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Affirmative Action in Antidiscrimination Law and Policy

An Overview and Synthesis

Samuel Leiter, William M. Leiter

Publication Year: 2002

Affirmative action has been and continues to be the flashpoint of America’s civil rights agenda. Yet while the affirmative action literature is voluminous, no comprehensive account of its major legal and public policy dimensions exists. Samuel and William M. Leiter examine the origin and growth of affirmative action, its impact on American society, its current state, and its future anti-discrimination role, if any. Informed by several different disciplines—law, history, economics, sociology, political science, urban studies, and criminology—the text combines the relevant legal materials with analysis and commentary from a variety of experts. This even-handed presentation of the subject of affirmative action is sure to be a valuable aid to those seeking to understand the issue’s many complexities.

Published by: State University of New York Press

Series: SUNY series in American Constitutionalism

Title Page

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pp. i-iii


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pp. iv-v


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pp. iv-v

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pp. xi

Many thanks to family members and colleagues who assisted our efforts. The library facilities and librarians at California State University—Long Beach provided wonderful help in the production of this volume. Thanks are also extended to FindLaw—a computer web site—for permission to download and reproduce extended excerpts of U.S. Supreme Court opinions from that source. Additionally, Sage Publications, Inc. granted the authors permission ...

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1. Introduction

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pp. 1-5

The subject of this treatise/casebook is the legal and ideological controversy over the application of affirmative action policy to combat discrimination based on race, national origin/ethnicity, and gender. Racism, sexism, and ethnic discrimination have long represented a seemingly intractable problem. Affirmative action was conceived as an attack on this ingrained problem but today it is widely misunderstood. We feel the time is ripe for the comprehensive review that we attempt in this book.

Appendix to Chapter One

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pp. 7-22

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2. The Roots of Affirmative Action, the Women’s Movement, and the Groups Covered by Affirmative Action

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pp. 23-38

Affirmative action first cropped up in the modern era as a theory for advancing education, work, and voting opportunities for disadvantaged minorities.1 Affirmative action’s initial agenda was to complete the task that post-Civil War Reconstruction had undertaken, but abandoned, a full century earlier, namely, the integration of America’s black community into the economic and political mainstream. Affirmative action’s operational concept was the achievement of nonracial civic equality—a notion that Reconstruction had inserted ...

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3. The Career of Affirmative Action in Employment

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pp. 39-86

The modern movement began early in the twentieth century with a period of interracial lobbying, litigation, and public advocacy. The flagship of this phase was the National Association for the Advancement of Colored People, formed in 1910 to combat Jim Crow. Its Legal Defense Fund scored notable antisegregation victories in the 1930s and 1940s, then planned and won the legendary antisegregation Brown v. Board of Education case in 1954.2

Appendixes to Chapter Three

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pp. 87-107

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4. Affirmative Action and the Primary and Secondary Schools

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pp. 109-135

In this chapter, we deal with affirmative action’s troubled role in countering racial discrimination in the nation’s elementary and secondary schools. Segregation has afflicted public classrooms throughout the country since long before the Civil War. At the turn of the last century, although grossly unjust, it gained a measure of constitutional respectability under the “separate but equal” umbrella of Plessy v. Ferguson (1896).1 Thereafter, it continued to flourish, de jure (by law) in the South; de facto (in actuality though not imposed by law) in the North and West as a by-product of segregated housing.

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5. Affirmative Action in Higher Education

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pp. 137-172

Does the equal protection clause countenance race, ethnicity, or sex as criteria of admission to our colleges and universities? Does this depend entirely on proof of past discrimination; or may the need for more “diverse” student bodies also justify a resort to affirmative action? What is the capacity of state government and its referendum process to limit affirmative action in education and elsewhere? Manifestly, these are bedrock issues, but the Supreme Court has declined to answer them.

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6. Affirmative Action and the Political Representation of Minorities

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pp. 173-201

The initial object of the Voting Rights Act (VRA) of 19651 was the enfranchisement of protected groups who had been denied the ballot through the governmental use of literacy, educational, or character tests. The Act banned such tests according to a prescribed formula; it did not require a showing of intentional discrimination before the ban took effect. The test ban was triggered by low voting or low-voter registration figures in the states and their subdivisions. The assumption of the Act was that such data reflected the oppressive societal burdens (like poor schools) imposed on African ...

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7. Affirmative Action and Fair Housing

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pp. 203-222

Affirmative action meant to craft racially and ethnically balanced neighborhoods has received but little federal attention. Ironically, residential segregation is at the heart of educational segregation and has operated as a barrier to the elimination of inner-city poverty. Nevertheless, residential segregation has survived all attempts at public regulation, particularly the Fair Housing Act (FHA/Title VIII) of 1968.1

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8. Facing Affirmative Action’s Future

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pp. 223-246

The federal affirmative action about which we quarrel today started mainly as an “outreach” program meant to attract minority candidates for jobs, contract grants, and college admission. Thereafter, it was transformed into a far-reaching policy of applying race, ethnic, and gender preferences and other considerations in decisions about employment, government procurement of services and supplies, legislative districting, K-12 student-attendance policies, English-language instruction, university admissions, and—in a limited fashion—housing. The transition was designed to improve the lot of ...


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pp. 247-292

Selected Bibliography

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pp. 293-302

List and Index of Selected Cases

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pp. 303-306

Topical Index

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pp. 307-317

Index of Selected Names

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pp. 319-322

E-ISBN-13: 9780791487969
Print-ISBN-13: 9780791455098
Print-ISBN-10: 0791455092

Page Count: 334
Publication Year: 2002

Series Title: SUNY series in American Constitutionalism

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Subject Headings

  • Discrimination -- Law and legislation -- United States.
  • Affirmative action programs -- Law and legislation -- United States.
  • Discrimination in employment -- Law and legislation -- United States.
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