The Dreaming Of Affirmative Action

The United States has a rough history in terms of equality and overtime laws have been created to right the wrongs of history. Employment-at-will became a law in the late 19th century to promote the American values of freedom and autonomy. Affirmative action became a law in the 1960s as a way to reverse racial discrimination. These laws were created with progressive intent but merely pacify symptoms of a greater systemic issue of injustice. In Amy L. Wax’s article On Not Dreaming of Affirmative Action, she highlights some of the issues with the law itself, especially within the United States higher education system.

While the need for affirmative action brought hope of equality, the public became weary of the need and fairness of it.

Even if affirmative action’s laws were repealed or altered, the soul of affirmative action would live on and the law itself is of little relevance. The reason that the law does not matter much at this point is that the individuals who wield power in universities unequivocally favor the idea of student diversity.

Because those diversity advocates have the means to make it happen, racial affirmative action will be a significant part of the landscape of our massive educational system for the indefinite future. This promising ideal of racial equality with access to higher education is undermined by the fact that an increasing number of universities have forfeited the need for strong test scores as minorities, especially blacks, statistically do not perform well on these tests.

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However, tests, like the SATs, are there to assess academic aptitude. Universities leaning towards a prospective student’s character, social status and past adversities and de-emphasizing cognitive abilities is arguably ‘forced diversity’.

This is not the remedy to racial equality. Minorities should have access to quality education from a young age and not accepted into university based on their race. This feels like ‘apologetic racism.’ Accepting a black student into University to promote a school’s image of diversity is still treating someone in a certain manor based on their race. A remedy would be to never put a minority at a disadvantage from the beginning but to give everyone access to quality education so that they can compete on the same terms as other people from other groups based on achievements; the problem is not underachieving blacks but the notion that creating opportunities only at a university level will somehow allow them to catch up academically. Humphries v. Pulaski County Special School District is a case of a white female who holds a doctorate degree in elementary education and sued her school district over repeat denial of promotions to vice principal in favor of black applicants.

This case did not lean in favor of Ms. Humphries but rather highlights some of the objections to affirmative action. Many argue that affirmative action quotas force establishments to hire and or promote a racial minority over merit or seniority. This can feel like ‘reverse racism’ as was Humphries argument. While the notion of ‘reverse racism’ is impossible, since racism at its core is systemic, affirmative action can feel disheartening to people who feel they deserve compensation for efforts, especially in a work promotion situation. While one disgruntled employee may feel that affirmative action kept her from an ‘overdue promotion’ the fact remains that the United States is an employment-at-will country. The Pulaski County Special School District had every right to employ whomever they wished, regardless of Humphries feelings. Employment-at-will is a vaguely worded doctrine which leaves open the ‘potential for employer abuse’.

However, at the apex of the law is the concept of supporting an American’s right to autonomy and freedom. In contrast though there is a lack of stability in employment; Companies and workers alike anticipate significant job turnover both in times of economic turbulence…in which employers were forced to shed numerous workers due to financial hardship, as well as during economic bubbles, in which companies lay off workers and reorganize for strategic reasons. While employees have the freedom to work where they want and quite when they please, companies also have the same freedom to terminate-at-will. Companies often participate in economic terminations where companies will lay-off many employees to ‘correct financial inefficiencies.’ While this act is perceived as morally wrong a company can do so under legitimate circumstances. In the case of Biel v. St. James School, Ms. Biel, as a certified teacher in the state of California, worked as a tutor and substitute directly after college.

Eventually she became permanently employed by St. James School in Pasadena, California as a fifth-grade teacher.  St. James School is a Catholic school but does not require a teacher to be Catholic, however in this instance, Ms. Biel is in-fact Catholic herself. The school required that Ms. Biel institute religious concepts into her teachings and work from a religious workbook. All of which she adhered to diligently. In November, 2013, Ms. Biel was given a teacher review and was marked highly with only a few constructive critiques. A few months later Ms. Biel was diagnosed with breast cancer and informed her employer that she would need to take time off for chemotherapy. A few weeks after that Ms. Biel was informed of her dismissal. Reasons cited were, “poor classroom management” was “not strict” and that, her need for time off, “it was not fair…to have two teachers for the children during the school year”.

Under the first amendment, with the right to religious freedom, religious organizations have a broad right to select their leaders. Therefore, Ms. Biel was denied her lawsuit as the St. James School as a religious institution had not violated any rights and as an employer has not violated any rights under the employment-at-will law. In 2010, Jefferies LLC, an independent securities firm wanted to enter precious metal trading. Frawley, Beversdorf and Webb worked together at Newedge Global Metals Group as experts. Frawley went on to work for Jefferies and hired many Newedge employees to work at Jefferies LLC. Webb went on to sue Frawley but lost because the employees had the right to work wherever and no evidence could support these employees used insider knowledge to propel Jefferies LLC.

At-will-employment law can blur the line or undermine affirmative action. Vague wording of the at-will-employment doctrine can mask racial prejudice. The doctrine, like affirmative action, was created to ease ‘chronic issues of unemployment, underemployment, segregation in employment, and unequal pay. The doctrine allows an employer to fire an employee at any time ‘for good cause’ but that vague wording leaves a wide door open. Such excuses could be ‘inability to get along with others’ or ‘lax attitude’ and provide safe harbor for discrimination.

An original proposal for the law would have defined discrimination in such a way that would have made discriminatory loopholes a lot smaller, Employment discrimination as any nonobjective behavior on the part of an employer toward an employee or potential, which reflects some intuitive negative evaluation of the employee’s race to the extent that the employer, when confronted with manpower need, will either not use the employee, underutilize him and/ or undercompensate him However, Congress denied this definition purposefully leaving it vague. So instead of Title VII, affirmative action, being there to propel minorities into equal opportunities it can be quickly undermined by the at-will-employment doctrine which allows a company to hire and fire whomever whenever.