Fundamental to any discussion of affirmative action’s legality is its definition. Affirmative action does not mean numerical quotas, the selection of someone solely on the basis of race or gender, or the selection of the unqualified over the qualified.
Must an affirmative action definition be inconsistent with the U.S. Constitution’s guarantee of equal protection? Is any affirmative action definition on its face inherently discriminatory because it subjects a person to unequal treatment?
Several possible working definitions of affirmative action were outlined in a recent law review article by Professor Charles W. Collier of the University of Florida. They were as follows:
1. Among qualified candidates (applicants, etc.), affirmative action means that the underrepresented candidate(s) should get the nod.
2. Among equally qualified candidates, affirmative action means that the underrepresented candidate should get the nod.
3. Among unequally qualified candidates, affirmative action means that underrepresented status serves as a “plus factor” that may elevate an (otherwise) less qualified candidate over (otherwise) more qualified candidates.
4. Affirmative action means equality of opportunity as opposed to equality of outcome.
