Supreme Court Review
While the case the Supreme Court will hear involves public colleges and universities, the ruling could eventually impact other courts’ decisions on affirmative action programs outside of higher education, notes BLR Legal Editor Susan Schoenfeld.
In 2003, the Supreme Court ruled in Grutter v. Bollinger that public colleges and universities could not use a point system to boost minority enrollment but could take race into account in vaguer ways to ensure academic diversity.
At the time, the ruling was intended to stand for 25 years.
Nine years later, the Supreme Court, (with a different composition of Justices), has agreed to hear a new case, Fisher v. Texas. In Fisher, a white student is suing the state, claiming she was denied admission to the University of Texas because of her race.
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In Texas, students in the top 10 percent of their high school are automatically admitted to the state’s public university system. Fisher fell below 10 percent and was not admitted to the University of Texas. In 2008, she sued, claiming that the state made admission decisions for the remaining spots using a system that uses race as a factor.
Last week, the Supreme Court agreed to hear arguments in the case.
While Fisher concerns higher education, a ruling against affirmative action programs could indirectly affect employers’ and government contractors’ hiring practices.
“The school systems tend to lead the way for the courts concerning affirmative action,” says Schoenfeld.
OFCCP Proposes Hiring ‘Goal’ to Increase Jobs for People with Disabilities
At the same time, the U.S. Department of Labor (DOL) is proposing a new rule that would require federal contractors and subcontractors to set a “goal” of having 7 percent of their workforces comprised of people with disabilities.
The quotes are around “goal” because many observers look at the rule and see “quotas.” By whatever name, it appears to be a stronger requirement than existing affirmative action requirements are.
The Office of Federal Contract Compliance Programs’ (OFCCP) proposed rule would strengthen the affirmative action requirements established in Section 503 of the Rehabilitation Act of 1973 obligating federal contractors and subcontractors to ensure equal employment opportunities for qualified workers with disabilities. The proposed regulatory changes detail specific actions contractors must take in the areas of recruitment, training, record keeping, and policy dissemination.
In addition, the rule would clarify OFCCP‘s expectations for contractors by providing specific guidance on how to comply with the law.
The current unemployment rate for people with disabilities is 13 percent, 1 1/2 times the rate of those without disabilities. Furthermore, the Bureau of Labor Statistics show disparities facing working-age individuals with disabilities, with 79.2 percent outside the labor force altogether, compared to 30.5 percent of those without disabilities.
Establishing a 7 percent hiring goal for the employment of individuals with disabilities would be a tool for contractors to measure the effectiveness of their affirmative action efforts and thereby inform their decision-making, according to the OFCCP.
The proposed rule also would enhance data collection and record-keeping requirements in order to improve accountability. Additionally, it would ensure annual self-reviews of employers’ recruitment and outreach efforts, and add a new requirement for contractors to list job openings to increase their pools of qualified applicants.
So readers, where do you come out on affirmative action? Is it a good idea? Does it work? What should government’s role be?
Let me know what you think using the Comments button below.