In that country, fixing quotas or awarding preferential extra points is not allowed

IN THE recent debate on reservation, many writers have cited the case of the affirmative action programme being followed in the United States. There is a prevailing perception in India that the U.S. programme is similar to the reservation programme in India. The two programmes have altruistic motives of uplifting the discriminated people. But the way the U.S. implements its programme is different from the way India does its.

Fundamental differences

There are at least five fundamental differences: 1. The affirmative action programme and the ensuing preferential treatment in the U.S. is applicable to women too, in addition to disadvantaged races and ethnicities. In India, reservation is based only on castes. 2. In the U.S., fixing quotas or awarding preferential extra points is not allowed. This is a crucial difference from the Indian scenario where quotas are fixed. The U.S. Supreme Court in two historical judgments upheld the concept of considering race a factor in choosing candidates but unequivocally deemed unlawful fixing quotas or granting extra points for the disadvantaged groups. In 1978, in Regents of the University of California v. Bakke, 438 U.S. 912 (1978), the Supreme Court ruled in favour of racial preference for disadvantaged groups but struck down as unlawful the University Medical School's policy of reserving 18 per cent of the seats. In 2003, as cited by V.K. Natraj ("The reservation debate: missing components," The Hindu, May 27), the Supreme Court upheld as lawful the University of Michigan's policy of racial preference in law school admissions (Grutter v. Bollinger, 539 U.S.(2003)) because the programme furthered a compelling interest in obtaining "an educational benefit that flows from student body diversity." But it struck down as unlawful the university's policy of granting points based on race and ethnicity. Further, in the Presidential Directive issued to executive departments and agencies on July 19, 1995, the White House asked for elimination/reformation of any policy that (a) creates a quota; (b) creates preferences for unqualified individuals; (c) creates reverse discrimination; or (d) continues even after its equal opportunity purposes have been achieved. 3. In India, all political parties have been in favour of caste-based reservation. And constitutional amendments that are in contrast to judicial decisions have been made. In the U.S., judicial decisions serve as framework for implementing affirmative action policies.Further, in the U.S., individual states and university boards are free to legislate their own laws with respect to affirmative action in institutions that are within their scope. In 1995, Regents of the University of California voted to end affirmative action programmes on all its campuses. In 1996, California's Proposition 209 ended all public-sector affirmative action programmes in the state in employment, education and contracting though it permitted gender discrimination. In 2000, Florida banned affirmative action. 4. Another important difference is the requirement of institutions to "establish a process to review the effectiveness and fairness of affirmative action programmes on a continuing basis" - this requirement was communicated in the Presidential Directive dated July 19, 1995 as per the "decision in (1994) Adarand Constructors v. Pena (that) requires strict scrutiny of the justifications for, and provisions of, a broad range of existing race-based affirmative action programmes." 5. In the U.S., universities have taken upon themselves the onus of increasing the representation of disadvantaged groups (unlike universities in India where there is resistance). But even in the pre-2003 era when awarding preferential points was legal, U.S. universities usually awarded points only to as many individuals from disadvantaged groups as would be needed to beef up their population to their demographic proportion. For example, members from ethnic group A would be selected even if they scored lower SAT points but only if their open competition selection resulted in numbers lower than their population percentage. So if ethnic group A formed 9 per cent of the general population but formed only 4 per cent of the selected students, then SAT points for members of A were added in such a way that 5 per cent more students from A were selected.But in India, due to fixed quotas, people who belong to a reserved caste will get their reserved slots and also slots available in open competition.