In the previous chapter, the reader has been familiarised with race relations after the end of the Civil War. Certainly, it was shown that in the post-war years, racial prejudice against African Americans was a serious problem. Apart from segregation, many acts of discrimination could be enumerated. For instance, in 1943, the blacks who wanted to donate blood as the participants of the Red Cross blood programme were rejected despite the lack of any biological differences. Another obvious example of bias occurred in the same year when officers who were located in Pennsylvania introduced an order which stated: “Any association between the coloured soldiers and white women, whether voluntary or not, would be considered rape.” This crime was punished by death. It seems that the list of discriminatory treatment was very long. But the affirmative action policy was commenced not only because of racial prejudice but also for economic reasons.
The Great Depression contributed to the emergence of affirmative action. In the 1930s, African Americans who mostly lived in the South belonged to the most poverty-stricken group. Three-fourths lacked higher education and 10 per cent of them were illiterate. The majority of the blacks were unskilled and their salary was much lower than that of white labourers. In 1931, it was reported that African-American workers were often replaced by white employees. They were the last group to find a job and the first one to be dismissed. Between 1931 and 1932, the number of the black jobless escalated from 30 per cent to about 50 per cent in the southern cities. Generally speaking, the jobless rate of African Americans was twice greater than that of the whites during the Great Depression. The number of the blacks who were out of work was even higher in the particular parts of the South. In Atlanta, where the unemployed whites used a slogan: “No Jobs for Nigers Until Every White Man Has a Job,” almost seven African Americans out of ten did not have a job in 1935.
In order to deal with poverty among the blacks, a temporary programme which could be seen as the precursor to affirmative action was implemented. In 1933, contractors who received federal funds were obliged to give a job to a fixed number of qualified black labourers ‘ a quota. However, in many cases the proportional employment failed, for instance black workers were dismissed after contractors who had complied with the regulations received the funding.
Job discrimination in defence industry also focused attention on the disadvantaged position of African Americans in the American army. During World War I, in May, 1917 about 370,000 African-American recruits joined the military service but the majority of them were assigned to noncombat roles, for instance they worked as cooks, drivers or labourers. After the beginning of World War II, African Americans who served in the segregated units were also given jobs that involved basic training or did not require skills. It was elicited that African Americans did not possess the inherent ability to combat boldly and were not suitable for taking leading positions because of their psychology, namely, they lost control in dangerous circumstances. Because of such beliefs, in 1940 they were forbidden from joining up the Marines. In defence industries white men were mostly hired. It was estimated that less than 2 per cent of African Americans found job in the Army Reserves and National Guard. This situation could be summed up in a few words which were said by an American lawyer during one of the Congress debates: “the American Negro will not fight abroad; he will fight for his survival at home.”
In 1941, Executive Order 8802 came into force and became known as the Second Emancipation Proclamation. It built a foundation for affirmative action as it stated that “there shall be no discrimination in the employment of workers in defence industry or government because of race, creed, colour, or national origins.” It also said that an agency or a defence company which entered into a federal contract was obliged to employ all taxpayers, including African Americans.
During wartime, a shortage of labour encouraged contractors to hire the blacks. By the end of 1944, about 2 million of African Americans worked in defence plants. The participation of the blacks in two wars contributed to more favourable view of African-American soldiers. More white Americans started noticing that citizens with no regard to race should have equal chances to get a job supported by their taxes. This new sense of justice was important for the development of affirmative action.
In 1961, the concept of affirmative action in reference to race appeared for the first time in the order which promoted racially neutral hiring and the end of job discrimination. The procedure did not require any quotas or racial preferences for African Americans and it set up President’s Committee on Equal Employment Opportunity (PCEEO) which performed an advisory function while dealing with federal agencies rather than have control over federal loans or grants.
It is important to realise that affirmative action laws do not exist. Affirmative action mandates (official instructions) went into effect as a consequence of the executive orders and government programmes which were seen in the beginning as temporary measures to help those who were at a disadvantage in the past. Undoubtedly, the civil rights laws and affirmative action programmes had common origin as they emerged to remedy historic prejudice and provide racial equality. However, they adopted a different approach. In the 20th century, civil rights laws banned taking race into consideration to prevent discrimination, while in many cases affirmative action programmes encouraged institutions to use race as a factor in making their decisions. Equally important, they shared the same objective, namely social fairness.
The development of affirmative action dates back to the 1960s and the 1970s. In order to understand how this policy really works, the focus will be turned on the legal cases related to education. In light of litigation, it will be presented how the future course of affirmative action was questioned.
3.2 The legal cases
It’s worth reminding that there were a few important cases throughout the course of the American history that were significant for racial relations in the education area. In 1896, the Plessy v. Ferguson case supported the doctrine of “separate but equal.” Fifty years later, Brown v. Board of Education led to desegregation of schools as it was proved that schools for the blacks were of a lower standard. Until the 1970s, African Americans and other minority groups had sued schools for a discriminatory policy. However, in the 1970s, many cases were brought by rejected white applicants who used the concept of reverse discrimination.
But before the focus is turned on these cases, it should be explained that there are at least three types of affirmative programmes in higher education. In the first selection process, the admissions office looks for skilled minority candidates who will diversify the entering class. The admissions take place on the individual basis during which race can tip the balance in minority applicants’ favour. In the second group of affirmative action policies, the admissions committee takes mainly test scores into account. In order to provide diversity to the incoming students, it also creates minority recruitment goals, for instance one of admissions requirements is to admit five per cent of minority candidates who have got average test scores. If there are not enough qualified minority applicants, the goal does not need to be met. The third group adopts dual admissions. There are two separate admissions processes for applicants. In one of them a particular number of seats is set aside for minority candidates and this practice is called a quota.
The dual admissions were challenged in 1973. Allan Bakke, a white marine veteran, sued the University of California at Davis Medical School claiming that he was discriminated in the admissions process. Although his test score was higher than that of minority applicants who were admitted, he was turned down. Indeed, the school adopted dual admissions and set aside 16 slots out of 100 for minority candidates.