Equality/Equal Protection Equal Protection & Affirmative Action 1. The Equal Protection Clause is often invoked in court cases challenging affirmative action programs. Yet many would argue that the programs are, paradoxically, an attempt to provide equality: In President Johnson's famous words: "You do not take a person hobbled with chains and liberate him, bring him up to the starting line of a race and say, 'You are free to compete with all the others,' and still justly believe that you have been completely fair." 2. An affirmative action program was challenged in Regents of the University of California v. Bakke, 438 U.S. 265 (1978), the first Supreme Court test of affirmative action. Bakke, a white applicant for medical school who was turned down even though his test scores and GPA were higher than those of minority applicants admitted, argued that he was discriminated against based on his race, a violation of his constitutional rights under Equal Protection. The medical school had reserved a certain number of slots in each entering class for minority candidates. 3. The decision in Bakke held that race can be used as a positive factor in admissions or hiring practices, but cannot be the only factor. They ordered Bakke admitted to medical school because the school’s policy had in effect denied him admission because of his race. 4. The Equal Protection Clause has in some instances been interpreted to uphold affirmative action programs in situations where the program is necessary to remedy past discrimination. In United States v. Paradise, 480 U.S. 149 (1987), for example, the Court ruled in favor of a quota system for promoting minority state troopers by the Alabama Department of Public Safety. The Department had been shown to have discriminated against blacks, and had refused to change its discriminatory policy for over a decade, even after a state court ordered it to do so. 5. In Richmond v. J. A. Croson Co., 488 U.S. 469, however, the Court struck down a quota that aimed at increasing minority representation in awarding public contracts. The Court held that the program failed under strict scrutiny, because it effectively denied certain citizens the opportunity to compete for city contracts because of their race, without a previous showing that minorities were suffering under the effects of past discrimination. 6. Affirmative action continues to be the subject of court cases. In Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), the Fifth Circuit held that the University of Texas's aim of creating a more diverse student body at the law school was not a compelling reason to justify racial preferences. Discussion Questions What is affirmative action? What practice or set of practices do we mean by the term? How and why did affirmative action become federal government policy? Is affirmative action consistent with the principle of "equal protection"? Speech Ideas/Talking Points Home | Equality/Equal Protection Home Tips on Volunteering Home