Affirmative Action & the ACLU

Across the United States, politicians have attacked the very basis for equal opportunity in government employment and education programs by introducing legislation to end affirmative action policies. In New Jersey, Assembly Bill 1678, introduced by Assemblymembers Michael Carroll and Gregg Guy, seeks to prohibit public and certain private affirmative action programs based upon race, ethnicity, sex, color or national origin. Fortunately, this misguided legislation does not seem to have legs, at least for the time being.

The debate over affirmative action highlights the central place of race in American politics, and is an issue on which the ACLU takes a clear stand. Affirmative action is necessary in order to remedy long-ingrained patterns of legal discrimination in society, some of which continue in our law books even today. Generations of lost opportunities have taken their toll. We cannot pretend that race and sex discrimination existed only in the past, and that everybody now starts from the same place. On the contrary, we have heaped disadvantages on minorities. The road to an equal society requires constructive race and gender consciousness.

Anti-affirmative action legislation has been deceptively and cynically referred to as "civil rights" initiatives. This label couldn't be more misleading. Affirmative action programs work by recognizing and reducing the social and economic barriers to equal opportunity that resulted from discrimination. Affirmative action does not mean hiring unqualified people in place of qualified ones. It means seeking out and expanding the pool of qualified candidates.

When discrimination — and particularly discrimination in employment and education — has been long and widely practiced against particular groups, it cannot be satisfactorily eliminated merely by the prospective adoption of "neutral," "color blind" or "sex blind" standards for selection, promotion, or retention of the applicants and candidates for available jobs or educational programs. Equal treatment in a context of unequal circumstances serves only to perpetuate inequity, and compensatory justice may therefore be essential to achieving equal justice. For the present, the pervasive, long-enduring intractable quality of employment and educational discrimination against racial minorities and women warrants programs specifically designed to combat the affects of discrimination.

In addition to arguing for the continuation of affirmative action programs in employment and education, the ACLU has looked inward to the makeup of our staffs and boards and developed policies and practices aimed at ensuring that people involved with our organization represent a broad range of backgrounds and perspectives. In January, the ACLU-NJ Board of Trustees revised its affirmative action policy. The new policy affirms our commitment to have full representation and participation of recognized minorities (encompassing racial and ethnic minorities, gay, lesbian, bisexual and transgender people, the disabled, and persons who are economically disadvantaged) and women on its Board of Trustees as well as among its staff, officers, committee members and volunteers. We will continue to affirmatively seek out minority leaders to join the ACLU-NJ at all levels of its structure and participate in our struggle to promote and defend civil liberties principles. Our effectiveness as civil liberties advocates is enhanced by having minorities and women participate at each level of ACLU-NJ activity.

Our new policy requires a number of outreach measures in employment searches so that we have a diverse pool of applicants for position openings. The search process is overseen by an independent Affirmative Action Officer appointed by the Board (our current AAO is Chuck Jones). In addition, the policy requires ongoing public education and outreach efforts for the purpose of increasing awareness of ACLU issues in minority communities. The development of this policy generated meaningful dialogue among members of the Nominating, Elections & Affirmative Action Committee (which drafted the revised policy) and at the Board level. New Jersey is one of the most diverse states in the nation and the ACLU-NJ is frequently called upon to help challenge discriminatory practices. We have found that our ability to address discrimination, and our ability to educate about discrimination, is greatly improved through the input and participation of people who have significant personal experience with discrimination.

Affirmative action remedies are temporary, not permanent. They are imposed to redress the effects of past or current discrimination. Although some may argue that the time has already come to abandon affirmative action goals and timetables, the ACLU believes that institutionalized racism and sexism still present significant barriers to minorities and women. As we continue to struggle to get to the place of real equal opportunity, more Americans are realizing the positive value that diversity in work and educational setting provide. Our goal should be a colorful society, not a color-blind society.

-By Deborah Jacobs ACLU-NJ Executive Director

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