Looking at Affirmative Action
Timothy Eby
Southern New Hampshire University

Introduction to Critical Thinking
PHIL - 111
Dr. Jean Suplizio

October 11, 2015

Looking at Affirmative Action

THESIS: Explore segments of the inherent disadvantages associated with affirmative action, as experience by non-minority college applicants. Present a relevant objection(s) and a response to the objection.

DEFINITIONS: Affirmative action is defined as: “… programs required by federal statutes and regulations to remedy discriminatory practices in hiring minority group members; i.e. positive steps designed to eliminate existing and continuing discrimination, to remedy lingering effects of past discrimination, and to create systems and procedures to prevent future discrimination; commonly based on population percentages of minority groups in a particular area. Factors considered are race, color, sex, creed, and age. National Labor Relations Board v. Fansteel Metallurgical Corporation, 306 U.S. 240” (Black, 1990, p. 59).

An additional definition can be found in the widely accepted Random House law dictionary: “… any step by a public or private employer, school, institution, or program, beyond the mere cessation of intentional discrimination, to promote diversity, provide opportunities, and alleviate the effects of past discrimination on the basis of race, sex, national origin or disability” (James, 2000, p. 20).

REASON # 1: Colin Powell, the 65th United States Secretary of State, former Chairman of the Joint Chiefs of Staff, and retired four-star general in the United States Army has stated:
“Equal rights and equal opportunity… do not mean preferential treatment. Preferences, no matter how well intended, ultimately breed resentment among the non-preferred.
Further, preferential treatment demeans the achievements that minority Americas win by their own efforts.”
(Brooks, 2000, p. 568)

Given the thoughts by Mr. Powell, the effects of bestowing preferential consideration to minority collegiate, and employment, prospects over individuals who retain higher entrance test scores, or possess vastly superior job related experience, there is a reasonable expectation for resentment. Although the original intent of affirmative action contained noble foundations, intent does not always produce the desired outcome. Affirmative action is no exception.
The first case on affirmative action to be heard by the Supreme Court of the United States (Regents of the University of Calfornia v. Bakke, June, 28, 1978) decided issues brought by Allan Bakke, a white male student. Bakke argued that he was denied acceptance to U.C. solely due to racial quotas the University of California had recently implemented. Bakke further argued that hs entrance scores were superior than most of the minorities who were accepted under the net of the racial quota system.
The Constitutional issues raised by Bakke included, but were not limited to violating the Equal Protection clause of the United States Constitution (U.S. Const. amend. 14th). Various Equal Protection aspects argued in Bakke, related either in whole, or in part, were:

a) specified racial quotas have no per se legal standing b) racial quotas that are established to correct past discriminatory are to be justified by the legislative process, and not an institution of higher education,(Olson, 1997).

Although Bakke did not specifically strike down affirmative action in theory and application, it did lay the ground work for future Federal Court rulings where the theory was successfully argued against. The successful cases were based upon the violation of the Equal Protection clause of the 14th Amendment of the Constitution:
Hopwood v. State of Texas
78 F3d 932
5Th Circuit Court of Appeals
Decided: March 18, 1996

Fisher and Michalewicz v. University of Texas at Austin, et. al.
Case No. A-08-CA-263-SS
U.S. District Court, W.D. TX, Austin
August 17, 2009

Brewer v. West Irondequoit School District
32 F. Supp. 2d, 619
Dist, Court, W.D. NY, 1999
January 14, 1999

and many others……….
The above “Brewer” case contains a judicial statement which encapsulates the entire premise of Equal Protection transgressions inherent to affirmative action:
“… the guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal”
(Brewer v. West Irondequoit Central School District, January 14, 1999)

REASON # 2: In 1991, Timothy Maguire, a Georgetown University law school student, created a firestorm of controversy related to another inherent unequal factor of affirmative action. Mr. Maguire was hired to straighten out the files for students enrolled at Georgetown. While in the process of rearranging the law school files, Mr. Maguire noticed a curious thing, being the mean scores on the Law School Aptitude Test (LSAT) were significantly lower for black students, when compared to white classmates. Maguire published his findings in the law school’s student newspaper (Herrnstein & Murray, 1994, p. 450). The controversy given above sets forth a gross manipulation of LSAT and SAT scores, where minority students, being primarily black, are given enormous advantages when it comes to college entrance exams. For some, it really does not matter if an acceptable score is obtained; the primary section of importance on SAT and LSAT may well be the little box receiving an “X” where a minority racial ethnicity is indicated at institutions like, Georgetown University, The University of Virginia and the University of California (Herrnstein & Murray, 1994, p. 453 - 57). The limited scope of this paper does not permit space for an exhaustive account pertaining to the egregious discrimination towards white students; students who have studied hard to earn their way into respectable collegiate institutions, only to be denied access because of a minority, with a much lower score, was rewarded for their lack of excellence. There are numerous Federal Court rulings, and sociological studies, where arguments reveal the inherent flaws within affirmative action. Perhaps it is past time for the words “equal protectionl” to take on a literal interpretation and implementation.

REASON # 3: Although this section is not a particular argument, it does point out the inherent double standard in American race relations, and by default, affirmative action double standards. Take for example the National Football League (NFL) and the National Basketball Association (NBA). After visiting several sports related websites, as in all honesty, I could not locate any scholarly studies on this topic, however, the following numbers are generally agreed upon:

68% of NFL players are black
76.3% of NBA players are black

Anyone who views either of these two professional sports will realize the widely accepted fact of both sports over representing blacks, in comparison to the overall population percentages in the United States. According to the 2010 U.S. Census, blacks were tabulated at 38.9 million, or 13% of the population; whites were tabulated at 223.6 million, or 72% of the population (Overview of Race and Hispanic Origin: 2010 Census, 2012). These numbers display, on the surface, obvious discrimination. However, within the realm of the NFL and the NBA, unlike affirmative action on our campuses, the “best player” is awarded a spot on the professional team roster; I have never heard of a roster position being given to a NFL or NBA player in order to equalize a racial imbalance on a team. The mere thought is absurd. Why is that affirmative action not as absurd?

OBJECTION: Our SNHU text refers to a Professor John Livingston (Boss, 2012, p. 30). Professor laments that three things are needed before there is racial harmony in the United States. The three things relate to interracial marriage, whites trading places with blacks, and a black President being treated seriously. Although these three components are somewhat relevant, to a limited degree, some will also argue that affirmative action should be the forth element. Those who expound the benefits of affirmative action generally convey benefits of diversity on campus, a greater number of minorities obtaining degrees, corrects past injustice, and shall enhance employment opportunities for minorities (Katznelson, 2005, p. 149-51).

RESPONSE TO OBJECTION: Although the reasoning for the objection contains worthwhile objectives, the simple fact of the matter is that in order to finally reach “equality” in our nation, we must adhere to the visionary words of the late Martin Luther King, Jr., where he “had a dream.” The dream, in part, foretold of the day when men will not be judged by the color of their skin, but on the content of their character. Any man of character will demand to be judged on his own merits, neither being given an advantage, nor be subjected to a disadvantage, while only insisting upon an even playing field. Affirmative action, in the opening quote from Colin Powell, has no place in a truly equal society. Hopefully, the day has arrived where a truly equal society has become manifest.

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References
Black, M.A., H. C. (1990). Black’s Law Dictionary: Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern (6th ed.). St. Paul, MN: West Publishing Co.
Boss, J. A. (2012). Think: Critical Thinking and Logic Skills for Everyday Life (2nd ed.). Upper Saddle River, NJ: Pearson Education, Inc.
Brewer v. West Irondequoit Central School District, 32 F. Supp. 2d 619 Federal Supplement Reporter 619 (Western District, NY January 14, 1999).
Brooks, J. C. (2000). The Demise of Affirmative Action and the Effect on Higher Education Admissions: a Chilling Effect, or Much Ado about Nothing? Drake Law Review, 48(3), 567-585.
Herrnstein, R. J., & Murray, C. (1994). The Bell Curve: Intellegence and Class Structure in American Life (paperback ed.). New York, NY: Simon and Schuster Inc.- Free Press Paperbacks.
James, C. E. (2000). Random House Webster’s Dictionary of the Law (1st ed.). New York, NY: Random House, Inc.
Katznelson, I. (2005). When Affirmative Action Was White (1st ed.). New York, NY: W.W. Norton & Company, Inc.
Olson, S. L. (1997). The Case Against Affirmative Action in the Admissions Process. University of Pittsburgh Law Review, 58(991).
Overview of Race and Hispanic Origin: 2010 Census. (2012). www.census.gov/.../cen2010/.../c2010br-02...
Regents of the University of California v. Bakke, 438 U.S. 265 (1978) Supreme Court Reporter 265 (June, 28, 1978).
U.S. Const. amend. 14th.