Review of Affirmative Action: Social Justice or Reverse Discrimination?

By Francis J. Beckwith

What Is Affirmative Action And What Is The Controversy About?

On November 5, 1996 the people of the state of California passed one of the most important ballot questions pertaining to the question of affirmative action, the California Civil Rights Ini­tiative (CCRI). Intended to eliminate most, though not all, forms of California state-sponsored affirmative action, a portion of the ini­tiative reads:

Neither the State of California nor any of its political subdivi­sions or agents shall use race, sex, color, ethnicity, or national origin as a criterion for either discriminating against, or granting preferential treatment to, any individual or group in the opera­tion of the State's system of public employment, public education nor public contracting.

To its supporters the initiative is consistent with the primary goal of the American Civil Rights movement, equal opportunity for all regardless of race or gender. They cite in their defense a por­tion of the Civil Rights Act of 1964, which states that no employer is required to "grant preferential treatment to any individual or group on account of any imbalance which may exist" between the number of employees in such groups and "the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area" (from pro­vision 703(j) of Title VII of the Civil Rights Act of 1964).

Supporters of the initiative also point out that in order to achieve its primary goal the civil rights leadership did not propose preferential treatment but rather fought to eliminate barriers to advancement, such as segregation, laws which discriminated against blacks and other minorities, discrimination in employ­ment, and policies which prevented blacks and other minorities from attending a number of educational institutions including uni­versities and colleges. The idea of preferential treatment appar­ently was out of the question. In fact, Roy Wilkins, then Executive Director of the NAACP (National Association for the Advance­ment of Colored People), testified before a congressional com­mittee considering the 1964 Civil Rights Act: "Our association has never been in favor of a quota system. We believe the quota system is unfair whether it is used for [blacks] or against [blacks].... [We] feel people ought to be hired because of their ability, irrespective of their color.... We want equality, equality of opportunity and employment on the basis of ability."

On the other hand, opponents of the California initiative de­fend preferential treatment by pointing out that it became apparent in the mid to late 1960s that eradication of discriminatory laws did not result in the Civil Rights movement's vision of a com­pletely unsegregated society. In pursuit of this vision, President Lyndon Baines Johnson in 1965 issued Executive Order 11246 in which the Department of Labor was required to award on the basis of race government contracts with construction companies. This was justified by maintaining that it was necessary in order to make up for the centuries of the loathsome practice of racial discrimina­tion which resulted in oppression. President Johnson, in a speech inaugurating Executive Order 11246, used an analogy to make his point: