Quota Myths Keep Discrimination Alive

Reginald Alleyne is a professor of law at the UCLA School of Law

The word "quota" provides affirmative action opponents a huge public relations advantage. Quota imagery includes inflated numbers of affirmative action beneficiaries, an exaggerated scope of harm to a largely phantom class of victims and a false picture of legal remedies for unlawful discrimination.

"Quota" conjures up an image of unemployed and underemployed white males, unable to find work or advance because employers are by law or practice committed to hiring and promoting inflexible percentages of women and minorities. The underqualifications of affirmative action hires and the corresponding qualifications of unhired and unpromoted white males complete this misperception.

Never mind that inflexible quotas have been struck down by courts and that employers almost never lose government contracts over lack of affirmative action.

The quota card deflects attention from some important statistical realities, including an acceptable single-digit unemployment rate for the general work force, a double-digit unemployment rate for blacks--at twice the general rate--and data showing women's wages still lagging behind those of men performing comparable work.

University and college admissions policies provide a graphic measure of how the public image of affirmative action--though decidedly false--flows smoothly in favor of its opponents. Take the case of a prestigious university with 10,000 applications for 2,000 freshman seats. It offers admission to 3,000 applicants, of whom 300 are black and other minorities with at least good grades and test scores, if not in the excellent range of most other admitted applicants. Assume that of the 7,000 rejected applicants, 6,000 are white. Each of them would be positioned to tell their families and friends that the university denied their admission because of affirmative action.

Even assuming the virtual impossibility that every admitted minority applicant was less academically qualified than every one of the 6,000 rejected white applicants, no more than 300 of the rejectees would be right; at least 5,700 would be wrong. If each of the rejectees acquired the sympathetic ear of five family members and friends, close to 30,000 potential opponents of affirmative action would be created. Re-create this scenario across the country, and the numbers of affirmative action opponents become swelled by millions.

Opponents of affirmative action also benefit from the widely held belief that victims of unlawful discrimination can gain legal redress. Filled with stern thou-shalt-not commands, antidiscrimination laws appear, on paper, to be effective. But they fall far short of their intended objectives. A labyrinth of time-consuming and complex procedural hurdles, sometimes generating years of delay, wears down and defeats most employment discrimination plaintiffs.

Also, except for sexual harassment, the Supreme Court has made it difficult to win a discrimination case with anything short of smoking-gun evidence. And in a 1991 ruling, the Supreme Court took a long step toward closing the courts to all kinds of discrimination cases. It permitted employers to channel all statutory discrimination claims to arbitrators--mainly white males, many of whom are hired and compensated by the employer.

The court did this by letting employers force job applicants to sign agreements to arbitrate their statutory claims of discrimination and not take them to court for jury trial. The applicant who refuses to sign the agreement would not be hired.

Even a terminated employee, whose good chance of winning a large jury award make judicial delay tolerable, will have his or her case dismissed on the basis of the agreement to arbitrate.

In arbitration, the employee is less likely to win or will win less money if he or she prevails, because juries are composed mainly of employees or former employees, and jurors are not, as are the arbitrators in many of these disputes, chosen and compensated by the employer.

A United States without affirmative action is not so easy to envision. Opponents see colorblind, neutral policies applied by employers and university and college admissions officers: Those qualified would be hired or admitted, including women and minorities who met the standards; those not qualified would not be hired or admitted, including white males who did not meet the standards. But it very likely won't work that way.

The end of affirmative action as provided, for example, by the "California civil rights initiative," would probably launch a regime in which some employers had, at best, a good faith but erroneous belief that the choice of a qualified minority or female applicant over a qualified white male would draw swift legal retribution. The motivation might differ from that which drove employers to discriminate openly and with impunity against nonwhites and women before modern civil rights laws became effective in the 1960s. But the consequences would scarcely differ.

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