As explored in a recent blog (here), in Students For Fair Admissions, Inc. v President and Fellows of Harvard College, the US Supreme Court has held that Harvard and the University of North Carolina’s use of race in admissions violates the US Constitution’s Fourteenth Amendment. While a politically and jurisprudentially important judgement, at a time when the use of race in South Africa’s affirmative action regime is similarly under attack, it is important to assert that the US Supreme Court’s judgement serves little comparative value for the South African debate about affirmative action – here’s why.
In the first case on affirmative action in South Africa, Minister of Finance and Other v Van Heerden, the South African Constitutional Court cautioned against following the US Supreme Court’s approach to affirmative action, with Justice Moseneke warning that South Africa must ‘exercise great caution not to import…inapt foreign equality jurisprudence which may inflict on our nascent equality jurisprudence American notions of “suspect categories of state action” and of “strict scrutiny”’. Almost 19 years since Van Heerden, South Africa has seen a concerted, well-organised movement by conservative organisations such as Solidarity, Afri-forum and the Democratic Alliance to dismantle race-based affirmative action.
Mirroring the affirmative action litigation in the US, a core aspect of this strategic litigation has been to pit different groups against each other. In both South Africa and the US, this started with white women being pitted against beneficiaries of affirmative action based on race, Fisher v Texas in the US, and South African Police Service v Solidarity in South Africa. When this failed, the organisations shifted to other disadvantaged racial groups – Asian Americans in the US and Indian and Coloured persons in South Africa. The targeting of Asian Americans as litigants in the US was pivotal to the success in Fair Admissions. In South Africa, the fight to dismantle affirmative action is ramping up to full speed.
Recently, the Democratic Alliance has threatened to challenge amendments to the Employment Equity Act (the EEA).The EEA is a species of legislation which requires certain employers to take affirmative action based on race, gender and disability in the workplace – this includes the use of numerical targets. In its planned litigation, the Democratic Alliance will argue that using numerical targets is a misnomer for racial quotas, which are prohibited under the EEA and that they violate Coloured and Indian person’s right to equality. Elsewhere, I have argued against the prohibition of racial quotas in implementing affirmative action in South Africa. For now, it suffices to say that while there are gaps and inconsistencies in South Africa’s affirmative action regime – the use of numerical targets does not, as suggested by the Democratic Alliance, exclude or disproportionately disadvantage Coloured and Indian persons in South Africa. This narrative is a divide-and-conquer tactic reminiscent of the apartheid government. Yet, the developments in the US may inspire further action on the part of the Democratic Alliance and these other organisations.
While an important jurisdiction in comparative equality and anti-discrimination law, there are at least two reasons why the development in the US is irrelevant to affirmative action in South Africa. First, the affirmative action debate in the US is marred by the ideological rift between the Republican-appointed judges (who largely see affirmative action as a form of racial discrimination) and the Democrat-appointed judges (who largely consider affirmative action as necessary to achieve the goals of equality). It is thus no surprise that the Fair Admissions judgement was split 6:3 in favour of the Republican judges, who hold the majority of that Court. This ideological rift in the US Supreme Court is unique to this jurisdiction and should, from the perspective of comparativism, render the jurisprudence of this court weak and unpersuasive.
Second, from a purely jurisprudential perspective, the South African Constitutional Court long affirmed that affirmative action in South Africa was an important aspect of achieving substantive equality. By contrast, the US Supreme Court has treated, specifically race-based affirmative action measures, as an exception to the equality guarantee and thus subject to the highest level of judicial scrutiny, strict scrutiny. Relatedly, the US Supreme Court prohibits using race-based affirmative action to redress societal discrimination. South Africa, by contrast, expressly sets to use affirmative action, as stated in section 9(2) of the Constitution, to ‘advance and protect’ those adversely affected by past and persisting discrimination.
Ultimately, the developments in the US and South Africa should be understood against the growing tide of right-wing conservatism that seeks to roll back on the gains made to redress inequality in these societies – white supremacist backlash. The South African courts and legislature would do well to ignore or distinguish themselves from the US Supreme Court’s approach to race-based affirmative action.
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