Affirmative Action In Florida

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1 Recently Governor Jeb Bush has pushed for the passage of a plan he calls ONE FLORIDA, an executive order to abolish affirmative action in the state of Florida. Through the history of affirmative action in our country and its ensuing abolition, politicians and society at large are ever debating the merits of a racially based admissions, hiring, and contracting program. With anti-affirmative programs already in effect in both California and Texas, Florida is following suit with a college admissions program designed to diversify college student bodies without becoming racially discriminatory. Also incorporated into ONE FLORIDA are new standards in both hiring and contracting. To better understand these changes we must look at the history of affirmative action and later, whether or not it is constitutional. The term affirmative action predates the civil rights movement. According to John Skrentny, assistant professor of sociology at the University of Pennsylvania, the basic idea comes from "the centuries-old English legal concept of equity or the administration of justice according to what was fair in a particular situation, as opposed to rigidly following legal rules, which may have a harsh result" (Skrentny 6). The phrase affirmative action was first used in the 1935 National Labor Relations Act, and it referred to employers discriminating against union members. In 1961, with the enactment of President John F. Kennedy's Executive Order 10925, advising employers to take affirmative action to ensure nondiscrimination, the term became synonymous with the civil rights movement (Bloch 70). President Lyndon B. Johnson's Executive Order 11246 expanded on the civil rights issue by ordering contracting firms with the federal government to "take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regards to race, creed, color or national origin" (qtd. in Skrentny 7). Eventually affirmative action was included in private hiring practices and college admissions programs throughout the country. 2 This ideal called affirmative action has now come to mean reverse discrimination when one race or gender is shown preferential treatment in admissions or hiring. In state colleges such as Florida State University and the University of Florida, some minority students are admitted solely on the basis of color, excluding qualified white applicants, to diversify the make-up of the student body. With the enactment of FLORIDA ONE diversification will be based on "race-neutral socioeconomic factors...[without regards] to race or ethnicity", as well as "factors such as income level, geography, special talents and whether an applicant is a first generation college student" (Equity in Education). Included in Governor Bush's plan is the Talented 20 program. This program will guarantee admissions to any Florida state school to the top 20% of all seniors graduating public high school in the state regardless of SAT or ACT scores. Bush believes that "as a result of the Talented 20 program, approximately 1,200 additional minority high school students will be given the opportunity to attend a state university" (ONE FLORIDA Myths). However, the Talented 20 does not guarantee admissions into the university of choice. It also does not replace the current admissions process. The Talented 20 is in addition to the regular admissions process. The Governor proposes "additional funding to accommodate this additional students" (ONE FLORIDA Myths). ONE FLORIDA is also designed to help all facets of education in Florida by asking the Legislature to increase funding for need-based aid by $20 million. We will seek $1.6 million to ensure all 10th grade children take the Preliminary Scholastic Achievement Test, $2.4 million to expand Florida's On-Line High School to target students in D and F schools, $10 million for the Governor's Mentoring Initiative, and a $1 million increase in funding for the College Reach Out Program. 3 We will also pay incentive bonuses for teaching Advanced Placement Courses on our low performing schools.(Equity in Education) In the improved version of ONE FLORIDA, the Governor's Executive Budget has recommended "an increase of $36 million for [A+ Supplemental Instruction], as well as other intervention strategies and activities to improve student achievement" (Improvements to ONE FLORIDA). In addition the College Board partnership will provide free on-line access to SAT preparation activities for all Florida high school students. By these increases in funding, Governor Bush is ensuring that more minority students who are planning to attend college are better prepared to meet the requirements for both admissions and the rigors of postsecondary education (Equity in Education). It is a proven fact that students who are not properly prepared for postsecondary education and are admitted on the basis of race or gender do not fare as well as truly qualified white students. Robert M. O'Neil, attorney and Vice President of Indiana University, published a study of white law students vs. black ones. The study conducted by Professor George N. Stevens in conjunction with the Association of American Law Schools Bar Examination Study Project, carefully observed 1,042 minority students during their three years in law school and when taking the bar examination (68). According to Stevens' findings, "154 minority students were dismissed for academic reasons ~ a rate higher than that for white-Anglo students...167 students simply disappeared...and 100 of these students withdrew voluntarily during the three years"(qtd. in O'Neal 69). Stevens goes on to report that out of 408 graduates who took the bar examination "only 56% of blacks passed", and that "the success rate was about half that of regular students" (qtd. in O'Neal 69). From this study we learn that admissions by race do not 4 ensure success for minority students. With Governor Bush's ONE FLORIDA plan, statistics such as these would become obsolete as students are better prepared for and more successful in the postsecondary and graduate systems. With success in school comes the hope of success in the work place. With the implementation of Title VII of the Civil Rights Act of 1964, discrimination in the work place ended. Farrell Bloch, an economic and statistical consultant in Washington D.C., summarizes Title VII (as amended) as "the prohibition of discrimination against individuals on grounds of race, color, religion, sex, or national origin by private, state, and local government employers with atleast fifteen employees" (49). The practice of reverse-discrimination by employers hiring applicants based on race, gender and national origin will diminish as ONE FLORIDA opens the door of opportunity equally to both black and white men and women. This is not to say that the practice of set asides, preferences, and quotas will be completely eliminated. According to Senator Steven Geller, an advocate of anti-affirmative action, "these hiring practices were always on a voluntary basis in Florida. It has been up to employers to set quotas... Employers have an interest in affirmative action because it is fundamentally fair to have a diverse and representative workforce" (personal interview). In accordance with this theory, Ronald Anderson and Ivan Fox, co-authors of Business Law & the Legal Environment, claim that affirmative action plans (AAP's) have been drawn to aid employers in recruiting, hiring and training minorities and woman, as well as enabling these employees to advance in their company (757). Anderson and Fox go on to give the criteria for a permissible AAP: 1.The affirmative action should be in connection with a "plan." 2.There must be a showing that affirmative action is justified as a remedial measure. The plan must be remedial to open opportunities in occupations closed to the 5 protected classes of Title VII or designed to break down old patterns of racial segregation and hierarchy. 3.The plan must be voluntary. 4.The plan must not unnecessarily trammel the interests of whites. 5.The plan must be temporary.(757) The use of AAP's containing quotas, preferences, and quotas have not always met with success. William Bopp and Donald Schultz, both former California police officers, expand on the problems with the quota system in their collaboration, Principles of American Law Enforcement and Criminal Justice: Police departments are now embarking on extraordinary programs aimed at recruiting minority-group citizens into law enforcement. Although some would set strict quotas of black-white ratios on police agencies, quotas have proved in varying ways, unworkable. Those departments that have experienced success in minority recruitment have done so not by setting quotas, dropping standards, or instituting heavy-handed recruitment devices. If an applicant is able to meet strict, but fair standards, race, creed, and nationality considerations should be ignored. (377) ONE FLORIDA replaces this out-of-date voluntary program of preferential treatment for one that expands opportunities for minorities as well as whites and increases diversity without discriminating. Governor Bush has put his theory of diversification without the sacrifice of quality into practice in his own administration. He is committed to hiring both minorities and woman in high level positions, as shown by his Chief of Staff, General Counsel, Budget Director,Chief Inspector General, the Director of Tourism, Trade and Economic Development (OTTED)and 6 the Secretaries of the Departments of Labor, Lottery and Elder Affairs (Equity in Hiring). Also, hiring in the judiciary will not be affected by ONE FLORIDA as Governor Bush's appointments of African-Americans and Hispanics already total 40% of all judicial appointments and women another 40% (Equity in Hiring). Bush's plan is obviously not to take jobs away from minorities, but to give even more opportunities to them. Opportunities such as federal and state contracts for minorities will not be hindered by ONE FLORIDA either. Statistics show that at present "less than 1% of all available state contracting is done with certified racial and ethnic minority businesses under the current 'goals' system" (Equity in Contracting). Bush believes that a percentage such as this is low because few minority businesses in South Florida even bother to go through the state certification process. The current process for state certification is almost identical to that of the local process, making it a doubly tedious task to obtain both state and local certifications (ONE FLORIDA Myths). ONE FLORIDA will streamline the process in order to give minority businesses the opportunity to participate in state contracting. In addition to streamlining the application process, the requirements for certification will become less rigid. The Governor has asked Legislation to "consider using gross sales rather than net worth as the measure of size for certification" (Improvements to the ONE FLORIDA Initiative). Currently the law sets certification limits on minority businesses that exceed a net worth of $3 million. These innovations will hopefully encourage more minorities to apply for certification. Once certification is no longer an issue, the task of building relationships between procuring agents and minority businesses must be addressed. One major problem that Bush sees is that much of Florida's state business is done as a result of long-standing relationships between State procurement agents and vendors, minority businesses often find it difficult to 7 break in(Equity in Contracting). Seeing as the bulk of the minority population and its businesses are located in South Florida, ONE FLORIDA proposes that "by moving the Office to the Department of Management Services, where the majority of procurement activities take place, the Office will be more successful in helping procurement agents find and recruit qualified minority businesses" (Equity in Contracting). ONE FLORIDA will also improve on financial and technical assistance programs that aid in the development of minority businesses, minority construction firms, and minority franchises. Governor Bush will implement what he calls "a 'lending tree' of banks" which would "form loan pools for contract loans, lines of credit, and capital infusion" (Improvements) to help develop legitimate minority enterprises. Also being proposed is "a race-neutral program of assistance to firms in economically disadvantaged areas" (Equity in Contracting). However, businesses will still be required to prove that they are minority owned, and the penalties for fraud will be severe and strictly enforced. Through the many revisions of ONE FLORIDA, non-discrimination still remains a key point in the program. For instance, the plan calls for "a system that will allow the state to effectively investigate and punish discrimination by state procurement agents" (Improvements). The plan goes on to state that "state employees determined to have participated in race or gender discrimination will undergo disciplinary action, up to and including termination" (Improvements). In the case of businesses, "[those] found to have filed a complaint of discrimination in bad faith will be barred from competing for State business for a period not to exceed five years" (Improvements 3). ONE FLORIDA , although determined to eliminate hiring and contracting based on race and gender, is designed to still protect the rights of the individual against discrimination. 8 Opponents of ONE FLORIDA, such as Attorney General Bob Butterworth argue that any anti-affirmative action plan is still discriminatory and unconstitutional. In a Sun-Sentinel news article, he is quoted as saying, "the ballot measures' language violates many requirements constitutional amendments must meet before being put before voters" (qtd. in Kennedy). He goes on to add, "you must be fair, you cannot deceive the public, and that's what [these initiatives] do" (qtd. in Kennedy). Butterworth's argument is only valid when discussing the precise language in ONE FLORIDA. The term "people" is used in its summary, whereas the term "persons" is used in the text of the document. "Persons" under Florida law can be considered to include corporations, while "people" may not (Kennedy). Butterworth considers this "to be another ambiguity that should bar the measures from the ballot" (qtd. in Kennedy). Butterworth and his supporters are trying to fight the ONE FLORIDA proposition not on the Constitutional rights of freedom and equality, but on constitutional technicalities. Sun-Sentinel writer, John Kennedy describes how "the Florida Constitution places strict requirements on ballot initiatives...the most rigorous is that a measure may encompass only one subject" (Kennedy). The fact that ONE FLORIDA touches on education employment, and contracting is enough to give affirmative action supporters the grounds they need to bring their case before the Florida Supreme Court. However, according to the above news article, 435,329 registered voters' signatures are needed to place amendments to the Constitution before voters...only 43,500 were collected (Kennedy). Anti-affirmative action advocates have already countered with the circulation of four petitions: the first initiative bans affirmative action in public employment, public education, and public contracting, and the other three target individual areas. Butterworth still contends that " each initiative still violates the single-subject rule" (qtd. in Kennedy). 9 The question of ONE FLORIDA being constitutional or not should not be based on precise language and technicalities. We live in a country based on the rights of the individual. Our Bill of Rights is comprised of ideas to protect the average citizen from moral and societal wrongs. Amendments XV (1870) and XIX (1920) gave the fundamental right to vote to minorities and women respectively. These amendments furthered the thinking of our forefathers who founded this country on the beliefs of freedom and equality for all. The creators of the Constitution modeled it as a "living" document, whereas it could change as society did. In the 1960's and 1970's affirmative action was the right course for our country to take. Discrimination and segregation ran rampant in those decades and a solution was needed to ensure civil rights for every American regardless of race, gender, or national origin. Today though, this sort of thinking is out-of-date as society's views of our diverse population have expanded. We live in a society now that not only encompasses whites and African-Americans, but persons from every corner of the world. The gay movement in the United States has provided us with yet another segment of the population which needs protecting, but none of these groups should ever have an advantage over another just because they belong to a particular group. America must always remain diversified in order to remain a world power. Our diversification makes us the beautiful Melting Pot that the rest of the world looks up to. With the implementation of ONE FLORIDA in our own South Florida "melting pot", we will see more diversification and opportunities than ever before. Due to extra funding for education, standardized tests and practice exams will now be afforded to every high school student planning to attend college, no matter if they attend an A school or an F school (Improvements to the ONE FLORIDA Initiative). Programs initiated by Governor Bush will give children the motivation to improve themselves in school, instead of just "getting by" 10 because preferential treatment is shown them. Our children will now be received solely on merit not only in Florida state universities, but universities around the country as well. After college many opportunities will be available to them in the work force because of

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