The drug busts show "compelling evidence of discrimination against blacks," the author insists; moreover, he claims that many law enforcement personnel have admitted that they practice "a kind of affirmative action: they admit that they selectively enforce anti-drug laws in the black community." The justification for busting black people in the inner city is that "heightened enforcement is good for the community," and further, the reason so many African-American men are caught dealing drugs is that is much easier for police to find crimes among poor people -- this assumes that many blacks in inner cities are low income -- because poor people "are more likely to commit those crimes in public places" (Heffernan, p. 225).
All of the issues that Heffernan has referenced contribute to the reason that the criminal justice system has been burdened down with litigation vis-a-vis affirmative action.
Dr. Stan Malos of San Jose State University writes that one of the most common complaints in courts of law -- by those opposing affirmative action -- is that is "unfairly squeezes employers between the competing demands of disparate treatment and disparate impact law" (Malos, 2009). In other words, the employer wishes to abide by the law, plans to abide by the law, but if he or she does hire a member of the minority community in order to seek a sense of fairness, a member of the majority could sue based on alleged discriminatory practices. The definitions that appeared in Section 104 of the Civil Rights Act of 1991 failed to fully define what a "business necessity" is, or what "job-relatedness" is, in terms of the legal justification for affirmative action.
And so with the 1991 Civil Rights Act, and with Hopwood v. State of Texas, U.S. App. Lexis 4719, 5th Cir. March, 1996 -- which struck down the admissions policy at the University of Texas law school that previously had given preference to African-American and Latino applicants -- courts have had their share of difficult and confusing laws and policies to work through. This would be a definite answer to the question as to why criminal justice systems see affirmative action as a veritable nightmare.
Meantime, Malos mentions that in Section 106 of the 1991 Civil Rights Legislation there is a provision against "race-norming" of employment tests; race-norming means that the scores of the tests would be adjusted to give a better chance to African-Americans, an ethnic group that doesn't as a rule do as well on standardized tests. Malos asserts that because of Section 106 is was "more likely" that certain employers with imbalances based on demographics in their workforces "would be forced to adopt outright racial preferences."
The author notes the obvious: giving racial preferences means a much greater chance that the employer would be hit with a reverse discrimination attack. Another section of the 1991 legislation, Section 116, uses direct and simple language to assert that nothing in the legislation "should be construed to affect affirmative action [programs] that are in accordance with the law," Malos continues. He claims that language carries the "implied caveat" that not every program is totally legal and above board.
The argument that the courts and criminal justice system in general struggle with the confusing and somewhat arbitrary nature of affirmative action is made all the more apparent and justified by focusing on that 1991 law. Malos complains that rather than directly and explicitly "validating or preserving programs" that are in compliance and accordance, the language in the law leaves the "propriety of individual AAPs up to the courts."
The author of this article references a scholarly piece by Don Munro who argues that the 1991 Civil Rights legislation creates a "decidedly muddied picture of congressional intent." Apparently, Munro believes (referenced by Malos) that the members of Congress who wrote the legislation actually supported the need for affirmative action, but conservatives managed to frame the debate...
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