The Constitutionality of Affirmative Action in the United States: A Note on Adarand Constructors Inc. v. Pena
| Date | 01 September 1996 |
| DOI | 10.1177/135822919600100405 |
| Published date | 01 September 1996 |
| Author | Christopher McCrudden |
| Subject Matter | Case Notes |
International
Journal
of
Discrimination
and
the
Law,
1996,
Vol.
1,
pp.
369-383
1358-2291/96
$10
©
1996
A B Academic Publishers. Printed in Great Britain
CASE NOTES
The Constitutionality of Affirmative Action in the United States: A
Note
on
Adarand Constructors Inc.
v.
Pena.
Affirmative action is an attempt to increase the participation
of
par-
ticular groups in certain spheres
of
economic activity, in which those
groups are regarded as under-represented, possibly in part because
of
past discrimination against that group.
In
the United States, affirmat-
ive action policies are particularly prevalent in the areas
of
education,
employment, and the distribution
of
government contracts, grants and
licenses. The term is to be found in at least two important employ-
ment discrimination law contexts: in Title VII
of
the Civil Rights Act
1964 where it is used to describe the power given to judges to
remedy unlawful discrimination, and in Executive Order 11,246
where it is used to describe the obligations
of
a federal government
contractor in a situation where minority or women workers are
underrepresented in the workforce
of
the contractor.
In
addition to anti-discrimination legislation, and affirmative
action growing from that, a wider range
of
additional programmes
has been instituted with the aim
of
securing greater equality between
the races especially.
In
particular, there have been controversial pref-
erences awarded to small businesses which are women-owned, and
small businesses owned and controlled by socially and economically
disadvantaged individuals.
Initially, the main beneficiaries
of
such policies were African-
Americans, with affirmative action policies
of
relevance to them
dating back to the mid-1960s. During the 1970s, however, affirmative
action policies regarding women came to be developed. More
recently, other groups, in particular those
of
Spanish-American origin,
have sought (sometimes successfully) to benefit from such policies.
At least three different types
of
affirmative action need to be
distinguished.
• Needs-based programmes, such as federal assistance targeted at
particular inner city areas, resulting in some racial or ethnic
groups benefiting disproportionately because they are dispropor-
tionately in need. These are relatively uncontroversial ideolo-
gically, particularly
if
they are seen as an alternative to other
(unacceptable) types
of
affirmative action. They do, however,
cost money and at a time
of
budget cuts, advocating increased
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