Editor’s Note: Jason Lawrence was a four-year Lincoln Douglas debater at Muscatine High School (Class of 2000) in Muscatine Iowa, a National Qualifier in International Extemp (1998) and Lincoln Douglas (1999), and a Tournament of Champions Qualifier in Lincoln Douglas (2000). He is an University of Pittsburgh alumnus (2004) and an alumnus of The University of Chicago Law School (2009). He is currently working for the NFL in program development and will be joining the law firm of Faegre & Benson in Minneapolis, Minnesota this spring.

Resolved: Affirmative Action to Promote Equal Opportunity in the United States is Justified.

I. Overview and Historical Background

Any student debating this topic should begin reading about the topic with the Stanford Encyclopedia of Philosophy’s entry on affirmative action.[i] The phrase “affirmative action” originally appeared in the Civil Rights Act of 1964 as a remedy that federal courts could impose on violators of the Act.  In 1965, President Johnson signed an executive order requiring that all federal contractors take “affirmative action” to end discrimination and gave authority to implement the order to the Secretary of Labor.

A. Education

Because most colleges and universities receive significant federal funding, “affirmative action” regulations applied to them.  At the time several racial minorities—especially African Americans and Hispanics—were greatly underrepresented at America’s colleges and universities.  This gave rise to an initial understanding of affirmative action as a means of immediately or directly achieving proportional representation of minorities at America’s colleges and universities.  That is to say, if African Americans comprise 30% of the United States’ population, they should more or less comprise 30% of all college students. “Quotas” that ensured a certain racial and ethnic composition of a college class became an initial tool used by colleges and universities to comply with affirmative action obligations.

B. Employment

At the time, labor unions were reluctant to open their memberships to new African American members, and this was especially true in the construction industry.  To combat the effects of such institutional racism, the federal government required contractors to agree to “hiring goals” that were really numerical quotas regarding minority employment, which then forced contractors to pressure the unions supplying the raw labor to open their ranks to African Americans and other minorities.  Having achieved success in diversifying the ranks of labor unions, in 1972 the federal government applied its affirmative action requirements to a host of industries that did business with the federal government like banks, hospitals, airlines, trucking companies, steel mills and printers.

C. Quotas and the historical framework for the resolution

The inevitable result of quotas—either in changing the racial and ethnic composition of a college class or in the racial and ethnic composition of a workforce—was that minorities were included at the expense of white (mostly) males, who were displaced.  College classes and labor markets are not inelastic.  Even assuming natural increases in college class sizes and economic growth, it follows that for most every minority now included in a college class or given a job, a white male would no longer be included in the college class or would lose their job.

In this history are the origins of the modern debate over affirmative action: whether it is fair for a society to displace or otherwise deny opportunities to members of a majority/privileged/dominant group in order to realize values of equality and fairness and/or to remedy historical and systemic discrimination against minority groups.

This overview identified education and employment as the two general “areas” in which affirmative action is most hotly contested.  They will provide the framework for subsequent analysis.

II. Education

The debate over affirmative action’s proper role in education is extensive and impossible to briefly catalog.  The Stanford Encyclopedia of Philosophy article lists a plethora of sources that take both sides of the debate that will surely be worth a student’s attention.  One of the most interesting sets of articles are mentioned toward the end of Section 8, beginning with the citation of Richard Sander’s argument that race-blind admissions at America’s law schools would produce more, not fewer, African-American lawyers.  The article drew a flurry of disagreeing responses, which are also cited.  Such a debate will surely be of interest to students wishing to explore the most relevant and cutting-edge scholarship on the subject.

For students wishing to learn the basics about affirmative action and education, they should start with the Supreme Court jurisprudence on affirmative action and college admissions.  This section will start with the landmark case of Regents of California v. Bakke, in which racial and ethnic admissions quotas were invalidated.  It will then jump ahead to 2003, when the Supreme Court upheld the University of Michigan law school’s admissions criteria in which race and ethnicity were allowed as one indeterminate, but weighted, factor amongst many that the school considered in admitting a “diverse” class of students in Grutter v. Bollinger.  On the same day, in Granz v. Bollinger, the Court struck down the University of Michigan undergraduate admissions standards that assigned a fixed amount of points to race and ethnicity in weighing undergraduate applications.

By understanding the Supreme Court’s reasoning in these three cases, a student can learn the basic contours of the modern affirmative action debate with respect to education.  With this basic framework, they can then dig deeper into the links to other scholarship and argument on the subject that is provided.

A. Bakke and the striking down of racial quotas.

By the 1970’s, colleges and universities were using “quotas” to ensure a minimum diversity in their college classes.  The University of California at Davis, using a system typical for the times, reserved at least sixteen out of one-hundred seats in its incoming  medical school class for minorities.  A white male named Alan Bakke applied to the medical school in 1973 and 1974 and was rejected both years.  Mr. Bakke had better test scores and grades than most or all minority applicants admitted to fulfill the quota of minorities in the class.  Mr. Bakke then sued.

In the landmark case of Regents of California v. Bakke[ii], the Supreme Court voted 5-4 to strike down the quota system.  However, the Court did so in the most confusing way possible—by failing to agree upon a majority opinion.  Four of the five justices agreed that the quota system violated Title VI of the Civil Rights Act.[iii] The four dissenting Justices argued that the Civil Rights Act should be interpreted within the broader context of the Fourteenth Amendment.  Justice Powell, who ultimately joined the majority, agreed.  So there were five votes (a majority) that this—and presumably other—affirmative action programs implicated individual rights under the equal protection clause of the Fourteenth Amendment.

However, of the five justices that agreed the Fourteenth Amendment was implicated, only four believed that racial quotas did not violate Mr. Bakke’s right to the equal protection of the laws.  Justice Powell disagreed and argued that Mr. Bakke’s equal protection rights were violated and joined the four Justices—who were otherwise unwilling to decide the case on Constitutional grounds—in striking down the admission quotas.

Not surprisingly, Justice Powell’s reasoning became the focal point of future legal analysis, as we’ll see in just a moment.  So, it makes sense to understand his reasoning.

1. Powell’s Equal Protection Analysis

It is a common misconception that a law may never violate an individual’s constitutional rights.  The reality is that laws may violate an individual’s constitutional rights, but in the case of fundamental rights like equal protection or freedom of speech, only when there is a state interest at stake that is so compelling that the court finds the state interest outweighs the individual’s claim of Constitutional rights and where the law is tailored in a sufficiently narrow manner to advance the compelling state interest.[iv] Justice Powell then asked if the alleged state interests were compelling enough to require Mr. Bakke to bear the burden of discrimination.[v]

Justice Powell found that universities have a compelling state interest in preserving their academic freedom—a derivative of the right to free speech.  Part of a university’s academic freedom, Powell argued, was maintaining a diverse student body.  However, Powell argued that race and ethnicity were only part of a broader set of factors that contribute to diversity—they are not uniquely determinative of diversity.  So, Powell argued, a quota system was not “narrowly tailored” to advance the compelling state interest in achieving a diverse student body.[vi]

B. The “Michigan” Cases

Throughout the 80’s and 90’s, the affirmative action programs of universities were slowly eroded by federal courts.  At one point, Powell’s decision in Bakke was declared dead.  However, Justice O’Connor decided to resurrect Powell’s rationale in Bakke as the fifth vote necessary in a 5-4 decision to validate the constitutionality of the University of Michigan law school’s admissions process in Grutter v. Bollinger.  On the same day, Justice O’Connor joined a 6-3 majority to invalidate the University of Michigan’s undergraduate admissions process in Gratz v. Bollinger.

1. Grutter v. Bollinger (and in passing, Gratz)

Grutter concerned a challenge to the University of Michigan’s law school’s admissions process.  Candidates were given the opportunity to list their race and ethnicity–a standard feature of most secondary and post-secondary admissions applications.  The law school considered a student’s race and ethnicity, but it didn’t admit candidates to ensure the class was of at least a certain minority racial and ethnic composition.  And, as compared to the University of Michigan undergraduate admissions process struck down in Gratz, the law school did not assign a fixed point value to the race or ethnicity for purposes of admitting, deferring, or rejecting a candidate.

The Court’s decision in Grutter hinged on Justice Powell’s decision in Bakke.  Justice O’Connor started from Justice Powell’s idea that ensuring a diverse student body was an extension of a university’s First Amendment rights and thus a compelling state interest.  Justice Powell was the only vote out of nine justices for this view.  A quarter-century later, it commanded a majority.  From this starting point, Justice O’Connor reasoned that the law school’s admissions process was the “least intrusive” means to realize such a fundamental state interest.

The way to explain “intrusive” in this context, is from the perspective of the white/non-minority student.  A quota in Bakke or the points system in Gratz were “intrusive” because they made some tangible part of the admissions process inaccessible to non-minority students.  A white student cannot fill a seat specifically set aside for a minority student.  Similarly, a white student can never get any of the twenty points that minority applicants received for being a racial or ethnic minority on the Michigan undergraduate application.  But, a white student cannot say that considering race and ethnicity as one of many factors in an admissions decision uniquely harms them; they cannot quantify the number of admissions opportunities lost.

The dissent in Grutter saw things differently.  The late Chief Justice Rehnquist, joined by Justices Scalia, Kennedy, and Thomas argued that a review of the law school’s admissions numbers and the racial and ethnic composition of its classes showed that race and ethnicity were deciding factors in admissions decisions, regardless of what the law school said.

Of particular interest is the dissent’s refutation of the law school’s strongest argument.  The law school argued that its “holistic” standard (e.g. considering race as one of many factors) allowed it to select quality candidates while maintaining a “critical mass” of diversity.  Yet, the dissent argued that even amongst ethnic groups, African Americans were disproportionately favored and admitted in much higher numbers.  Justice Rehnquist asked why a “critical mass” of diversity only requires a handful of Native Americans or Hispanics, but much greater numbers of African Americans?  If it doesn’t, then the dissent argued that admissions decisions concerning minority candidates reflected a desire to maintain a numerical balance of racial and ethnic minorities admitted, not to achieve some fuzzy goal of a “critical mass” of diversity.

C. Resolutional Analysis

Returning to the resolution, it asks us whether affirmative action is justified.  Every bit of analysis of affirmative action in education, starting with its inception through Grutter shows that its use necessarily requires conferring a benefit to some, but not others, and in doing so, in a way that at least partially (Grutter, Gratz) if not mostly or wholly (Bakke, the first historical applications) takes the race or ethnicity of an individual into account.  Given the disfavor of very strong forms of affirmative action–e.g. quotas–affirmatives are likely going to argue that its possible to account for race and ethnicity in a meaningful way, but also in context of a broader understanding of diversity that accounts for other factors that comprise an individual’s identity.  The dissent in Grutter provides the negative with very solid analysis to question whether that middle ground is nothing more than a chimera and that any use of affirmative action (understood to be some racial/ethnic preference) necessarily devolves into a numbers game.

If the negative can successfully raise this question, the affirmative is left with a difficult double-bind.  Either the affirmative can argue that race and ethnicity will play less of a role than the negative claims–and in that case, it undercuts the force of its own arguments, and the negative can question what ground it has left to effectively negate or, the affirmative can argue that a hard look at the mathematical representation of different racial and ethnic minorities is legitimate.  But if it does that, it treads onto ground that the Supreme Court–and even the American public–have been skeptical, if not hostile towards.

Still, the affirmative should feel good that the majority in Grutter reflects a centrist and pragmatic approach to the question of affirmative action in an educational context.  The majority’s reasoning in Grutter makes a strong and intuitive claim to a reasonable middle-ground[vii], and if affirmatives seize that ground from the outset of a debate, negative teams may find themselves frustrated in trying to prove that the emperor’s acreage has no trees, or otherwise forcing the affirmative to defend an affirmative action that is either too weak or too strong.

III. Employment

A. Overview: Requirements of Federal Contractors and Subcontractors

The most important thing to note is that only federal contractors and subcontractors—basically those who do more than an insignificant amount of business with the federal government—are required to implement affirmative action policies.  Purely private employers, like a local “mom and pop” store aren’t required to implement an affirmative action policy.  No employer can discriminate in hiring and firing decisions, and any employer can independently choose to value “diversity” and make hiring decisions in light of their goals, but such does not amount to affirmative action.  Affirmative action is more, as an affirmative action “fact sheet” written by the Office of Federal Contract Compliance Programs[viii] (OFCCP) explains:

Each Government contractor with 50 or more employees and $50,000 or more in government contracts is required to develop a written affirmative action program (AAP) for each of its establishments.

A written affirmative action program helps the contractor identify and analyze potential problems in the participation and utilization of women and minorities in the contractor’s workforce.

If there are problems, the contractor will specify in its AAP the specific procedures it will follow and the good faith efforts it will make to provide equal employment opportunity.

Expanded efforts in outreach, recruitment, training and other areas are some of the affirmative steps contractors can take to help members of the protected groups compete for jobs on equal footing with other applicants and employees.[ix]

B. Resolutional Analysis: Costs and Benefits

The most immediate question for debate is: should the federal government, as the source of funding for a contractor’s or subcontractor’s projects, be able to require compliance with affirmative action regulations to anyone who wants to do business with the federal government?[x] Compliance with federal affirmative action regulations is not an insignificant task, and it can ultimately be quite costly to a business.  The OFCCP explains what it does when it conducts a “compliance review”:

OFCCP conducts compliance reviews to investigate the employment practices of Government contractors. During a compliance review, a compliance officer examines the contractor’s affirmative action program; checks personnel, payroll, and other employment records; interviews employees and company officials; and investigates virtually all aspects of employment in the company.

The investigator also checks to see whether the contractor is making special efforts to achieve equal opportunity through affirmative action. If problems are discovered, OFCCP will recommend corrective action and suggest ways to achieve equal employment opportunity.

For a big contractor (think a public university or a national construction company) that employs thousands or tens of thousands of people, a compliance review imposes substantial costs.  Producing payroll and personnel records (and paying employees to continuously keep them up to date and accessible) can be costly.  The time of employees—and especially management and executives—can be very valuable.  The time top-level employees spend on compliance interviews and on developing and understanding compliance programs is time that they are not spending on direct ways to maximize revenues and shareholder wealth.

Following from the normative question—should the government even condition federal contracts on compliance with affirmative action regulations—is a practical question: are the costs of compliance worth the benefits conferred[xi]?

Individual claims that federal contractors and/or subcontractors engaged in discrimination are referred to the Equal Employment Opportunity Commission (EEOC).  Statistics compiled by the EEOC show from 1997 through 2009 show that each year roughly 80% of race-discrimination cases are either dismissed for reasons of legal technicalities (administrative closure, usually about 15%) or found to be without merit (“no reasonable cause,” usually about two-thirds or 66%).[xii] Successful race-discrimination cases produce a relatively small amount of total compensation, usually between $60 and $80 million, with $86.5 million as the most and $32.2 million as the least.  If actual racial discrimination occurs only one out of five times, and the resulting damages are relatively insubstantial, then are affirmative action programs worth the substantial costs they impose on anyone doing business with the federal government?  Or are affirmative action programs that force employers to be highly conscious of their workforce partially or mostly responsible for a relatively low number of instances in which it is reasonable to find racial discrimination?

Finally, the statistics may bear on a question central to the resolution: is affirmative action even necessary?  One could argue that a 20% rate of finding reasonable evidence of discrimination is unacceptably high, or one could argue that it’s acceptable given the costs of further reducing it.  If the purposes of affirmative action are to rectify past discrimination and to correct for systemic inequalities that burden certain population groups (e.g. racial and ethnic minorities, women, the disabled, veterans), then do available statistics corroborate or undermine this need?[xiii] Also, what should we make of the recently decided Ricci v. Destefano case, concerning firefighter promotion in New Haven Connecticut?

C. Resolutional Analysis: Reverse Discrimination and Disparate Impacts

Ricci and nineteen other firefighters passed a test administered for the purposes of promoting firefighters.  None of the candidates who passed were African American, and only one passing member was a minority candidate (a Hispanic).  In light of this, the city of New Haven decided that the test was racially biased—even though it was designed by an independent company to exclusively be fair and unbiased—and threw out the results.  Ricci and the other firefighters sued and eventually won before the Supreme Court.[xiv]

Ricci is an interesting case, since its holding is not a Constitutional one—it is a question of stautory interpretation and construction.  The city of New Haven argued that certifying the test results without any passing African Americans would have a “disparate impact” on African Americans by promoting an almost entirely white group of individuals, and as a result, that it would violate Title VII of the Civil Rights Act by certifying the results.  The majority of the Court disagreed though.

Much like the dissent in Grutter, the majority concerned itself with key empirical questions.  It examined the actual fairness of the test administered and found that the test was not discriminatory and was “painstakingly” designed to only include fair and relevant questions.  However, the majority conceded that certifying the test results would have a “disparate impact” on minority firefighters; it’s just that for the majority, if a disparate impact is the result of a fair process with no other lesser discriminatory alternatives, then the disparate impact is justified.[xv]

The dissent in Ricci disagrees with the majority and argues that the exam used was not fair and that the city could have reasonably made that conclusion.  But the dissent too notes that there is a looming conflict between “disparate impact” reasoning and equal protection.  Consciously avoiding disparate impacts on minorities in employment decisions can effectively deny opportunities to members of the white majority or other privileged groups, giving rise to claims of reverse discrimination and equal protection claims under the Fourteenth Amendment.

If there is a general/normative question to be asked from the empirical debate over Ricci, it’s something like “how far do we want to go in making sure the process that creates a disparate impact is truly the least discriminatory means available?”  Is 100% confidence that the process is the least discriminatory means the only acceptable level?  90%?  75%?  50%?  If New Haven’s decision to not certify the results would have stood, the city would have had to pay to design a new test.  Candidates would have most likely had to have paid for new study materials.  Positions that needed filling would have gone unfulfilled, with potential consequences for public safety.

IV. Conclusion

Like many complex questions of public policy, affirmative action is situated in a context of difficult to resolve Constitutional and ethical values.  Affirmative action also has real economic impacts for public institutions and private businesses that do business with the federal government that can be measured in dollars and cents on a cost-benefit analysis.  Finally, it must always be remembered that affirmative action seeks to shift the enjoyment of educational and economic opportunity from members of a white American majority and privileged male subgroup to members of racial and ethnic minorities, to women, and to those with disabilities.  Opportunities are not inelastic—there are always a finite amount of them.

Do the goals of affirmative action and its means justify the reallocation of educational and employment opportunities?  Hopefully this analysis has provided some insight into how each side can answer that question.

This analysis was prepared by Jason Lawrence on behalf of the National Forensic League.  Please feel free to send questions or comments to Jason.Lawrence@nationalforensicleague.org

[ii] 438, U.S. 265 (1978)

[iii] It is important to note that this is not a constitutional claim—the majority did not argue that quotas to achieve affirmative action goals are a per se violation of the United States Constitution.  The claim by four justices is that the quotas violated the Civil Rights Act—a statute—only.

[iv] This is otherwise known as applying “strict scrutiny” to a law.

[v] More generally, this is an important question for any resolutional analysis—are the goals and values promoted by affirmative action so valuable that those who are inevitably displaced and/or denied opportunities should bear such a loss?

[vi] It strikes this author as ironic that a more vague conception of “diversity,” where no individual factor, like race, gender or ethnicity, can predominate is the “narrowly tailored” means of advancing the compelling state interests in this case—keep this thought in mind as you read on to the Michigan cases.

[vii] One additional argument affirmative teams may be interested in, is Justice O’Connor’s claim that affirmative action is still justified now to remedy past discrimination and current inequities, but that in another 25 years, it should no longer be necessary.

[viii] The OFCCP is the federal office responsible for ensuring the compliance of federal contractors and subcontractors with federal affirmative action policy.

[ix] http://www.dol.gov/ofccp/regs/compliance/fs11246.htm

[x] Free-market think tanks like CATO and Heritage Foundation are a good first resource for the view that the government shouldn’t attach affirmative action requirements as a string to federal money.

[xi] An interesting side-question is “Are the costs worth the benefits in light of the fact that employment discrimination will remain illegal in a world without affirmative action?”

[xii] http://eeoc.gov/eeoc/statistics/enforcement/race.cfm

[xiii] There are additional statistics available at: http://eeoc.gov/eeoc/statistics/enforcement/ I just used race as an example.

[xiv] Ricci v. Destefano, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=07-1428

[xv] Justice Scalia’s concurrence on the coming “war” between “disparate impact” standards and equal protection—can an individual be discriminated against in order to avoid a disparate impact on minority groups?—should be read, as it poses a question central to the discussion of the resolution in an employment context.