Lecture 12: Affirmative action in practice

Explain the difference in history of enthoracial classification in the UK and the US.

In the US, racial classifications emerged from the legacy of slavery, thus already existing. In the UK, racial classifications were introduced as part of the 1991 antidiscrimination law.

Outline the main legislature concerning antidiscrimination laws in the UK. Why was using ethnic monitoring especially important for the scope of those laws?

1. 1976 Race relations act banned indirect discrimination.

2. 1991 Discrimination law introduced racial classifications. The latter were especially important as there was no ban on religious discrimination until 2000s, meaning ethnicity had to serve as a proxy for religion.

Explain the history of the debate over the duality of racial classification in the UK

In the UK, it was first unclear whether to introduce statistics to genuinely represent all groups or just give representation to those who are most likely to be oppressed.

Verbally, race is more like ethnicity. Ethnic origin is not racial, but cultural. Yet, ethnic origins are actually sub-divisions of races in the nomenclature.

How does the British experience undermine the French argument agaisnt racial statistics? What is the French argument?

France says that if we implement race-based statistics, this can lead to statistical discrimination. However, in Britain, despite the existence of statics, only soft, positive action measures are legalized.

Provide an example of legislature, allowing soft affirmative action in Britain. Explain why this is even softer than in the US.

The 1976 equal relations act allows employers to encourage racial minorities to apply when they’re underrepresentsed. Affirmative action doesn’t exist in public contracting, no public positions in recruiting, not applying to education.

Why is affirmative action specifically not present in the UK Educational system?

First, there is a higher belief in merit. Second, the structure of admission is more decentralized between faculties, meaning it is impossible to sync in a university. Race is not seen by the application officer.

Provide the reasons why affirmative action tends to be less widespread in the UK than in the US, though legally, more is allowed.

First, there is no agreement that black people faced a great degree of harsh discrimination(slavery) in the past, removing some justification for PD. Nonwhite immigrants in the UK face less stigma than black americans. Black people tend to be more integrated, less segregated, with a slighltly lower pay and employment rate.

Outline what is specifically different about the case of Northern Ireland.

Unlike the UK, where this policy only applies to public employers, in NA all employers are legally required to monitor the distribution of race among their employees. If a significant statistical discrepancy is viewed, all employers are obliged to set up affirmative action programs.

Under the 2000 police act, equal numbers of cathloics and protestants must be appointed as police officers from a pool of qualified applicants. This is explained by the need to prevent unfair policing and intercommunity violence.

Outline the main feature of casts in India. What share of the population benefits from AA in some form?

Caste is a system of classes that covers society without remainder. The castes are arranged hierarchically and constitute closed communities. There are strong sanctions against some forms of social interactions with other castes. While meant to be complimentary, they are an inherently negative, hierarchical concept. 2/3 of the population benefit from affirmative action programs in some shape or form.

Explain what is different between the consensus on AA in India and the US. How does this affects the main argument people are having over affirmative action?

In India, everyone feels that affirmative action is required, justified, due to the obviously disadvantageous nature of caste. Even the supreme court accepts that while affirmative action tampers with meritocracy, it is the price to be paid for constitutional justice. This means the main argument is to be had not whether it is needed or not, but rather the extent and range of quotas to be applied.

Run through the initial constitutional struggles of the SC with affirmative action.

Initially, the supreme court overturned amendments justifying it with the principle of equality. However, the legislature just overwrote the decisions of the SC in law.

At the beginning, there were some problems with what were to be taken as a basis for affirmative action. Even though the court determined caste was the best proxy for affirmative action, the government was against it, in spirit(not to increase the importance of caste again) and economically(not to hinder economic development).

Nevertheless, caste could not be the sole factor determining acceptance. The proportion of places that were “reserved” was capped at 50%.

What is an important detail about what can be used for affirmative action in India. What is a decision that affirmed this. What were the nationwide implications of this?

The principle in question is the principle that only caste can be used as a proxy. The court affirmed that when it struck down a SC decision stating that 10% was for all economically backwards citizens, even for higher castes.

This led to affirmative action becoming a nationwide issue, as now whole groups lobbied for quotas at the national level.

Explain the peculiarities of the Indian AA.

1. Not all groups benefitting are to be equally treated, there is a clear hierarchy.

2. Only sheduled casts and sheduled casts get reservations at legislative seats

3. Only STs and SCs can benefit from proportional quotas, the quotas for OBCs are determined by subtracting the quotas for sts and sts from all possible quotas. Due to the number of people applying for OBS seats, the court allowed class to be considered when selecting among those applciants in Indra Sawhney.

How did the existnence of a large data system affect the AA decisions in India?

This allowed to weigh casts one against another, meaning a more nuanced system of affirmative action.

1. This could only be done through an administrative authority with access to different statistics.

2. Without access to data, the SC would have to conclude that it’s not its competence to make such decisions

Explain why a stricter firing law system necessitates less affirmative action?

If it is harder to fire people based on anything not directly related to the job in general, it means less firings will happen due to discrimination as employers will have to work harder to justify layoffs. There are 25 illegal grounds for firing in France, compared to 11 in the US.

This is called universalization of antidiscrimination. In essence, it means there is a generally negative view of discrimination period, regardless of specific reasonings.

What are gender-based quotas in french politics? What is the history.

Currently, every party running for elections must send an equal number of male and female representatives. This law was introduced in 1982, but struck down by the CC. Then, the legislature amended the constitution, circumventing the ban. Another law — a 50% female quota in corporate boards was passed by the same mechanism in 2008.

This signifies gender parity as a fundamental principle of constitutional law.

Why gender quotas considered “special” in France, unlike other proxeis.

1. Women are half of the population

2. Sex is the key feature to the administrative identity of individuals, signified on the ID

3. Sexual duality is permanent, structuring and universal. Gender equality is good for democracy.

Current inequalities in the french society? Give some sick cool stats.

The unemployment rate was 25% for those born outside the EU, compared to 9% for eu citizens. Only half is explained by differences in age, education and health.

How do we distinguish whether discrimination is caused by race or religion? Give an example of an experiment that tested it and its findings.

Indeed, due to most muslims coming from north africa, it is harder to determine if it is caused by islamophobia or racism. To test this, a CV experiment was conducted. The results confirmed a significant level of anti-muslim discrimination, controlling for national origin.

Give an example of how strict firing laws may propel discrimination.

If the employee can not fire you, they will be more cautious in hiring, disadvantaing people with fewer educational credentials, as well as foreigners, racial and religious minorities.

How is discrimination treated legally: explain both the philosophy and practices.

1. Philosophically, discrimination is casued as injury and a criminal case. Due to WW2 legacy, there is an understanding of discrimination as harm to the republic.

2. Due to the fact that it is impossible to obtain employer records with a civil case, most people file a criminal case. These records are almost always needed to prove discrimination as a result of hiring.

Having said that most anti-discrimination cases in France tend to be criminal, what are the two major issues with it?

1. They require not just the crime being commited being proven, but also the intention to do so. This makes it harder,both because unintentional discrimination is possible but also because it gives more room for the defendant

2. The defendant benefits from the presumption of innocence, an employer who keeps his motives to himself can slip through the cracks.

Explain three core issues with discussing affirmative action policies in france.

1. Constitutionally, color-blindness directly stems from equal protection, ruling out corrective or remedial use of race.

2. Data is often impossible to collect, except for when it is done by INSEE. An attempt to include race into the census failed.

3. The term race is seldom used. Even among racial activists, those asking for racial quotas are a minority. The understanding of “diversity” has thus been racialized.

Outline the main difference in AA btwn France and the US when it comes to diversity.

The main difference between the two countries lies in the sequential order in which antidiscrimination and the promotion of diversity have come about as values on the political agenda. In the US, diversity was praised after racial issues have been dealth with. In France, it existed independently.

Run through the indirect affirmative action programs in France.

Piority educational zones, which are determined based on criteria such as income or educational performance. Another example are zones franches where companies are incentivized to move to lower-income areas to get tax cuts. Because African Americans have relatively high birth rates and unemployment rates, they benefit from such policies disproportionately.