Fundamental to any discussion of affirmative action’s legality is its definition. Affirmative action does not mean numerical quotas, the selection of someone solely on the basis of race or gender, or the selection of the unqualified over the qualified.
Must an affirmative action definition be inconsistent with the U.S. Constitution’s guarantee of equal protection? Is any affirmative action definition on its face inherently discriminatory because it subjects a person to unequal treatment?
Several possible working definitions of affirmative action were outlined in a recent law review article by Professor Charles W. Collier of the University of Florida. They were as follows:
1. Among qualified candidates (applicants, etc.), affirmative action means that the underrepresented candidate(s) should get the nod.
2. Among equally qualified candidates, affirmative action means that the underrepresented candidate should get the nod.
3. Among unequally qualified candidates, affirmative action means that underrepresented status serves as a “plus factor” that may elevate an (otherwise) less qualified candidate over (otherwise) more qualified candidates.
4. Affirmative action means equality of opportunity as opposed to equality of outcome.
Opponents of affirmative action argue that definitions one, two and three are discriminatory because preferring members of one group because of race, ethnic origin or gender is discrimination. The constitutional guarantee of equal protection applies to all people, and victimized groups cannot benefit from any preference at the expense of innocent individuals having no responsibility for the harm suffered by the victimized groups. The government cannot use race or gender to allocate rights among human beings.
Critics of affirmative action charge that it promoters group consciousness and segregation which leads to further resentment between the races, They argue that the pursuit of diversity through affirmative action runs the risk of continuing stereotypes. Affirmative action policies are much more likely to benefit minorities from the most advantaged families than urban poor with inferior education. These policies were not designed to benefit unqualified, poorly educated and unskilled candidates to secure an education or good jobs, the argument goes.
The underlying assumption is that one can objectively determine who is best qualified for a position. Notions of “bias-free” hiring are worthy goals, but unattainable.
It is doubtful that Americans are capable of making bias-free decisions because their actions take place in a free market driven by self-interest.
Even when the basis for meritocracies are readily quantifiable by grade point averages or standardized test scores, these criteria yield no precise answer as to whether one candidate can do a job better than another candidate. Standardized tests cannot assess qualities such as competitiveness or creativity. The candidate with the lower grades or scores can have more common sense, a better work ethic, better interpersonal skills or a higher emotional IQ.
California, the original trend setter in racial equality, is the first state to challenge affirmative action, as increased immigration from Latin America and Asia transforms the state into the first “majority minority” state.
Preferences and demographics have combined to challenge the perceived fairness of affirmative action. The California Board of Regents voted to abolish racial affirmative action and rely on merit-based admissions. They did nothing about their unofficial state university affirmative action programs for unqualified children of friends and supporters of California Board of Regent members. There is a long history of special preferences for mediocre applicants with political or financial clout. Special quotas exist for athletes, musicians, and offspring of alumni with mediocre academic credentials,
Proponents of affirmative action argue that race-neutral remedies or fairness in the form of a promise not to discriminate are inadequate remedies for the inequities produced by over three hundred years of legal and cultural racism and discrimination.
Dr. Myrna Adams, Duke University’s vice president for institutional equity has said, “affirmative action is an antidote to nepotism, favoritism and cronyism — a policy that helps all Americans by ensuring equal opportunity for all.”
Supporters of affirmative action typically select the third definition using race as a “plus factor” in hiring decisions. In Bakke, the first substantive Supreme Court decision on affirmative action, the court held that race could be used as a “plus factor” if the goal was diversity. Since Bakke, the focus has been on diversity rather than on redressing past discrimination. Federal courts have been consistent in holding that any preference programs must be temporary and narrowly designed to remedy specific acts of discrimination.
In City of Richmond vs. Croson, the Supreme Court held that all state and local government racial classifications, including affirmative action or minority set aside programs, were subject to strict judicial scrutiny. Then, the Supreme Court went one step further in Adarand Construction, Inc. vs. Pena and ruled that all state or federal government actions involving racial consciousness, including affirmative action and minority set aside programs, were subject to strict judicial scrutiny.
Adarand involved a minority set-aside program for economically disadvantaged businesses and all businesses owned by minorities were presumed to be economically disadvantaged. In a five-to-four decision, the Court ruled that any race conscious presumptions must be narrowly tailored to eliminate the effects of racial discrimination, in other words, minorities cannot be presumed to be economically disadvantaged. A majority of the current Supreme Court favors race-neutral remedies to redress the effects of racial discrimination. This race-neutral philosophy has been extended by lower federal courts into university admissions and financial aid offices.
In Podberesky vs. Kirwan, the 4th Circuit United States Court of Appeals rejected a University of Maryland scholarship program set up exclusively for African Americans. More recently, the 5th Circuit United States Courts of Appeals undermined the Bakke decision by holding in Hopwood vs. Texas that the University of Texas Law School could not use race as a factor in deciding to admit applicants to achieve a diverse student body and to eliminate present effects of past discrimination.
According to the 5th Circuit, the 14th Amendment’s guarantee of equal treatment for all prohibits discrimination to accomplish the goal of diversity. Bakke set the standard for affirmative action programs in higher education by holding that race could be a “plus factor” in achieving diversity. All affirmative action programs are now at risk when a more conservative Supreme Court addresses this same issue in Hopwood.
If race-neutral policies are adopted, and affirmative action programs are eliminated, will the laws against discrimination be enforced?
Opponents of affirmative action, suggest that these laws are all that are needed. However, without affirmative action, we go back to business as usual. Affirmative action was more acceptable and less expensive than rigorous enforcement of those civil rights laws in the first place. Employers, mostly white managers, will simply hire people who are like them; although the motivation may not be prejudice, a subconscious maintenance of the status quo is also wrong.
Persons who are unable or unwilling to support the third definition typically select the fourth definition because they believe that there is a consensus for equal opportunity. The fourth definition mandates “casting a wide net” in the recruiting process to ensure a diverse pool of qualified job applicants. The final selection is based on qualifications rather than racial or gender status. In polls, when Americans are asked if they favor companies making “special efforts” to attract “qualified” minorities and women to these companies, Americans generally are supportive.
Americans, however, opposed preferential treatment in selection or hiring, even when it is justified to redress specific prior acts of discrimination. A New York Times/CBS News national poll has asked repeatedly since 1985: Do you believe that where there has been job discrimination against Blacks in the past, preference in hiring or promotion should be given to Blacks today?
In 1985, 40 percent said yes, 46 percent no. More recently, in March 1993, and February 1995, support for such programs and practices had dropped to 33 percent while 55 percent rejected preferences even when justified by past discrimination, according to the poll. A March 1995 Washington Post/ABC News national poll found that 75 percent of respondents to a similarly worded question opposed preferences. “Eighty-one percent of whites and 46 percent of Blacks were against such treatment,” the poll found.
Does this opposition to affirmative action imply an increased attitudinal backing of racial discrimination by whites? The answer to this question is not clear. It is difficult to advocate preferences for an entire group when some members of that group are better off than you are. Affirmative action critics give lip service to equality of opportunity and the duty of employers to give everyone a fair chance.
They have not explained how we can achieve a system of true meritocracy, have not shown any support for attacking mostly white group preferences for veterans, athletes, alumni relatives and persons of financial and political influence, and have not advocated strict enforcement of civil rights laws against racial and gender discrimination.
If affirmative action is to continue with public support across racial lines, it may need to be class-based and limited to educational admissions. Based on recent rulings of the federal courts, a race-neutral affirmative action program may be the only affirmative action program that can withstand the test of strict judicial scrutiny.
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