Is affirmative action 'voluntary' in the US?

In a previous post three days ago, I said I was working on saying something coherent about whether an Amendment to our Constitution was really needed to introduce and implement a program of quotas (or, more broadly, affirmative action). Well, I am still working on it; but, in the meantime, this Frontline article by Meera Nanda on affirmative action (AA) in the US has quite a few elements of what I want to say. Go read it.

Enthusiasts of AA lose no opportunity to point out that "AA is 'totally voluntary'." Such an assertion would imply that (a) businesses and universities are implementing AA on their own volition, and (b) they actually have a choice to not implement AA.

While (a) may be a reality now, it certainly was not so when AA was being mooted, debated and introduced through various Executive Orders of the US government [In fact, if 'voluntary' AA was the norm in the 1960s, where was the need to mandate it?]. However, the second possibility (that institutions can opt out of AA) exists only as a theoretical curiosity; the practical consequences of this option are grave indeed. The middle portion of Meera Nanda's article elaborates on these themes, so let me give here an extended quote:

... Even though it has won the enthusiastic compliance of big business, AA in the U.S. has never been voluntary. And even though the Civil Rights Act of 1964 and the Executive Order 11246 that created AA in September 1965 did not lay out numerical targets, enforcement agencies and corporations themselves routinely use numerical targets - yes, quotas - to judge if they are complying with the law. [...]

[...] Enforcement of the provision of the Civil Rights Act and AA was never left to the good intentions and kindness of the private sector. Right from the start, both these laws were backed by the full might of the federal government. Any business, contractor or university that wanted to do business with the government, or get any subsidies, grants or tax-breaks, had to completely de-segregate their workplaces (as required by the Civil Rights Act) and had to take concrete, verifiable steps to recruit black talent aggressively for all levels of the hierarchy (as demanded by AA). A business could not meet its AA obligations by hiring more minority community members as janitors and unskilled labourers, for example. It had to make demonstrable, verifiable steps to find, train and hire suitable black candidates at all levels, including the management. Of course, businesses had a "choice" not to do this, but then the government, too, could "choose" not to do any business with them. With millions of dollars involved in government contracts and grants, there was not much of a free choice in the matter of complying with the law. The apparent "voluntariness" of the system has always been backed by the enormous power of the state treasury.

The issue of quotas in the U.S. system is also much more complicated than the spokesmen of the Indian private sector make it appear. It is true that Chapter VII of the Civil Rights Act expressly prohibits preferential treatment for any group or individual, black or white. [...] But it soon became apparent that just getting rid of overt discrimination would not be enough to get blacks their fair share in the economy or put an end to the second-class treatment they received in civil society. [...] This became the basis for his Executive Order that laid the foundations of AA. On the surface, AA also did not impose numerical quotas. All it demanded was that those companies supplying goods and services to the government had to show that they were making extra efforts to locate black talent and to give it a chance to develop.

But AA's emphasis on actual results was very quickly interpreted by the government enforcement agency (EEOC, or Equal Employment Opportunity Commission), and businesses and universities as an imperative to hire by numbers. Any business whose workforce was not in proportion to the racial make-up of society faced the risk of lawsuits that the EEOC and the Labour Department has the authority to initiate. So, even without expressly demanding quotas, racial quotas have always been a part of the AA enforcement mechanism. The use of quotas is well known and has been challenged in the courts many times. Each time, the American courts have thrown out explicit quotas, but each time they have come back through the back door as the objective standards for enforcement.

From what I have learnt so far on AA, I believe Nanda has it pretty much right on the issue of how 'voluntary' the embrace of AA was by the US businesses and universities. In 2006, every American entity appears to be an 'equal opportunity' employer. But, the initial resistance to becoming one was real as the descrimination that African Americans faced until they won these important victories on the legislative and executive fronts (without the US having to tinker with the American Constitution itself).

* * *

Thanks to reader Pradeepkumar for the e-mail alert about Meera Nanda's article.