Hi, I'm Craig and this is Crash Course Government
and Politics, and today, I'm gonna finish up
our episodes on civil rights by talking about
affirmative action. There's a few things I'm
not gonna do in this episode, though. First.
I'm not gonna try to defend all aspects of
affirmative action, I admit it's a problematic
concept. Second, I'm not gonna say that affirmative
action isn't necessary or that it's racism,
I'm pretty sure that that debate will go on
in the comments. What I am gonna do is define
affirmative action, describe how the courts
have dealt with it, and try to explain why
it has existed and continues to exist.
[Theme Music]
So let's start with the easy part and define
affirmative action. Affirmative action is
a government or private program designed to
redress historic injustices against specific
groups by making special efforts to provide
members of these groups with access to educational
and employment opportunities. I like this
definition because it also explains why affirmative
action exists - to redress historic injustices
which means discrimination. The key aspect of
affirmative action is that it provides special
access to opportunities, usually in education
and employment, to members of groups that have 
been discriminated against. Now, where affirmative
action gets controversial is when you look
at the two ideas of access and opportunity.
When you poll Americans they generally favor
equality of opportunity although they usually
don't like it when the government tries to
promote equality of outcomes, usually by redistributing
wealth, but I'm getting ahead of myself. This
means that Americans generally think that
other Americans should have an equal shot at
success even though they don't imagine that all
Americans will be equally successful. Not all of us
can be Donald Trump, although not all of us want to be.
Since we tend to believe in the USA that education
and jobs are the keys to success, equality
of opportunity is tied up in access to these
two things, and that's why they are the focus
of affirmative action efforts. Here's where
it gets tricky. In order to increase access
to education and job opportunities for members
of groups that are historically discriminated
against, affirmative action programs try to
ensure that they get extra special access
to jobs and schools, which, to many people,
is not equality of opportunity. Legal types
often will use the metaphor of a thumb on
the scale to describe the added benefits that
affirmative action programs supposedly provide,
but we could also see it as a head start in a foot race,
which is the metaphor I prefer for reasons I'll explain
in a bit. But first let's go to the Thought Bubble.
So while affirmative action started with LBJ
ordering government agencies to pursue policies
that increase the employment of minorities
in their own ranks and in soliciting contracts,
the first time it made a splash at the supreme
court was over the issue of university education.
Specifically, in the landmark case of Regents
of the University of California versus Bakke
in 1973, the court ruled on the issue of racial
set-asides, or quotas, in admissions at the
University of California Davis, Medical school.
Of the 100 slots available to incoming med
students, 16 were set aside for racial minorities.
Bakke claimed that this meant that some people
who were less qualified than he was, at least
he felt so, got into Davis med school and
Bakke didn't. So he sued, claiming that the
quotas discriminated against him because he
was white. The supreme court ruled in Bakke's
favor, saying that racial quotas were not
allowed since they didn't provide equal opportunity,
but they also ruled that affirmative action
programs were allowed if they served a compelling
government interest, and were narrowly tailored
to meet that interest. In other words, if
they'd passed the test of strict scrutiny.
One of the more interesting things about this
decision is the kind of stuff the court said
constitutes a compelling government interest.
They rejected the idea that righting historical
wrongs was something that the government should
undertake, probably because it opens up all
kinds of historical cans of worms, especially
the question of who decides when and if a
historical wrong has been redressed. What
they did say was that compelling government
interest was ensuring diversity in university
admissions. This is true in general, and as
long as we can imagine there being universities,
the state has an interest in seeing that their
classes represent diverse viewpoints. Diversity
benefits both the members of the minority
and majority groups, at least in the minds
of the court. Thanks, Thought Bubble.
This is just a pretty serious video I don't know when I
was gonna get that eagle punch in so I just did it there.
The early 1970's were the high tide of affirmative
action in the U.S, and ever since then the
courts have looked less favorably at affirmative
action claims. Because they apply strict scrutiny,
most affirmative action claims are struck
down. This was clarified in the case of Adarand
Constructors Inc. versus Peña in 1995 which
dealt with racial preferences in the hiring
of subcontractors on government projects.
Although this case meant that the government
was not supposed to give preferential treatment
to minority-owned businesses, or those that
employed a large number of minorities, a government
report from 2005 found that at least as far
as the federal agencies were concerned, the
practice was still widespread.
In most of the cases it hears, the court has
struck down affirmative action provisions
because they fail one or another of the strict
scrutiny tests, but the basic idea that universities
can create programs to build and maintain
a diverse student body has been upheld.
Two relatively recent cases involving the University
of Michigan show how complicated it can be.
In the 2003 case of Gratz versus Bollinger,
the court ruled that Michigan's undergraduate
admissions policy, which awarded extra points
to people in racial minority groups, was unconstitutional
because it was not narrowly tailored to meeting
the goal of student body diversity. In the
same year, in the case of Grutter versus Bollinger,
Bollinger just keeps showing up to the supreme
court because he was the President of the
University of Michigan at the time, lucky.
The court ruled that the admissions policy
of Michigan's law school was narrowly tailored
to meet the goal of promoting diversity although
it said that in 25 years such a program might
not be necessary. So at the time we're making
this episode, the idea that universities can
take race into account in their admissions
so that they can create a diverse learning
environment for their students is still constitutional,
but the supreme court looks very carefully
at the actual policy that the university has
in place, and if it looks anything like a
quota, they'll strike it down. Turns out there
was another place to punch the eagle. Two times!
Affirmative action remains controversial and
it looks like eventually it's going to disappear
but maybe not right away. In 1996, Californians
passed a ballot initiative - Proposition 209
- that effectively outlawed affirmative action
in public employment, public contracting,
and public education, especially university
admissions. After this initiative, also known
as the California Civil Rights Initiative,
passed over vocal and organized opposition,
the graduation rate among African Americans
in some California universities went up. On
the other hand, the enrolment rate of African
Americans at many UC schools declined, and
it only returned to 1996 levels in 2010. Other
states like Michigan had passed laws similar
to California's Proposition 209 making it
harder and harder for affirmative action programs
to flourish. But as is often the case in politics,
people's response to affirmative action differs
depending on how you ask the question. When
phrased as an anti-discrimination measure,
ballot measure like Prop 209 are quite popular,
but when people are asked if they want to
get rid affirmative action their responses
are not always so positive. Support for affirmative
action remains, and I suspect that this is
because many people still recognize that some
form of support for minority groups is needed
in the U.S.
And this brings me back to the reason why
we have affirmative action in the first place.
While the courts have ruled that attempting
to correct the historical injustices of slavery
and Jim Crow laws are not a compelling enough
interest to justify affirmative action, for
many, they are. Minority groups, and in particular
African Americans, have suffered from horrible
treatment and legal disability from the time
they began arriving as slaves in 1619. Even
after the Civil Rights Act passed in 1964,
full equal opportunity was still not a reality.
Opinions vary on whether affirmative action
is still necessary today, and your point of
view depends a lot on your personal history
and your politics, which as we'll see in the
next few episodes, are deeply intertwined.
Thanks for watching, see you next week.
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