Reply #55: I reject the question's premise ...

[RoyGBiv]

It is flawed for two reasons.

First, the term "affirmative action" does not have, nor was it intended to have a meaning that links it to a system of racial quotas. In fact, the opposite was the original intent, and, as has been argued time and again from the street corner to board rooms to the Supreme Court, applying a system of racial quotas to hiring practices, educational admissions qualifications, etc. is antithetical to the "color blind" intent of the civil rights movements of the 1960s. Roy Wilkins, executive director of the NAACP in 1964 testifying before Congress stated plainly, "Our association has never been in favor of a quota system. We believe the quota system is unfair whether it is used for Negroes or against Negroes. We feel people ought to be hired because of their ability, irrespective of their color. . . . We want equality, equality of opportunity and employment on the basis of ability."

Second, the question assumes that racial quotas, as such, are a clear component of federal law, and that is simply not the case. Racial quotas have been implemented by companies and governmental entities. However, individuals have on occasion subsequently sued and won so-called "reverse discrimination" cases as a consequence, and to make matters even less clear, the varied concurrent opinions issued in several of these cases differed in so many details that no single standard, no uniform interpretation, could be derived. (See State Board of Regents of University of California v. Bakke and McDonald v. Santa Fe Trail Transportation Corp. for examples.) As the laws and interpretation of those laws currently stand, companies, educational institutions, et al can technically be in violation of Title VII both if they have a racial quota system and if they do not, depending on the individual details of their employment practices and the judicial interpretation of the laws at any given moment in any given district. Thus the question of racial quotas (or more properly "racial preference") comes down to a question of judicial interpretation, which, since the enactment of the first civil rights laws in the 50's, has never been uniform.

The term "affirmative action" itself was first used by John Kennedy in Executive Order No. 10925. Companies contracting with the federal government were directed to "take affirmative action to ensure that the applicants are employed and that employees are treated during employment, without regard to race, creed, color or national origin." The meaning of the phrase was intended as nothing more than a directive for employers to take "positive" action to ensure racial discrimination was absent from the workplace. This was a contrast to the standard practice of the day of employers avoiding discrimination allegations simply by not issuing direct policies that required discriminatory practices, yet doing nothing if individuals made discriminatory decisions of their own accord and with no accountability.

At length, Lyndon Johnson issued Executive Order No. 11246, the fifth such order of a similar variety, which in effect has been amended and clarified several time since, to establish rules for government contractors in their hiring practices. What it did was require employers to establish guidelines and monitor themselves to make sure they were adhering to those guidelines else risk debarment. The intent was for hiring practices to be "color blind," which, it was argued, is not possible with any kind of racial preference system, regardless of who is preferred. This was the standard understanding of the time, declared by people like Edmund Muskie when he said, "Every American citizen has the right to equal treatment-not favored treatment, not complete individual equality-just equal treatment." Supporting the passage of the 1964 Civil Rights Act, Hubert Humphrey concurred when he said, "The title does not provide that any preferential treatment in employment shall be given to Negroes or to any other persons or groups. It does not provide that any quota system may be established to maintain racial balance in employment. In fact, the title would prohibit preferential treatment for any particular group, and any person, whether or not a member of any minority group, would be permitted to file a complaint of discriminatory employment practices.

Over the next three decades, however, the term was refined and twisted both legally and in the political vernacular, the latter resulting in a divorce of the legal meaning of the term with the popular understanding of that meaning. Every administration from Nixon to Bush II as implemented various aspects of affirmative action rules differently and changed the manner of enforcement. No single law nor rule governs "affirmative action" programs at the federal level, and no consistent manner of enforcing the most equitable intent of those guidelines has ever been employed.