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Did ‘positive discrimination’ kill Affirmative Action?

by J. Pharoah Doss

Political theorists make distinctions between negative and positive rights. A negative right is when a person can freely do something without interference from the government. A positive right requires the government to provide a person with something at the expense of another.

Affirmative Action applied a similar distinction to discrimination.

Discrimination is not inherently harmful. It simply means to distinguish. Negative discrimination, on the other hand, is creating a differentiation against a person based on the group to which that person belongs rather than on the person’s particular qualities.

The Civil Rights Act of 1964 prohibited discrimination based on race, color, religion, gender, and national origin, but its primary goal was to eliminate negative discrimination against Black Americans.

The Civil Rights Act was in agreement with the opposing argument in the 1896 Supreme Court case Plessy v. Ferguson, which established segregation. Justice John Marshall Harlan wrote, “Our constitution is color-blind, and neither 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 his color when his civil rights, as guaranteed by the supreme law of the land, are concerned.”

Since Plessy was the nation’s largest legal error, liberals agreed that repealing Plessy and passing civil rights laws weren’t enough. Civil rights were negative rights that abolished negative discrimination but did not immediately fix Plessy’s mistake.

President Lyndon B. Johnson declared in 1965 that America would not be satisfied with legal and theoretical equality. To become a “great society,” America must advance to a higher level of civil rights and pursue “equality as a result” to heal the damage done by negative discrimination.

In an executive order to encourage nondiscriminatory hiring practices among government employers, President Johnson’s predecessor coined the term “Affirmative Action.” In this case, race was not considered a factor in deciding whether to hire or reject a candidate.

On the other hand, the term affirmative action, was also attributed to President Johnson’s vow to assure equal outcomes through corrective measures. In schools and universities, “affirmative action” sought to include historically marginalized groups by providing preferential treatment.

White students eventually came to believe that special treatment for minorities in college admissions came at their expense. These corrective procedures were termed “reverse discrimination” by White students, who filed a legal challenge to Affirmative Action.

However, in 1978, the Supreme Court decided in favor of Affirmative Action. Justice Harry Blackmun said, “In order to get beyond racism, we must first take account of race.  And in order to treat some people equally, we must treat them differently.”

The concept of reverse discrimination was rejected. The liberals claimed that negative discrimination was the result of prejudice combined with power. Minority groups did not have the power to discriminate against the White majority. These corrective measures may cause inconvenience for some White students, but affirmative action has no negative effects on Whites as a whole.

For these liberals, Affirmative Action constituted “positive discrimination,” not “reverse discrimination.” Any policy that favored members of disadvantaged minority groups was a net positive, regardless of its negative consequences. The effort to correct the past and address present-day racism outweighed the isolated incidents of discrimination against White students.

Affirmative Action was back on the Supreme Court’s agenda four decades later.

This time, Asian students complained that Harvard’s Affirmative Action practices limited the number of Asian students who entered the university. Since Asians aren’t classified as disadvantaged, positive discrimination has had a negative effect on them as a group.

Positive discrimination is only “positive” when it inconveniences members of the majority. Once it harms another minority group, it becomes an illegal act. The problem here was that Asians were being punished for what Whites did to Blacks.

Under these circumstances, the Supreme Court couldn’t uphold Affirmative Action. In a 6-3 decision, the Supreme Court ruled that using race as a factor in college admissions violated the 14th Amendment’s equal protection clause.

Race-neutral college admissions won’t be the end of the world. Hopefully, it will end that worldview promoted by Ibram X. Kendi that suggests the only remedy for past discrimination is present discrimination, and the only remedy for present discrimination is future discrimination.

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