Glass Ceilings and Affirmative Action February 10, 2000 Page 1
Glass Ceilings and Affirmative Action:
Does the First Exist and is the Latter Really Needed?
By: Howard W. Bell, Jr.
February 10, 2000
Few subjects generate more controversy and emotion without resolution than race and sex based affirmative action. The goal of this paper, therefore, is simply to answer the following questions.
- Why was affirmative action created?
- What is affirmative action?
- Why should race and sex based affirmative action programs still be required?
- What is causing the difference in standardized test scores between blacks and whites?
- What “affirmative actions”, if any can and should be taken?
Why was Affirmative Action created?
The road to affirmative action in this country has been illuminated, in part, by the light of the Declaration of Independence that established the ideal of equality of all people before the Creator. This beacon of light is embodied in the following sentence.
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
In spite of this ideal, however, the road to full equality for all citizens regardless of race, color, religion, sex, or national origin has been a rocky one. For Americans born prior to 1950 and raised in this country, many of the rocks in the road were current events. For Americans born after the passage of the Civil Rights Act of 1964, the overt acts of racism that lead to the implementation of affirmative action programs are “ancient” history and may not be known at all. This paper begins, therefore, by examining some of the historical events that led to the implementation of affirmative action programs.[1]
The need for affirmative action began in 1791 when the Constitution and Bill of Rights legitimized slavery. This legitimization of slavery lasted until 1863 when President Lincoln’s Emancipation Proclamation set slaves free in southern states, and 1865 when the Thirteenth Amendment to the Constitution officially abolished slavery throughout the nation. These steps were followed by the passage of the Civil Rights Acts of 1866 and 1875 and passage and ratification of the Fourteenth and Fifteenth Amendments to the Constitution in 1866 and 1870.
However, these steps towards racial equality were undercut by a series of events starting with the 1883 Supreme Court decision which struck down the Civil Rights Act of 1875 that barred discrimination by non-governmental entities. Erosion of steps towards equality continued as southern legislatures passed segregationist statutes known as “Jim Crow” laws and voting restrictions such as “poll taxes”. The Jim Crow laws were based on the notion that segregated public facilities were acceptable as long as they were roughly equivalent, a doctrine upheld by the Supreme Court’s 1896 Plessy v. Ferguson decision.
In 1917, the legitimacy of discrimination at the national level began to change when the Supreme Court, in Buchanan v. Warley ruled that the system of residential segregation that was enforced by the City of Louisville, Kentucky violated the Fourteenth Amendment. During the next thirty-five years, in response to pressure from the Civil Rights movement, a number of Presidential Executive Orders were issued that barred segregation by government contractors and integrated the armed forces. A major milestone occurred in 1954 with the Supreme Court decision of Brown v. Board of Education that overturned the “separate but equal” doctrine of Plessy v. Ferguson. The dismantling of discriminatory practices continued with the passage of the Civil Rights Act of 1964 and the issuance of Executive Order 11246 in 1965. The term “affirmative action” first appeared in Executive Order 11246 in a set of nondiscrimination provisions requiring that:
“The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin. Such action shall include, but not be limited to the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship.”
President Lyndon B. Johnson articulated the rationale for affirmative action programs in a speech to the 1965 graduating class of Howard University when he said:
“But freedom is not enough. You do not wipe away the scars of centuries by saying: Now, you are free to go where you want, do as you desire, and choose the leaders you please. You do not take a man who for years has been hobbled by chains, liberate him, bring him to the starting line of a race, saying, "you are free to compete with all the others," and still justly believe you have been completely fair. Thus it is not enough to open the gates of opportunity. All our citizens must have the ability to walk through those gates. This is the next and more profound stage of the battle for civil rights. We seek not just freedom but opportunity - not just legal equity but human ability - not just equality as a right and a theory, but equality as a fact and as a result.”
What is Affirmative Action?
For many blacks and women, affirmative action is viewed as a set of practices that protect them from current patterns of discrimination. At the other end of the spectrum, some white males view affirmative action as a set of practices that enable blacks and women to obtain positions that should have gone to more qualified white males. For the purposes of this paper, the American Civil Liberties Union definition of affirmative action is used. This definition refers to affirmative action as a series of program actions with the following characteristics.[2]
- They must be flexible, using goals and timetables to increase minority and female participation as permissible, but not quotas.
- They must protect seniority. Programs may not interfere with the legitimate seniority expectations of current employees.
- They must be temporary solutions. Programs may last no longer than necessary to remedy the discrimination.
Should Race and Sex Based Affirmative Action Practices Still Be Required?
While the above definition is fairly modest, many foes of race and sex based affirmative action ask a very basic and legitimate question. If discrimination in America has been illegal for over thirty years, why is any form of race and sex based affirmative action still required? Worded another way, why can’t blacks and women compete as individuals based on their merit?
Debates over these questions often lead to heated discussions with no resolution because the people on each side of the debate have very different views of reality bolstered by their perceptions of the facts. Using racism as an example, the dichotomy in perceptions is seen in a poll commissioned by The National Conference, a workplace diversity organization. The poll found that while 63% of whites thought African Americans have equal opportunity 80%, of African Americans felt they did not have equal opportunity.[3] A similar dichotomy in perceptions was cited in a Washington Post article about the perceptions of racism by blacks, whites, and Hispanics in the military.[4] According to this article, a congressionally mandated survey of 40,000 armed services members, concluded in February 1997 and released in November 1999, found that 20% of blacks and 13% of Hispanics in uniform reported they had been given inferior assignments or evaluations because of racial bias. Only 4% of whites reported this type of discriminatory behavior. The Washington Post article also cited a Washington Post-ABC News poll released in 1997 which found that 44% of blacks, but only 17% of whites, believe that blacks face “a lot” of discrimination in America.
These conflicting perceptions create what I call a “Discrimination Perception Gap” which undermines the ability of blacks, whites, and women to have a meaningful dialog on the need for race and sex based affirmative action programs. To close this Discrimination Perception Gap requires an agreement on the definition of racism and sexism and the presentation of objective, hard facts that can separate realities from perceptions.
However, defining racism and sexism is itself controversial. For the purposes of this paper, several terms will be used to refer to the various forms of behavior that are considered to be manifestations of racism. Analogous terms could be used to describe sexism. Using racism as an example, most whites bristle when they are labeled racists by blacks. This is because most whites equate racism with “Aware” racism, which they condemn, where Aware racism includes both “Aware/Blatant Racism”[5] and “Aware/Covert Racism”[6]. In addition, they assume that the nation’s legal system is being used effectively to end what they view as isolated cases of racist acts. An example of Aware/Blatant Racism is the murder of James Byrd, Jr. in June 1998. This case involved three white men, with Aware/Blatant Racist views, chaining a black man to the back of a pickup truck and dragging him several miles until his body tore apart and he died. An example of Aware/Covert Racism is the Texaco case that was settled in November 1996. This case involved racial discrimination complaints that were denied by the company until a tape recording, which caught top company officials making racial slurs and plotting to hide or shred documents sought by the plaintiffs in the discrimination lawsuit, was made public.
The difficulty for most blacks in accepting a definition of racism that only includes Aware Racism is that it eliminates from consideration “Unaware/Unintentional Racism”[7] which is a subtle form of racism. For these blacks, as well as those women who view most men as being sexist, discrimination is a very real and persistent reality that simply became more sophisticated with the passage of civil rights legislation and the Presidential Executive Orders of the 1960’s. In their view, although legal barriers have been eliminated, the existence of Unaware/ Unintentional racism and sexism have created a number of institutional non-legal barriers to true equal opportunity of admissions, employment, and promotions. Another form of subtle Racism is “Internalized Racism”[8]. This form of racism is particularly pernicious because it influences the way that many blacks think about themselves. As a result, blacks are sometimes unaware of the extent to which racism may influence their own beliefs and actions.
A study that documents the extent to which subtle racist images and stereotypes influence the thinking of both blacks and whites is found in an ABC news report about a test called the “Implicit Association Test”.[9] This test revealed that 90 to 95 percent of people who take this psychological test show an unconscious bias. Interestingly, this test is reported to indicate that while blacks show more variation in their results than do whites they do not do significantly better on the test. This would tend to confirm what many have argued, that the negative stereotypes about blacks and all things “black” versus whites and all things “white” affects everyone in this country. While this study does not attribute discriminatory behavior to the negative attitudes towards blacks, it does set the stage for other studies that show clear patterns of discriminatory behavior involving the subtle forms of racism.
For example, a study, conducted by the National Urban Institute, sent equally qualified pairs of job applicants on a series of interviews for entry-level jobs. The young men were coached to display similar levels of enthusiasm and "articulateness." The young white men received 45% more job offers than their black co-testers; Anglo testers were offered the job 52% more often than Latino "applicants."[10]
In another study at Princeton University, male undergraduates interviewed black and white male high school students, ostensibly for a position on a team slated to compete with other teams on educational tasks. The researchers identified several nonverbal cues to racist attitudes manifested during the interviews. The cues included sitting relatively far from, instead of closer to, a black subject, and looking away instead of looking the subject straight in the eye. The same researchers then had a group of college students interview some contemporaries for a job. While these interviewees were exclusively white males, the interviewers were told to treat some of them as blacks by using the nonverbal cues to racism identified in the first part of the study. Judges, unaware of deliberate differences in interview style, analyzed the videotaped interviews. They decided that those white students who, unbeknownst to either judges or subjects, were treated as black applicants, were less qualified for the job than white students treated as white job seekers. In other words, the white students treated as "black" job applicants were perceived, due to the use of nonverbal cues associated with racist attitudes, to have performed less well during the interview than white students treated as white applicants.[11]
In a third study, researchers in Cleveland sought to learn if professional judgments of police-officer competence was in any way related to race. Comparing performance ratings of officers made by peers and supervisors with personality assessments made by psychologists, researchers found no correlation between performance ratings and personality types among white police officers. The reverse was true for blacks. A black officer who was assertive, self-confident, heterosexual, and outgoing—traits usually associated with high police performance—tended to receive the lowest performance ratings, indicating bias against blacks by peers and supervisors.[12]
While the above studies of unconscious bias all involve blacks and whites, a number of articles suggest that similar unconscious biases affect the way women are treated.[13] A recent example of this unconscious bias and its affect on women is documented in a report issued by M.I.T. in the spring of 1999. According to the December 3, 1999 issue of the Chronicle of Higher Education, this report, which was the result of a four year study of gender discrimination at M.I.T., acknowledges discrimination against female scientists.[14] This internal study that documented gender bias against women in the School of Science at M.I.T., concluded that the bias was not conscious or willful on the part of men at M.I.T. Instead, according to Nancy Hopkins who led the internal study, the gender bias operates in a “stealthlike way.” As the Chronicle article notes, however unintentional the discriminatory behavior may be, it can have devastating effects on women’s careers.
If the above studies and perceptions were the only ones needing to be addressed, the debate over race and sex based affirmative action might already have ended. However, in spite of the facts documented in the studies referenced above, the debate remains clouded because of the belief among many whites, especially white males, that non-whites and women have benefited significantly from affirmative action programs to the point where “reverse discrimination” now occurs. Reverse discrimination is perceived as occurring in at least two areas, the workplace and college admissions.
Reverse Discrimination
Possibly the most visible cases of alleged reverse discrimination are in college admissions. Here the issue of reverse discrimination is usually seen as a black white issue with blacks, who are believed to be less qualified than whites, being admitted to highly selective colleges and universities. This is due in part to the fact that the pool of minority students capable of being admitted to selective colleges and universities, without some form of affirmative action program, has not grown significantly during the past thirty years. While the reasons for this state of affairs are many and complex, a major contributor to the situation is the reliance on SAT and ACT test scores as a measure of student ability. These tests are viewed by many as a single, clear, and unambiguous measure of a student’s qualifications, where the SAT test scores for African American students (to include middle income African American students) tends to be around 200 points lower, on average, than the scores of white and Asian students.
While there remains a heated debate over whether or not the SAT and ACT tests are racially biased, the fact remains that in spite of efforts to eliminate racial bias in the tests, the gap in test scores has not changed significantly. As a result, affirmative action programs designed to increase the number of black students at selective colleges not only remain in place, but have no anticipated termination date. The lack of an anticipated end date for affirmative action admissions practices at selective colleges and universities runs counter to the temporary solution requirement that is the third characteristic of an affirmative action program as defined in the “What is Affirmative Action” section of this paper. Hence, there appear to be legitimate issues and questions, which must be addressed in the area of affirmative action and reverse discrimination in college admissions.