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Affirmative Action

United States Report on Convention on Elimination of All Forms of Racial Discrimination,
  Initial Country Report (Sept, 2000). 

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Vernellia R. Randall
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In general, the proper goal of affirmative action programs -- such as those described above -- is to promote equal opportunity by ensuring every person a fair chance to achieve success. Affirmative action measures recognize that existing patterns of discrimination, disadvantage and exclusion that are the remains of a race-conscious system of exclusion may require race-conscious measures to achieve real equality of opportunity. As a matter of law and policy, they may not create any form of "quotas" or "numerical straightjackets," nor may affirmative action policies give preference to unqualified individuals, place undue burdens on persons not beneficiaries of the affirmative action programs or continue to exist or operate after its purposes have been achieved.

The exact line between permissible and impermissible affirmative action measures has been one of the most difficult issues in U.S. law, and it has not been static. See, e.g., Adarand Constructors, Inc. v. Peņa, 515 U.S. 200 (1995); Metro Broadcasting, Inc. v. FCC, 497 U.S. 647 (1990); City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989); Regents of University of California v. Bakke, 438 U.S. 265 (1978). In Croson, the Supreme Court held that state affirmative action plans challenged under the Constitution would be held to strict judicial scrutiny, i.e., courts would evaluate the program to determine whether there was a compelling governmental interest in the program's use of race and whether that use was narrowly tailored to meet this interest. Six years later, in Adarand, the Court held that that same standard of "strict scrutiny" would apply to federal affirmative action plans. This is a more demanding test than had previously been applied to federal affirmative action programs, and it has prompted a searching analysis and re-evaluation of many such programs.

Affirmative action in elementary and secondary school admissions as well as in college and university admissions has been a subject of contention; especially where the use of race is in the non-remedial context. However, language in several Supreme Court cases supports a school district's compelling interest in ensuring that children of different races attend school together. See, e.g., Brown v. Board of Education, 347 U.S. 483, 493 (1954); Washington v. Seattle School District No. 1, 458 U.S. 457, 472 (1982); Swann v. Board of Education, 402 U.S. 1, 16 (1971); North Carolina Board of Education v. Swann, 402 U.S. 43, 45 (1971). In the higher education context, a majority of the Court in Regents of the University of California v. Bakke, 438 U.S. 265, 320 (1978), reversed a lower court decision and found that a university could employ race-conscious measures even though it had not engaged in prior de jure segregation. Indeed, it is the government's position that the educational benefits that flow from a diverse student body can be achieved through the narrowly tailored consideration of race in admissions. Some critics argue that such practices violate the Fourteenth amendment's guarantee of equal protection and have called for an end to the consideration of race in university admissions. In 1995, the University of California's Board of Regents voted to prohibit universities within its state-wide system from considering race in admissions. The California Civil Rights Initiative, known as Proposition 209, prohibits the State from considering race or gender in State employment, public contracting or education program. Also in Texas v. Hopwood, 78 F.3d 932 (5th Cir.), cert. denied, 518 U.S. 1033 (1996), the Fifth Circuit Court of Appeals held that race could not be used as a factor in the admissions process for the University of Texas Law School.

Despite Proposition 209 and the Fifth Circuit's decision in Hopwood, the United States government has consistently argued that the Constitution and Title VII allows for the narrowly tailored consideration of race in elementary and secondary school and university admissions, either to support a state's compelling interest in diversity or in remedying past discrimination. Ultimately, the U.S. Supreme Court will resolve this issue.

Moreover, the responsibility of states and local school districts to provide appropriate services to children with limited English proficiency is now well established in the law.

The landmark decision in Lau v. Nichols, 414 U.S. 563 (1974), which is based on Title VI of the Civil Rights Act of 1964, requires that school officials take action to provide limited English proficient students appropriate services to permit meaningful participation in the district's educational program. The Equal Educational Opportunities Act of 1974 also requires that states and school districts take appropriate action to overcome language barriers that impede equal participation in the instructional program. However, no particular educational methodology is mandated to come into compliance with these laws. For example, transitional bilingual education is one model that is employed by some school districts, other districts rely on English as a Second Language techniques.

This flexible approach, is supported by the United States: school districts should employ methodology that is supported by educational research, implement fully their programs, and evaluate them in practice. Recently, however, California has restricted to some extent the flexibility of school districts to make determinations regarding the methodology they wish to employ. Proposition 227, enacted in 1998, requires that limited English proficient students be placed in an English immersion program, unless parents seek waivers and seek a transitional bilingual program. A referendum initiative in Colorado also seeks to limit transitional bilingual education.

The Department of Justice recently intervened in a lawsuit in Denver, Colorado in which the adequacy of the school district's English language acquisition program was at issue. A settlement was reached under which a flexible program was approved by the court that relies on both foreign language instruction and English language development techniques.

With regard to Native Americans, in Morton v. Mancari, 417 U.S. 535 (1974), the U.S. Supreme Court upheld a statutory Indian preference for hiring by the Bureau of Indian Affairs. The Court relied upon the statute's purpose in aiding Indian self-government and rejected the claim of unconstitutional discrimination stating that "[t]he preference is not directed towards a racial group consisting of Indians; instead, it applies only to members of federally recognized tribes . . . [and i]n this sense, the preference is political rather than racial in nature." This distinction between a preference based on the political nature of Indian tribes, as opposed to race, has been and remains a fundamental legal principle supporting the unique relationship between the Federal government and Indian tribes.

In recent years, there has been extensive public debate over the concept of so-called "reverse discrimination," focusing on whether affirmative action programs are unfair to persons who do not benefit from those programs. There have been a number of legislative proposals and state referenda designed to limit the use of affirmative action programs to remedy past discrimination and achieve diversity in employment and education, as well as several judicial challenges. Examples include Maryland Troopers Ass'n v. Evans, 993 F.3d 1072 (4th Cir. 1993) (holding that Maryland State Police discriminated against non-Blacks by complying with the terms of a court-ordered consent decree which was held to violate 14th Amendment and Title VII) and Hopwood v. Texas, 84 F.3d 720 (5th Cir. 1996), cert. denied, 518 U.S. 1033 (1996) (holding that University of Texas School of Law could not use race as a factor in its admissions decisions when White applicants with higher test scores than minority applicants were denied admission).

In 1995, following the Supreme Court's decision in Adarand, the President ordered a thorough Executive Branch review of the Federal government's affirmative action programs to ensure that these programs satisfied the Court's newly articulated legal standard. While finding "undeniable progress in many areas," the report concluded, not surprisingly, that "widespread discrimination and exclusion -- and their ripple effects -- continue to exist" and that the various affirmative action programs should therefore be continued and improved. As a result, some programs were discontinued, and the method of implementation of others was changed.

The Federal government, in fact, made substantial changes in the way all agencies use affirmative action in federal contracting. Those changes ensure that race-conscious action in federal contracting is used only where there is demonstrable proof that the effects of racial discrimination continue to hinder minority-owned businesses.

The United States is hopeful that the changes made to federal affirmative action programs will demonstrate not only to federal courts, but also to state and local governments that choose to use these programs, how they can be developed in a manner that satisfies Constitutional scrutiny. Indeed, in reviewing the first challenge to changes to federal contracting provisions, a court held that the program satisfied the Constitution. The United States continues to believe that affirmative action plays an essential role in ensuring that economic and educational benefits are offered equally to all people in the United States, and that those programs can be developed in a way that is fair to all.

This debate will continue. It is the United States' view that its obligations under the Convention do not preclude adoption and implementation of appropriately-formulated affirmative action measures consistent with U.S. constitutional and statutory provisions.

 

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Thanks to Derrick Bell and his pioneer work: 
Race, Racism and American Law
(1993).