Affirmative Action in Antidiscrimination Law and Policy: An Overview and Synthesis

1. Introduction

Chapter One Q Introduction The Topic The subject of this treatise/casebook is the legal and ideological controversy over the application of affirmative action policy to combat discrimination based on race, national origin/ethnicity, and gender. Racism, sexism, and ethnic discrimination have long represented a seemingly intractable problem. Affirmative action was conceived as an attack on this ingrained problem but today it is widely misunderstood. We feel the time is ripe for the comprehensive review that we attempt in this book. To maintain our primary focus, we have left for another day examination of the more recent—still evolving— initiatives against discrimination based on age, disability, and genetic testing. Affirmative action differs from other antidiscrimination initiatives in that (1) it targets societal bias (as manifested in public and private action), not individual malefactors; (2) it mandates race, ethnic, and gender-conscious remedies for the disproportionately adverse effects—the so-called disparate impact—of societal discrimination on protected groups, whether or not specific discriminatory intent on the part of individual defendants can be isolated; and (3) it seeks to integrate institutions by race, ethnicity, and gender.1 As will be seen, the doctrine of disparate impact is a particularly central reason for the quarrel over affirmative action, and thus is a central theme of this book. Affirmative action connotes remedial consideration of race, ethnicity, or sex as a factor, among others, in decision making about outreach, jobs, government contracting, K-12 student assignment, university admission, voting rights, and housing. The goal of this process is to redress the disadvantage under which members of disparately impacted groups are said to labor. The relative weight accorded to the race, national origin/ethnicity, or sex factor varies from program to program; thus affirmative action remedies range from disseminating job information to preferential employment and admissions 1 2 Affirmative Action in Antidiscrimination Law and Policy practices, classroom integration, the creation of majority-minority legislative districts, and court-ordered quotas in egregious discrimination cases. Opponents of affirmative action generally portray it as a radical departure from equal opportunity’s original goal. In their version, the founding fathers of modern civil rights reform conceived of racial, ethnic, and gender discrimination as intentional maltreatment—disparate treatment, so-called— and strictly limited the remedy to parity—equal treatment, as it came to be known. Affirmative action came into being by displacing these time-honored precepts with the revolutionary notion that the group effects of societal bias warrant government intervention, wholly apart from the question of intent. The upshot, according to the critics, has been the ascendancy of protectedgroup preferences and antimeritocratic equality of results. In this book, we endeavor to present an evenhanded account of these claims, and the counterclaims of affirmative action’s advocates in the spheres of employment, contracting, education, voting rights, and housing. We focus on affirmative action as the remedy for the effects of both facially neutral practices that disparately impact minorities and women; and governmentsanctioned (de jure/intentional) segregation of protected groups in education and housing.2 (See chapters 3, 4, 5, 6, and 7 in this volume.) In addition, we visit the alternative rationale of diversity, that is, increased nonremedial inclusion of protected groups in the economy and education. A Thumbnail History Affirmative action came to the fore about half a century ago, at the beginning of a new era in civil rights reform. Prior reform initiatives had dealt mainly with intentional racial maltreatment of individuals and other traditional barriers to equal treatment. However, during our recent tumultuous confrontation with the nation’s racist past, the ideology of reform took on a far more proactive cast. True equality, it was said, would be unattainable without some form of compensation for the inherited disadvantage of disparately impacted minorities and females.3 Under the umbrella-label of affirmative action, providing such special assistance on the basis of group membership—rather than individual victimization—displaced equal treatment as the hallmark of federal policy. From the late 1960s, affirmative action fostered a nationwide torrent of court-orders, government programs, and voluntary plans, which provided benefits ranging from outreach and special training; hiring goals and timetables ; preferences in hiring, promotion, and university admission; public school integration; political representation; and—to a limited degree—“balanced ” housing. More than any other recent experiment in social engineering, Introduction 3 this profusion of minority and...