‘Race’, Difference and the Inclusive Society

1. ‘Race’, Difference and the Inclusive Society Anti-discrimination law, affirmative action and the pursuit of equal opportunities II – the US Peter Ratcliffe

2. Lecture outline • US approaches to combating discrimination • Introduction of Affirmative Action • The theoretical rationale for, and politics of, Affirmative Action policies and practices • Legal challenges • Affirmative Action: theoretical challenges • Comparing and Contrasting the UK and US approaches to combating discrimination • Concluding thoughts

3. Background to Affirmative Action India and the US took rather more ‘radical’ measures than the UK, but US only did so because the more liberal policy variant had failed. • Both India and the US, in contrast to the UK, were essentially dealing with caste systems • In India, the caste system had resulted in the ‘scheduled castes’ suffering extreme ‘social exclusion’. Liberal approach not an option • ‘Caste’ in the US? Impact of ‘Jim Crow’

4. Early legislative approaches 1940s – US relied on legal banning of discrimination in areas such as employment and housing. • President Roosevelt issued Executive Orders declaring an end to discrimination in the Federal civil service. Also created the Fair Employment Practices Committee (FEPC) • Truman continued in this vein in the 1950s - outlawed discrimination in the federal government structure and the armed forces. Crucially, also established a system of ‘contract compliance’ procedures for government contractors(cf. UK) • In the 1940s the keyword had been ‘non-discrimination’, in the 50s ‘equal opportunity’

5. Affirmative Action - origins These strategies failed so first Kennedy and then LBJ, in 1961 and 1965 respectively, turned to the more radical idea of ‘affirmative action’ Affirmative action - simply removing existing impediments is not sufficient for changing the relative positions of women and ‘people of color’…. • A government mandated or voluntary program that consists of activities specifically to identify, recruit, promote, and/or retain members of disadvantaged minority groups in order to overcome the results of past discrimination and to deter employers from engaging in discriminatory practices in the present.

6. Affirmative Action in the 1960s Affirmative action derives from structural deficit - lack of a ‘level playing field’. But enforcement, as in Britain, was a major weakness • Prior to the passing of Title VII of the Civil Rights Act 1964, Blacks had no legal recourse in the face of employment discrimination. • Title VII resulted in Equal Employment Opportunity Commission (EEOC) – had authority to investigate allegations of discrimination (strengthened in 1972) First Nixon administration even encouraged local governments to ‘set aside’ a number of contracts for minority contractors. Nixon (im)famously embraced notion of Black Power, by which he meant Black capitalism! [Parallel response in UK?]

7. Affirmative Action in the 1960s - 2 • More significant than EEOC - second arm of enforcement, the Office of Federal Contract Compliance Programs (OFCCP). This: • ‘Transformed the concept of affirmative action into a specific and accountable employment practice’ (Herring and Collins 1995: 166). • Federal contractors required ‘to submit written “affirmative action plan” with numerical goals and timetables for achieving these goals for hiring and promoting women, blacks and other designated groups’ [cf. UK]

8. Resistance to Affirmative Action • Mounting evidence of lack of enforcement, and element of tokenism - ‘quotas’ mechanically applied to meet affirmative action targets [UK parallel? Debate on MC?] • Also considerable resistance to Affirmative Action from white (men in particular) as soon as it began to bear fruit. Two major legal cases ensued. First involved a Californian called Allan Bakke.

9. Allan Bakke case Bakke applied to university medical schools as a mature student. Rejected by the University of California at Davis in 1973, and again in 1974. • Discovered that16 of the 100 first year places were reserved for members of economically and educationally disadvantaged minority groups • Supported by a member of the University’s own administration - employed a lawyer to file a suit against UCD on the grounds that its admissions policy had violated the equal protection clause of the Fourteenth Amendment (of the Constitution) • The Yolo County (Californian) Supreme Court decided that UCD had indeed discriminated against Bakke on grounds of his race, but did not order them to admit him – both University and Bakke appealed

10. Allan Bakke case (cont.) Californian Supreme Court (September 1976) decided in favour of Bakke, and ordered UCD to admit him, but college was permitted to retain its admissions policy, pending a review by the US Supreme Court. • They decided (majority of 5 to 4) - admissions program was illegal in that it contravened Title VII of the Civil Rights Act 1964. • Dissenting voices - admissions program, if administered properly, violated neither the Civil Rights Act of 1964 nor the equal protection clause of the 14th Amendment • But damage had been done - savage blow to AA • Also created further political rifts on ethnic lines - number of Jewish groups came out in support of the neo-conservative line

11. The Weber case Weber from Kaiser Aluminum claimed that the company’s AA policy to increase the number of minority employees violated Title VII. Why and how was policy introduced? • Under 10 per cent of its workforce was Black (in a local labour market where around 40 per cent were Black). • The Steelworkers union devised the program in the context of collective bargaining with the company. • The program called for an increase in Black and female representation in the better paid skilled jobs.

12. The Weber case (cont.) Weber applied for a special training program but was turned down on the grounds that he didn’t have sufficient seniority. But, he argued that he had more than a few of the Blacks who were accepted. So: • Filed a grievance with the union - was rejected. • Having failed to get a hearing with EEOC - filed a class action suit on behalf of all white workers (UK?) • Federal District Court upheld the claim on the grounds that the black workers benefiting from the scheme had not been the subject of discrimination. • After much legal dispute the US Supreme Court decided that the policy did not necessarily violate Title VII Implications - important victory for minorities (especially Blacks) and women. Otherwise, would have dealt well nigh fatal blow to AA

13. Opposition to AA Election of Ronald Reagan, and then George Bush Sr., signaled concerted opposition to AA (Thatcher/UK?) • Bush particularly vigorous on anti-AA policies - vetoed a new version of the Civil Rights Act on the groundsthat it would have required employers to establish quotas. • Retreat from ‘protective legislation’ and ‘race-based reparations’ - ‘end of the Second Reconstruction’ Substance of the attacks?

14. 1. Affirmative Action is Ineffective ‘Helped wrong people, harmed prospects of poor whites whilst not affecting already privileged’ (?) • Another example of profligacy on part of the state • Not confined to political right - others argue that it had no discernable impact on most minority group members • Wrong victims and wrong beneficiaries are targeted, e.g. poor (male) whites may be wrongly disadvantaged and affluent middle Blacks given further advantage. • William Julius Wilson, in a significant follow-up to his The Declining Significance of Race, entitled The Truly Disadvantaged argued that the latter are left behind by the policy - lack the resources and skills to compete effectively in the labour market.

15. 2. Affirmative Action Stigmatises Minorities In many ways stems from the first claim…. • In credentialised societies - breaking of rules tends to lead to response from aggrieved (cf. Bakke/Weber). • Argument based on the idea of a ‘level playing field’ and historically entrenched disadvantage is lost on those who feel cheated in the present. • Not they who are directly responsible for these problems. NB: Those benefiting from AA often undermined psychologically (e.g. UCLA case)

16. 2. Affirmative Action Stigmatises Minorities (cont.) Broader set of problems here…………. • The policy tends to stigmatise all minority workers and women • Can also lead to a self-fulfilling prophesy. If lower attainment targets are set for the disadvantaged groups, there is less incentive for them to ‘aim high’ • Less will also be expected of the latter in the work situation - this may lead to a reinforcement of the stigmatisation process.

17. 3. Affirmative Action is Reverse Discrimination • To the degree that minorities and women make economic progress, white men suffer. Both Bakke and Weber claimed reverse discrimination. Herring and Collins argue: ‘innocent white men who have never discriminated against minorities or women might be punished unfairly while some chauvinists and bigots might be spared. This objection to affirmative action makes the judgment (as an empirical fact) that whites lose to minorities. This empirical fact, per se, should disallow affirmative action according to these critics.’

18. Comparing and Contrasting the UK and US approaches to combating discrimination Differences essentially between the ‘liberal’ approach which focuses on means and the ‘radical’ model which concentrates efforts on ends (cf. last week) • Former places emphasis on non-discrimination (or non-exclusion) • Latter focuses on direct engagement in the market as a means of combating age-old systems of formal discrimination/’exclusion’ In the quest for a more inclusive society, can be arguments for both (more next week). For now: I’ll confine my comments to a brief comparison of the US and UK models.

19. US v. UK approaches • In both UK and US - general lack of political will at the highest level. • UK -CRE consistently complained of a lack of support from government, • US - softly-softly approach of the 40s/50s jettisoned in favour of a more ends-based system. But: always undermined if not from the top (Reagan and Bush) then from State legislatures. 2. Class Actions. In the US (cf. Weber - ironically used against AA!), can be used to strengthen case • Discrimination at an institutional level is rarely a one-off: tends to be part of exclusionary system. • But: under UK law class actions are not permissible.

20. US v. British approaches (cont.) 3. US system effectively permits ‘positive discrimination’, the British model permits only ‘positive action’. 4. Contract Compliance - never been sanctioned in British law [In contrast with US] • Conciliation doesn’t work: organisations have to be required to do things: question of ‘stick and carrot’! 5. Intersecting arenas of exclusion. US affirmative action program targets minorities and women. In Britain, prior to November 2007, separate bodies were charged with these matters. Now?

21. Concluding thoughts As to the ‘race’/gender issue - now a generic equalities agenda in Britain. Rational approach - but problems? Here, note just two. • As with shift from EOPs to ‘Managing Diversity’ - how can we monitor its success (or lack of it)? • Previous research evidence suggests that, in the move to a generic policy framework, ‘race’ tends to drop down (or even off) the agenda. Also, current Coalition government appears intent on mounting widespread assault on both the equalities and human rights agendas