The Constitutional Logic of Affirmative ActionFew issues are as mired in rhetoric and controversy as affirmative action. This is certainly no less true now as when Ronald J. Fiscus’s The Constitutional Logic of Affirmative Action was first published in 1992. The controversy has, perhaps, become more charged over the past few years. With this compelling and rigorously reasoned argument for a constitutional rationale of affirmative action, Fiscus clarifies the moral and legal ramifications of this complex subject and presents an important view in the context of the ongoing debate. Beginning with a distinction drawn between principles of compensatory and distributive justice, Fiscus argues that the former, although often the basis for judgments made in individual discrimination cases, cannot sufficiently justify broad programs of affirmative action. Only a theory of distributive justice, one that assumes minorities have a right to what they would have gained proportionally in a nonracist society, can persuasively provide that justification. On this basis, the author argues in favor of proportional racial quotas—and challenges the charge of “reverse discrimination” raised in protest in the name of the “innocent victims” of affirmative action—as an action necessary to approach the goals of fairness and equality. The Constitutional Logic of Affirmative Action focuses on Supreme Court affirmative action rulings from Bakke (1976) to Croson (1989) and includes an epilogue by editor Stephen L. Wasby that considers developments through 1995. General readers concerned with racial justice, affirmative action, and public policy, as well as legal specialists and constitutional scholars will find Fiscus’s argument passionate, balanced, and persuasive. |
Contents
The Central Argument | 15 |
Of Molecules and Mobility | 20 |
Required Assumptions and the Court | 24 |
Race and Cultural Ethnicity Distinguished | 29 |
The Innocent Persons Argument Examined | 37 |
The Innocent Persons Argument and the Court | 39 |
The Misplaced Emphasis on Innocence and Blame | 44 |
Proportionate and Disproportionate Quotas The Key Distinction | 51 |
Ronald Dworkin and the Rights of Whites | 71 |
Applying the Principles The Supreme Court and Affirmative Action | 83 |
Local versus National Standards | 85 |
Applicant versus Labor Pool | 90 |
The Complications of Seniority and Repeat Applications in Hiring and Promotions | 92 |
The Stotts Case Revisited | 104 |
Epilogue | 113 |
Notes | 129 |
Formalism | 54 |
Entitlement | 57 |
The Supreme Court and the Proportionality Principle | 61 |
Related Constitutional Arguments | 65 |
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25 percent admissions affirmative action programs African American Allan Bakke Amicus Curiae applicant pool argued assumption Bakke basis benefits blacks burden civil rights claim cohort compensatory justice constitutional Croson decision DeFunis differences disproportionate quotas dissenting distributive justice Dworkin employment entitled Equal Protection Clause ethnic groups fair conditions fair world Firefighters Fiscus Fourteenth Amendment Fullilove goal harm impose innocent persons argument innocent white irrelevant judge junior white Justice O'Connor Justice Powell's justified layoffs least legislative ment Metro Broadcasting minority individuals nonminorities nonracist society Paradise past discrimination percentage political population proportional quotas proportionality principle question race racial discrimination racial disparities racial fairness racial proportionality racism reason reference groups relevant remedy reverse discrimination Ronald Dworkin S.Ct Santa Clara County Scalia seniority Sins of Discrimination social society's Stotts strict scrutiny Sullivan Supreme Court tion tional unfair uphold victims violate the rights white individuals white males white workers Wygant
Popular passages
Page 6 - While hiring goals impose a diffuse burden, often foreclosing only one of several opportunities, layoffs impose the entire burden of achieving racial equality on particular individuals, often resulting in serious disruption of their lives.
Page 12 - ... in fact, themselves the object of discrimination by the dominant Anglo-Saxon majority. To be sure, in relatively recent years some or all of these groups have been the beneficiaries of discrimination against Blacks, or have themselves practiced discrimination, but to compare their racial debt . . . with that of those who plied the slave trade, and who maintained a formal caste system for many years thereafter, is to confuse a mountain with a molehill.