8. Affirmative action: a concept in search of a content


It seems that from a general point of view the most difficult issue is establishing what constitutes an affirmative action: article 2(4) of directive 76/207 does not even use the term, simply pointing to measures aimed at promoting equal opportunities for men and women, particularly by remedying pre-existing factual disparities; even Recommendation 84/635/EEC, which deals specifically with the issue, does not define affirmative actions, but focuses on the purposes to be attained through their use. Such a lack of definition can hardly be explained as a mere oversight. More likely, the Community legislator wished to avoid any explicit definition of such measures as preferential treatment, which would blatantly clash with the principle of formal equality; by omitting to define the concept, it probably signalled the policy it wished to endorse, leaving member states with enough room to adapt it to the principles and the needs of their internal legal systems (1). The cost of this reticence is nevertheless high, since it forces the interpreter to identify a content related to a vague object. This might be one of the reasons why the Court has decided to stick to a strict literal interpretation, concentrating its reasoning on the difference between "equality of opportunities" and "equality of results"; whether the final outcome is a fair one depends on the policy options of the observer; it cannot be denied, however, that the reasoning is not neutral: limiting the analysis to textual considerations has important implications for the development of Community policy concerning women's rights.

Even from a merely theoretical point of view it seems that the distinction between "equal opportunities" and "equal results" is a fuzzy one. This generates greater uncertainty, rather than clarifying the object of the analysis (2). A look at the American experience may yield fruitful insights: the first case decided by the U.S. Supreme Court in this field, the famous Bakke (3), concerned an affirmative action plan for University admission. The plaintiff argued that the special admission programme for applicants belonging to racial minorities at the Davis Medical School of the University of California violated the equal protection clause of the fourteenth amendment, because it discriminated on the basis of race. The special programme set standards that were less strict than ordinary admission criteria in order to ensure that part of the student population would consist of members of racial minorities, even if their scores and curricula were lower than those of white applicants. In order to decide whether the programme was lawful, the Supreme Court had to analyse its goals. But is admission to a prestigious university an opportunity or a result? As regards the chances of building a career, it is merely an opportunity: entering a good university enhances one's chances of finding a good job. On the other hand, as regards education, entering a prestigious university is a result, which presupposes a difficult process leading up to it. If the decision depends on the classification of University admission as an opportunity or as a result, then the result turns simply on how you look at it, as a starting point, or as a point of arrival. This hardly seems a suitable criterion, since it provides little guidance for the interpreter.

The point is illuminated by another landmark decision by the Supreme Court, Brown v. Board of Education (4). In the first case in which racial segregation was declared unconstitutional, the Court expressly viewed education as an essential opportunity for every American citizen: "Today, education is perhaps the most important function of state and local governments (...) It is a principal instrument in awakening the child to cultural values preparing him for later professional training (...) In these days it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education" (5). The reasoning is equally forceful if applied to University education. But one could take the argument even further, and use it in professional training, or even in job recruiting. It is extremely hard to find its logical boundaries. In fact, the Supreme Court has fixed some boundaries, although not always clearly, spelling out cases where the equal opportunity principle may justify an affirmative action plan (e.g. job promotion), and cases where the contrasting legal values must prevail (e.g. layoffs). But these boundaries do not depend on whether the affirmative action is considered an opportunity or a result. It is true that whenever such a plan has been considered lawful, it has always been classified as providing only equal opportunities, but this seems to be a consequence of the classification, not its basis: American legal culture, and in general Western legal civilization, still consider that the primary task of law is to create a framework in which citizens can freely express their needs and regulate their actions (to what extent this corresponds to the structure of the modern welfare state is a different question) (6); therefore, classifying an affirmative action as providing equal opportunities underlines its fairness.


(1) S. E. Vogel-Polsky, Les actions positive et les contraintes constitutionnelles et législative qui pèsent sul leur mise en oeuvre dans les Etats-membres du Conseil de l'Europe, (Strasbourg, 1989. Council of Europe).
(2) S. L. Charpentier, "L'arret "Kalanke", Expression du discours dualiste de l'égalité", cit. note 12, at 10: "Or, qu'est ce donc que l'égalité des chances effective, sinon un égalité des chances se traduisant par un effet réel, tangible, concret, bref une égalité de fait ou, en d'autres termes, une égalité des résultats?".
(3) Regents of California v. Bakke, 438 U.S. 265 (1978). In fact, another case had been submitted to the Supreme Court concerning the same situation, i.e. a preferential University admission plan for minorities. In De Funis v. Odegaard, 416 U.S. 312 (1974) the Court refused to decide the case on its merits, considering it moot, since meanwhile the student had proceeded to his last university term. It seems that the mootness techinque was used by the Court (as for the other justiciability doctrines) in order to avoid deciding a legal question that had too strong a political resonance.
(4) Brown v. Board of Education, 347 U.S. 483 (1954).
(5) Id., 493.
(6) S. M. Rosenfeld, Affirmative Action and Justice - A Philosophical and Constitutional Enquiry (New Heven, London, 1991), pp.157-162.