Affirmative Action
The issue: Does the Constitution allow government to classify on the basis of race
if the law
is intended to benefit a previously discriminated against minority?
Introduction
Cases
In his famous dissent in Plessy v Ferguson,
Justice John Harlan wrote that the law was "color
blind." Recently, Harlan's phrase has found new
currency among critics of government affirmative
action programs that began to spring up in the 60s
and 70s.
Affirmative Action in the Schools
Bakke v. Regents, Univ. of California
(1978)
Grutter v Bollinger (2003)
Parents Involved v Seattle School District
May the government use racial classifications
(2007)
when it does so to benefit, not discriminate
Fisher v University of Texas (2013)
against, racial minorities that have historically
Schuette v Coalition to Defend Affirmative
been the victims of discrimination? The Supreme
Action (2014)
Court first considered that question in 1978, in the
case of Bakke v. Regents, University of
California. Bakke, a white applicant to the UCDavis Medical School, claimed that he was denied
admission even though his test scores and grades
were markedly better than minority applicants who
were admitted. The Court found that Bakke had
been denied equal protection of the laws by UCDavis's use of a "two-track" admission system,
one track for whites and one for non-whites. Even
though Bakke won, many people came to view
Bakke as a victory for proponents of affirmative
action. Justice Powell, providing the critical fifth
vote for Bakke, said in his concurring opinion that
increasing racial diversity in classrooms was a
compelling state interest, and that a more narrowly
tailored program--such as one that gave "pluses"
to minority applicants rather than putting them
into a seperate admission track--would not violate
the Constitution. Recently, the Fifth Circuit has
predicted, in a case involving a challenge to the
affirmative action program at the University of
Texas (Hopwood v. Texas), that the Court would
not follow Bakke today. The Fifth Circuit found
UT's use of race in its admission process to
violate the Constitution.
Allan Bakke.
Richmond v J. R. Croson considered affirmative
action in the context of government "set-asides":
programs that set aside a specified percentage of
Minority "Set Aside" Programs
Richmond v. J. R. Croson (1989)
Adarand Constructors v Pena (1995)
Link
Government Interests Asserted in Bakke
Questions
1. How should we evaluate discrimination between
racial minorities? For example, what if an affirmative
action program for school admissions were to extend
preferences to blacks and Hispanics, but not Native
Americans?
2. How should a court evaluate a claim of
discrimination by someone complaining of exclusion
from a protected class? For example, if a school
admission program classified someone with two black
grandparents as "black," but someone with one black
grandparent as "white," could the student classified as
white support a claim of unconstitutional
discrimination? What standard of review should apply
to such state line-drawing?
3. Which of the various state interests alleged by
California in the Bakke case seem the most
compelling to you: (1) remedying past societal
discrimination, (2) increasing the number of minorities
in the legal profession, (3) increasing legal services for
underserved populations, or (4) increasing diversity in
the classroom? Do you agree with Justice Powell's
analysis with respect to whether UC-Davis's
government contract dollars for minority business
enterprises. Rejecting the argument that racial
set-asides might be justified as a remedy for past
societal discrimination, the Court held that such
programs are only justified as a remedy for past
discrimination by the government entity adopting
the set-asides. Croson, and a subsequent case
involving a federal set-aside program (Adarand
Constructors v Pena (1995)) make clear that all
racial classifications will be subject to the strict
scrutiny test requiring demonstration of a
compelling state interest and use of classifications
narrowly tailored to further that interest.
In 2003, the Court decided two cases challenging
affirmative action policies at the University of
Michigan--one involving the law school (Grutter v
Bollinger) and one involving the undergraduate
college (Gratz v Bollinger). The result was a split
for Michigan, with the Law School's more
individualized consideration of race upheld on a 5
to 4 vote, and the undergraduate school's more
blatant heavy weighting of race as a plus factor
struck down, 6 to 3. Justice O'Connor's opinion
for the Court in Grutter adopted much of Justice
Powell's reasoning in Bakke. O'Connor found the
Law School's asserted interest in creating a
diverse student body to be a compelling
justification for its consideration of race, and
found the school admission policy appropriately
considered race along with many other
characteristics or experiences that could
contribute to diversity. O'Connor cautioned,
however, that affirmative action programs should
have some termination point, and she suggested
that in another twenty-five years a similarly
structured program would be unlikely to stand.
Most recently, in two 2007 cases (Meredith v
Jefferson County and Parents Involved v Seattle
Schools), the Supreme Court struck down
programs in Louisville and Seattle that used the
race of students as a factor in assigning students
to schools so as to maintain a targeted level of
racial diversity in public schools. Chief Justice
Roberts (joined by Scalia, Thomas, and Alito)
would prohibit all attempts to "racially balance"
public schools outside of the higher education
context, concluding that no compelling interest
exists for such efforts. Justice Kennedy,
providing the fifth vote to strike down the plans,
saw the problem as one of a lack of narrow
tailoring. Kennedy suggested that attempts to
achieve racial balance in public schools would be
constitutional if they focused, for example, on
placement of new schools in racially integrated
classification was a narrowly tailored means of serving
the vaious interests alleged?
4. Is Justice Powell's opinion in Bakke "the
law"? Why or why not?
5. Should "benign" racial classifications be subject to
strict scrutiny or, as the four dissenters in Bakke
argued, intermediate scrutiny?
6. Does the Bakke court hold that more qualified
applicants have a right to admission ahead of less
qualified applicants?
7. Is it the job of a lower court to predict how the
Supreme Court might decide a case today, or should it
apply existing Supreme Court caselaw even when it
thinks the current Court would reject it?
8. Is your view of the correctness of the Court's result
in Croson at all affected by the fact that five of the
eight city council members voting on the Richmond
set-aside program were black--including five of the six
"yes" votes?
Supporters of Seattle's efforts to racially balance its
schools
9. Does Justice Kennedy's concurrence in Parents
Involved v Seattle leave school districts with adequate
tools to maintain integrated schools, or are school
districts in many metropolitan areas bound to slide
back towards segregation--albeit the result of housing
patterns, rather than de jure segregation?
10. Does the opinion of Chief Justice Roberts in
Parents Involved v Seattle suggest that four members
of the Court are ready to overrule Grutter?
11. Both the majority and the dissent in Parents
Involved v Seattle claim the mantle of Brown v
Board. Which side has the better argument?
12. In Grutter, Justice O'Connor, while upholding the
affirmative action program in question, wrote, "We
expect that 25 years from now, the use of racial
preferences will no longer be necessary to further the
interest approved today." Can we assume that the
Grutter holding has an expiration date of 2028 and no
racial preferences will be deemed constitutional after
that date?
Jennifer Gratz (L) and Barbara Grutter (R), plaintiffs in
affirmative action suits against the Univ. of Michigan.
(CNN)
13. Fisher has every indication of being a compromise
decision. Why do you think Justices Breyer and
Sotomayor joined the Court's opinion, and why do you
think Justice Kennedy pulled back from declaring any
individualized consideration of race to be
unconstitutional, as he was widely expected to do in
the case?
neighborhoods--rather than relying on a "crude"
racial classification of students.
Abigail Fisher
In 2013, the Court announced its decision in Fisher
v University of Texas, involving a challenge to the
university's use of race as part of a two-pronged
effort (the first prong being a "race-blind" policy of
automatically admitting students graduating in the
top 10% of their Texas high school classes) to
increase the number of non-white students. The
Court, in a 7 to 1 decision authored by Justice
Kennedy, found that the courts below gave too
much deference to the university and failed to
apply appropriately strict scrutiny. Adopting a
tougher standard than either Bakke or Grutter, the
Court said, "The reviewing court must ultimately
be satisfied that no workable race-neutral
alternatives would produce the educational
benefits of diversity. If a nonracial approach . . .
could promote the substantial interest about as
well and at tolerable administrative expense, then
the university may not consider race." Justice
Ginsburg dissented, finding that Texas satisfied
the Grutter/Bakke standard, while Justice Thomas,
concurring, would have overruled Grutter and
banned all consideration of race in the admissions
process. The Court noted that it was not deciding
to overrule Grutter because it had not been asked
to do so, leaving open that possibility for a future
case. The Fisher decision is certain to spawn
more lawsuits.
Following the Court's decision in Grutter
upholding the use of race as a factor in
admissions decisions at the University of
Michigan, the voters of Michigan adopted a
constitutional amendment banning the racial
preferences in school admissions. That
amendment was challenged in 2014 by groups that
argued that the amendment violated the Equal
Protection Clause by denying minorities the
opportunity to restore racial preferences in the
state legislature, rather than through the more
difficult process of constitutional amendment
(Schuette v Coalition to Defend Affirmative
Action). The challengers cited a line of cases that
suggested, at a minimum, that state constitutional
amendments enshrining a private right to
discriminate are constitutionally suspect. Voting
6-2, however, the Court ruled that the voters of
Michigan are free to decide whether or not to
extend racial preferences in admissions. This was
not, the Court made clear, a case where a
constitutional amendment placed obstacles in the
14. If you were university counsel, after Fisher, what
advice would you give to campus officials interested in
increasing minority enrollment?
15. Schuette leave no doubt that states are free to
ban affirmative action. How many states are likely to
take that path?
path of minorities seeking equal treatment under
the law or which encouraged private
discrimination in any way.
The Firefighters Case" (Ricci v
DeStefano)(2009)
In a case that played a major role in the Sotomayor
confirmation hearings, the Supreme Court reversed a
ruling of Justice Sotomayor's former court, the
Second Circuit, and found that New Haven's decision
to throw out a promotion exam that would have
resulted in 17 whites, 2 Hispanics, and no blacks
promoted within its fire department violated Title
VII. The Court did not reach the white firefighters'
Equal Protection Clause argument, but the four
dissenters (Ginsburg, Stevens, Breyer, and Souter)
did, finding no violation of the Fourteenth
Amendment in New Haven's action. Justice
Kennedy, writing for the Court, drew analogies from
equal protection precedents in reaching his
result. The failure of New Haven to show a "strong
basis in evidence" that its decision to throw out the
test was necessary to counter past racial
discrimination, Kennedy says, supports the
conclusion that the city violated Title VII.