Affirmative Action

1. 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

2. 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

3. 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

4. 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.

5. 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.

6. 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.”

7. 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.

8. 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

9. 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,...

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