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1. INTRODUCTION
1.1 Purposes of the Review
On March 7, 1995, President Clinton directed that a review be
conducted of the Federal government's affirmative action programs.
The President asked the following questions:
Descriptions. What kinds of Federal programs and initiatives
are now in place, and how are they designed?
Performance. What is known about their effects -- benefits
and costs, direct and indirect, intended and unintended -- both
to the specified beneficiaries and to others? In short, how are
they run? Do they work? Are they fair?
In preparing this report, we analyzed federal programs that might
be categorized as affirmative action. (1) These programs range
from outreach efforts that encourage grantmakers to seek out members
of disadvantaged groups, to procurement regulations that set aside
particular contracts for competitive bidding limited largely to
minority-owned, economically disadvantaged small businesses.
The report first sets forth the framework we used to analyze these
programs. It then describes the evolution of affirmative action,
as policymakers sought to make real the promise of the civil rights
legal breakthroughs. It then summarizes the evidence of discrimination
and exclusion today, followed by a brief review of the overall
effectiveness of affirmative action and anti-discrimination measures.
All of this provides the context for considering current affirmative
action programs in more detail. Several sections describe the
government's major affirmative action programs, and applies to
those programs the policy test set forth by the President.
We conclude that these programs have worked to advance equal opportunity
by helping redress problems of discrimination and by fostering
the inclusion needed to strengthen critical institutions, professions
and the economy. In addition, we have examined concerns about
fairness. The evidence shows that, on the whole, the federal programs
are fair and do not unduly burden nonbeneficiaries. Finally, we
conclude that some reforms would make the programs work better
and guarantee their fairness.
The discussion of these programs is necessarily a preliminary
analysis. The Supreme Court's decision in Adarand Constructors,
Inc. v. Peña (2)
changed the standard of legal
analysis required to determine the constitutionality of affirmative action
programs that apply to race and ethnicity. The first and most
fundamental question in any policy test must concern the constitutionality
of the program. Accordingly, on June 28, 1995 the Department of
Justice issued guidance to federal agencies for use in reviewing
existing programs under the new, stricter Adarand standards. (3) This document is not
intended to bear on the legal determination
of whether any particular program satisfies the constitutional
standard advanced in Adarand.
1.2. Analytical Framework
Affirmative action produces deep feelings on all sides. A clearheaded
analysis of this subject must begin with basic questions: What
is the purpose of affirmative action? Is it the same in all circumstances?
How does that purpose intersect with other goals of our governmental
and legal system? This section outlines the framework for analyzing
affirmative action that was followed in the course of this review.
The framework provides a basis for analyzing the success and fairness
of the government's existing programs -- and for concluding whether
a particular program should be retained, reformed or replaced.
1.2.1. Basic premise: equal opportunity
The tests that we apply are based on a fundamental premise: the
goal of any affirmative action program must be to promote equal
opportunity. Offering every American a fair chance to achieve
success is a central tenet of our constitutional and political
system, and is a bedrock value in our culture. It is the fundamental
goal of the civil rights statutes -- and of affirmative action
as well. More particularly, affirmative action is only one of
several tools used in the public and private sectors to move us
away from a world of lingering biases and the poisons of prejudice,
toward one in which opportunity is equal. Affirmative action measures
recognize that existing patterns of discrimination, disadvantage
and exclusion may require race- or gender-conscious measures to
achieve that equality of opportunity.
Because our ultimate goal is to perfect and realize this American
ideal of opportunity, affirmative action cannot supersede the
concept of merit -- because to do so would unfairly deprive others
of opportunity that is their due. In other words, we believe it
is wrong if an unqualified person receives a preference and is
thereby, chosen for a job, a scholarship, or a federal contract
over a qualified person in the name of affirmative action. However,
the review of federal programs and broader practices demonstrates
that affirmative action, when used properly, is consistent with
merit. It also demonstrates that "merit" must be properly
defined in terms of the needs of each organization, and not in
arbitrary ways that are, in their effect, exclusionary. A demonstrated
or predicted ability to get the job done is a merit test;
"old-boy" connections and cronyism are not.
1.2.2 The First Test: Does It Work?
More specifically, the President's first charge was to determine
whether the federal government's affirmative action programs work.
Whether a program "works" depends on what goal it seeks
to achieve. Above all else, the overriding goal of affirmative
action must be to provide equal opportunity for all citizens.
In pursuit of that goal, affirmative action has two general justifications
-- remediation of discrimination, and promoting inclusion -- both
of which are consistent with the traditional American values of
opportunity, merit and fairness.
Expanding opportunity by fighting and preventing discrimination.
The primary justification for the use of race- and gender-conscious
measures is to eradicate discrimination, root and branch. Affirmative
action, therefore, is used first and foremost to remedy specific
past and current discrimination or the lingering effects of past
discrimination -- used sometimes by court order or settlement,
but more often used voluntarily by private parties or by
governments. Affirmative action is also used to prevent
future discrimination or exclusion from occurring. It does so
by ensuring that organizations and decisionmakers end and avoid
hiring or other practices that effectively erect barriers. In
undertaking such efforts, however, two wrongs don't make a right.
Illegal discrimination includes reverse discrimination; reverse
discrimination is discrimination, and it is wrong. Affirmative
action, when done right, is not reverse discrimination.
Expanding opportunity through inclusion. Vigorous prosecution
of proven instances of discrimination will not by itself close
the opportunity gap; bias and prejudice have proven too varied
and subtle for that. Therefore, to genuinely extend opportunity
to all, we must take affirmative steps to bring underrepresented
minorities and women into the economic mainstream. The consequences
of years of officially sanctioned exclusion and deprivation are
powerfully evident in the social and economic ills we observe
today. In some circumstances, therefore, race-and gender-conscious
measures can also be justified by the compelling importance of
inclusion. Affirmative action is sometimes used simply to open
institutions and opportunities because doing so will move minorities
and women into the economic mainstream, with benefits to them,
to those institutions, and to our society as a whole. For example:
- Virtually all educators acknowledge that a college is a
better academic enterprise if the student body and faculty are
diverse.
- A police department will be more effective in protecting
and serving its community if its officers are somewhat reflective
of that community.
- The military recognized years ago that sharp imbalances
in the representation of minorities and women in the leadership
grades of enlisted and commissioned personnel undermined the cohesion
and effectiveness of military units, and effectively deprived
the armed forces of full use of a portion of our nation's pool
of talent. Most major corporations recognize this same challenge.
- Judges and government policymakers must be able to reflect
the concerns, aspirations and experiences of the public they serve
in order to do their jobs well and enjoy legitimacy.
Ultimately, therefore, the test of whether an affirmative action
program works is whether it hastens the eradication of discrimination,
and promotes inclusion of everyone in the opportunities America
promises us all. As a general matter, increases in the numbers
of employees, or students or entrepreneurs from historically underrepresented
groups are a measure of increased opportunity. It is very difficult,
however, to separate the contribution of affirmative action from
the contribution of antidiscrimination enforcement, decreasing
prejudice, rising incomes and other forces. At the same time,
the fact that we observe so much continuing socioeconomic division
and inequality of opportunity does not imply that affirmative
action is a failure. It is merely one tool among many that must
play a part in creating opportunity.
1.2.3. The Second Test: Is the Program Fair?
For each federal program, at the President's direction, the Review
team asked the agency head to apply the following test of essential
fairness, stated here with regard to race:
(1) Not quotas. Quotas are intrinsically rigid, and intrinsically
relegate qualifications and other factors to secondary status.
Does the program effectively avoid quotas for inclusion of racial
minorities ?
(2) Race-Neutral Options. In a program's design or reconsideration,
have options for using various race-neutral decision factors
been analyzed? Were options reasonably rejected, given the available
information and experience, because those alternatives are unlikely
to be acceptably effective in advancing the program objectives?
(3) Flexible. If race-neutral measures will not work, is
the measure applied in a flexible manner, and were less extensive
or intrusive uses of race analyzed and rejected based on a
determination that they would not have been acceptably effective?
(4) Transitional. Is the measure limited in duration,
and does the administering agency periodically review the continuing
need for the measure?
(5) Balanced. Is the effect on nonbeneficiaries
sufficiently small and diffuse so as not to unduly burden their
opportunities? In other words, are other jobs or other similar
benefits available, or is the result of the program to close off
an irreplaceable benefit?
1.2.4. Affirmative Action: The Right Way and The Wrong Way
In short, we believe that there is a right way to do affirmative
action, and a wrong way. This review conducts a preliminary policy
analysis of many of the existing programs to assess whether they
represent the "right way." This means two things: they
must actually work to effectuate the goals of fighting discrimination
and encouraging inclusion; and they must be fair -- i.e., no unqualified
person can be preferred over another qualified person in the name
of affirmative action, decisions will not be made on the basis
of race or gender except when there is a special justification
for doing so, and these measures will be transitional. Only by
applying these principles can we aggressively and simultaneously
pursue remedies to discrimination, the inclusion we need in order
to strengthen our institutions and our economy, and essential
fairness to all.
1.3 The Adarand
review
On June 12, 1995, in the case of Adarand Constructors, Inc.
v. Peña, the United States Supreme Court held that
many federal affirmative action programs, under the equal protection
component of the Fifth Amendment's Due Process Clause, must be
reviewed by the courts using "strict scrutiny." To surmount
this hurdle, the program must be shown to meet a "compelling
governmental interest," and must be "narrowly tailored
to meet that interest." This is a more demanding legal test
than had previously been applied to federal affirmative action
programs, and as a practical matter it will require a searching
analysis of many federal programs. The specific dimensions of
that inquiry, as best can be discerned from federal caselaw, are
described in Appendix B to this Report, which is the memorandum
to agency general counsels from Assistant Attorney General Walter
Dellinger, Office of Legal Counsel, Department of Justice.
The Court's decision concerned what is constitutionally permissible,
which is a necessary but not sufficient consideration in judging
whether a measure is wise public policy. We have recommended,
therefore, that the President, issue a directive to agency heads
which not only instructs them to conduct the thorough analysis
required by Adarand as a matter of constitutional law,
but also instructs them to apply a set of basic policy principles.
Specifically, after emphasizing the President's commitment to
affirmative action, the President instructs agency heads:
In all programs for which you are responsible that use race, ethnicity
or gender as a consideration in order to expand opportunity or
provide benefits to members of groups that have suffered discrimination,
I ask you to take steps to ensure adherence to the following policy
principles. Any program must be eliminated or reformed if it:
-- creates a quota;
-- creates preferences for unqualified individuals;
-- creates reverse discrimination; or
-- continues even after its purposes have been achieved.
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