Page Content What is Affirmative Action?
That prediction has proven to be something of an understatement. In a ruling that will probably force the Supreme Court to reconsider the affirmative action issue during its next session, a federal appellate court recently struck down on equal protection grounds an admissions policy at the University of Texas law school which gave preference to black and Hispanic applicants Hopwood v.
State of Texas, U.
Although the appellate court's order to eliminate affirmative action-based admissions in Texas has been stayed pending further appeal, various proposals to end affirmative action are getting serious attention in state legislatures, public university governing boards, and grass-roots initiatives in Arizona, Pennsylvania, and Washington, respectively.
Although it is important to remain apprised of these and other affirmative action developments on executive, judicial, and legislative fronts, The issue and importance of affirmative action may also be helpful, in attempting to make more proactive sense of the affirmative action landscape, to examine the comments of legal scholars with respect to trends in the analysis of affirmative action.
This article provides the reader with guidance in that process by digesting recent law review commentaries which address important aspects of affirmative action. Pena, reverse discrimination, the Glass Ceiling Initiative, and the relationship of employment tests to the economic "efficiency" of affirmative action plans AAPs.
An overview of other elements of the affirmative action debate can be found in Terpstra, Affirmative Action: A Focus on the Issues, 46 Lab. This article demonstrates that, contrary to popular belief, the CRA of did not provide clear support for affirmative action.
Rather, passage of the Act at best served to maintain, but not codify, previous law on affirmative action, which remains highly subject to ongoing judicial revision.
The article points out that a core of current Supreme Court justices disfavors affirmative action, which often "unfairly squeezes employers between the competing demands of disparate treatment and disparate impact law" 81 Va.
Munro's article also explains how the debate surrounding the use of quotas in AAPs ultimately left the Act ambiguous and contradictory with respect to race-based preferences in employment. A primary focus of the debate involved elements of disparate impact liability, including the definition of "business necessity" for use in defending employment practices which have a disparate impact, and whether quotas would be required in practical terms to avoid such liability.
Nevertheless, the definitions which ultimately appeared in Section of the Act failed to define either business necessity or job-relatedness, and left the courts with broad interpretive discretion, notwithstanding Section 's stated intent to revert to the law as it had existed prior to the Supreme Court's Wards Cove decision.
In addition, Section 's prohibition against "race-norming" of employment tests adjustment of scores along racial lines made it more likely that employers with demographic imbalances in their workforces would be forced to adopt outright racial preferences, which are increasingly subject to reverse discrimination attack.
Even Section 's "simple, direct" language that nothing in the Act "should be construed to affect affirmative action [programs] that are in accordance with the law" carries the implied caveat that not all such programs are legal. Rather than explicitly validating or preserving programs that are "in accordance," this language leaves the propriety of individual AAPs up to the courts.
In sum, Munro argues, these sections of the Act "produce a decidedly muddled picture of congressional intent Munro's article concludes with an interesting proposal for replacing racial preferences with economic disadvantage preferences, a proposal that might bear consideration should the subject of affirmative action be legislatively revisited in the future.
A principal goal of affirmative action is to reapportion jobs and wealth such that the economic position of minorities becomes roughly equal to that of whites. Because economic status correlates significantly with race, this goal can be more directly and less controversially accomplished by an economic, rather than a racial, approach.
Economic issues in the context of affirmative action are addressed further below. Supreme Court in Adarand Constructors, Inc.
This standard requires that an AAP be "narrowly tailored" to effectuate a "compelling government interest. When read in context with previous Supreme Court affirmative action cases that have avoided explicit reliance on race-based discourse see Winkler, Sounds of Silence: Nevertheless, pending further action on Hopwood, Adarand remains the Supreme Court's latest pronouncement in the affirmative action area.
Insights into the implications of the decision can be gleaned from Robinson, Fink, and Allen, Adarand Constructors, Inc. First, it is important to clarify what the Adarand decision does and does not do with respect to existing law.
As Robinson, et al. The former were held to strict judicial scrutiny before Adarand, as they still are; all such classifications were conclusively presumed to be invidious by their very existence. The latter federal classifications, however, were presumed to be "benign," and were thus held only to "intermediate" scrutiny i.
Adarand brings these two standards into alignment; federally imposed preferential treatment is still allowable, but only under more exacting standards of judicial review. Next, it is important to determine what the Adarand decision forecasts with respect to future changes in the law applicable to AAPs.
In this regard, interested readers may find Welsh's analysis illuminating. This article was written while the Adarand case was pending, but its thorough analysis of prior judicial decisions, speeches, and writings of individual Supreme Court justices enabled the author to correctly predict the increased scrutiny now applicable to federal AAPs.
Welsh observes that at least one Justice Stevens appears likely to focus on the characteristics shared by members of a disadvantaged class e. This analysis may open the door for economic-based classifications to supplant more objectionable race-based classifications as Munro proposesin order to prevent complete abolishment of AAPs.
It is interesting to note here that economic classifications need only survive the more lenient "rational basis" standard of review, under which classifications need only be shown to be rationally related to a "legitimate" as opposed to "significant" or "compelling" government interest to survive constitutional scrutiny.
Affirmative Action and Reverse Discrimination It has been estimated that almost two thirds of the population women and minorities are entitled to preferential treatment under affirmative action, while the other third white males are not see Terpstra, 46 Lab.The Controversial Issue of Affirmative Action - The past few days the human resources department has been discussing the importance of implementing an affirmative action policy to assist in assuring that the company complies with equal employment opportunity laws.
The department has decided that the best action is to contact the members of. “On some affirmative action debates they are used as a wedge,” said Karthick Ramakrishnan, associate dean of the School of Public Policy at the University of California, Riverside.
Opponents of affirmative action have succeeded in associating the phrase with unfair advantages for undeserving minorities and women.
But what was a pressing social issue more than 40 years. Jun 24, · University of Texas, No.
, concerned an unusual program and contained a warning to other universities that not all affirmative action programs will pass constitutional muster. But the ruling. Affirmative action is a complicated and distortionary social policy but its message and presence is too important for it to be discarded, as some opponents of the policy have suggested.
Oct 20, · On Oct. 6, a column was published in Student Life called “Racism and Affirmative Action.” Its central point is that “[a]ffirmative action is a fundamentally racist concept, and its implementation goes against racial equality.”.