Affirmative Action - Constitutional

Arguments for applying strict scrutiny

1. Color-blindeness is the guiding principle under the Constitution

2. Affirmative action imposes a stigma on its intended beneficiaries

3. Strict scrutiny forces a more individualized consideration of race in decision-making

Arguments Against strict scrutiny

1. It’s a situation where the majority is depriving itself of a benefit

2. It is necessary to use race as a remedy to past discrimination

3. It is necessary to use race to achieve other goals, such as diversity

Regents v. Bakke (1978) – Quota system for admitting non-white students at UC Davis Medical School.

1. Four justices: intermediate scrutiny okay, set aside program survives

2. Four justices: program violates Title VI of Civil Rights Act

3. Powell (controlling opinion) – set aside program should be subjected to and failed strict scrutiny, not narrowly tailored to achieve compelling state interest in diversity

   1. Allowed for AA as long as race was only one of several admission criteria

Fullilove v. Klutznick (1980) – congressional program requiring 10% of funds for local public works projects be given to minority contractors

1. Held: program is upheld. Congress has abundant historical basis to conclude that traditional procurement practices could perpetuate effects of prior discrimination.

United States v. Paradise (1987) – court order designed to remedy proven intentional discrimination by the Alabama Dept. of Public Service that mandated that a qualified black be hired or promoted every time a white was hired or promoted

1. Held: order upheld.

2. The scheme did not impose an "absolute bar" to white advancement, was narrowly drawn to include only specific ranks in the department, and, according to the four justices who voted to affirm it, was "required in light of the Department's long and shameful record of delay and resistance" in complying with past judicial decisions.

Wygant v. Jackson Board of Education (1986) – affirmative action firing scheme, guaranteed that at no time would the percentage of minorities laid off exceed the percentage of minorities employed at the time of layoffs.

1. Held: Program invalid. (plurality)

   1. Remedying societal discrimination is not enough; there must be discrimination by the relevant government unit.

   2. Compelling State Interest: That the percentage of minority students exceeded the percentage of minority teachers was NOT a compelling state interest. It implied a separate but equal system.

      1. Racial preferences have to be based on prior discrimination.

   3. Narrowly Tailored: layoff preferences incorrectly addressed injurious prior discriminatory hiring practices since “denial of a future employment opportunity was not as intrusive as loss of an existing job.”

Richmond v. Croson (1989) – Richmond adopted regulations that required companies awarded city construction contracts to subcontract 30% of their business to minority business enterprises.

1. Held: City has power to enact an affirmative action plan if it has become a “passive participant” in societal discrimination

2. Held: The court must apply strict scrutiny to such an affirmative action plan

3. Held: This quota fails strict scrutiny because it does not further a compelling state interest

   1. And is not narrowly tailored

   2. But states can still act where there is actual evidence of discrimination and can use other means to encourage minority business enterprises

4. "generalized assertions" of past racial discrimination could not justify "rigid" racial quotas for the awarding of public contracts. Justice O'Connor's opinion noted that the 30 percent quota could not be tied to "any injury suffered by anyone," and was an impermissible employment of a suspect classification.

Metro Broadcasting v. FCC (1989) : 2 minority preference policies of the FCC. 1) minority applicants for broadcast licenses were given preference if all other relevant factors were roughtly equal; 2) allowed broadcasters in danger of losing their licenses to sell their stations to minority buyers before the FCC formally ruled on the viability of the troubled stations

1. Held: Intermediate scrutiny is the appropriate form of scrutiny for a federal affirmative action plan

2. FCC's minority preference policies were constitutional because they provided appropriate remedies for discrimination victims and were aimed at the advancement of legitimate congressional objectives for program diversity. The FCC's minority preference policies were closely related to, and substantially advanced, Congress's legitimate interest in affording the public a diverse array of programming options. The availability of program diversity serves the entire viewing and listening public, not just minorities, and is therefore consistent with First Amendment values. Finally, the Court noted that the FCC's minority preference policy did not unduly burden nonminorities. The FCC did not predetermine the number of distress sales, and could only invoke them in a small number of cases, when no competing bids were filed and the licensee elected to sell at a lower price rather than risk an FCC investigation

Adarand Constructors Inc. v. Pena (1994): Under the terms of the federal contract, the prime contractor would receive additional compensation if it hired small businesses controlled by "socially and economically disadvantaged individuals." [The clause declared that "the contractor shall presume that socially and economically disadvantaged individuals include Black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans, and other minorities...."

1. Held: Metro overruled. SS is the appropriate form to affirmactive action programs.

   1. All racial classifications must pass strict scrutiny

   2. The Court added that compensation programs which are truly based on disadvantage, rather than race, would be evaluated under lower equal protection standards. However, since race is not a sufficient condition for a presumption of disadvantage and the award of favored treatment, all race-based classifications must be judged under the strict scrutiny standard. Moreover, even proof of past injury does not in itself establish the suffering of present or future injury.

Grutter v. Bollinger (2002): White resident of Michigan applies to U of M law school and denied. Law school uses race as a factor in making admissions decisions because it serves a “compelling interest in achieving diversity among its student body.” Critical mass standard, not quota standard.

1. Held: Educational benefits from diversity is a compelling interest.

   1. Amar and Katyal: “Inherent in the concept of diversity-based affirmative action is a recognition of the positive educational value of race and like experiences. This differs dramatically from contracting cases involving guardrails and urinals where affirmative action has no theory of value.”

   2. Military’s amicus brief: “A highly qualified, racially diverse officer corps educated and trained to command our nation’s racially diverse enlisted ranks is essential to the military’s ability to fulfill its principal mission to provide national security.”

   3. Fortune 500 companies’ brief: diversity in higher education is necessary to hiring a diverse workforce that provides for “unique and creative approaches” to problems, is better able to produce and market for diverse consumers, provides managers that can work with diverse clients, and promotes a positive work environment

2. Is the court really concerned about diversity?

   1. Admitting black students to benefit white students?

   2. What about religious diversity? Political diversity?

   3. Jack Greenberg (former head of the NAACP LDF) – “[The] reason for focusing on African Americans is because as Justice O’Connor seems to perceive there is something special and important for society, in the world outside the university, about admitting blacks. Blacks occupy a unique place in American society, with their background of slavery, state-enforced segregation, and widespread discrimination.”

3. Held: AA plan is narrowly tailored to achieve a compelling interes of diversity

   1. Fulfills basic requirement for narrow tailoring – universities cannot use quotas, but they can consider race or ethnicity as a plus factor in the context of an individualized consideration of each and every applicant

   2. Law school defined diversity broadly

   3. Considered other options to achieve the compelling interest, but they were all unworkable

   4. Plan must be considered temporary – in 25 years, AA should no longer be necessary

4. Dissent

   1. Thomas

      1. Ode to Frederick Douglass

      2. Diversity cannot be distinguished from racial balancing

      3. No compelling state interest in maintaining an elite law school

      4. More narrowly tailored means to achieve diversity in the law school

         1. Lower the admissions standard

         2. Select by lottery

      5. Students are unprepared and overmatched, unsuccessful in “cauldron of competition”

      6. AA stamps minorities with badge of inferiority, cause dependencies, or attitude of entitltement

Gratz v. Bollinger (2002): white student denied admission in U of M’s college of literature, science and the arts. University has a policy to admit virtually all qualified applicants who are members of one of three select racial minority groups - African Americans, Hispanics, and Native Americans - that are considered to be "underrepresented" on the campus.

1. Held: diversity is a...