Afilrmative Action: Should the Army Mend It or End It?

• Author: Captain Holly O’Grdy Cook
• Pages: 02

1. IntroductioniNl1 racral classifieatmns, imposed by uhateuer federal, state, or local gouernmental actor, must be analyzed by a reureuing court under strict scrutiny.'

On June 12, 1995, these twentytwo words sent shack waves

throughout the federal government. In Adarand Constructors, h e . 0.

Pena, the United States Supreme Court held for the first time that the federal government must adhere to the same rulea BS state and local governments when establishing programs that grant mmari. ties employment preferences.2 This was a devastating blow to feeder. a1 programs. Before Adorand, the federal government had nearly free reign to establish and operate programs involving such prefer-ences. The Supreme Court had recognized Congress's unparalleled authority to define situations that "threaten principles of equality and to adopt prophylactic rules to deal with those situatlons."3 While the Court still recognizes Congress's authority, Adarend decisively ended Congress's reign of operating virtually unchecked in the affirmative action arena.

Adarand involved a racial classification created by a federal contracting statute. Mile the Court held that the strict scrutiny standard applies to "all racial classifications," the Court did not

* Judge Advocate Generah Carpi. United Sfatea Army. Presemly assigned as Chief, Administrative and C1m1 Law Dimman, 21st Theater Army Ares Command. Kaisenlsutem. Germany B A, magna cum iaude, 1984, Smnt Joseph'& College. J.0, 1587. Union Umueralty, Albany Law School Formerly assigned as Legal Adviser, International Claims and lnveitmsnt Disputes, United Stster Department of State, U'ashm@on. D C., 1993.95. Chief of Criminal Law. Yonpan Lsv Center, Yangean, Republic of Korss, 1592-93; Administrative Law Attorney, Eighth United States Army. Yongsan. Repvblie of Korea, 1990.92, Command Judge Advocate, Hesdquartela, Eighth h y

Special Tmops, Yangssn. Repubbe of Korea, 1580. mal

Cauneel. Fort Huaehuea. Arnana, 1989-90. Previoui publiestions Holly OGrady Cook & Damd F Shutier, lhcking Climinoii on the Informaam Highway DIBRS Make8 It Closer Than You Thmk. Axw LAW,

May 1995, et 78: Holly UGrady Cook 81

Stephen E. Castlen, An Ooem~ou end Prmefiliomr's Gut& to GIAB, AM*i Law, May 1956. at 20 The author submitted thia thesis ta aatlsb, m pm, the Master of Laws degree far the 44th Judge Advocate Oficer'i Graduate Courae, The Judge Advocate GeneraYs School. rnifed Stateshy, Charlotfe~vllle,

Virpia.

v. Pens. 115 S Ct 2097.2113 (15951

1 Id.a City af Richmond Y J A Croson Co , 488 US 469. 490 (1989)

1 Adarand Construeram. h e

actually apply the standard in Adarond. Instead, the Court remanded the cam ea that the lower court could apply the strict scrutiny standard thereby delaying Adorend's precise impact on federal programs. The Court's broad application of stnct scrutmy to "all rac~al classificatmna" fwther complicates the uncertainty of the situatmn. Not only will Adarand impact federal contracting programs, but It

also will impact any other federal program that creates a racial clae-sification, including affirmatwe actm programs4 used in federal employment This potential impact adds fuel to an already volatile political debate

1. Political Reaction

   One month after the Supreme Court announced the Adnrand decision. President Nilliam Clinton directed all federal agencies to evaluate programs they administer "that use race or ethnicity in decision makmg."E President Clinton also directed federal agencies to ~pplythe following four standards of fmmess to all federal affirmative action pragrame:

   No quotas in theory or practice, no illegal discrimmation of any kind. including reverse discrimination: no prefer. ence far people who are not qualified far any job or other opportunity; and as soon ae a program has succeeded, It must be retired. Any program that does not meet these four pnnciplea must be eliminated or reformed to meet them.6There II no unmraally recognized definman for 'afirmatwe B L L ~

   ' Hoaeuer

   most definitions mcognize that affirmative action ~ncludei 'any effait taken to expand opportunity far women 01 r a c d erhmc and narmal orlmn m m r ~ u e ~ by

   using membership m those groups that haie been suhpct to d m n m m n o n as a con-sideration " GLORCE

   SIEPK~VOPOL'IOE

   & CHR~~TOPHER

   EDLEY,

   JR , AF~~R~MITWE

   Acne\

   uing dmnmmetmn to remedy lingering eflecfe of parr drecnmmatmn. and to create zyetemr and procedures to prevent future dmnmmaiian',, Lara Hudmna Reihinkmg Wrmanae Action m the 199Oa Tailoring the Curs to Rimed) the Diasasr 47 B ~ O R L REV 815. 820-24 11996, Idiscussing the vannus definirioni of 'afirmatire B C ~ ~ O D ' ' ~ See dmrnfm notes 145 323. 341Mamorsndum. President William J Clinton, to Hesda of Executive Department3 and Agenelen. cubiect Exsluatmn ai Af%rmarire Action Pragrarni 119July 19951

   Prssident William J Clinton Remarks by the President at tae Rofunda onAfflrmarive Action

   The Preeident acknowledged that "affirmative action has not always been perfect," and it "should not go on forever."r However, a review of ell federal affirmative action programs proved that the need for affirmative action still exists.8 The President, therefore, '"reaffirmed the principle of affirmative action" and developed the slogan "[mlend it, but don't end it.'*

   While President Clinton is striving to "mend" federal affirmative action pragrame, competing political forces are striving to "end" them. Before President Clinton ordered a review of federal affrmative action programs, Senator Robert Dole obtained "a eomprehensive list of every federal statute, regulation, program, and executive order that grants a preference to individuals on the basis of race, sex, national origin, or ethnic After receiving this list and rewewing the Adorand decision, Senator Bob Dale introduced in the Senate the Equal Opportunity Act of 1995." This Act would pro. hibit "the Federal government from discriminating against, or granting any preference to, any person based in whole or in part on race or sex in connection with federal employment, federal contraeting and subcontracting, and other federally-conducted programs and

   The only federal affirmative action programs this Act would endorse are those designed "(1) to recruit qualified members of minority groups or women, so long BJ there i6 no preference grant. ed in the actual award of a job, promotion, contract or other oppoltu. nity, or (2) to require the same recruitment of itB contractors or sub-contractors, 60 long BS the Federal government does not require preferences in the actual award of the benefit."13

   7 ,A

   e Remarks by the President, supra note 6

   . . . .

   S 1086, 104th Cong , 1st Seas. 119851. Repreaentativs Charles Canady coaponnoredthe bill I" the Hause M

   Equal Opportunrry Act of 1996 (HR 21281 BQ Amended by House Judicialy

   Subcommittee. Menh 7, 1996, Seebon.by.Seetm Anslysa, Dluly Lab Rep (BNAI No.46, at 0-31 (Mar 8 19961 (citing the srcrmn.by.seetmn analysis a i the Equal Opportunlii. Act of 1096. which is the amended version of the 1995 Act. "approved on

   B pany-lme vote by B House Judicis*/ subcommittee" on March 7. 19961

   Id (referenem8 5 3 of the Eod Oooonunitv Act of 1096 8~ amendedl. In ad&- Lion to Senator Dol& efforts, bdme &ie goverkors have spearheaded then owneifons to end airmatwe action In California. Governor Pete Wdson unauccessfulb

5. How Must the Department of the Army Respond?

   Amidst the legal and political controversy surrounding affirms-the action. the Department of the Army stands as a mqar federal government contractor and employer Bath Adorand and President Clinton's directions dictate that the Army review all of its affirma. twe action programs to ensure that they comply with the new Eta"-dards. If any program does not camply, the Army must mend It or end It.

   This article reviews employment practices used by the Army IDmake promotion decisions, bath military and civilian l4 It begins with a brief history of affirmative action in federal employment and an overview of applicable case law This article then identifies the affirmative action programs that apply to all Army military person. ne1 and the pramotionlj procedures that re germane to military petitioned the ~tatempreme court LO oserturn ststutoly aNkrmalwe action plan3 Arlene Jacohius Aihrmoizre Action Suit Dbamissrd. AB A J , Mar 1996. at 40 With Governor Rilcon's support, the Dnivsr~lty of Cahforma Board of Regents had preil-oudy voted to eliminate sfirmative action m admisrmn effectlra the spring of 1996 See Aifirmat~ir Action Repeal Cholhngid, WASH POET, Feh 17 1996 sf A12 Rem Sanchez. Struggling IO Mainlain Dirrrsil) CC Bwkdo Tdes Steps to Oifset Ban onAlfiimoou Action, WASH POST. Mar 11, 1996. ~tA.1 In Loualana. GoiernFoster ishued an executive order eliminating affirmasides far itme contract6 only three days after f&ng office SOI Robert Buckman. Lauisiano Split mer Aifirmatuo Action Faster Stands b) Campaign Voi~ An erz Critics, D a m

   MORNIbO YEWS, Mar 15, 1996 sf 33 Mer Adamnd A Legal Reguhto~, Le@alatiae Outla 147, at 0-21 lAug 1, 1995) lrepartmg that "some 20

   The Army's afirmatne mtmn program% ~n the contracting ~renaare outside

   the scape of rhia artflile Horever. practllmneri shauld know that the Adarand deci- ~ m n has already caueed malor changes ~n federal contracting In October 1995 the

   Depanment of Defense rvspendsd the " d e a1 two" canfraetmg program A m Dei~oy Rule Aidmg.Wzmiif) Firms to End Defense Dept MOL@

   Fallolrs Reiiea o/AfPmari~r

   Action 'K~sliH POST, Oct 22, 1995, at A1 (explammg that "!u nder the d e . if at lead

   t w qualified amall, disadvantaged busineases express infereat LD biddine far B CD

   frset, only dieadvantaged businesses can compete far it I- vl~rtuall) d l firm: eert bod SI small, diradianlaged bunineases are minonty ouned) A three-year mararar um on the "rule of two' program is imminent John A Farrell & Mans Sha , A4oraforium on Set-Asides Seen While Hausr Prrparea 3 Year Hall ~n Some Afitimatioe Acmn Programs. BOSTOI...