Academic journal article Public Personnel Management

Race-Based Preferential Treatment Programs: Raising the Bar for Establishing Compelling Government Interests

Academic journal article Public Personnel Management

Race-Based Preferential Treatment Programs: Raising the Bar for Establishing Compelling Government Interests

Article excerpt

In response to these judicial and legislative initiatives, the popular media has announced the demise of all affirmative action programs. This article, through analysis of the aforementioned case law and proposed legislation, will ascertain the actual effects that these changes in the legal environment bode for preferential university admission standards and scholarships set-aside for ethnic minorities in state-supported universities and colleges. Particular attention will be devoted to clearly delineating which type of programs are affected and to what degree. Just as importantly, the article will identify those programs which are not affected by the recent rulings.

In order to enhance the reader's understanding of the issues involved, a brief discussion of affirmative action is provided. By observing the manner in which the federal courts have historically analyzed preferential programs, public university administrators will be afforded a standard by which they can review their existing programs.

Affirmative Action, A Brief Review

In this discussion, it is essential to differentiate between the terms equal opportunity and affirmative action. Equal opportunity, in the strictest sense, means that all individuals must be treated equally regardless of race, color, religion, sex or national origin.(5) Since this paper focuses exclusively on the issue of race-based admissions and scholarships, equal opportunity means that admission and scholarship decisions would be predicated on a race-neutral basis.

Affirmative action is a far more complex matter, having different meanings for different people. To some, the term merely implies expending additional efforts to recruit qualified women and qualified ethnic minorities into the applicant pool. To others, "affirmative action" means intentionally granting preferences in hiring, promoting, or awarding contracts, grants or scholarships to individuals on the basis of race, color, national origin or sex. Because of this divergence in meaning, many often become confused as to what the opposing sides in the affirmative action debate are arguing. The following section seeks to provide a logical starting point for defining what affirmative action encompasses.

According to James Ledvinka,(6) affirmative action may take any combination of four basic forms. The forms include:

1. Recruitment of under represented groups. Actively seeking qualified women and minority applicants.

2. Changing management attitudes. Attempting to eliminate conscious or unconscious prejudices held by management and supervisory personnel toward women and minorities in the workforce.

3. Removing discriminatory obstacles. Identifying employment policies and practices that place women and minorities at a disadvantage in the employer's workforce.

4. Preferential treatment. Giving preference to women and minorities in staffing decisions.

It is the preferential treatment component which seems to fuel the greatest public debate. Since the 1970s, public opinion polls have indicated that between two-thirds and four-fifths of all respondents oppose any programs that favor less qualified minorities or women, or establish quotas for such actions as hiring, admissions to college, eligibility for scholarships and promotions.(7) Conversely, most Americans do not seem to be opposed to the more benign forms of affirmative action and have shown, at least in the polls, majority support for special education or training programs for protected group members to enhance their qualifications for better jobs or college entrance.(8) Nor do the majority of survey respondents oppose requiring employers to make special efforts to find qualified protected group members and actively encourage them to apply for jobs. However, once in competition for the position or benefit (such as admissions or scholarships), most survey respondents indicate that the benefit should ultimately go to the most qualified applicant, regardless of the group to which the applicant belongs. …

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