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EARLY DRAFT – NOT FOR CITATION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