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Affirmative Action and Affirming Diversity

By Carlton, Melinda; Hawkey, Philip et al. | Public Management, January 1997 | Go to article overview

Affirmative Action and Affirming Diversity


Carlton, Melinda, Hawkey, Philip, Watson, Douglass, Donahue, William, Garcia, Bobby, Johnson, Dan, Public Management


Has It Been Effective At the Local Level

Affirmative action was created 30 years ago as a remedy for the underuse of minority and female human resources in the workplace and classroom. The term refers to active measures and passive nondiscrimination as means of increasing significantly the recruitment of minorities and, ultimately, ensuring equal employment opportunity. Title VII of the Civil Rights Act of 1964 is the most comprehensive statute on civil rights ever enacted in the United States, banning discrimination in employment, voting, public accommodations, public education, and all federally assisted programs.

Executive Order 11246 formally created affirmative action in 1965. The executive order requires that employers with federal contracts worth more than $10,000 must have written affirmative action plans. Affirmative action was once a bright synonym for equality of opportunity. In more recent years, though, affirmative action has entered the political lexicon as a sinister euphemism for reverse discrimination, a bitterly divisive issue. This nation may be hurtling toward the most sensitive moment in American race relations since the 1960s.

Advances in the hiring and promotion of minorities and women in the public sector can be attributed in part to the passage of the 1972 Equal Employment Opportunity (EEO) Act and its primary tool of implementation, affirmative action. Since the EEO enactment in 1972, affirmative action has been the primary mechanism for the development of a representative bureaucracy at the local level. Change has occurred, but whether affirmative action has been effective at the local level is questionable.

In 1971, there were seven female city managers, and in 1986, well over 100; 1994 found 512 female county or city managers holding office and 392 minority county or city managers in place. Even with all the advances made by females in the public sector, however, females make on average 70 cents to every dollar made by their male counterparts. The absence of greater numbers of women and minorities in decision-making circles calls into question some underlying assumptions made in the area of public personnel administration.

What the Courts Have Said

The Supreme Court handed down a 5-4 opinion on June 12, 1995, regarding the Adarand Constructors v. Pena case, which challenged a federal affirmative action program. Although no such programs were struck down as a result of the opinion, the court criticized the moral justification for affirmative action, saying that race-conscious programs can amount to unconstitutional reverse discrimination and can even harm those they seek to advance. From now on, federal affirmative action programs will be subject to the most rigorous level of court review - a test that has proved difficult to pass.

At the core of the court's decision is the phrase "strict scrutiny." This legal term means that the policy in question is on dubious constitutional ground and must be extremely well justified to survive a court challenge. To survive strict scrutiny, a policy must serve a "compelling" governmental interest and must employ the most narrowly tailored means to that end. Since 1989, the Supreme Court has required that state and local affirmative action programs pass the strict scrutiny test.

The federal government has operated under a somewhat looser standard that gives it more latitude in implementing affirmative action. This intermediate standard requires that a policy serve important goals and be substantially related to those ends. Generally, the strict scrutiny standard has meant that the government must show (1) that an affirmative action policy responds to specific past discrimination, rather than to general societal prejudices, and (2) that the problem cannot be overcome through race- and gender-neutral measures.

After more than two decades of complex affirmative action rulings by federal courts, some general guidelines have emerged:

* Preferences maybe, quotas no.

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