Discrimination and Affirmative Action
Kaveny, M. Cathleen, Theological Studies
AS RECENT EVENTS in California exemplify, affirmative action has become one of tire most controversial issues of this decade. In August 1995, California Governor and then-presidential candidate Pete Wilson filed suit against his own administration, seeking an injunction to prevent the implementation of a variety of state-sponsored affirmative action programs. In the previous month, the Regents of the University of California had voted to end affirmative action in its nine-campus system.(1) The decision exacerbated the simultaneous controversy created by the California Civil Rights Initiative, a proposed ballot measure to prohibit consideration of race, sex, or ethnicity in awarding state jobs, promotions, contracts, or admissions to state colleges and universities.(2) Nor is the political climate in California unique. As of July 1995, the National Conference of State Legislatures counted at least ten other states in the process of introducing legislation or organizing ballot measures to ban "preferential treatment" based on race, color, ethnicity, gender, or sexual preference.
The meaning of the term "affirmative action" is by no means clear.(3) In its first appearance in an executive order signed by President Kennedy in 1961, it connoted assiduous efforts to combat decision making on the basis of race rather than any form of special consideration or preferential treatment. Affirmative action acquired its current overtones of preferential treatment over the next several years, as the Department of Labor began to require federal contractors to bring members of designated groups into their workforces. Today, the term can be applied to a broad spectrum of activities, including recruiting efforts targeting qualified minorities, programs giving them a flexible, competitive edge in admissions or employment decisions, and firm quotas reserving a certain percentage of slots on their behalf. The imprecision of the term has hindered thoughtful public debate; when Americans are asked to assess affirmative action, the precise phrasing of the question significantly affects their response.(4)
Despite the fact that affirmative action has received sustained treatment in philosophical and legal circles, it has garnered surprisingly little attention from religious ethicists over the past several years.(5) In an effort to facilitate theological ethical reflection upon this increasingly pressing issue of social Justice, this note will first summarize the most recent Supreme Court case on affirmative action, Adarand Constructors, Inc. v. Pena,(6) which was decided in the summer of 1995. Then it will offer a brief taxonomy of the salient ethical issues. Finally, it will suggest ways in which theological perspectives may contribute to the contemporary discussion. I focus upon the paradigmatic contexts of affirmative action: efforts by employers or educational institutions to recruit or retain minorities or members of other disadvantaged groups.(7)
THE NEW STATUS QUO: ADARAND CONSTRUCTORS, INC. V. PENA
For more than two centuries, an intricate web of legal and social structures conspired to deny equal respect to a group of persons identified solely by their race. Can the state and federal government now make use of precisely the same classifications in order to assist historically oppressed groups by integrating them more fully into society? In a nutshell, this is the constitutional question raised by affirmative action.
In Adarand, the U.S. Supreme Court set stringent limits upon both the federal and state governments in their use of "benign" racial classifications(8) designed to assist minorities. The case concerned a program that offered federal contractors financial incentives to subcontract their work to "small businesses" controlled by "socially and economically disadvantaged individuals." The program relied upon a rebuttable presumption that "socially and economically disadvantaged individuals" include "Black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans," along with women and certain minority groups. …