Affirmative action is currently under attack in both the political and judicial realms. The 1994 elections brought the issue to the forefront of the national agenda as members of the new republican majority made ending affirmative action a priority. The Supreme Court, in June, 1995, handed down Adarand Constructors, Inc. v. Pena, calling into question the continued viability of many federal programs that make use of racial classifications to benefit minorities.
While the attack on affirmative action has much momentum, opinions on the issue among the public and members of the Supreme Court remain ambivalent. The attack therefore invites both a political and constitutional response. It provides the opportunity to examine some of the most basic values underlying our national identity: beliefs about such ideas as equal opportunity and individual merit, and most fundamentally, what it means to be a citizen of the United States.
This report is an attempt at such an examination. It seeks to set forth a broader, more positivist view of constitutional obligations than is provided by the most commonly offered justifications for affirmative action and thereby provide a more durable basis for political and legislative support of such programs. The argument is made specific by looking in detail at the Supreme Court's Adarand decision and the jurisprudence leading to it, and by examining the minority business preference programs Adarand called into question. The report assesses these programs from the perspective of the traditional justifications for affirmative action and from the alternative point of view it sets forth. The goal is to articulate the values that should underlie affirmative action policy, in the belief that effective public policy requires public consensus, and that such consensus can best be achieved and maintained by a commitment to shared national values.