At the Crossroads

Article excerpt

Job disparities still exist, but an increasing number of minority Americans want to turn away from race-conscious hiring.

Affirmative action appears to have reached a crossroads. The critique of racial preferences, first advanced by conservatives in the 1970s, resonated with enough African Americans during the '80s that, by the mid-'90s, black activists such as California's Ward Connerly were interested in taking up the fight.

The term affirmative action is not all of a piece. Originally it meant only that the institutions practicing discrimination would do more than simply stop discriminating.

One example of nonquota affirmative action is aggressive advertising to let people in minority communities know that opportunities previously dosed to them are now available. This is "affirmative" in the sense that it constitutes a concrete way for employers to add minority members to their applicant pool. In the late '60s, advertising was seen as an important step that employers, clubs, and lenders could take beyond merely ceasing to discriminate against minority members who applied.

But the decline into quotas was precipitous. While hiring by the numbers is theoretically illegal under the 1964 Civil Rights Act, quotas come through the back door of enforcement. How could the Equal Employment Opportunity Commission--the regulatory agency instituted by President Kennedy in 1961 and empowered by the Civil Rights Act in 1964 to handle complaints and monitor compliance--know if discrimination persists in a given workplace, except by comparing its workforce with the relevant applicant group?

Quotas became a necessary defensive measure for employers. Additionally, in 1970, President Nixon began requiring quotas in federal contracting. In United Steelworkers v. Webber, in 1975, the Supreme Court held that achieving the Civil Rights Act's goal of discrimination-free workplaces may require doing exactly what the statute prohibits: taking race into account in hiring.

That year also saw what has long stood as the Supreme Court's key case concerning race-conscious hiring: Regents of the University of California v. Bakke. The result was that no college or university admissions slot could be reserved by race, but, on the other hand, race could be a "plus factor" for acceptance where reasonably necessary to remedy the effects of past discrimination. Unfortunately, the Bakke opinion was so splintered that, in practice, it gave little legal guidance.

Since Bakke, the Court has grown increasingly doubtful about the propriety of race as a category in hiring. In Richmond v. Croson (1989), it struck down a municipal set-aside program that had relied on past bias as justification. The Court stressed that, to be constitutional, race-conscious actions by governments have to be narrowly tailored to remedy specific past bias.

Quotas threatened

Then in 1995, in Adarand Constructors v. Pena, the Court struck down a set-aside program in municipal contracting that had led to the rejection of a white-owned firm's low bid and acceptance of a higher bid from a Hispanic-owned firm on affirmative action grounds. Justice Sandra Day O'Connor wrote on behalf of a majority of the Court: "We have long held that equal protection of the law is a personal right, not a group right. Laws classifying citizens by race pose a great threat to that right."

A direct threat to quotas comes from a decision of the Court of Appeals for the Fifth Circuit (whose jurisdiction covers Texas, Louisiana, and Mississippi), called Hopwood v. Texas. This was a challenge to the University of Texas' race-conscious admissions policy. The university argued that, even in the absence of a history of discrimination, achieving a "diverse" student body was a "compelling state interest," sufficient to justify a violation of the plaintiff's right to under the Fourteenth Amendment.

The appeals court found that Bakke had not decided whether "diversity" is a compelling state interest and held that it was not. …