Friday, June 09, 2006

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).

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


  1. Anonymous said...

    The apparent "voluntariness" of the system has always been backed by the enormous power of the state treasury.

    I hope Meera Nanda opposes quotas in private institutes. These institutes do not lay a claim to the state treasury.

    Three more key differences:
    1. AA is based on a handicap of marks. So, if there are not enough black candidates, the seats go to OC. In India, we have a strictly enforced quota, if there are not enough SC/STs, the seats actually go waste.

    2. AA is non-linear, i.e. state colleges give maximum handicap of say 200 SAT score points while Harvard only gives about 90.

    3. AA is strictly monitored and some states have actually started pulling back on AA requirements. In India, not only do we not have any monitoring, quotas are pretty much a permanent affair. Like entropy, Indian quotas keep on increasing.

  2. Anonymous said...

    Abi: In all fairness, I would also like to add that while AA definitely exists and is carried out quite vigorously, its very slow gains. The representation of under-represented classes whether women, African-Americans or Hispanics is nowhere what it should be, for example in many business schools and in the corporate sector. The question we would need to ask is not whether it can be implemented in India (I believe it can) but whether we can live with such slow and steady progress. I don't think our political system woudl be able to stand it.



  3. Anonymous said...


    That is exactly right. You will see less and less blacks and hispanics as you go higher up in the education chain. AA is not as aggrassively pursued in higher education.

    In India we want to airlift people (*) from the throes of hunger straight into IITs. That's the attitude.

    (*) internalized from an article.

  4. Abi said...

    Neela: You have made an important point. The gains have been rather slow. More importantly, even with such slow progress, several states -- California, for example -- have already started going back on affirmative action!

    For all its bluntness, reservation has the virtue of being an easy and transparent mechanism to implement and monitor, and it works.

  5. Anonymous said...

    Abi: I agree. Reservation is easier to implement than affirmative action.

    The only trouble I see with this current extension of reservations is precisely that reservation is an extremely blunt tool. Therefore it is an effective way to target entire social groups that are relatively homogenous and have been uniformly discriminated against- such as the SC/ST groups for example. I am not sure that extending reservation in its current blunt form to the highly heterogenous OBC group will achieve the goal of upliftment of the weaker sections of the OBC community (the MBCs).



  6. Abi said...

    Neela: It turns out that even the SCs are not such a homogeneous lot! I just discovered it myself. Take a look.