I agree, and for once find myself agreeing with the conservative wingnuts of the Court - Roberts, Scalio, Alito, and Thomas. But on the other hand this court decision really doesn’t meet the smell test when it comes to a referendum on affirmative action.

According to a recent opinion poll, 56% of the public support affirmative action for minorities while only 36% oppose it. And yet a poll conducted by Quinnipiac University cited in a June 3rd McClatchy article before the Supreme Court ruling indicated a 71% opposition to nominee Sonia Sotomayor’s appellate court decision to rule in favor of New Haven on the case, and a 56-36% support for abolishing affirmative action altogether.

Even though these polling results seem contradictory, I think they are reflective of the public’s acknowledgment that we still have a race problem but no easy way to solve it. The problem is not whether THE test is biased. The problem is that A test is biased.

Is a written test the best way of determining who is the most qualified firefighter? Or for that matter is a written test the best way of determining the most qualified candidates for any job?

We need to stop evaluating affirmative action based on test results, even though it is tempting to do so because of the quantitative nature of tests. Otherwise there are a few million Asian Americans in this country who deserve a promotion.

What is affirmative action? 

The Civil Rights Act of 1964 made discrimination unlawful in the workplace, federally-funded programs, and privately-owned facilities open to the public.  In 1965, Congress passed the Voting Rights Act, which gave the U.S. Department of Justice the power to take "affirmative" steps to eliminate discrimination.  Also during that year, President Lyndon Johnson issued Executive Order 11246, which gave the U.S. Department of Labor affirmative action enforcement responsibility.  A department under the DOL, the Office of Federal Contract Compliance Programs, began requiring government contractors to analyze the demographics of their workforce and take proactive measures to remedy any inequality.   Over the years, affirmative action has been used as a tool to fight discrimination in other venues, including government employment, corporate America, and admissions to public universities.  More recently, affirmative action has come under fire in the courts, mostly because opponents believe that it is a form of reverse discrimination that unfairly penalizes white males for the "sins of the past".

Affirmative action vs. quotas

Perhaps the most controversial issue about affirmative action is whether it uses "quotas".  Affirmative action programs should:  a) verify that inequities exist, b) set goals to eliminate the inequities, c) set timetables to meet the goals, d) disband the program after the goals are met.  Opponents of affirmative action argue that setting a goal is the same thing as instituting a quota, meaning that a specific outcome is mandated rather than highly desirable.  For example, if an employer knows that it has a large disparity between the proportion of Hispanics in its workforce versus the general population, it might use affirmative action to target its recruiting efforts toward the Hispanic population in hopes of increasing Hispanic new hires.  It should identify a goal of how many Hispanics it wants to hire, at what levels, and in what timeframe.  If the employer mandates that a specific job must go to a Hispanic, or that a specific number of Hispanics must be hired, that is a quota.