More than a decade ago, Californians passed Proposition 209 to abolish all affirmative action.  The political proponents proclaimed the evils of quotas and argued that women and minorities were getting special treatment in the state for everything from college admissions to construction contracts.  What the proponents of Prop 209 failed to grasp was the difference between quotas and goals.

A goal is something to strive for; a quota or set aside is where a certain amount of a contract (or school admission spaces) is reserved for a specific class of people.  Quotas are only legal when there has been a showing of past discrimination and creating a set aside or quota is a specifically tailored remedy for that past discrimination.(The legal standard of narrowly tailored remedy versus reasonable relationship is different depending if the discrimination involved race or gender discrimination)

I explain goals and affirmative action to my high school aged daughter as follows:  Affirmative action is like recruiting for a new co-ed basketball team at school.  Let's say the local park and recreation department wants to start a co-ed basketball team.  The Recreation Supervisor happens to be male. He pulls out his phone/e-mail list and calls all of his friends who coach sports asking them to post flyers and notices about the new team.  The people called also happen to all be men who are coaches at the local high schools' athletic departments.  The Recreation Supervisor is not discriminating, he is just calling the people he knows and usually deals with.  The affirmative action comes when this recreation supervisor makes the extra effort to contact all of the coaches of the women's athletics departments at all the high schools and asks them to also post the notices about the new team. Now, my daughter still has to run, dribble, jump and shoot well enough to meet the standard set for the team. She does not automatically get on the team because she is female. Instead, she must show she is qualified. But, she would never have had the opportunity to compete and make the team, unless the Recreation Supervisor made the extra effort, the affirmative action, to make sure she knew about the opportunity. And, while the Recreation Supervisor might have a goal for the number of boys and girls to be on the team, it is not a hard and fast set number based only on gender. All kids who make the team must be able to meet the standard set in the tryouts.

In some instances the federal government, either under Congressional mandate or court order, requires set asides.  These set aside programs are usually restricted to a small number of contracts or dollar limitations. Almost every state program operates under a goals program.  And, when the agency oversteps that authority and turns a goal into a set aside, the state or agency is routinely sued.

However, goals programs have been around for as many years and can be even more successful than set aside programs. The most successful goals program is one established by the U.S. Department of Transportation.  In the late 1970s, Congress recognized and set a contracting goal for minority-owned businesses contracting on DOT funded projects at 10%. In 1983, Elizabeth Dole - then Secretary of Transportation - set a 3% goal for women-owned businesses (WBE- women business enterprise).  In 1987, Congress combined this program to establish a floor (not less than) 10% procurement/contracting goal for DVBE (disadvantaged business enterprises, which was defined as including both women- and minority-owned businesses).  In 1990, a separate 5% contracting goal was set for all agencies for women-owned businesses.