This post represents the continuation of another post with virtually the same name: "Replacing Affirmative Action with EM-P is the Key to Saving Liberal Democracy (Part 1)." This post goes into more details of the affirmative action areas covered in the book, Ensuring Justice, Fairness, and Inclusion in America. The table below shows the steps in the strict scrutiny process as it will be applied to areas related to public sector procurement, the procurement process and workforce utilization. It also speaks broadly to how those same steps as they relate to diversity in general.
The manner is which strict scrutiny will be applied to procurement are covered in Chapter 5 and Chapter 6 of the book, Ensuring Justice Fairness, and Inclusion in America. Applying Equity Management to Public-Sector Procurement. In 1989, SCOTUS issued a landmark ruling in the case of J. A. Croson v. the City of Richmond.[i] The City of Richmond’s minority business set-aside program, which set aside 30 percent of the overall contract dollars on city construction contracts for minority Business subcontracting. was challenged by J. A. Croson, a construction company. Croson won a City of Richmond construction contract but did not comply with the 30 percent minority business subcontracting, and for that, the City took the contract form Corson and awarded it to another prime contractor. J Croson sued the city, and the case went all of the ways to SCOTUS. Croson won the case in what would go on to become a landmark case in the fight over affirmative action.
In the Croson case, Justice Sandra Day O’ Conner introduced the concept of strict scrutiny as the applicable standard of judicial review whenever public policy involving race are implemented. Strict scrutiny requires that racial classifications be narrowly tailored to further a Compelling Governmental Interest. SCOTUS found that the city’s minority business program was unconstitutional under the Equal Protection Clause of the Constitution. From that day forward, state and local procurement activities, that involved race, were subject to strict scrutiny. The preeminence of strict scrutiny as the standard of judicial review for policies involving race was expanded to the federal government in 1995.
In 1995, in the case of Adarand Constructors, Inc. v. Pena[ii] Adarand Constructors sued the federal Department of Transportation over its small and minority business program. As with Croson, Adarand won the case. In Adarand, SCOTUS held that racial classifications, imposed by the federal government, must be analyzed under the standard of "strict scrutiny." So, from 1995 onward, all federal, state, and local procurement policies that used racial classification were subject to strict scrutiny. Complying with the requirements of strict scrutiny in procurement required the use of a type of policy and program evaluation called “disparity studies” and a cottage industry grew up wherein private sector consultants offered to perform these studies for public-sector entities. Equity Management-Plato will contain a module that has been purposefully designed to adhere to the latest SCOTUS requirements in this area. See Chapter 5 and Chapter 6.
Applying Equity Management to Construction Workforce Issues. The procurement process follows a predictable sequence, from bidding and quoting, to bid evaluation, to award, to the management transactional activities in the following functional activities:
Construction employment (“Workforce Utilization”)
The performance of winning contractors is measured regarding how they perform relative to goals set by the agency/client on projects. A contractor’s failure to meet the contract goals will invoke the agency/client’s contract compliance procedures, which attempt to get the contractor to meet the contract goals. Contractors that are found to comply with the contract goals are allowed to continue to bid agency/client contracts. It is at this point that Equity Management differentiates itself from the contemporary management of outsourced activities in that it includes methods of tracking contractor performance longitudinally, from contract to contract, and holds him accountable for that performance. Equity Management-Plato will also use the same evaluative technique on some workforce issues as it will on procurement programs, which emphasize the use of strict scrutiny. On other workforce issues, it will use another technique, Adverse Impact Ratio Analysis (AIRA). Equity Management-Plato will contain a module that has been purposefully designed to adhere to the latest SCOTUS requirements in this area. See Chapter 5 and Chapter 6.
Applying Equity Management to Public-Sector Employment. There has been a battery of SCOTUS cases centered around employment beginning with Griggs v. Duke Power Company in 1971 to Schuette v. The Coalition to Defend Affirmative Action.[iii] There are hundreds of thousands of public-sector entities in America. The breakout of public-sector entities includes the following types: federal, state, and local government entities, public schools, colleges and universities, and the military. Pursuant to laws and regulations, these entities are required to foster a diverse and inclusive work environment designed to ensure equality of opportunity for applicants and employees. These entities attempt to promote diversity in the following areas: employee profile representation, hiring, development, hiring, pay equity, promotion, turnover, accessibility of entity provided program services. Many public-sector entities are attempting to promote a diverse workforce that reflects many distinguishing characteristics, including age, race, disability, gender, ethnicity, sexual orientation, and religion. Diversity in employment is made more complicated by the fact that the Employment Profile of public-sector institutions is not a closed or finite environment. It is subject to change by growth or attrition at any point in time driven by the needs of the institution. Unlike schools’ student profiles, which are time-bound (by quarter, semester, and school year), the process of performing diversity evaluations must be run continuously with each round of hires or terminations.
The process of managing diversity in employment goes beyond issues of “representation.” It is not enough to ensure that the Employment Profile that the public-sector institution has pursued and achieved is diverse, but that there are processes that support the diverse Employment Profile that must also be evaluated. Among these diversity-supporting processes are the following:
Employee Development (Training)
Accessibility to entity-provided programs and services
Plato will use the analytic technique of “AIRA” to analyze these activities to ensure there is no disparate impact in the way these processes work in the entity or agency. Equity Management-Plato will contain a module that has been purposefully designed to adhere to the latest SCOTUS requirements in this area. See Chapter 7.
Applying Equity Management to K–12 Public-Sector School Districts. K-12 school desegregation is another area where SCOTUS has weighed in and found that specific policies involving racial classification to be unconstitutional. In a series of cases, Parents v. Seattle and Meredith v. Jefferson school districts, SCOTUS ruled that the voluntary school desegregation efforts of Seattle, Washington public schools and Louisville, Kentucky public schools were laudable in their intent and efforts to achieve diversity and avoid racial isolation through student assignment met a Compelling Governmental Interest. However, SCOTUS struck down their respective plans because, as SCOTUS ruling stated, the respective desegregation plans of these school districts failed to meet the narrow tailoring requirements of strict scrutiny. Equity Management-Plato will contain a module designed to devise K-12 public school district desegregation plans that will meet the requirements of strict scrutiny.[iv]
The methodology for meeting K-12 School desegregation is shown in a hypothetical scenario contained in Chapter 7. In the methodology shown in Chapter 7, in the AACME School District, there are three elementary schools: Jones Elementary, Williams Elementary, and Patterson Elementary, covering the grades from kindergarten through 6th grade. Each elementary school resides in one of the corresponding neighborhoods that make up the AACME School District. There are two Middle Schools: Tuttle Middle School and Rice Middle School, covering grades 7th through the 9th grades. Finally, all AACME School District students are expected to matriculate to AACME High School for their final three years of schooling (10th through the 12th grade).
The elementary schools are geographically dedicated to specific neighborhoods one through three. The neighborhoods are uneven regarding economic development and tax base due to disinvestment and white flight. Thus, the student body of Jones Elementary is predominantly Black; Patterson’s is predominantly White, and Williams’ is mixed and in transition. AACME school board believes that the de-facto segregation that is occurring in the district is not a good thing and they vote to promote diversity within the district. The AACME School District needs to design a desegregation plan that promotes diversity across all schools in the district. As shown in Chapter 7, Equity Management-Plato will contain a module that has been purposefully designed to adhere to the latest SCOTUS requirements in this area. See Chapter 7.
Applying Equity Management to Undergraduate Colleges and Universities. Many SCOTUS cases have circumscribed what is permissible in the admissions programs of the nation’s undergraduate colleges and universities — beginning with Bakke v. the University of California in 1974[v] to the more recent Gratz v. Bollinger in 1996[vi] and Fischer v. the University of Texas in 2003.[vii] In the case of Bakke v. the University of California (also known as the Regents of the University of California v. Bakke), SCOTUS handed down a landmark ruling, in which while it upheld affirmative action practice of using race as one factor among several in college and university admissions policies. SCOTUS found that racial quotas (minority set-asides, which the University of California, Davis School of Medicine, used, was unconstitutional and, therefore impermissible.
In the Gratz v. Bollinger case, SCOTUS, in a 6–3 decision, SCOTUS ruled that the University of Michigan's point system's "predetermined point allocations" that awarded 20 points towards admission to underrepresented minorities " to be unconstitutional. In the most recent case on the topic, the use of race as a factor in college and university admissions, SCOTUS ruled in the case of Fischer v. University of Texas, that universities may consider race as a factor in admissions in an effort to enroll a "critical mass" of minority students. In response, the University of Texas instituted a new method of promoting diversity. The state of Texas passed a law that guarantees admission into public universities for students who graduate in the top ten percent of their high school class. In response, the University of Texas-Austin added race as a factor for students, not in the top 10 percent. Following the state of Texas’ lead, many states have elected to use what has come to be known as the “Top Ten Percent Program.”
The consideration of race in the application process of colleges and universities is meant to “increase diversity to reflect the diversity of the state. Other factors include community service, leadership, personal hardship, and family background. Since the race was added back into the admissions factors, minority representation has increased at the University of Texas-Austin. Out of state and international students are usually required to be subjected to the normal admissions process and could not partake of the Top Ten Percent Program. In 2013, SCOTUS took up the case of Fischer v. The University of Texas, the plaintiff, Abigail Fisher maintained that the Texas Top Ten Percent Plan, instituted after a 1996 ruling, outlawed considering race in admissions, and the Top Ten Percent plan achieved the goal of diversity and made the use of racial preferences unnecessary. After Grutter v. Bollinger, in which the high court said universities might consider race to enroll a "critical mass” of minority students.
In June of 2013 SCOTUS handed down a 7-1 ruling that the New Orleans-based Fifth Circuit Court of Appeals did not apply strict scrutiny to The University of Texas’ admission policy. They sent the affirmative action challenge back to 5th U.S. Circuit Court. SCOTUS ruled that the lower appellate court must examine the University of Texas' admissions policies more closely to see if it meet the requirements of strict scrutiny and that the university must demonstrate that its admissions program is "narrowly tailored" to obtain the educational benefits of diversity. Equity Management-Plato will contain a module that has been purposefully designed to adhere to the latest SCOTUS requirements in this area See Chapter 7.
Applying Equity Management to Graduate and Professional Schools. In the case of Grutter v. Bollinger, SCOTUS ruled that universities may consider race to enroll a "critical mass" of minority students.[viii] An online article from “The Supreme Court” website summarizes the Grutter case in the following manner:
Gratz v. Bollinger involved a challenge to the University of Michigan's undergraduate affirmative action program. The university ranked each applicant on a 150-point scale, with 100 points generally guaranteeing admission. Membership in a historically discriminated-against racial group, or "attendance at a predominately minority or disadvantaged high school," resulted in an automatic bonus of 20 points on the scale. Jennifer Gratz and Patrick Hammacher, both white residents of Michigan, were denied admission to the university. They subsequently sued the university in a federal court, alleging that its admissions process was unconstitutional. The federal court agreed, and the case was appealed up to the Supreme Court, which reviewed the case in 2003.
The Supreme Court, in a 6-3 decision written by Chief Justice William Rehnquist, ruled that the University of Michigan's undergraduate admissions program was unconstitutional because it violated the Equal Protection Clause. The Court noted that the university automatically conferred points based on an applicant's race, thereby placing some minority candidates ahead of nonminorities in admissions rankings. The Court argued that this system made "race a decisive factor for virtually every minimally qualified underrepresented minority applicant." Thus, because the means employed by the affirmative action program were not "narrowly tailored enough" to withstand strict scrutiny, the university's race-conscious affirmative action program was declared unconstitutional under the Equal Protection Clause.[ix]
In 2013, SCOTUS took up the case of Fischer v. The University of Texas, the plaintiff, Abigail Fisher, maintains that Texas’ Top Ten Percent Program, instituted after a 1996 ruling outlawed considering race in admissions, achieves diversity and makes the use of racial preferences unnecessary.
After Grutter v. Bollinger, in which the high court said universities might consider race to enroll a "critical mass." In June of 2013, in a 7-1 decision, the Supreme handed down a 7-1 ruling that the New Orleans-based Fifth Circuit Court of Appeals did not apply strict scrutiny to the University of Texas’s admission policy. They sent the affirmative action challenge back to the 5th U.S. Circuit Court. SCOTUS ruled that the lower appellate court must examine the University of Texas' admissions policies more closely to see if it meet the requirements of strict scrutiny and that the university has demonstrated that its admissions program is "narrowly tailored" to obtain the educational benefits of diversity. Equity Management-Plato will contain a module that has been purposefully designed to adhere to the latest SCOTUS requirements in this area. See Chapter 7.
[i]. See J. A. Croson v The City of Richmond.
[ii]. See Adarand Constructors v. Pena.
[iii]. See Griggs v. Duke Power Company and Schuette v. The Coalition to Defend Affirmative Action. For other SCOTUS cases involving employment, see the relevant section in Chapter 3.
[iv]. See Parents v. Seattle and Meredith v. Jefferson school.
[v]. See Bakke v. the University of California.
[vi]. See Gratz v. Bollinger.
[vii]. See Fischer v. the University of Texas.
[viii]. See Grutter v. Bollinger.
[ix]. The Supreme Court, “Grutter v. Bollinger and Gratz v. Bollinger (2003),” accessed July 4, 2018, https://www.thirteen.org/wnet/supremecourt/future/landmark_grutter.html.