Understanding Affirmative Action: From the Practitioner's Perspective

Article excerpt

After a quarter-of-a-century and dozens of U.S. Supreme Court decisions the meaning of affirmative action is still not clearly understood by public administrators at the county and municipal level. Because these public administrators are the street-level implementors of federally prescribed legislation it is vital that they comprehend national statutory intentions in order to promote coherent public policy goals. Simply stated, affirmative action needs to be established as a uniform policy among local public administrators [i.e., as an avenue toward alleviating past and existing discriminatory employment practices] because to do otherwise would mean the maintenance of a vaguely perceived and impotent theory.

In addition, although mainstream American political culture embellishes Thomas Jefferson's idea of "equality," the concept of affirmative action, which attempts to promote equal employment opportunity for women and minority groups, is often greeted by whites, in many instances, as a policy of "inequality." This attitude is due to a negative perception of quotas and programs aimed at eradicating the effects of past discriminatory employment practices. The result of this public fixation on quotas has, in recent years, generated the view that women and minority group members have guaranteed accessibility to jobs they are not qualified to fill.(1)

Moreover, affirmative action's meaning and purpose has been clouded by a multiplicity of interpretations. Indeed, the very essence of affirmative action has, from its inception in the early 1960s to the present, been described as a principle with no single definable meaning.(2) In this same vein of thought, guidelines and mechanisms intended to effectuate affirmative action, such as set-asides, quotas, preferences, and hiring goals, similarly escape consistent or uniform expression.(3) The result of which supports the notion that affirmative action means different things to different people - everything from the elimination of apparent discriminatory practices against individuals by employers to conscious favoritism toward groups of persons based on race, ethnic status or sex.(4)

The issue of affirmative action becomes more pronounced when one considers that a quarter century's experience with Title VII of the Civil Rights Act of 1964 and its promise of employment equality for racial minorities and women in the American economic system has done little to diminish the strong disagreement over the fundamental meaning of employment equality.(5) To a large degree the U.S. Supreme Court's uneven and contradictory record(6) concerning affirmative action's definition, legality, and intent has only added uncertainty and confusion to its interpretative meaning.

In this regard the Supreme Court has been reluctant, or unable, to engage in any systematic exposition of the law of affirmative action.(7) According to some scholars, the divisions among the justices reflect the divisions within American society over affirmative action, thus making any immediate clear-cut resolution of this issue as undesirable as it is difficult.(8) This notion reflects the feeling among white men [in particular] that once affirmative action programs for women and minorities are started, the result is bound to be reverse discrimination against white men through the imposition of a quota system.(9) In consequence to this volatile social, political, and legal dilemma the Court has been fractured.(10) More importantly, the Court's ambiguous, and oftentimes bitter and divisive, rulings over affirmative action have only exacerbated the controversy rather than fixing the policy meaning and purpose.(11)

For instance, consider the judicial dichotomy between the Court decisions in Fullilove v. Klutznich, 448 U.S. 448,492 (1980) and City of Richmond v. J.A. Croson Co., 109 S.Ct. 706 (1989). In Fullilove the Court upheld a congressional spending program stipulating that a ten percent set-aside of federal funds granted for local public works projects be used to procure services or supplies from minority-owned businesses(12), whereas in Croson the Court found a set-aside for minority owned businesses, which required city contractors to subcontract as least 30 percent of the dollar value they received to minority owned businesses, to be in violation of the 14th Amendment's Equal Protection Clause. …