Quotas and Discrimination

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Quotas: From Discrimination to Democratic Legitimacy

EARLY DRAFT – NOT FOR CITATION

It is an established rule of U.S. constitutional law that the state cannot impose or pursue race or gender quotas.[1] In the private sector, an employer’s pursuit of numerically fixed race or gender balance is suspect under Title VII.[2] Under both bodies of antidiscrimination law, quotas are regarded as discrimination. If a civil rights initiative can be portrayed as encouraging employers to adopt quotas, its political demise is nearly certain in the United States.[3] Narrow forms of affirmative action have survived, legally and politically, only to the extent that they can be distinguished from quotas. Quotas are so widely regarded as legally, politically, and morally repugnant that they are taboo: The “q-word”[4] is rarely the subject of any serious debate, even by those who favor stronger civil rights protections for women and minorities. The related belief in the illegitimacy of ever pursuing numerically informed demographic balance – especially along lines of race or gender -- is gaining strength in the Supreme Court’s major antidiscrimination cases in the last several years.[5] It is widely accepted – even by civil rights advocates – that pursuing racial or gender balance as a goal, “for its own sake,” would be illegitimate.[6] This principle threatens the constitutionality of race-based affirmative action, which may meet its demise in Fisher v. Texas next Term.

Meanwhile, in Europe, quotas have made a definitive comeback, as a way of pursuing gender equality. Legislative and constitutional transformations over the last few years have led to the adoption of various policies requiring gender parity quotas in positions of political and economic power. Gender balance is regarded not only as a justifiable and legitimate goal, but as a permanent and enduring feature of any legitimate institution or organization exercising power in a free and democratic society. The presence or persistence of gender disparity taints the legitimacy of legislatures, corporations, and government bureaucracies, and thus must be corrected by a parity mandate, whether it is constitutional, legislative, or self-regulatory. This paper engages the emerging European norm of gender parity quotas, particularly their justifications from theories of democratic legitimacy, to develop a critical perspective on the legal and moral status of quotas in the United States. In European countries, gender quotas, like race quotas in the United States, were rejected thirty years ago as contrary to national constitutional guarantees of equality and non-discrimination. French and Italian constitutional courts struck down laws requiring women to constitute a certain percentage of candidates for elected office, invoking the existing constitutional equality guarantees.[7] But over the last three decades, the laws of European countries and now the EU have evolved to embrace gender balance as a legitimate end of democratic states and the organizations that exercise power within it. Through a more detailed analysis of the constitutional evolution of gender quotas in France, I will show how mandated quotas can come to be regarded as legitimate when they were reframed as gender balance as an ends in itself rather than as a temporary means that must be narrowly tailored to achieve some other compelling goal like equal opportunity. Despite obvious difficulties of translating gender to race and Europe to the United States, I draw some parallels and comparisons to generate a much-needed critical debate about quotas in the United States.

I. Parity Lost: The Illegality of Pursuing “Racial Balance For Its Own Sake”

The “q-word” is a conversation stopper in the United States because quotas are widely presumed to be morally offensive. The immorality of racial quotas was given scholarly articulation by Alexander Bickel, a Yale Law School Dean and one...
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