Affirmative Action in Antidiscrimination Law and Policy

Cover

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Title Page, Copyright, Dedication

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pp. iii-v

Contents

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pp. vii-ix

Acknowledgments

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pp. xi-

Note on Citations

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pp. xiii-

Citations used by courts have been incorporated in the opinions excerpted herein at the discretion of the authors/editors of this text. Where the footnotes of these opinions were reproduced, their numbers were changed to follow the order of this volume’s citations. ...

1 Introduction

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pp. 1-6

The purpose of the second edition is twofold: (1) to update the first edition published in 2002 to the onset of the Obama administration, particularly with respect to the nonremedial, diversity rationale which has been advanced to support preferences associated with traditionally practiced affirmative action; and (2) to supplement the first edition’s primary focus on race/ethnic/gender discrimination by examining age, disability, sexual orientation, and criminal justice antidiscrimination initiatives. ...

2 The Roots of Affirmative Action;The Women’s Movement; and Affirmative Action’s Group Coverage

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pp. 7-26

Affirmative action first cropped up in the modern era as a theory for advancing education, work, and voting opportunities for disadvantaged minorities. Affirmative action’s initial agenda was to complete the task that post–Civil War Reconstruction had undertaken, but abandoned, a full century earlier, namely, the integration of America’s black community into the economic and political mainstream. ...

3 The Career of Affirmative Action in Employment

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pp. 27-87

The antidiscrimination ferment of the 1950s and 1960s sparked a radical shift in national policy, and the modern civil rights movement deserves a lion’s share of credit for this change. During the nineteenth century, American blacks generally refrained from organized civil resistance, preferring to cultivate various strategies of accommodation with the white majority. An example is Booker T. Washington’s “self-help” regimen through vocational education and entrepreneurship.¹

4 Affirmative Action and the Primary and Secondary Schools

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pp. 89-129

In this chapter, we deal with affirmative action’s troubled role in countering racial discrimination in the nation’s elementary and secondary schools. Segregation has afflicted public classrooms throughout the country since long before the Civil War. At the turn of the last century, although grossly unjust, it gained a measure of constitutional respectability under the “separate but equal” umbrella of Plessy v. Ferguson (1896).¹

5 Affirmative Action in Higher Education

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pp. 131-189

Access to higher learning is one of the most esteemed prizes in our society. In this chapter, we survey the intense legal and scholarly controversy over remedial and nonremedial (diversity) affirmative action as a vehicle of eligibility for this benefit. ...

6 Affirmative Action and the Political Representation of Minorities

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pp. 191-229

...The initial object of the Voting Rights Act (VRA) of 1965¹ was the enfranchisement of minority groups who had been denied the ballot through the governmental use of literacy, educational, or character tests. The act banned such tests according to a prescribed formula; it did not require a showing of intentional discrimination before the ban took effect. The test ban was triggered by low voting or low voter registration figures in the states and their subdivisions. ...

7 Affirmative Action and Fair Housing

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pp. 231-255

Residential separateness is at the heart of educational segregation as well as operating as a barrier to the elimination of inner city poverty. Nevertheless, substantial residential segregation has survived all attempts at public regulation, including that provided by the Fair Housing Act (FHA/Title VIII) of 1968.¹ ...

8 Constitutional Underclasses and Affirmative Action: The Disabled, Older Workers, Homosexuals

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pp. 257-297

Challenging obstacles face those who attempt to master affirmative action law and policy. The literature of affirmative action makes little attempt to treat the subjects of employment, voting, education, and housing affirmative action in a comprehensive and integrated fashion. This volume attempts to both mitigate that deficiency, and to expand the scope of affirmative action analysis—as it should be—beyond its usual topics of race, gender, and ethnicity by addressing antidiscrimination measures affecting the disabled, senior workers, and homosexuals. ...

9 Facing Affirmative Action’s Future

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pp. 299-335

Here we return primarily to the central concern of this volume: race/gender/ethnic affirmative action. The day of reckoning for affirmative action in its ethno-racial and gender formulations is long overdue. Should race/ethnic/gender protected-group preference be retained as antidiscrimination policy? ...

Appendix One - A Sampler of Federal Affirmative Action Programs Explicitly Mandated or Authorized by Statute or Administrative Regulation

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pp. 337-354

This sampler consists of verbatim excerpts from a number of sources: The material under the titles of Equal Employment Opportunity; Federal Grant and Procurement Law; Aiding Minorities and Women-Owned Businesses is from two reports issued by the Congressional Research Service as cited below. The information in these reports has been rearranged, and placed under some titles devised by the authors/editors of this volume. ...

Appendix Two - Uniform Guidelines on Employee Selection Procedures (1978)

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pp. 355-359

Appendix Three - Affirmative Action Guidelines of the Equal Employment Opportunity Commission

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pp. 361-365

Appendix Four - Office of Federal Contract Compliance Programs: Affirmative Action Programs⁵⁷

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pp. 383-390

Notes

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pp. 375-437

Selected Bibliography

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pp. 439-452

List and Index of Selected Cases

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pp. 453-457

Topical Index

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pp. 459-476

Index of Selected Names

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pp. 477-481