the workforce and educational institutions. While stronger tools are certainly necessary, the reality is that the current trend in antidiscrimination law is moving in the opposite direction. A renaissance of antidiscrimination law is not on the horizon. Even if it were, antidiscrimination law remains a background set of rules that function primarily as an after-the-fact penalty for discrimination, a penalty that is seldom assessed. Lawsuits are thus options of last resort. They are not appropriate as mechanisms for opening the doors of opportunity and they do not create incentives to rethink practices and attitudes that limit the opportunities of women and minorities. Affirmative action remains necessary as a proactive tool to provide access and opportunity. If antidiscrimination law is the stick--weak though it may be, then affirmative action is the carrot.

Bull Connor and police dogs: an image of obvious, old-style racism

Implicit Bias

No longer is discrimination symbolized by the Bull Connors of the world, with their racism on display through firehoses and dogs. Instead, racism has become more subtle and more often institutional. Anti-discrimination law rooted in the old style discrimination of 1960s and 70s is just not well equipped to address this contemporary reality. This is especially true when people don’t even know that they are engaging in discriminatory practices. Today there is a wealth of information that proves that even people who are not overtly racist, people who would never use a racial slur, still tend to make racially biased decisions. Research demonstrates that discriminatory decisions and outcomes are largely influenced by stereotypes, or implicit biases that occur at the unconscious level. This implicit bias has been shown to occur on a wide scale and to negatively impact how we think about and behave toward racial minorities – even without knowledge that we are discriminating. Read more about implicit bias and discrimination HERE.

“[B]ias both conscious and unconscious, reflecting traditional and unexamined habits of thought, keeps up barriers that must come down if equal opportunity and nondiscrimination are ever genuinely to become the country’s law and practice.” -- The Honorable Justice Ruth Bader Ginsburg in Adarand Contractors, Inc. v. Pena

Although scholars and lawyers have long advocated for courts to see decisions influenced by unconscious bias as discriminatory in nature, the judiciary have been reluctant to develop an approach to remedy this problem. Yet we know that various forms of bias influence a host of perceptions and decisions that influence the employment opportunities of minorities and women. Proactive policies such as affirmative action help bridge the gap between our limited ability to prevent unconscious bias and our national commitment to providing equal oppotunity.

Structural Racism

In addition to direct discrimination and unconscious bias, there is yet another set of obstacles that limit equal opportunity, yet fall outside the scope of the law to correct. Structural racism captures the variety of ways that our very social structure operates to reinforce and perpetuate disadvantages that have been built into our society over time. Structural racism requires no particular individual to either intentionally or unconsciously discriminate in order for individuals to be denied equal opportunity. Instead, a variety of conditions, most of which at one time were intentionally created to disadvantage people of color, operate to exclude or marginalize those groups virtually automatically.

For example, minorities are often disadvantaged in the competition for jobs due to "spatial mismatch" -- the fact that jobs are situated far away from the communities where minorities live. The decisions about where to locate industry, along with decisions to limit, for example, public transportation to those jobs, combines to deprive minorities of an equal opportunity. These decisions are often the product of past discrimination, conscious or unconscious bias, and political preferences for white and affluent communities. Their effects on people of color can be profound, even though there may be no intent to disriminate against them. This kind of structural racism falls far outside the scope of antidiscrimination law, but the conditions it reflects bear no resemblence to a meaningful definition of equal opportunity. Affirmative action policies address these sorts of problems. They encourage employers and other decision makers to take affirmative steps to minimize the effects of such conditions.

To learn more about structural racism, click HERE.

Founded in 1996 as a media-monitoring think-tank and information clearinghouse, the African American Policy Forum works to bridge the gap between scholarly research and public discourse related to inequality, discrimination and injustice. The AAPF seeks to build bridges between academic, activist and policy-making sectors in order to advance a more inclusive and robust public discourse on the challenge of achieving equity within and across diverse communities.

Please visit us at aapf.org