Over the last couple of years, since 1995, the debate over the legality, constitutionality of Affirmative Action has raged. Fueled mostly by Conservatives like Pete Wilson, Ward Connerly and Dinesh D'souza, although Liberals have also sounded out in opposition. The debate has captured the attention of the nation, with the Passage of Prop 209 and the Supreme Courts decision to not hear the appeals against it.
AA Opponents claim that it is itself, a form of racism. That AA promotes strife and is detrimental to the very persons it intends to help. Much of this debate has been confused by political grandstanding and rhetoric. But what is the truth? Over the past couple years I have watch and participated in this debate, I have done a great deal of research into the subject.
This is what I have found.
The Civil Right Act of 1964 prohibits discrimination in the workplace. It very specifically describes what discrimination is and the various forms that it takes. Reading through all the details can be a harrowing experience, but the bottom line is this...
The Civil Rights Act makes it illegal to discriminate against someone on the basis of the race, age, religion, gender or national origin.
But there is a loophole, nowhere in the Civil Rights Act does it prohibit discrimination for someone on the basis of race, religion, gender or national origin. The Civil Rights Act does not specifically authorize Affirmative Action, however, it does not prohibit it either. Not competely. An employer can make choices and decisions in the work place which benefit one particular demographic faction - however they can not do so at the expense of another group, because that would be discriminating against that group.
You can take "Affirmative Actions", as long as they do not result in a "Negative Reaction".
This is a very fine line to walk.
Essentially what this means is that when dealing with a zero-sum situation, where the situation is static, rather than fluid, you can not implement AA. But in a situation where things are dynamic and non-static, where doing something positive for one person, or faction, does not neccesarily take anything away from anyone else...then Affirmative Action may be legally applied.
To give a real life example: A hiring situation is usually static. There are a usually a specific set of employment slots, and as such making a hiring decision which benefits or prefers one faction over another, would very definately be detrimental to people outside that faction. On the other hand, offering Outreach and training courses prior to hiring, or doing recruitment to a particular faction, doesn't neccesarily create a "Negative Reaction" to others. It simply means more people, with better qualifications show up for the job(s). This is how Legal Affirmative Action works, and no one is hurt by this, except those who are underqualified for the position.
The distinction between what is actually legally allowable under Affirmative Action and what is not, is often lost on people. Even many AA supporters are unclear on this issue.
If and when a person, company, or agency implements an Affirmative Action program that is within a static situation, resulting in a Negative Impact on people outside the "Preferred" groups - they are violating the law.
It's just that simple.
Additional to this basic requirement by the Civil Rights Act, has been the Supreme Court Decision in Adarand Constructors, Inc. v. Pena, 515 U.S. 200
(1995) (USSC+), although the Court rendered no decision on the case and had it sent back to the lower court, the court did state that race-based polices by the government must be able to withstand strict judicial scrutiny. This, in laymens terms, means that the goal of the policy must meet a compelling need for the community, and that no other alternatives are available which will similarly meet the same need or goal.
This means that not only must any race-based Affirmative Action plan not create a Negative Reaction or so-called "Reverse Discrimination", it must also be desperately needed, and no other options must be available in order for the plan to be legal and constitutional.
This is contrary to the often quoted opinion by opponents that Affirmative Action is nothing more than "Reverse Discrimination" itself.
It is (Reverse Discrimination), if that agency is acting illegally and unconstitutionally. Therefore any government or private agency which claims to be implementing AA essentially as "Reverse Discrimination" is admitting to a crime.
Quota's are not legal within Affirmative Action. By definition a "Quota" sets a hard ceiling and floor on the participation by a particular faction. "We can have no more than *this* number"...this would clearly pose the potential to discriminate against someone. Moreover, the Supreme Court ruled in 1978 in Regents of Univ of Cal vs Bakke that Quotas or systems that acted like Quotas, were unconstirutional.
"Racial classifications call for strict judicial scrutiny
This case presents a challenge to the special admissions program of the petitioner, the
Medical School of the University of California at Davis, which is designed to assure the
admission [p*270] of a specified number of students from certain minority groups. The
Superior Court of California sustained respondent's challenge, holding that petitioner's
program violated the California Constitution, Title VI of the Civil Rights Act of 1964, 42
U.S.C. § 2000d et seq., and the Equal Protection Clause of the Fourteenth Amendment.
The court enjoined petitioner from considering respondent's race or the race of any other
applicant in making admissions decisions.
Although the court agreed that the goals of integrating the medical
profession and increasing the number of physicians willing to serve members of minority
groups were compelling state interests, id. at 53, 553 P.2d at 1165, it concluded that the
special admissions program was not the least intrusive means of achieving those goals.
Without passing on the state constitutional or federal statutory grounds cited in the trial
court's judgment, the California court held [p*280] that the Equal Protection Clause of
the Fourteenth Amendment required that
no applicant may be rejected because of his race, in favor of another who is less
qualified, as measured by standards applied without regard to race."
So why do people assume and claim that Affirmative Action is synonymous with Quotas?
Some of those who claim that AA=Quotas simply don't know any better. (I personally find it hard to believe that the current UC Regents, such as AA opponent Ward Connerly, are unaware that Quotas have been illegal since the Bakke case back in '78 was filed against...the very same UC Regents of which he himself is a member) For others, it's because it is politically and ideologically expedient to maintain this belief. But sometimes, it is because they are confusing Affirmative Action, with Conscent Decree's or Court Orders which result from Law Suites and/or Civil and Criminal Actions against a discriminator.
If a company violates the law, it can be punished for that violation. If a company has commited an act of illegal and unconstitutional discrimination - they can be punished for that via fines, and those whom they have wronged may have those wrongs corrected. The Civil Rights Act authorized creation of the Equal Employment Oppurtunity Commission (EEOC) to ensure that government agencies abide by the law. Additionally it authorized the Department of Justice (DOJ) to take Civil Action when appropriate. Neither of these agencies is in the business of implementing Affirmative Action, they are in the business of law enforcement.
Civil Actions do not require government agencies. They can be brought forth by individuals. Groups of individuals can consolidate their suit, as a "Class Action", and they may receive aid from Civil Rights Legal resources such as the ACLU and NAACP. In each of these cases, the plaintive must provide a preponderance of evidence to support their claim. Simply offering statistical data concerning the percentages and types of employee's vs the pool of available applicants (as opposed to the general population) is not enough. The plaintive must show that their is a specific company policy which is creating a disparate impact on a particular group. The company, in response must show that this policy has a bona fide business justification. If the policy does indeed meet a bona fide business qualification, if can be retained even if it has a disparate impact on people from different groups - but if it does not meet a legitimate qualification the company or organization can be held liable for that policy or practice.
The Civil Right Act of 1964 includes a rather large exemption which allows for discrimination when such discrimination is required to meet bona Fide occupation qualifications.
On the other hand, if the reason for this discrimination can not be justified in business terms, it is illegal.
If, for example, a job offer or a promotion, were denied to someone because they are the member of a factional group protected by the Civil Rights Act (Gender, Physical Disability, Veterans, National Origin and Race), they may recover the job that they have lost due to the unlawful action of the company. (Please note: The Civil Right Act doesn't just protect Blacks or Women...in fact neither is even mentioned in the Act - it protects everyone on either side of the factional lines)
As punishment it can be legally mandated via a Judge, that the company meet a specific "quota" of jobs as a remedial action to the discrimination that that specific company has engaged in.
Job discrimination can be analogous to theft. A job was stolen from one person, and given to another. The beneficiary, is a receiver of a stolen item. The "Quota" can not be put in place, until it has been proven that the Job/Oppurtunities were Stolen. Those the received those jobs/oppurtunies have no right to that item, so having them give the job back to it's rightful owner - should be standard practice.
It's essentially like asking someone to return a stolen car to the person they stole it from. It is not indescriminate, the specific theft has to be proven first or else, it is not legal to establish the quota to return what was taken.
Please be aware, I make a distinction here. I do not consider such punishment via Court Order or Consent Decree to be Affirmative Action, per se. It is punishment and "Remedy" for a crime. A "Remedial Action". As such, it is not contrained the in the same way that voluntary or even E.O. Mandated Affirmative Action is. Police and Courts regularly arrest and jail criminals, a similar action performed by other individuals would most certainly be called "kidnapping" and "false imprisonment". So what is legal in one context, is not legal in a different context, especially when due process has not been applied.
Obviously when a court orders that a company must have a work force that is X% female, for example, it may seem unfair to males. But the fact is that this can not occur unless the judge (or jury) has been shown a proponderance of evidence indicating that the company is guilty of prior (and sometimes current) criminal behavior against females. The Court Order is part of their punishment, and also a correction for their crime. Contrary to the claims of those who would paint Civil Right Activitist as "bullies"...this situation can only legally occur when the crime of discrimination has been proven.
Also contrary to their claims, these events are not driven by Affirmative Action - they are driven by the Law Enforcement, and removal of Affirmative Action would not change the probability of these types of "Quotas" occuring.
Often punishing a guilty party, impacts more than just the guilty party. It impacts people around them as well, who themselves may not neccesarily be guilty of anything. This is sometimes unfortunate, but often unavoidable.
It could be argued that simply fining the guilty company should be sufficient. However, when heavy fines where imposed on Texaco, for their bad behavior in discriminating against black employees during the mid 1990's (as revealed by the audio tapes of one disgrunted employee, which documented their attempts to conceal evidence indicating their guilt in a discrimination suit) - their CEO argued that these fines would cause them to close down some of their stations, thereby forcing them to layoff workers, and that some of those layed-off would be the black workers who had originally filed that class-action suit which resulted in the fine being imposed in the first place. (This always sounded like a retaliatory threat to me...which itself would also be illegal) So, clearly any form of punishment against a company, is going to have some undesirable impacts on innocent people. If you punish the company, it's going to hurt everyone working for the company as well as their vendors and customers.
But what else are you supposed to do?
The alternative to this situation would be to essentially let the guilty go free, and to allow those who have been the beneficiaries of criminal activity, to retain those benefits.
But does it really make sense to do this?
Does it make sense to let criminals keep what they steal? ("I stole it fair and square") Shouldn't stolen items be returned to their rightfully earned owners? (Strangely...or maybe not so strangely, this is exactly what some AA opponents have suggested is the course we should take. The De-criminalization of Discrimination - they claim, is the solution to our problem of racial strife. This suggestion is like saying that we should decriminalize murder because occasionally police and prosecutors become overzealous in persuing the criminals.)
Legally, Quotas can be used in this manner, to return stolen jobs and oppurtunities...not as a part of Affirmative Action, but as Civil or Remedial Action against a proven discriminator, using the rules of evidence in a court of law. Affirmative Action does not require a Court Order, but it also can not contain any form of "Quota".
The short answer is "No".
The long answer is that only government agencies and contractors are required by Presidential Executive Orders (#11246 & 12107) to implement AA. The verfication that contractors are implementing Affirmative Action (legally) is handled by the Office of Federal Contractor Compliance Programs or OFCCP. Their implementation of Affirmative Action must follow the same guidelines I have outlined above, and must be legal. Private firms that do not contract with the Federal Government may voluntarily implement Affirmative Action programs, but as such - they must also conform to the laws and not use those programs as a tool to discriminate against anyone.
The only exception to this is when a Civil Rights Law Suit is brought forth and either wins, resulting in a Court Order with Remedial Actions, or an agreement is reached between the opposing parties (Consent Decree) which includes Remedial Actions to correct for the alleged discrimination.
This question, when usually answered by individuals, usually hinges on their perception of the level of ongoing discrimination which still exists in this country. (The White House, DOJ, and OFCCP report that such discrimination continues) Many people feel that such discrimination is shrinking (although information from the FBI and Southern Poverty Law Center indicate that Hate Crime and Violence is on the rise), they assume that while racial discrimination shrinks, the compelling need which supports the legallity of Affirmative Action diminishes as well. Yet, Affirmative Action does not simply address the issue of racial discrimination. It also addresses, gender discrimination, age discrimination, religious discrimination and discrimination against the handicapped or veterans.
Those who view Affirmative Action as being purely a "Race" issue often proclaim that if we would all stop being "hyphenated" Americans (African-Americans, Asian-Americans..etc) we would no longer need Affirmative Action. They claim that this "Identity Politics" is a wedge that is driving us apart. This ignores the fact that "American"...is a specific (and therefore "divisive") identity as well, considering the fact the not everyone in the world is an "American". It also ignores the fact that AA isn't just limited to "race"...and as such this proposed solution falls apart when you attempt to apply it to the issue of gender, or age, or religion or veteran status, or physical handicap. (Should we ALL become veterans so that we all have the same "Identity"? Should we all become just one Gender...so that we eliminate our differences? How would we procreate then?)
The fact is that, we already are "one Race"...the Human Race, yet at the same time people are different. We are all individuals. We always will be. People have the freedom of choice, and part of guanteeing that freedom, is to also guarantee that people who happen to make unpopular, yet legal, choices (which place them within a minority faction) are not punished and intimidated for that choice by the majority faction.
Although America is a country which honors freedom, it is also a majority rule country. When we vote, the decision goes to the majority. When we are in social situations, the majority in the venue controls it and sets the rules. Sometimes simply being outside of the majority, outside of the mainstream is itself intimidating to those in the minority - without the requirement that anyone in the majority being particularly hostile, and absent any deliberate discrimination on anyones part. (The situation where all but one of the black students who were admitted to UCLA Law School in 1997...refused to go because they felt "unwelcome" in the wake of Prop 209, is an example of this type of passive intimidation at work)
The ultimate minority is the minority of one. The individual. In the protection of individual rights, lies the inherent protection of "Minority rights". They are one-and-the-same. Affirmative Action, when legally implemented, seeks to reach out to, and support the freedom of choice of individuals to be themselves, without being forced to conform by intimidation, assimilation and/or coercion to the majority on issues which are not relevant to their bona fide quality as an individual.
Thought of in this light, it is clear that we will always need some form of Affirmative Action, even if it is not neccesarily called Affirmative Action. We should always seek to ensure that we are not leaving qualified people behind in participation in our society, simply because they don't conform to the mainstream/majority social and cultural faction.
AA critics claim that the implementation of AA demeans those it seeks to help, by branding them as inferior. "They couldn't make it own their own...they needed a Program to get in". This belief is largely predicated on the previously mentioned belief that AA=Quotas. And that as such...their may be a tendency to let better qualified people go, and retain those of lesser qualification in order to meet the "Quota".
Contrary to the claims of AA supporters...this does occur.
But it generally happens as the result of a Civil Action or Remedial Action subsequent to a Consent Decree or Court Order. Under normal, legal Affirmative Action this does not happen. AA does not require Quotas. It may however include "Goals" and/or "Timetables". There is a difference between a Goal and a Quota...a Goal is something you try to do, a Quota is somethihg you have to do. All Affirmative Action programs require is that those implementing them make a good faith effort to try and improve a situation and get people involved who are currently underrepresented (when compared to the pool of qualified and available applicants).
The fact is, that those people may simply not want to be involved...and as such, employers are not required to twist arms and break the law to change their minds. Again, freedom of choice means, that people have the freedom to not do, what may be in their own best interest.
"You can lead a horse to water, but..." they have the freedom to not be involved if they don't want to be, in which case the "failure" is theirs.
There is the danger of overzealousness. It can lead to overagreesive recruiting and the creation of "Virtual Quotas"...where the selection systems becomes highly complicated and jury rigged to created a pre-ordained outcome. Technically, this is illegal. But as a matter of practicallity it can be very difficult to determine when this is occuring and when it is not, within an Affirmative Action program.
But simply because it is difficult, doesn't not mean that we should not try to ensure that every possible qualified person is included in our society and able to benefit from our society.
To not even try, would be a far greater crime.
According to the OFCCP,
very few discrimination cases ever occur against a person within the majority faction. (Which is usually an able-bodied male...and/or Anglo person). Of the over 3000 discrimination cases filed in Federal Court between 1990 and 1994, only 2% of these were "Reverse Discrimination" cases. And only a handful of these were found to have any merit worth persuing.
Even though it should not, and only rarely does, sometimes AA programs (or more often Remedial Action Programs) take on the shape and form of what they attempt to correct when they are implemented incorrectly. The best defense against this is vigilance. Individuals who have been discriminated against by an Affirmative Action program have a right to sue, and seek redress just as much as anyone who is discriminated against by any means. Mistakes are made. Sometimes malicious ones. But the law as it currently stands, protects against such abuses. What we need to do is fairly and consistently enforce the law.
And we need to better understand, what to expect from the law - so that we can recognize when it has gone wrong, and whether that is because of flaw in the law, or a flaw made by the individuals implementing the law. Under the current legal restrictions AA can hardly be implemented at all, but it can be implemented legally and fairly.
And it should be.
Fin.
Copyright (c) 1998-2000 F.V. Walton
Add your comments on this essay to my message board or E-mail me, if your prefer to converse privately.
There have been
The Civil Rights Act.
What AA can and can't do
Meeting the "Compelling Need".
But doesn't AA use Quotas?
Civil Actions.
The Exemption.
Remedial Action.
Making the Guilty $Pay$
Doesn't everyone have to Implement Affirmative Action?
Do we still Need Affirmative Action?
The Dangers.
"Reverse Discrimination"
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