Relying solely on historical Affirmative Action rulings by the Supreme Court, the evidence of extant discriminatory hiring and advancement practices justifies instituting Affirmative Action policies to counter racial and gender disparities in the workplace. All that's required is evidence of prior discrimination. When the court addressed discriminatory hiring and advance practices in the Alabama Department of Public Safety, the absence of minorities in managerial and executive positions was sufficient evidence to institute a race quota.
The attacks on Affirmative Action by state legislatures seems to signal a much darker trend in America, one that seems to ignore the continued existence of racism in this country. Even the U.S. Senate acknowledged in 2008 that racism is still prevalent enough to threaten a presidential bid by a minority candidate (Mail Foreign Service, 2008).
The guidelines for instituting affirmative action policies seem clear enough and concerns about reverse discrimination in circumstances where prior discrimination can be shown are irrelevant, at least according to the Supreme Court. Historically, the Supreme Court seemed to be creating a permissive legal environment within which local or situation-specific affirmative action interventions could be implemented. This was apparently interpreted by several state legislatures as support for eliminating such programs completely. Even though two Supreme Court Justices in 1995 would have supported an outright ban, the majority held that discrimination remains a persistent problem and a significant historical burden on minorities. The limited use of affirmative action is therefore still supported and legally sanctioned by the U.S. Supreme Court.
The Supreme Court's approach to affirmative action is purely libertarian because the primary criterion for judging the Constitutionality of a specific policy is whether a current inequality was caused by discrimination. This stance is consistent with the Supreme Court viewing the Constitution as a social contract that guarantees specific inalienable rights, such as equal protection, and when patterns of racial or gender discrimination result in an unequal distribution of wealth and income this constitutes a violation of this contract.
Those who would claim that all affirmative action programs and policies are synonymous with reverse discrimination choose to ignore current and past violations of the social contract called the U.S. Constitution. This could be perceived as a utilitarian position because the good of the majority is protected at the expense of the minority, under the claim that the past is irrelevant and what matters most is the 'greatest good for the greatest number' today.
Koppelman, Andrew and Rebstock, Donald. (2007). On Affirmative Action and "truly individualized consideration" Northwestern University Law Review, 101, 1469-1481.
Denvir, Daniel. (2011). U.S. 2010 Census: The 10 most segregated cities in America. Accessed June, 2011 at http://kathmanduk2.wordpress.com/2011/04/22/u-s-2010-census-the-10-most-segregated-cities-in-america/
Orr, Bernard. (2010). Women still facing glass ceiling in 2010: Study. Reuters Life! Accessed June 2011 at http://www.reuters.com/article/2010/12/13/us-women-boardrooms-idUSTRE6BC49X20101213
Mail Foreign Service. (2008). U.S. House says sorry to black Americans for slavery -- but Senate stays silent in case it damages Obama. MailOnline. Accessed June, 2011 at http://www.dailymail.co.uk/news/article-1039902/U-S-House-says-sorry-black-Americans-slavery -- Senate-stays-silent-case-damages-Obama.html