Don't Look West: US Policies No Justification for Quotas
The Times of India,
July 7, 2004
As the Union government considers following Maharashtra's lead in
providing scarce private sector jobs to backward classes, reservations
have once again become subject of intense debate. Many proponents point to
the American experience for ideological support of such measures. Indeed,
the use of the distinctly American phrase "affirmative action" in the
UPA's common minimum programme, evokes a vague conceptual link between the
US and Indian policies. The apparent 'logic': If the US upholds
affirmative action, why not India? But to stop at this level of
comparison, as many do, is misleading. Deeper examination reveals that the
US law not only explicitly prohibits quotas, but does so in both the
private and public sectors.
Affirmative action in America was first envisioned as promoting equal
opportunity through the removal of barriers erected over many years of
government-sponsored racism. Despite amending the constitution to outlaw
slavery after the Civil War in the 1860s, state discrimination against
blacks continued, particularly in the American South. Anxious to maintain
white supre-macy, state governments there passed laws mandating separate
facilities for whites and blacks. Infamously, the US supreme court upheld
the constitutionality of these laws in Plessy vs Ferguson (1896). Nearly
60 years passed before the court reversed the "separate but equal"
provision in Brown vs Board of Education (1954). This landmark ruling
which held that segregated schools were inherently unequal and irreparably
harmful to blacks sparked an era of desegregation and social upheaval. The
concept of affirmative action was born out of this tumult.
President Kennedy first used the phrase in a 1961 executive order,
directing companies contracting with the federal government to provide
equal employment opportunity regardless of race or ethnicity. The order
was limited to federal contractors due to the restrictions of the US
constitution, whose constraints apply directly only to government actors.
In order to reach important private institutions, the Congress, using
broad constitutional powers to regulate interstate commerce, enacted the
Civil Rights Act of 1964. The Act made discrimination based on "race,
color, religion, or national origin" in public establishments (hotels,
restaurants, etc) illegal and prohibited employment discrimination.
From the outset, affirmative action was envisioned as a temporary remedy
that would end once there was a "level playing field" for all Americans.
While calling for equal opportunity, the Act never suggested quotas or
reservations. Despite this, many public and private institutions began
using quotas in admissions and employment practices. They did so to avoid
litigation, due to an opaque legal environment created by often
contradictory court rulings and ambiguous standards issued by government
agencies. Crucially, admissions and employment decisions always rested
with private institutions themselves. In fact, many private organisations
have been extremely proactive in recruiting talented, under-represented
minorities under publicly sta-ted employment and admission practices.
But affirmative action quotas created widespread resentment and quickly
came under legal challenge. Just 14 years after the passage of the Civil
Rights Act, the supreme court struck down a race-based quota system in a
state-run medical school in University of California vs Bakke (1978).
While definitively prohibiting quotas, the case caused confusion due to
the court's support of "diversity". Just how diversity was to be achieved
was not clearly defined, leaving the door open for continuing use of
Affirmative action was dealt another serious blow in Adarand vs Pena
(1995), a case involving federal government prefe-rences for minority-run
businesses. The court ruled that race-based preferential government
policies, even those that benefit historically disadvantaged groups, must
receive the highest level of judicial scrutiny. In order to uphold such
policies, the government would now have to narrowly tailor preferential
policies to address specific effects of past discrimination, not general
Last year, two related cases regarding admission policies of the
University of Michigan again placed affirmative action under the
microscope. In Grutter vs Bollinger (2003), the court upheld Michigan's
law school admission system. The court reasoned that because no
mechanical, predetermined diversity "bonuses" were awarded based on race
or ethnicity, the admissions policy was not a quota system. The state had
"a compelling interest in obtaining the educational benefits that flow
from a diverse student body". However, in Gratz vs Bollinger (2003), the
court struck down Michigan's undergraduate admission policies, finding
they did not provide individualised consideration of candidates.
While some may view the Michigan cases as a reprieve for affirmative
action, the negative implications for quotas are clear. Overall, the
American affirmative action experience reveals a fine balance between
redressing past injustice and maintaining the principle of equal treatment
for all. It simply cannot be utilised to support private sector
reservations. In order to advance the debate on this issue, Indian
commentators should refrain from looking to the US and instead offer
better considered rationale for such policies.
(The author is a graduate student at Yale.)