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Legal Commentary

: Discriminations

Affirmative Action As Quota-Based Race Norming


Affirmative action supporters generally insist that they do not support quotas and that affirmative action does not employ them. Nor, they nearly always assert, does it involve ?Race norming? ? putting applicants into racial pools where they compete only against others in their pool ? which has been illegal since the passage of the Civil Rights Act of 1991.

As quotes in some of the above linked posts demonstrate, however, it is often impossible for even thoughtful defenders of affirmative action to describe it without revealing that its programs frequently rely on either quotas or race norming, or both. For example, Douglas Laycock, a prominent law professor, first at Texas and more recently at Michigan, wrote that

Affirmative action has been a program to maximize the dual goals of diversity and academic excellence, by enabling selective programs to admit the very best students of each ethnicity.
In practice, admitting ?the very best students of each ethnicity? involves admitting the highest scoring whites, the highest scoring blacks, the highest scoring Hispanics, etc., i.e., race norming.

Another example of the degree to which affirmative action programs in practice often depend upon both quotas and race- (or in this case, sex-) norming comes from Houston, where the city government recently agreed in settling a lawsuit to drop women from its affirmative action plan for contractors.

The program originally was set up to encourage contractors to give a set percentage of work under city contracts to businesses owned by minorities and women. It later was expanded to include people with disabilities and small businesses.

Prior to the agreement in U.S. District Judge Lynn Hughes' court, the city wanted construction companies seeking contracts to give 14 percent of their work to subcontractors who were minority-owned. The city also has goals of 3 percent for women and 5 percent for small businesses.

The city will alter those percentages, which change slightly for specific types of projects, eliminating the category for women and increasing the goal for small business subcontractors to 8 percent.

Perhaps some affirmative action defender can explain to me why these ?set percentage[s]? are not quotas.

Needless to say (but I?ll say it anyway), the lady contractors are not pleased.

?The women are out,? said Deborah Morris, president of the Women Contractors Association. ?They?re telling us we can be included in the (small businesses), but so can everybody, minorities, white males. So, now, we have a much larger pool to compete with, in a male-dominated industry.?
And perhaps one of the displeased ladies, or other defender of treating women contractors preferentially, can explain to me why the privilege of only competing against other women contractors, instead of against all contractors, is not pure and unadulterated sex-norming.

Full post as published by Discriminations on December 22, 2008 (boomark / email).

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