My Perspective: Is Affirmative Action Legal or Constitutional?

The recent Supreme Court ruling in favor of the New Haven firefighters has been considered a reverse discrimination ruling. However the reverse discrimination ruling leaves confusion amongst many on the court as well as employers, civil rights advocates, politicians and attorneys but particularly labor attorneys. The court ruled 5-4 Monday that the white firefighters were denied promotions unfairly because of their race, reversing a decision that high court nominee Sonia Sotomayor endorsed as a federal appeals court judge. Still the majority of justices said the city was wrong to scrap a promotion exam because no African-Americans and only two Hispanic firefighters were likely to be made lieutenants or captains based on the results. The city said it had acted to avoid a lawsuit from minorities.

While the court upheld that employers still have an obligation under civil rights laws to avoid discrimination in hiring, promoting and compensating workers, the ruling creates confusing standards on how to meet that obligation, said Wade Henderson, president and chief executive of the Leadership Conference on Civil Rights. "Employers will now face a convoluted minefield when attempting to protect workers from discrimination," Henderson said. "Employers are looking for bright lines ... they're looking for clear directives to help them better understand how they can engage in nondiscriminatory decisions."

The ruling is confusing, Henderson said, because the high court seemed to say that while New Haven officials tried to avoid discrimination, throwing out the test was discriminatory. "It puts employers in a real quandary," he said. The Obama administration should direct the government's civil rights agencies to offer guidance on the ruling, said Shirley Wilcher, executive director of the American Association for Affirmative Action. "In the meantime, we're scratching our heads," she said. "We're concerned about the impact on employers who want to comply with the law and do not want to discriminate ... and it's not clear how to do that." However Bernard Jacques, a Hartford-based labor and employment attorney, also believes the ruling will stump many employers. The court ruled that test results alone are not enough to prove discrimination, that a "strong basis in evidence" is needed, but justices didn't define that phrase, Jacques said.

Justice Anthony Kennedy said in the ruling, "Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions." He was joined in the majority by Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas. In dissent, Justice Ruth Bader Ginsburg said the white firefighters "understandably attract this court's sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them." Justices David Souter, Stephen Breyer and John Paul Stevens signed onto Ginsburg's dissent, which she read aloud in court Monday. Speaking dismissively of the majority opinion, she predicted the court's ruling "will not have staying power."

The ruling is "a sign that individual achievement should not take a back seat to race or ethnicity," said Karen Torre, the firefighters' attorney. "I think the import of the decision is that cities cannot bow to politics and pressure and lobbying by special interest groups or act to achieve racial quotas." At a news conference on the steps of city hall in New Haven, firefighter Frank Ricci, the lead plaintiff in the lawsuit, said the ruling showed that "if you work hard, you can succeed in America." New Haven, trying to fill senior fire department vacancies, gave a test to 77 candidates for lieutenant and 41 candidates for captain. Fifty-six firefighters passed the exams, including 41 whites, nine blacks and six Hispanics. But of those, only 17 whites and two Hispanics could expect promotion. The city eventually decided not to use the exam to determine promotions. It said it acted because it might have been vulnerable to claims that the exam had a "disparate impact" on minorities in violation of the Civil Rights Act of 1964.

The white firefighters said the decision violated the same law's prohibition on intentional discrimination. Twenty white plaintiffs sued. The city declined to validate the test after it was given, a step that could have identified flaws or determined that there were no serious problems with it. In addition, city officials could not say what was wrong with the test, other than the racially skewed results. "The city could be liable for disparate-impact discrimination only if the examinations were not job related" or the city failed to use a less discriminatory alternative, Kennedy said. "We conclude that there is no strong basis in evidence to establish that the test was deficient in either of these respects." But Ginsburg said the court should have assessed "the starkly disparate results" of the exams against the backdrop of historical and ongoing inequality in the New Haven fire department. As of 2003, she said, only one of the city's 21 fire captains was African-American.

Thus the recent ruling has brought about the question whether or not Affirmative Action is legal or constitutional? Since the ruling of the New Haven case has left the door open too much confusion in regards is reverse discrimination acceptable and if it is when is it acceptable? Also is affirmative action reverse discrimination in some way and if it is, is it constitution? These questions are the type of questions that the recent ruling has opened up. So let the debate begin with us understanding the history of affirmative action and why its legality and constitutionality is in question. Over the last couple of years, since 1995, the debate over the legality, constitutionality of Affirmative Action has raged. Fueled mostly by Conservatives like Pete Wilson, Ward Connerly and Dinesh D'souza, although Liberals have also sounded out in opposition. The debate has captured the attention of the nation, with the Passage of Prop 209 and the Supreme Court’s decision to not hear the appeals against it.

AA Opponents claim that it is itself, a form of racism. That AA promotes strife and is detrimental to the very persons it intends to help. Much of this debate has been confused by political grandstanding and rhetoric. But what is the truth? Over the past couple years I have watched and participated in this debate, I have done a great deal of research into the subject and this is what I have found.

Let’s begin with the Civil Rights Act. The Civil Right Act of 1964 prohibits discrimination in the workplace. It very specifically describes what discrimination is and the various forms that it takes. Reading through all the details can be a harrowing experience, but the bottom line is that The Civil Rights Act makes it illegal to discriminate against someone on the basis of the race, age, religion, gender or national origin. But there is a loophole; nowhere in the Civil Rights Act does it prohibit discrimination for someone on the basis of race, religion, gender or national origin. The Civil Rights Act does not specifically authorize Affirmative Action; however, it does not prohibit it either. Not completely because an employer can make choices and decisions in the work place which benefit one particular demographic faction - however they cannot do so at the expense of another group, because that would be discriminating against that group.

You can take "Affirmative Actions", as long as they do not result in a "Negative Reaction". This is a very fine line to walk. One that can’t be walked unless when know what Affirmative Action can and can’t do. Essentially what this means is that when dealing with a zero-sum situation, where the situation is static, rather than fluid, you cannot implement AA. But in a situation where things are dynamic and non-static, where doing something positive for one person, or faction, does not necessarily take anything away from anyone else then Affirmative Action may be legally applied. To give a real life example, a hiring situation is usually static. There are a usually a specific set of employment slots, and as such making a hiring decision which benefits or prefers one faction over another, would very definitely be detrimental to people outside that faction. On the other hand, offering Outreach and training courses prior to hiring, or doing recruitment to a particular faction, doesn't necessarily create a "Negative Reaction" to others. It simply means more people, with better qualifications show up for the job(s). This is how Legal Affirmative Action works and no one is hurt by this, except those who are under qualified for the position.

The distinction between what is actually legally allowable under Affirmative Action and what is not, is often lost on people. Even many AA supporters are unclear on this issue. If and when a person, company, or agency implements an Affirmative Action program that is within a static situation, resulting in a Negative Impact on people outside the "Preferred" groups - they are violating the law. It's just that simple or is it? Now in order to meet the "Compelling Need" there is an additional to this basic requirement by the Civil Rights Act which has been the Supreme Court Decision in Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (USSC+), although the Court rendered no decision on the case and had it sent back to the lower court, the court did state that race-based polices by the government must be able to withstand strict judicial scrutiny. This, in laymen’s terms, means that the goal of the policy must meet a compelling need for the community, and that no other alternatives are available which will similarly meet the same need or goal.

This means that not only must any race-based Affirmative Action plan not create a Negative Reaction or so-called "Reverse Discrimination", it must also be desperately needed, and no other options must be available in order for the plan to be legal and constitutional. This is contrary to the often quoted opinion by opponents that Affirmative Action is nothing more than "Reverse Discrimination" itself. It is (Reverse Discrimination), if that agency is acting illegally and unconstitutionally. Therefore any government or private agency which claims to be implementing AA essentially as "Reverse Discrimination" is admitting to a crime.

This notion brings about the next question which is doesn’t AA use Quotas? Quotas are not legal within Affirmative Action. By definition a "Quota" sets a hard ceiling and floor on the participation by a particular faction. "We can have no more than *this* number"...this would clearly pose the potential to discriminate against someone. Moreover, the Supreme Court ruled in 1978 in Regents of Univ of Cal vs Bakke that Quotas or systems that acted like Quotas, were unconstitutional. "Racial classifications call for strict judicial scrutiny and this case presented a challenge to the special admissions program of the petitioner, the Medical School of the University of California at Davis, which is designed to assure the admission [p*270] of a specified number of students from certain minority groups. The Superior Court of California sustained respondent's challenge, holding that petitioner's program violated the California Constitution, Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., and the Equal Protection Clause of the Fourteenth Amendment. The court enjoined petitioner from considering respondent's race or the race of any other applicant in making admissions decisions.

Although the court agreed that the goals of integrating the medical profession and increasing the number of physicians willing to serve members of minority groups were compelling state interests, id. at 53, 553 P.2d at 1165, it concluded that the special admissions program was not the least intrusive means of achieving those goals. Without passing on the state constitutional or federal statutory grounds cited in the trial court's judgment, the California court held [p*280] that the Equal Protection Clause of the Fourteenth Amendment required that no applicant may be rejected because of his race, in favor of another who is less qualified, as measured by standards applied without regard to race." So why do people assume and claim that Affirmative Action is synonymous with Quotas?

Some of those who claim that AA=Quotas simply don't know any better. I personally find it hard to believe that the current UC Regents, such as AA opponent Ward Connerly, are unaware that Quotas have been illegal since the Bakke case back in '78 was filed against...the very same UC Regents of which he himself was a member. For others, it's because it is politically and ideologically expedient to maintain this belief. But sometimes, it is because they are confusing Affirmative Action, with Consent Decree's or Court Orders which result from Law Suits and/or Civil and Criminal Actions against a discriminator. So if a company violates the law, it can be punished for that violation. If a company has committed an act of illegal and unconstitutional discrimination - they can be punished for that via fines, and those whom they have wronged may have those wrongs corrected. The Civil Rights Act authorized creation of the Equal Employment Opportunity Commission (EEOC) to ensure that government agencies abide by the law. Additionally it authorized the Department of Justice (DOJ) to take Civil Action when appropriate. Neither of these agencies is in the business of implementing Affirmative Action, they are in the business of law enforcement.

Civil Actions do not require government agencies. They can be brought forth by individuals. Groups of individuals can consolidate their suit, as a "Class Action", and they may receive aid from Civil Rights Legal resources such as the ACLU and NAACP. In each of these cases, the plaintive must provide a preponderance of evidence to support their claim. Simply offering statistical data concerning the percentages and types of employee's vs the pool of available applicants (as opposed to the general population) is not enough. The plaintive must show that there is a specific company policy which is creating a disparate impact on a particular group. The company, in response must show that this policy has a bona fide business justification. If the policy does indeed meet a bona fide business qualification, if can be retained even if it has a disparate impact on people from different groups - but if it does not meet a legitimate qualification the company or organization can be held liable for that policy or practice.

Now The Civil Right Act of 1964 includes a rather large exemption which allows for discrimination when such discrimination is required to meet Bona Fide occupation qualifications. "(e) Notwithstanding any other provision of this title, (1) it shall not be an unlawful employment practice for an employer to hire and employ employees, for an employment agency to classify, or refer for employment any individual, for a labor organization to classify its membership or to classify or refer for employment any individual, or for an employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining programs to admit or employ any individual in any such program, on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise, and (2) it shall not be an unlawful employment practice for a school, college, university, or other educational institution or institution of learning to hire and employ employees of a particular religion if such school, college, university, or other educational institution or institution of learning is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum of such school, college, university, or other educational institution or institution of learning is directed toward the propagation of a particular religion."

For example if the job requires a person with a certain skills, abilities or experiences...then the employer can makes choices and discriminate against people who do not have those particular traits on the basis of gender, religion, national origin. This exemption protects companies from malicious persecution by potentially disgruntled factions. It also means that companies CAN NOT be forced to hire, promote and use unqualified people through implementation and enforcement of the Civil Rights Act. On the other hand, if the reason for this discrimination cannot be justified in business terms, it is illegal.

If, for example, a job offer or a promotion, were denied to someone because they are the member of a factional group protected by the Civil Rights Act (Gender, Physical Disability, Veterans, National Origin and Race), they may recover the job that they have lost due to the unlawful action of the company. So it is important to note that The Civil Right Act doesn't just protect Blacks or Women but in fact neither is even mentioned in the Act - it protects everyone on either side of the factional lines. As punishment it can be legally mandated via a Judge, that the company meet a specific "quota" of jobs as a remedial action to the discrimination that the specific company has engaged in. Job discrimination can be analogous to theft. A job was stolen from one person, and given to another. The beneficiary is a receiver of a stolen item. The "Quota" cannot be put in place; until it has been proven that the Job/Opportunities were Stolen. Those that received those jobs/opportunities have no right to that item, so having them give the job back to its rightful owner - should be standard practice.

It's essentially like asking someone to return a stolen car to the person they stole it from. It is not indiscriminate, the specific theft has to be proven first or else, it is not legal to establish the quota to return what was taken. Please be aware, I make a distinction here. I do not consider such punishment via Court Order or Consent Decree to be Affirmative Action, per se. It is punishment and "Remedy" for a crime. A "Remedial Action" is not constrained in the same way that voluntary or even E.O. Mandated Affirmative Action is. Police and Courts regularly arrest and jail criminals, a similar action performed by other individuals would most certainly be called "kidnapping" and "false imprisonment". So what is legal in one context is not legal in a different context, especially when due process has not been applied. Obviously when a court orders that a company must have a work force that is X% female, for example, it may seem unfair to males. But the fact is that this cannot occur unless the judge (or jury) has been shown a preponderance of evidence indicating that the company is guilty of prior (and sometimes current) criminal behavior against females. The Court Order is part of their punishment, and also a correction for their crime. Contrary to the claims of those who would paint Civil Right Activists as "bullies" in this situation can only legally occur when the crime of discrimination has been proven

Also contrary to their claims, these events are not driven by Affirmative Action - they are driven by the Law Enforcement, and removal of Affirmative Action would not change the probability of these types of "Quotas" occurring. Often punishing a guilty party, impacts more than just the guilty party but it impacts people around them as well, who themselves may not necessarily be guilty of anything. This is sometimes unfortunate, but often unavoidable. So it could be argued that simply fining the guilty company should be sufficient. However, when heavy fines were imposed on Texaco, for their bad behavior in discriminating against black employees during the mid 1990's (as revealed by the audio tapes of one disgruntled employee, which documented their attempts to conceal evidence indicating their guilt in a discrimination suit) - their CEO argued that these fines would cause them to close down some of their stations, thereby forcing them to lay off workers, and that some of those laid-off would be the black workers who had originally filed that class-action suit which resulted in the fine being imposed in the first place. This always sounded like a retaliatory threat to me which itself would also be illegal. So clearly any form of punishment against a company is going to have some undesirable impacts on innocent people. If you punish the company, it's going to hurt everyone working for the company as well as their vendors and customers.

But what else are you supposed to do? The alternative to this situation would be to essentially let the guilty go free, and to allow those who have been the beneficiaries of criminal activity, to retain those benefits. But does it really make sense to do this? Does it make sense to let criminals keep what they steal? "I stole it fair and square" is what the criminals say. So shouldn't stolen items be returned to their rightfully earned owners? Strangely or maybe not so strangely, this is exactly what some AA opponents have suggested is the course we should take. The De-criminalization of Discrimination - they claim, is the solution to our problem of racial strife. This suggestion is like saying that we should decriminalize murder because occasionally police and prosecutors become overzealous in pursuing the criminals. Legally, Quotas can be used in this manner, to return stolen jobs and opportunities not as a part of Affirmative Action, but as Civil or Remedial Action against a proven discriminator, using the rules of evidence in a court of law. Affirmative Action does not require a Court Order, but it also can not contain any form of "Quota".

So for those who think that everyone has to implement Affirmative Action is wrong in short. But the long answer is that only government agencies and contractors are required by Presidential Executive Orders (#11246 & 12107) to implement AA. The verification that contractors are implementing Affirmative Action (legally) is handled by the Office of Federal Contractor Compliance Programs or OFCCP. Their implementation of Affirmative Action must follow the same guidelines I have outlined above, and must be legal. Private firms that do not contract with the Federal Government may voluntarily implement Affirmative Action programs, but as such - they must also conform to the laws and not use those programs as a tool to discriminate against anyone. The only exception to this is when a Civil Rights Law Suit is brought forth and either wins, resulting in a Court Order with Remedial Actions, or an agreement is reached between the opposing parties (Consent Decree) which includes Remedial Actions to correct for the alleged discrimination.

Which brings into question whether or not affirmative action is still needed today considering the recent ruling by the Supreme Court in the New Haven firefighters case as well as other cases like the University of Michigan that barred affirmative action (quotas) from being used in selecting students to attend colleges and universities in the state of Michigan. So when people ask is affirmative action still needed today, this question, when usually answered by individuals, usually hinges on their perception of the level of ongoing discrimination which still exists in this country. The White House, DOJ, and OFCCP report that such discrimination continues. Many people feel that such discrimination is shrinking, although information from the FBI and Southern Poverty Law Center indicate that Hate Crime and Violence is on the rise. Still people assume that while racial discrimination shrinks, the compelling need which supports the legality of Affirmative Action diminishes as well. Yet, Affirmative Action does not simply address the issue of racial discrimination. It also addresses, gender discrimination, age discrimination, religious discrimination and discrimination against the handicapped or veterans.

Those who view Affirmative Action as being purely a "Race" issue often proclaim that if we would all stop being "hyphenated" Americans (African-Americans, Asian-Americans.etc) we would no longer need Affirmative Action. They claim that this "Identity Politics" is a wedge that is driving us apart. This ignores the fact that "American" is a specific and therefore "divisive" identity as well, considering the fact that not everyone in the world is an "American". It also ignores the fact that AA isn't just limited to "race" and as such this proposed solution falls apart when you attempt to apply it to the issue of gender, or age, or religion or veteran status, or physical handicap. So should we ALL become veterans so that we all have the same "Identity"? Or should we all become just one Gender so that we eliminate our differences? Nonetheless how would we procreate then? The fact is that, we already are "one Race", the Human Race, yet at the same time people are different. We are all individuals. We always will be. People have the freedom of choice, and part of guaranteeing that freedom is to also guarantee that people who happen to make unpopular, yet legal, choices which place them within a minority faction are not punished and intimidated for that choice by the majority faction.

Although America is a country which honors freedom, it is also a majority rule country. When we vote, the decision goes to the majority except in the case of the Presidency; it goes to the winner of the Electoral College. But still, when we are in social situations, the majority in the venue controls it and sets the rules. Sometimes simply being outside of the majority, outside of the mainstream is itself intimidating to those in the minority - without the requirement that anyone in the majority being particularly hostile, and absent any deliberate discrimination on anyone’s part. The situation where all but one of the black students who were admitted to UCLA Law School in 1997 refused to go because they felt "unwelcome" in the wake of Prop 209 is an example of this type of passive intimidation at work.

The ultimate minority is the minority of one. The individual in the protection of individual rights lays the inherent protection of "Minority rights". They are one-and-the-same. Affirmative Action, when legally implemented, seeks to reach out to, and support the freedom of choice of individuals to be themselves, without being forced to conform by intimidation, assimilation and/or coercion to the majority on issues which are not relevant to their bona fide quality as an individual. Thought of in this light, it is clear that we will always need some form of Affirmative Action, even if it is not necessarily called Affirmative Action. We should always seek to ensure that we are not leaving qualified people behind in participation in our society, simply because they don't conform to the mainstream/majority social and cultural faction.

However there are still dangers though. AA critics claim that the implementation of AA demeans those it seeks to help, by branding them as inferior. "They couldn't make it on own their own and they needed a Program to get in". This belief is largely predicated on the previously mentioned belief that AA=Quotas. And that as such there may be a tendency to let better qualified people go, and retain those of lesser qualification in order to meet the "Quota". Contrary to the claims of AA supporters this does occur. But it generally happens as the result of a Civil Action or Remedial Action subsequent to a Consent Decree or Court Order. Under normal, legal Affirmative Action this does not happen. AA does not require Quotas. It may however include "Goals" and/or "Timetables". There is a difference between a Goal and a Quota because a Goal is something you try to do while a Quota is something you have to do. All Affirmative Action programs require is that those implementing them make a good faith effort to try and improve a situation and get people involved who are currently underrepresented when compared to the pool of qualified and available applicants.

The fact is that those people may simply not want to be involved and as such, employers are not required to twist arms and break the law to change their minds. Again, freedom of choice means, that people have the freedom to not do, what may be in their own best interest. You can lead a horse to water, but they have the freedom to not be involved if they don't want to be, in which case the "failure" is theirs. There is the danger of overzealousness. It can lead to overaggressive recruiting and the creation of "Virtual Quotas" where the selection systems become highly complicated and jury rigged to create a pre-ordained outcome. Technically, this is illegal. But as a matter of practicality it can be very difficult to determine when this is occurring and when it is not, within an Affirmative Action program. However simply because it is difficult, doesn't not mean that we should not try to ensure that every possible qualified person is included in our society and able to benefit from our society. To not even try would be a far greater crime.

So when it comes to reverse discrimination like in the New Haven case, according to the OFCCP, very few discrimination cases ever occur against a person within the majority faction, which is usually an able-bodied male and/or Anglo person. Of the over 3,000 plus discrimination cases filed in Federal Court between 2000 and 2005, only 3% of these were "Reverse Discrimination" cases. And only a handful of these were found to have any merit worth pursuing. Even though it should not, and only rarely does, sometimes AA programs or more often Remedial Action Programs take on the shape and form of what they attempt to correct when they are implemented incorrectly. The best defense against this is vigilance. Individuals who have been discriminated against by an Affirmative Action program have a right to sue, and seek redress just as much as anyone who is discriminated against by any means. Mistakes are made, sometimes malicious ones but the law as it currently stands, protects against such abuses. What we need to do is fairly and consistently enforce the law? And we need to better understand, what to expect from the law - so that we can recognize when it has gone wrong, and whether that is because of flaw in the law, or a flaw made by the individuals implementing the law. Under the current legal restrictions AA can hardly be implemented at all, but it can be implemented legally and fairly. And it should be.

So to answer the question of whether affirmative action is legal and constitution, the question is yes as long as it doesn’t discriminate against other people and it is applied right. However when there is discrimination, affirmative action can be applied to remedy the situation as long as it is found that a discriminatory act was brought about against a group of people because of their race, age or gender. Thus affirmative action must be applied currently and accurately without any quotas except in the case where there is remedy to a situation of discrimination already. So while the Supreme Court has perhaps confused many people with its recent ruling in the New Haven reverse discrimination case, it should be clear that the Court applied Affirmative Action correctly in this case and they didn’t leave any room open for whether not affirmative action is legal or unconstitutional because the city of New Haven didn’t apply the affirmative action law accurately and correctly.

That is why the answer to the debate is that affirmative is legal and it is constitution as long as it is applied and implemented legally and fairly for all to benefit from it.