The American Prospect
When diversity became a positive, race-based preferences overcame the backlash.
Randall Kennedy August 11, 2010
One of the most notable accomplishments of liberalism over the past 20 years is something that didn't happen: the demise of affirmative action. Contrary to all predictions, affirmative action has survived. This is a triumph not only for race relations but also for the liberal vision of an inclusive society with full opportunity for all.
In the early 1990s, the future of policies aimed at assisting racial minorities seemed bleak indeed. In 1989, the Supreme Court invalidated an affirmative-action plan for government contracts in Richmond, Virginia, holding that such programs at the state and local level must be subject to "strict scrutiny" -- the same level of skeptical assessment applied to laws or decisions that had historically disadvantaged racial minorities. That same year, the Court issued decisions that neutered the concept of "disparate impact" as a form of racial discrimination under Title VII of the Civil Rights Act of 1964. Disparate impact required employers not only to desist from intentionally excluding racial-minority applicants because of their race but also to avoid race-neutral screening criteria that had the same effect, unless the criteria could be justified by "business necessity" or shown to be related to job performance. In 1990, when Congress repudiated the Court's regressive interpretation of Title VII, President George H.W. Bush vetoed the legislation, calling it a "quota bill."
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