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 quota-like mechanisms.
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 grievances.
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.)