Affirmative Action: Forging a Constitutionally Acceptable Solution

By Luney, Percy R., Jr. | Black Issues in Higher Education, May 30, 1996 | Go to article overview

Affirmative Action: Forging a Constitutionally Acceptable Solution


Luney, Percy R., Jr., Black Issues in Higher Education


Fundamental to any discussion of affirmative action's legality is its definition. Affirmative action does not mean numerical quotas, the selection of someone solely on the basis of race or gender, or the selection of the unqualified over the qualified.

Must an affirmative action definition be inconsistent with the U.S. Constitution's guarantee of equal protection? Is any affirmative action definition on its face inherently discriminatory because it subjects a person to unequal treatment?

Several possible working definitions of affirmative action were outlined in a recent law review article by Professor Charles W. Collier of the University of Florida. They were as follows:

1. Among qualified candidates (applicants, etc.), affirmative action means that the underrepresented candidate(s) should get the nod.

2. Among equally qualified candidates, affirmative action means that the underrepresented candidate should get the nod.

3. Among unequally qualified candidates, affirmative action means that underrepresented status serves as a "plus factor" that may elevate an (otherwise) less qualified candidate over (otherwise) more qualified candidates.

4. Affirmative action means equality of opportunity as opposed to equality of outcome.

Opponents of affirmative action argue that definitions one, two and three are discriminatory because preferring members of one group because of race, ethnic origin or gender is discrimination. The constitutional guarantee of equal protection applies to all people, and victimized groups cannot benefit from any preference at the expense of innocent individuals having no responsibility for the harm suffered by the victimized groups. The government cannot use race or gender to allocate rights among human beings.

Critics of affirmative action charge that it promoters group consciousness and segregation which leads to further resentment between the races, They argue that the pursuit of diversity through affirmative action runs the risk of continuing stereotypes. Affirmative action policies are much more likely to benefit minorities from the most advantaged families than urban poor with inferior education. These policies were not designed to benefit unqualified, poorly educated and unskilled candidates to secure an education or good jobs, the argument goes.

The underlying assumption is that one can objectively determine who is best qualified for a position. Notions of "bias-free" hiring are worthy goals, but unattainable.

It is doubtful that Americans are capable of making bias-free decisions because their actions take place in a free market driven by self-interest.

Even when the basis for meritocracies are readily quantifiable by grade point averages or standardized test scores, these criteria yield no precise answer as to whether one candidate can do a job better than another candidate. Standardized tests cannot assess qualities such as competitiveness or creativity. The candidate with the lower grades or scores can have more common sense, a better work ethic, better interpersonal skills or a higher emotional IQ.

California, the original trend setter in racial equality, is the first state to challenge affirmative action, as increased immigration from Latin America and Asia transforms the state into the first "majority minority" state.

Preferences and demographics have combined to challenge the perceived fairness of affirmative action. The California Board of Regents voted to abolish racial affirmative action and rely on merit-based admissions. They did nothing about their unofficial state university affirmative action programs for unqualified children of friends and supporters of California Board of Regent members. There is a long history of special preferences for mediocre applicants with political or financial clout. Special quotas exist for athletes, musicians, and offspring of alumni with mediocre academic credentials,

Proponents of affirmative action argue that race-neutral remedies or fairness in the form of a promise not to discriminate are inadequate remedies for the inequities produced by over three hundred years of legal and cultural racism and discrimination. …

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