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Affirmative Action Executive Order 11246
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  1. Affirmative Action Executive Order 11246

  2. What is Affirmative Action It is difficult generating a working definition of affirmative action. In principle, it is a program that can be distinguished from other anti-discrimination measures because it requires pro-active steps to erase differences between women and men, minorities and nonminorities. This is in contrast to laws that prevent employers from taking steps that disadvantage minorities in the labor market, such as refusing to hire them.

  3. Problems with a Working Definition • the definition as a specific policy is fuzzy, since it is more an amalgam of components of other legislation and court rulings than a single coherent policy • AA is commonly used to refer to policies or behavior in different spheres (employment, education, govt contracting) • AA may operate at a number of different levels and in a number of different ways (public/private, federal/state, voluntary/involuntary) • AA may cover different activities (recruitment, training, hiring, promotion) • the status of AA is undergoing change.

  4. Working Definition of AA • Policies or actions that might encourage anything other than race- or sex-blind behavior in the labor market. • A “tapestry of policies’ that might be regarded as “Affirmative Action”.

  5. The Future of Affirmative Action Uncertain: • California Proposition 209 in 1996: prohibits all government institutions from “discriminating against or giving preferential treatment to any individual or group in public employment, public education, or public contracting on the basis of race, sex, color, ethnicity, or national origin. • HOWEVER, public opinion polls support some forms of affirmative action (Gallup Organization, 1997)

  6. Two Recent Cases • Grutter v. Bollinger • Gratz v. Bollinger

  7. What do we know about AA? And, What do we NEED to know? WHAT WE KNOW: • There is a large literature on the extent of labor market discrimination against women and minorities (Darity and Mason 1998, Heckman 1998 to name a few). • There is some literature on the effects of affirmative action on the employment of women and minorities (Leonard,1989, 1990). WHAT WE NEED TO KNOW: • Whether affirmative action improves or impedes efficiency or performance.

  8. Key Executive Orders, Regulations and Court Decisions Regarding Affirmative Action in the Labor Market • 1961: Kennedy Executive Order 10925 Required government contractors not to discriminate against employees or job applicants, and mandated that contractors “take affirmative action to ensure that applicants are employed and employees are treated during employment without regard to their race, creed, color or national origin.”

  9. The Kennedy Order This is probably the single “policy” most commonly interpreted as establishing affirmative action because the order is most strongly linked with the interpretation of AA as emphasizing numerical yardsticks with respect to the hiring of minorities and women.

  10. 2. 1965: Johnson Executive Order 11246 Reiterated Executive Order 10925.

  11. 3. 1967: Johnson Executive Order 11375 Amended Executive Order 11246 to cover women.

  12. 4. 1968: Department of Labor Regulations governing Executive Orders 11246 and 11375 Requires federal contractors with 50 or more employees or contracts of at least $50,000 to identify underutilization of women or minorities and establish corrective goals and timetables.

  13. 5. 1970: Department of Labor Philadelphia Plan New regulations under Orders 11246 and 11375 establishing goals and timetables for employment of minorities in construction.

  14. The Philadelphia Plan The implementation of this order aimed to increase minority representation in construction and is viewed as the “precursor of the numerical goals and timetables” obligations of federal contractors. The yardstick: currently, employers with federal contracts and fifty or more employees, or with contracts worth $50,000 or more, are required to file reports indicating “underutilization” of women or minorities in any job group in which minorities or women are underrepresented. They are then obliged to address it and make corrective efforts including the use of written “goals and timetables.”

  15. 6. 1979: United Steelworkers of America v. Weber With regard to an in-house training program reserving 50 percent of spaces for blacks, U.S. Supreme Court ruled that Title VII “does not prohibit such race-conscious affirmative action plans” Defined “permissible” plans as those that break down existing patterns of racial segregation, do not “unnecessarily trammel” on the interests of white employees nor create an absolute bar to their advancement, and are temporary, intended to “eliminate a manifest racial imbalance,” rather than “to maintain racial balance.”

  16. 1984: Firefighters Local Union No. 1784 v. Stotts U.S. Supreme Court stated that court-authorized affirmative action plans were authorized by Title VII to provide relief “only to those who have been actual victims of illegal discrimination.”

  17. Other Problems with Describing the Current Status of AA in the Labor Market • Future challenges make its status unclear • Other legislation that has ostensibly targeted discrimination in the workplace has also led to AA in practice. This includes: Title VII of the Civil Rights act of 1964, which established Equal Employment Opportunity (EEO) as law, allows for affirmative action as a means of remediation for past discrimination.

  18. In Practice, this distinction is even more muddied • Many employment discrimination cases concern hiring, and are based on evidence of “disparate impact” according to which underrepresentation of women or minorities—relative to some suitably defined pool of job candidates—is sufficiently large to support an inference of discrimination. … • problem: what is the appropriate candidate pool?

  19. Where has AA Been Used? • Labor Market: hiring, firing, promotion, benefits • Contracting • Education: admissions and financial aid

  20. Affirmative Action in Education • There are no explicit federal policies regarding AA in university admissions. However, universities have implemented AA policies that are widely regarded as giving preferential treatment to women and minority candidates.

  21. Key Court Decisions and Referenda Regarding Affirmative Action in Universities • 1978: Regents of the University of California v. Bakke Court agreed that special admissions program reserving spaces for minority students violated Title VII and the 14th Amendment. (Note, the 14th Amendment bars states from depriving citizens of equal protection of the laws).

  22. A little bit about Bakke • In the landmark Bakke case, this Court reviewed a medical school's racial set-aside program that reserved 16 out of 100 seats for members of certain minority groups. The decision produced six separate opinions, none of which commanded a majority.

  23. Bakke Cont’d • Four Justices would have upheld the program on the ground that the government can use race to remedy disadvantages cast on minorities by past racial prejudice. • Four other Justices would have struck the program down on statutory grounds. • Justice Powell, announcing the Court's judgment, provided a fifth vote not only for invalidating the program, but also for reversing the state court's injunction against any use of race whatsoever. • In a part of his opinion that was joined by no other Justice, Justice Powell expressed his view that attaining a diverse student body was the only interest asserted by the university that survived scrutiny • Thus: Powell voted FOR affirmative action.

  24. Bakke and Diversity • Rather, "[t]he diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element." Ibid. • Since Bakke, Justice Powell's opinion has been the touchstone for constitutional analysis of race-conscious admissions policies. • Public and private universities across the Nation have modeled their own admissions programs on Justice Powell's views.

  25. 2. 1995: Podberesky v. Kirwan • U.S. Supreme Court let stand a ruling of the U.S. 4th Circuit Court of Appeals that the Banneker scholarship program at the University of Maryland violated the 14th Amendment.

  26. 3. 1996: California Proposition 209 • Prohibited discrimination or preferential treatment in public employment, public education, or public contracting on the basis of race, sex, color, ethnicity or national origin.

  27. 4. 1996: Hopwood v. State of Texas • U.S. 5th Circuit Court of Appeals ruled that an affirmative action plan at the University of Texas Law School that admitted some minority students with lower grade-point averages and test scores than white applicants who were not admitted violated the 14th Amendment.

  28. 5. 2003: Grutter v. Bollinger et. Al. • It is the first time the court has considered the issue since its ruling in the 1978 Bakke case. At that time, four justices said a program at the University of California at Davis, which reserved 16 percent of the places in its medical school for minorities, violated federal law, while four said that even quotas could be constitutional if imposed for "benign" purposes such as aiding minorities overcome discrimination.

  29. Grutter Cont’d • The ninth vote in the Bakke case came from the late Justice Lewis F. Powell, who wrote his own opinion agreeing that quotas were impermissible, but saying that the use of race as a "plus factor" in the pursuit of diversity could be allowed.

  30. Case specifics of Grutter • When the Law School denied admission to petitioner Grutter, a white Michigan resident with a 3.8 GPA and 161 LSAT score, she filed this suit, alleging that respondents had discriminated against her on the basis of race in violation of the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964, and 42 U. S. C. §1981; • that she was rejected because the Law School uses race as a "predominant" factor, giving applicants belonging to certain minority groups a significantly greater chance of admission than students with similar credentials from disfavored racial groups; and that respondents had no compelling interest to justify that use of race.

  31. Results of Grutter • The Equal Protection Clause does not prohibit the Law School's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body. Consequently, petitioner's statutory claims based on Title VI and 42 U. S. C. §1981 also fail. • O’Connor is swing here, voting in favor of Affirmative Action.

  32. Gratz v. Bollinger • This case , of the same year, is in regard to the University of Michigan undergraduate affirmative action admissions policy. • In a 6-3 decision the Supreme Court ruled the university’s point system (which automatically awarded points to underrepresented ethnic groups) was too mechanistic in its use of race as a factor in admissions, and was therefore unconstitutional.

  33. More on Gratz • The U of M used a 150 point scale to rank applicants, with 100 points needed to guarantee admission. The University gave underrepresented ethnic groups an automatic 20-point bonus on this scale, while a perfect SAT score was worth 12 points. • Jennifer Gratz was a white resident of Michigan who was denied admission to the university. • Their class-action lawsuit alleged “violations and threatened violations of the rights of the plaintiffs and the class they represent to equal protection of the laws under the Fourteenth Amendment. . . And for racial discrimination.” • They won. O’Connor, again, was the swing vote, this time voting against affirmative action.

  34. Does Affirmative Action “Level the Playing Field” Two issues arise in trying to answer this question: • Whether significant discrimination against minorities and females persists, in which case it is more likely (although not a given) that AA can help to level the playing field by countering discrimination, rather than generating reverse discrimination and • Whether AA is likely to be a helpful policy.

  35. Evidence of Labor Market Discrimination The major literature: Francine Blau, 1998; Darity and Mason, 1998; Heckman, 1998; Joseph Altonji and Rebecca Blank, 1999.

  36. Approaches to testing for race/sex discrimination • Wage regression tests • Audit studies • Direct evidence on the relative wages and productivities of different demographic groups • Direct evidence on employer characteristics and behavior

  37. Results? Taken together, the various studies summarized above suggest that, while differences in educational attainment and cognitive skills account for large fractions of racial differences in wages, employer discrimination continues to play a role in generating different labor market outcomes by race and sex. Other Sources of Disadvantage in Labor Markets: Societal Discrimination: • For minorities: socioeconomic conditions • For women: child-care responsibilities: Waldfogel (1998), Sanders Korenman and Newmark (1992)

  38. The Distributional Effects of AA: does it level the playing field? There appears to be compelling evidence that affirmative action does increase employment, enrollments, and contracting for minorities and women in the ways we might expect. This leaves the critical questions of the efficiency and performance effects of AA.

  39. Effects of AA on employment • Leonard (1989, 1990): finds that the shares of employment accounted for by women and minorities rose at contractor establishments between 1974 and 1980, while those accounted for by white males declined. In particular, his estimates indicate that black male employment relative to white male employment grew 0.82 percent faster per year in contractor establishments than in non-contractor establishments. • Leonard’s evidence on the effects of AA on employment of women reveal modest positive effects for white women, and stronger positive effects for black women. • Holzer and Neumark’s data suggest that employment of white males in the affirmative action establishments is lower by roughly 10 -15 percent, which is redistributed mostly to white females and black males.

  40. More Evidence • Holzer and Neumark (1999) shows that race and sex differences in wages are smaller in establishments using AA, suggesting further relative wage gains of women and minorities stemming from AA.

  41. Effects of AA on Enrollment • We suspect that less attention has been paid to redistributive effects of AA in education because there is little doubt among researchers that it played a prominent role in increasing admissions of minorities (Bowen and Bok, 1998).

  42. Evidence in Education • Thernstrom and Thernstrom (1997): report that black enrollments as a percentage of all enrollments in schools other than black colleges rose from 1.8 percent in 1960 to 4.2 percent in 1970, 8.2 percent in 1980 and 9.0 percent in 1994. • Bowen and Bok (1998): from 1960 to 1995: the percentage of blacks age 25-29 who had graduated from college rose from 5.4 to 15.4 percent. • Even sharper changes are evident for professional schools in this period, with the percentage of blacks growing from 1 percent to 7.5% in law schools and from 2.2% (1964) to 8.1% in med schools. • For Hispanics – sharp gains since 1970.

  43. More Evidence Prop 209 in California: • In 1997, when race-sensitive admissions were used, the admission rates were 0.485 for blacks, and 0.299 for whites. • For the following year, the rate for blacks fell to 0.156, and the rate for whites rose to 0.303. • These calculations indicate that preferential treatment of minorities in admissions is responsible for a large share of minority enrollment at these schools, • and that large swings in enrollments could result from the elimination of what may be rather mild preferential treatment.

  44. The Efficiency Question In order to make a decision about AA, we need to know whether policies that explicitly or implicitly make race or sex a consideration are likely to improve the workings of labor markets that are influenced by discrimination.

  45. Thinking simplistically: • AA policies are likely to reduce efficiency in a world with no discrimination by leading to the hiring and promotion of less-qualified women and minorities. • In the presence of discrimination, AA should increase efficiency, by discouraging the hiring and promotion of less-qualified white males over more-qualified women and minority workers.

  46. Its just not that simple… As it turns out, the question is more complicated than this… We need to know more about each situation, such as the nature of discrimination and the workings of affirmative action. Depends on whether the discrimination is statistical discrimination for example, or whether affirmative action comes in the forms of quotas.

  47. Main Theoretical Results on the Efficiency Effects of AA in the Labor Market • Welch (1976): Assumption About Discrimination: there is no discrimination, or that there is a taste for discrimination. Findings: AA reduces efficiency in production.

  48. 2. Lundberg and Startz (1983) Assumption about discrimination: Statistical discrimination (worse information about minorities) Findings: AA increases efficiency in human capital investment, decreases efficiency in production, net effect is ambiguous.

  49. 3. Milgrom and Oster (1987) Assumption about discrimination: Promotion discrimination, to maintain “invisibility” of minorities and women Results: AA increases efficiency in production and human capital investment

  50. 4. Lundberg (1991) Assumptions about discrimination: Statistical discrimination (worse information about minorities). Results: AA increases efficiency in human capital investment, decreases efficiency in production, net effect is ambiguous.