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I. Group Preferences
Group preference is a term that describes a variety of programs intended to compensate minorities for past discrimination. Intended to aid the process of social integration, the programs have become a major stumbling block on the road to intergroup harmony. Majority group members argue the programs constitute reverse discrimination in which innocent non-minorities are punished for the wrong doing of prior generations. Defenders of preferences claim they are simple justice and needed reparations for past injuries.
The general moral consensus which once supported affirmative action is fragmented and reflective of the conflicting moral and practical strains produced by the programs. In the place of consensus is a heated dialogue between the champions of the old orthodoxy and those who express a growing moral concern with the concept of allowing rewards to be based on race, gender or some other factor widely viewed as irrelevant. But, fortunately there is also a solid core of Americans who remain firmly committed to building an equal opportunity society and aide to the disadvantaged while holding concerns for fairness. This division for the first time create for Congress and the nation an opportunity to do what hasn't been done in the thirty year history of modern civil rights law: a reflective policy review of groups preferences. Recognizing that passion run high Congress must not be intimidated by the cries of racism or charges that the gains of the past are being abandoned. Instead it must recognize that the present system is largely the product of accident; and that little evidence strongly supports the impact let alone the superiority of these methods.
Further, it must be will to consider that the present moral assumption underlying group preferences may be both remote from and even alien to the concerns with basic fairness which motivate many Americans to accept the system. Allocation of benefits based on group membership rather than merit may cause more than intergroup conflict. It may alter the nature of society from one committed to achievement to one concern with mere accumulation of wealth.
Congress should start from the growing body of concern with whether the negative moral and practical external cost of group preferences outweigh the claimed gains. And it must be willing to conduct that debate in a way which will lead all Americans to understand that change does not equal the end of the American dreams.
No doubt the changed economic circumstances of the nation and the shift in outlook from optimism to concern have largely contributed to change. This fact and the tone of the controversy has been enough to intimidate prior debate. It must not happen again.
The debate once contained in the judiciary has become focused on proposals for reform in Congress, and the California Civil Rights Initiative -- a proposal that would limit the ability of the state government to undertake voluntary affirmative action programs in areas of employment, education, and contracting.
II. Origins
Some would trace the roots of contemporary group preference programs to efforts such as the Freedman's Bureau which were instituted following the Civil War and intended to aid former slaves in the transition to freedom.
In Griggs v. Duke Power, 401 U.S. 424 (1971), the supreme court expanded the range of title VII protection in an innovative and far reaching way. The court held that in addition to prohibiting intentional discrimination Title VII prohibited practices that were fair in form but unfair in fact. Griggs analysis would bar any employment practice that resulted in disparate impact on minorities. Employers would have an obligation to account for any employment practice which resulted in higher success rates for majority members. The federal Equal Employment Opportunity Commission established an 80 per cent rule holding that any employment practice where the success rate for minorities fell below 80 per cent of the rate for majorities would be presumed discriminatory. Courts applied a more involved statistical model but in either case employers were under pressure to produce up appropriate numbers.
Only by coming within the courts statistics or the agencies rule could employers hope to escape the expensive of litigation. Critics charged that the rules established quotas in violation of Title VII legislative history and the spirit of the act which was intended to prohibit race as a consideration in employment.
While Griggs involved a Title VII, employment case, the effects were far reaching as the court has attempted to craft a uniform body of law to apply to the nation's various civil rights enactments.
Griggs created a pressure on employers to undertake affirmative action programs. Title VII, itself permit programs without requiring them. Under EO 11246, however, employers appeared to be obligated to undertake affirmative action. In Weber v. Raiser Aluminum & Chemical Corp., 443 U.S. at 215, the court acted to ease the employers' doubt. Employers were permitted to undertake affirmative action programs without fear of reverse discrimination law suits as long as the programs were limited.
The theme struck in Weber about appropriate limits was picked up by the Court in Regents of the University of California v. Bakke, 438 U.S. 265 (1978) in which the Court imposed restrictions on the ability of state governments to craft voluntary affirmative action programs. Because the constitution limited the ability of state governments to classify their citizens by race the state's could only use race in compelling circumstances and then only if safeguards were taken. Bakke imposed a set of confusing requirements that have insured continued litigation in this area. The practical effect of Bakke appears to have been de minim is. It is only necessary for the state agency to create the appropriate verbal fog that permits it to classify race as one of many factors considered and not the single dispositive factors.
The situation is further confused by the Court's holding in Fullilove v. Klutznick, 448 U.S. 448 (1980), there the Court held that the fourteenth amendment which limited the states ability to consider race was a grant of power to Congress to freely legislate on the basis of race where its objective were remedial. In Fullilove the Court upheld a set aside programs. In City of Richmond v. Croson, a similar set aside program set up by a local government was held to be unconstitutional. The Court would impose strict scrutiny on state and local program while granting great deference to federal determination.
The authority of Congress to enlarge, abolish or restrict the programs appears well established. The capacity of states, however, to restrict affirmative action programs may be limited. In Hunter v. Erickson, the court held that state laws which prohibited the ability of minorities to remedy past discrimination violated their rights to political participation. An even more sweeping reading of Hunter was applied by the Colorado Supreme Court recently in Evans v. Romer, applying Hunter protection to any identifiable group that might suffer discrimination.
This disparity in remedial powers between the states and the federal government may make it necessary for Congress to play a leading role in any significant reform of affirmative action. This may come as actual substantive change in federal policy but it may also include authorization for states to take steps that might otherwise offend Hunt-r political participation considerations.
The difference between private sector and public sector actors and programs initiated by state or federal authority has created a confusing body of case law. But a few principle do emerge from the cases. First, private sector actors will have greater freedom to create programs -- particularly in the area of employment where they are under some statutory pressure to do so. Public sector actors must proceed with caution. Federal programs have the greatest range of discretion while state and local programs are held to a high standard.
In recent years the Court has expanded its examination of race based criteria from areas such as employment, education and contracting to direct consideration of political question under the Voting Rights Act. In Shaw v. Reno, 61 LW 4818 (1993) the Court held that whites were entitled to bring action challenging racially gerrymandered districts. And in Holder v. Hall, 62 LW 4728 (1994), and Johnson v. DeGrandy, 62 LW 47 (1994),the Court refused to extend a moral liberal reading a Congressional enactment designed to cure past racial wrongs. Instead the court insisted on giving equal weight to the competing political interest of majority group members. While these cases are still tentative in their departure from a ready acceptance of a system of racial spoils they suggest the court is will, at least, to limit the expansion of the system.
The new cases may have done no more than to have attached the Bakke considerations to the Voting Rights cases. But in doing so they have broken with a tradition of giving a broad remedial reading to Congressional enactment. While not abandoning Kluznick and its broad grant of power to congress, the newer cases merely refuse to acknowledge the exercise of the power without the clearest expression of Congressional intent.
This is non-the-less a disturbing signal to those who express a faith in an orthodox view of affirmative action. For it suggest the legislature must speak clearing if affirmative action programs are to survive. Congress, however, has always been willing to let the courts and executive branch fashion the politically offensive details of such programs.
III. Goals
A critical issue in the group preference or affirmative action debate relate to the ends of equal employment opportunity law. Is it the intent of the laws to merely create a level playing field by baring consideration of race and other prohibited categories ? Or is the goal of the law redistribution ? Is the law intended to produce outcomes?
Opponents of affirmative action claim the law is only about fairness. The law is about creating an environment in which race, etc. is not a factor. But, the supporters of affirmative action argue that the law is all about outcomes. Non-discrimination is merely a means to an end. The end is the reversal of the pattern of society in which blacks and other protected classes were disproportionally poor.
These proponents argue that special steps are necessary to redress historic injustice. They speak of balancing the books between blacks and whites as groups. Opponents refuse to accept the notion of historic injustice or group rights. Only individual have rights or commit wrongs they argue. Remedies should be for present victims of present wrongs.
Once an academic consideration the debate over affirmative action has grown louder as the system has expanded from narrow confines to larger spheres of public life. Further, it has become more controversial as the list of groups subject to it has been expanded.
Most people think race when they think group preference affirmative action. But in fact the greater number of beneficiaries may well be women. This has created a split among some supporters of affirmative action between racial minority leaders and leaders of women's groups. This may well illustrate one of the concerns of critics. This system of status based spoils tends to lead to intergroup conflicts not harmony.