Can affirmative action be used to benefit those who did not actually experience discrimination?
Affirmative Action was not initially intended to benefit groups or categories of individuals who were not the victims of systematic discrimination on the basis of race, ethnicity, religion, or gender, the final category not even represented in initial government efforts at eliminating discrimination in the workplace. For example, President John F. Kennedy, on March 6, 1961, signed Executive Order 10925, which established the President’s Committee on Equal Employment Opportunity for the purpose of eliminating discriminatory practices involving government contacts with privately-owned companies. For instance, the executive order, which carried the weight of law, stipulated that contractors seeking to do business with the federal government
“. . .will not discriminate against any employee or applicant for employment because of race creed, color, or national origin. The contractor will take affirmative action to ensure that applicants are employed without regard to their race, creed, color, or national origin.”
Similarly, with regard to discrimination in education, the Civil Rights Act of 1964 stated:
“. . .no person in the United States shall; on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity receiving Federal financial assistance from the Department of Education.”
These provisions from legal documents issued by the U.S. Government do not specify individual groups to whom preferential treatment is to be extended. What they do, however, is prohibit consideration of race, creed, color, etc., in decisions pertaining to who is hired or promoted in the workplace and who is admitted to universities. That said, the Civil Rights Act did go beyond a mere prohibition on discriminatory practices to establish what we know as “affirmative action”:
“(6) (i) In administering a program regarding which the recipient has previously discriminated against persons on the ground of race, color, or national origin, the recipient must take affirmative action to overcome the effects of prior discrimination.
(ii) Even in the absence of such prior discrimination, a recipient in administering a program may take affirmative action to overcome the effects of conditions which resulted in limiting participation by persons of a particular race, color, or national origin.” [Emphasis added]
The intent and effect of these provisions – more accurately, these laws – has been the subject of contentious public debates ever since, as the issue of whites failing to be promoted or admitted into academic programs in deference to ethnic minorities has consistently elicited complaints of “reverse discrimination.” There is a difference between prohibiting discriminatory policies and authorizing policies that can benefit historically-disadvantaged groups at the expense of individuals who happen to be deserving of promotion or admittance but who also happen to be white. In any event, to answer the question of whether affirmative action can be used to benefit groups that have not been the target of discriminatory policies, the answer is yes. As recently as 2003, the U.S. Supreme Court, in deciding two cases involving the University of Michigan’s admission policies – Gratz v. Bollinger and Grutter v. Bollinger – by a five to four majority upheld the principle that racial and ethnic diversity on college campuses can represent a “compelling state interest.” The effect of these decisions was to reaffirm the legal basis of affirmative action and to establish diversity as a goal in and of itself irrespective of any prior history of racial discrimination.