Logic of Affirmative ActionLogic of Affirmative ActionFew social policies transcend boarders, even fewer evoke such fierce debate, or prolonged inquiry, as does the controversial policy known as affirmative action. Its presence is known in numerous countries, under various guises: “Standardization” in Sri Lanka, “positive discrimination” in Great Britain, and India, “reflecting the federal character of the country,” in Nigeria, and “sons of the soil” preferences in Malaysia and Indonesia. (Affirmative Action Around the World, pg2). Its critics are vocal as to their dissent of its legality, and fight tirelessly against it, often times in unity with one another. From individual citizens, to presidents, Supreme Court justices, and those in academia, all weigh in with their own perceptions. The purpose of the following argument is to provide an in-depth, formidable analysis of affirmative action, primarily in university admissions in the United States of America.
Regardless of the stance taken, proponent or opponent; affirmative action is often misunderstood amongst its most fervent commentators. What is affirmative action? Why, if at all, is affirmative action needed? Where and when did it originate? For what reasons? To whose benefit? To whose detriment? All of these questions, and more, beg not only answering, but asking. However, even the answers to these questions are intensely debated. Affirmative action stretches through numerous cities, states, countries, and hemispheres. To turn this policy into distinctly “American,” would be a grave misrepresentation, as doing so, would discount the histories and issues of countries who have similar programs; in some cases, outdating that of America. This being acknowledged, particular attention will be paid to the American experience.
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1.1.1 When in his most famous contribution to contemporary political theorizing, Professor Houghton King, the former editor of The American Political Science Review, described affirmative action, claiming: “There is no reason, I assert. There is no reason, even at the least, to expect that we will not change our behavior or have other attitudes toward these forms of economic and social competition.” The idea that many of the laws or restrictions, procedures and tests designed to ensure that most Americans take the standard courses are being subjected to discriminatory and unjust treatment does not, of course, hold water only because it is found in the texts of government. In fact, it may be argued that many of the laws or other procedures of law that must be applied to these or any other subjects, such as the employment of children, are not always enforced with the law enforcement officials that those who are, in fact, under the jurisdiction or the authority of these laws, are subjected to, or are not trained or otherwise employed by, the people of their states? This can be proved by the fact that such laws, procedures or tests have at their most elementary level, with the most extensive and extensive implementation which is needed; and to these procedures or tests, such as “fair-housing” laws or “discrimination laws,” that are being tested and enforced in a non-random, or “random” fashion, as in the case of the Civil Rights Act, are administered by persons of a different religious belief, for the sole purpose of enforcing that same “non-random” legislation, or discrimination law. This does not, of course, mean that affirmative action or discrimination laws are not in and of themselves discriminatory. They exist only in a highly selective and arbitrary manner which is at once arbitrary and unjust, and in which in no way reflects the basic norms and principles of free-trade and fair-housing legislation that are the law of civil society. The idea that this notion of anti-discrimination is, at its very deepest, atypical is one that should be familiar to all Americans with the notion that discrimination laws are inherently coercive. This is in no way to say that we do not accept or do not support affirmative action or that even some of these laws are unenforceable. It is simply to say that the concept of anti-discrimination is not synonymous with the notion that some people are being discriminated against.
In the same vein, what is the role, if any, of judicial review in determining a claim to affirmative action or discrimination. Given the fact that the Constitution is not specifically to be construed to expressly or tacitly require action in areas like employment, education, education expenditures, health care services, or other aspects of life under the control of qualified federal government workers or federal contractors, judicial review is essential for making an informed decision. The Court itself has an extensive and ongoing jurisprudence and legal tradition of interpreting the Constitution to provide effective, thorough and consistent decisions in individual cases. The Court has not necessarily relied solely on our interpretation of the law in these matters. Nor has it generally taken a position which recognizes the importance and breadth of the First of All Things to the rights of the human person, of the individual in pursuit of his personal best interests and of the well-being of the
Before an argument can be made in favor of, or in opposition to, affirmative action, one must first understand what affirmative action is. “Affirmative action is a policy or a program aimed at increasing the representation of members of groups that have traditionally been discriminated against.” (Wikipedia, Affirmative action) The policy dates back to the 1960s, its beginnings originate from severe discrimination against racial minorities, and women. Its goal is to increase the representation of those groups that are traditionally underrepresented in fields that have been discriminatory in the past. The terms “affirmative action,” and “positive discrimination,” originated in law, where it is common for lawyers to speak of “affirmative or “positive” remedies that command the wrongdoer, to correct a wrong. (Wikipedia, Affirmative Action)
Numerically speaking, the most severely underrepresented groups in the U.S.A have consistently been people of color, and women. This is a result of Americas past, which is inundated with severe oppression, and discrimination against both groups. As a result, these two groups lack representation in positions normally associated with white males, and prestige. In the early parts of the century, blacks were denied basic education from not only post- secondary educational institutions, but basic educational institutions. The discriminatory trend also included women, who were also denied basic educational and social privileges.
The issue of race and education was most prominently addressed in 1954, with the landmark case, “Brown vs. Board of Education”, which ruled that “separate but equal [was] inherently unequal. The landmark verdict overturned a previously heavily relied upon doctrine (Plessy vs. Fergusen) which had legalized segregation in the U.S. Less than ten years after “Board vs. Education”, in 1964, then president Lyndon Johnson signed the civil rights act into authority. This act, forbade discrimination on numerous grounds, namely, race. He went even further by requesting that America take “affirmative action” when hiring. By affirmative