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:
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.