- The Washington Times - Tuesday, March 19, 2002

Earlier this month, the United States Army unsuccessfully defended the constitutionality of female and minority quotas in promotions before United States District Judge Royce C. Lamberth in Lt. Col. Raymond Saunders vs. White (March 4, 2002).

The Army insisted that quotas were equal opportunity; that indiscriminate preferences based on gender, ethnicity, and race were necessary to remedy sluggish promotion rates for the favored groups; and, that discrimination against white males was necessary to convince society of the Army's commitment to equal opportunity for all.

These dreary and droopy arguments show the prevailing intellectual bankruptcy of affirmative action. They are disturbingly reminiscent of the Army's Kafka-like justification for relocating Japanese-Americans in concentration camps during World War II despite no evidence of disloyalty: "The very fact that no sabotage has taken place to date is a disturbing and confirming indication that such action will be taken."

The Army heralds itself as a peerless equal opportunity. Under that banner, it denied promotion to a white male, Lt. Col. Raymond Saunders. He complained that equal opportunity in word metamorphosed into racial and gender quotas in deed. The incriminating evidence was subtle, not blatant; but as the Supreme Court reminded in Lane vs. Wilson (1939), the Constitution forbids both sophisticated and simple-minded modes of discrimination.

The Army's promotion boards were given female and minority selection goals to achieve parity with white male selection rates: "Your goal is to achieve a selection rate in each minority and gender group (minority groups: Black, Hispanic, Asian/Pacific Islander, American Indian, and Others; gender: males for Army Nurse Corps … and females for all other … categories) that is not less than the selection rate for all officers in the promotion zone."

If the goals were not met, the promotion boards were instructed to review the records of the preferred groups to discover or invent clues of past discrimination: "You are required to review the records of these minority or gender groups that fall below the selection goal and look again for evidence of possible past discrimination that may have disadvantaged these officers. In any case where an indication of discrimination is found, you will revote the record of that officer, taking into consideration the apparent disadvantage, and adjust that officer's relative standing accordingly."

If the revoting for minorities and females yielded selection rates still short of the white male benchmarks, then bureaucratic hassles were tacitly threatened: "Prior to recess, review and report in the board report the extent to which minority and female officers were selected at a rate less than … nonminority officers. Although the board may have met the overall goals for minorities and women, it will identify any situation where a particular minority-gender subgroup did not fare well in comparison to overall population. Explain such situations fully in after-action reports."

The promotion boards also uniquely scrutinized the records of the favored minority and gender groups to indulge speculation over the possibility of lost career opportunities or handicaps that would justify boosting a rating: "In evaluating the files of the officers you are about to consider, be alert to the possibility of past personal or institutional discrimination either intentional or inadvertent in the assignment patterns, evaluations, or professional development of officers in those groups for which you have an equal opportunity selection goal. Such indicators may include disproportionately lower evaluation reports, assignment of lesser importance or responsibility, or lack of opportunity to attend career-building military schools."

The Army admonished that goals were not synonymous with quotas; but its message to the promotion boards, as Judge Lamberth found, was the opposite in practical terms: namely, either reach the quotas or confront the vexations of skeptical superiors. As the U.S. Court of Appeals for the District of Columbia Circuit has lectured, "[W]e do not think it matters whether a government hiring program imposes hard quotas, soft quotas or goals. Any one of these techniques induces an employer to hire with an eye toward meeting the numerical target. As such, they can and surely will result in individuals being granted a preference because of their race [or gender]."

The Supreme Court has unambiguously held such invidiousness between the races and sexes unconstitutional, unless necessary to overcome past discrimination.

The Army's own statistics, however discredited any remedial justification for quotas. For example, Judge Lamberth underscored: "[I]n 1989, 1990, and 1991, black officers were promoted to the rank of colonel at a higher percentage than white officers were. Further, in the other two years (1987 and 1992), black officers were promoted to the rank of colonel at only a slightly lower rate than white officers were. … [A] higher percentage of black officers [over these five years] were promoted to the rank of colonel than white officers (44.89 percent vs. 40.58 percent), and only a slightly lower percentage of black officers were promoted to the rank of lieutenant colonel (61.08 percent vs. 62.48 percent)."

The Army further urged that its quotas were necessary to appease voices who equate equal individual opportunity with equal group results. Nothing less would lead these critics to believe in the Army's equal opportunity marquee. Judge Lamberth dismissed the justification with refreshing brevity. If a group's twisted racial views regarding equal opportunity were to triumph over a colorblind Constitution, then Jim Crow would not have been an abomination.

Bruce Fein is general counsel for the Center for Law and Accountability, a public-interest law group headquartered in Virginia.

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