Reverse Discrimination - Term Paper Example

?Running Head: REVERSE DISCRIMINATION Reverse Discrimination Reverse Discrimination Introduction Issues such as gun control, abortion and affirmative action are guaranteed to spark debate within society. However, unlike gun control and abortion, arguments over affirmative action force people to recognize differences in race and ethnicity, making the policy even more contentious. There has been considerable debate over whether affirmative action is an attempt at leveling an already unfair playing field for minorities or reverse discrimination against whites (Pincus, 2008; Bruno, 1995; Crossby & Cordova, 1996). Although support or opposition for affirmative action is not necessarily based along racial and ethnic lines, the discussion has remained controversial since its implementation. Reverse Discrimination The claim of reverse discrimination linked to affirmative action has become a leading argument against the affirmative action policy (Beauchamp, 2007). “The charge of reverse discrimination rests on the implicit premise that whites are denied access to advantages to which they are entitled, and which they would have obtained had not preference been given to minorities” (Livingston 1979, 40). Reverse discrimination was the basis for Barbara Grutter's lawsuit against the University of Michigan Law School. Grutter maintained that because she had higher scores than the minorities that were accepted into the program, the law school discriminated against her on the basis of race. Reverse discrimination advocates argue that by favoring minorities, the affirmative action plan discriminates against the majority. In Grutter, a qualified member of the majority was denied admission while a less qualified minority was admitted which depicts the perfect illustration of how affirmative action is reverse discrimination. The Fifth and Fourteenth Amendment guarantees of equal protection of laws are cited as proof that race-centered policies violate the Constitution (Pincus 2003). Ward Connerly has led “the fight against affirmative action as reverse discrimination by contending that ending race-based affirmative action is a conservative principle because preferences are unfair and against the spirit of the Constitution” (Pincus 2003, 55). Those who defend the premise that affirmative action serves as reverse discrimination adduce that discrimination is unconstitutional. If past discrimination is unjust, so is discrimination against whites (Livingston 1979). Preferential Treatment Critics of affirmative actions content that preferential treatment is not necessary to eliminate discrimination since existing protection prohibiting discrimination will suffice. Moreover, affirmative action creates further injustice through what critics contend is actually reverse discrimination. Vocal critics of race based quotas point out that such policies undermine American ideological notions of individuality and personal responsibility, treating the group as the measure of significance and not the individual (Berry 1996). The concept of a "colorblind" society originated in Justice John M. Harlan's dissent in Plessy v. Ferguson, 163 U.S. 537 (1896). Justice Harlan wrote, There is no caste here. Our Constitution is color-blind and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved (Berry 1996, 138). In Plessy, “the Court upheld a Louisiana statute, passed in 1890, which provided for separate railway carriages for white and colored races” (Goring 2000, 4). Through Plessy and other Supreme Court decisions, the notion of a "colorblind" society has become an integral argument against affirmative action. Advocates of a "colorblind" society maintain that Because race really is, and properly only would be, a matter of unchosen appearance concerning skin hue, hair texture, and the like, there is and would continue to be an awareness of those natural, superficial differences in appearance pertaining to features such as eye color or height. Given this understanding of racial identity, any person's race is and properly should be irrelevant in and for virtually all social contexts for the same reasons that differences in eye color or height are also largely irrelevant (Wasserstrom 1995: p. 163). According to those who support a "colorblind" society, it is important that distinctions based on race be proscribed. A colorblind society will achieve the equal protection of laws, which is guaranteed by the Fifth and Fourteenth Amendments (Wasserstrom 1995). From a constitutional standpoint, these issues play out under the mandate - expressly applicable to the states via the Fourteenth Amendment Equal Protection Clause and made applicable to the federal government by the Supreme Court via the Fifth Amendment Due Process Clause, which requires that all governmental entities provide all citizens the equal protection of laws (Cokorinos 2003, 4). Colorblind supporters received a slight set-back in California when Proposition 54, The Racial Privacy Initiative, failed to pass in fall of 2003. However, the initiative represents the growing support to end racial distinctions so that a "colorblind" society is attained. Interestingly, additional defense of a "colorblind" society has also come from the left. For example, Bayard Rustin, a civil rights leader during the 1960s, claimed that we need a political and social reform program that will not only help blacks but one that will help all Americans (Skrenty 1996). The "colorblind" argument from the left has broad appeal because it advocates solving inequalities for all Americans rather than concentrating on minorities. "Colorblind" advocates desire a society where race no longer plays a role. Hence, affirmative action would be prohibited because of its use of racial distinctions. Devaluation of Merit Opponents of affirmative action often claim that the policy devalues merit, which typically translates into high standardized test scores. Meritocracy is founded on the argument that students with the highest test scores deserve admission into college (Davis 1983). Most advocates use the definition of merit found in dictionaries that recognize at least three senses of merit: (a) the state, fact or quality of deserving well; (b) something deserving reward, praise, gratitude; (c) worth, value, excellence (Davis 1983, 349). Meritocracy supporters assert that the second definition accurately applies to merit because only ability and achievement deserve reward, which means race, is irrelevant. The notion of meritocracy dictates that: Individuals will be motivated to develop their skills only if they are rewarded by differential status and differential income. IQ becomes the basis of qualification for entrance ... and education becomes the certifying agency, success reflects natural superiority developed through effort and measured by technical competence (Livingston 1979, 123). For meritocracy advocates, affirmative action is wrong because it fails to focus on specific test scores for admission. A student who has worked hard to score high on SAT or LSAT exams should gain admission over another who may have not scored as well, but is admitted because of skin color. Meritocracy defenders point to the lowering of standards as a main reason why affirmative action is wrong (Greenburg 2002). Christopher Jencks and Meredith Phillips have found that “the typical American black student scored lower than 75% of his white counterparts on most standardized tests for admission into college, law school, medical school and business school” (Greenburg 2002, 4). Statistics such as these are used to show that affirmative action decreases admission standards by accepting minorities who have lower test scores. Meritocracy advocates argue that test scores show how hard one is willing to work to get ahead, while race is something that one is born with. Accordingly, affirmative action does not consider the achievements of individuals because the policy is unfairly concerned with race. Meritocracy is closely tied to the American capitalist idea that encourages the possibility for everyone to be successful as long as they are willing to work hard. Giving one an advantage simply because of one's race is unfair and should not occur. For meritocracy supporters, the importance of working hard to get ahead cannot be placed behind a policy such as affirmative action, which looks at race above hard work. “The land of opportunity was thus meritocratic: one deserved all that one could attain by talent and industry” (Skrenty 1996, 27). Generally, those who use the meritocracy defense do not support affirmative action because of its failure to reward based strictly upon merit. Where Does Affirmative Action Go From Here? In many cases and throughout the years, the Supreme Court of the United States has equivocated about the proper approach to dealing with affirmative action cases. Eventually the High Court concluded that strict scrutiny was the appropriate standard to apply in cases where affirmative action programs, such as those determining admission to institutions of higher education, were implemented by state governments. Any affirmative action admissions plan in higher education ultimately represents a clash of values between social justice and the principle of equality. Associate Justice Robert H. Jackson noted in his concurring opinion in Railway Express Agency v. New York that "there is no more effective practical guarantee against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally" (Railway Express Agency v. New York, 1949: p. 203-204). Justice Jackson concluded that "Courts can take no better measure to ensure that laws will be just than to require that laws be equal in operation" (Railway Express Agency v. New York, 1949: p. 203-204). Those who oppose affirmative action argue normatively that equal protection under the law allows for no distinctions, particularly the most pernicious of distinctions, those based on race. Opponents of affirmative action in higher education admissions also argue that because the principle of equality is enthroned in both the Constitution and the Civil Rights Acts, that this principle should take precedence over any other principle of racial injustice occurring in the past. Grutter v. Bollinger (2003) represents a significant success for affirmative action in higher education. By upholding the affirmative action plan at the University of Michigan Law School, the Supreme Court provided unprecedented legal support that it had not shown since Bakke. The Court validated the affirmative action plan because of its flexible and subjective nature. The Grutter decision is a milestone for several different reasons. First, it represents the most recent Supreme Court decision regarding the constitutionality of affirmative action in higher education. Second, by upholding the law school plan, other universities are able to revise their affirmative action plans to mirror Michigan's. Finally, the decision enables affirmative action to remain in higher education, which is seen as a victory by those who continue to support the policy. However, affirmative action opponents are not without victories of their own. In California, Texas and Washington affirmative action has been restricted in higher education. It seems that arguments for and against affirmative action play an important role in its success or failure. The Court may have been able to determine the constitutionality of affirmative action, but its 5-4 ruling epitomizes the same divisions that exist within society. Attitudes and opinions toward affirmative action are driven by how one wishes to perceive the facts. Those who support or oppose the policy cite statistics that reinforce their position. Just like any other highly debated policy, finding a middle ground for affirmative action is difficult. For instance, some affirmative action advocates claim that a "critical mass" is too vague and will not fully address the inequalities that exist among minorities. Meanwhile other supporters may see the decision as a victory because it found affirmative action plans constitutional. On the complete opposite end of the spectrum are those who oppose any consideration of race in higher education. The various opinions on the issue of affirmative action most likely stem from the diverse viewpoints within society. These viewpoints can lead a person to conclude that the future of affirmative action will likely be as controversial as its past. Conclusion The claim of reverse discrimination linked to affirmative action has become a leading argument against the policy. Affirmative action in today's society does not necessarily help those who were harmed by discrimination prior to the 1960's Civil Rights Movement. Moreover, affirmative action is wrong because it discriminates against those who are not responsible for past discrimination. Overall, reverse discrimination arguments assert that affirmative action is unjust because it creates a situation where the majority is discriminated against simply because of skin color. References Beauchamp, T. L. (2007). Reverse Discrimination. Encyclopedia of Business Ethics and Society. Sage Publications. Berry, M. F. (1996). Vindicating Martin Luther King, Jr.: The Road to a Color-Blind Society, The Journal of Negro History 81: 137-144. Bruno A. 1995. Affirmative action in employment. Congr. Res. Serv. Rep. 95–165 GOV. Library of Congress, Washington, DC. Cokorinos, L. (2003). The Assault on Diversity: An Organized Challenge to Racial and Gender Justice. New York: Rowman & Littlefield Publishers. Crosby FJ, Cordova D. 1996. Words worth of wisdom: toward an understanding of affirmative action. J. Soc. Issues 52:33–49 Davis, M. (1983). Race as Merit, Mind 92.367: 347-367. Goring, D. (2000). Private Problem, Public Solution: Affirmative Action in the 21 st Century, Akron Law Review 33.209: 209-288. Greenburg, J. (2002). Affirmative Action in Higher Education: Confronting the Condition and Theory, Boston College Law Review: 521-621. Livingston, J. (1979). Fair Game? Inequality and Affirmative Action. Washington: Library of Congress Cataloging in Publication Data. Pincus, F. (2003) Reverse Discrimination: Dismantling the Myth. Colorado: Lynne Rienner Publishers. Pincus, F. L. (2008). Reverse Discrimination. Encyclopedia of Race, Ethnicity, and Society. Sage Publications. Railway Express Agency v. New York, 336 U.S. 106 (1949), pgs. 203-204 Skrenty, J. (1996). The Ironies of Affirmative Action. Chicago: University of Chicago Press. Skrenty, John David. (1996) The Ironies of Affirmative Action. Chicago: University of Chicago Press. Wasserstrom, R. (1995). Preferential Treatment, Color-Blindness, and the Evils of Racism and Racial Discrimination, The Affirmative Action Debate, ed. Steven Cahn, 153-169. New York: Routledge. Read More