Equality/Equal Protection Affirmative Action Affirmative action is one of the most controversial programs in our society. Discussions about it generate a lot of heat—and sometimes not much light. 1. One way to shed some light on affirmative action is to look at how its history and how the courts have interpreted it. Is race-conscious legislation ever Constitutional? Does it matter if the intent of the legislation is benign? Do affirmative action programs establish quotas? Supreme Court cases have raised each of these issues. 2. In practice, the courts have looked very carefully at any law that discriminates on the basis of race. As the Court explained in a recent decision, Grutter v. Bollinger: Because the Fourteenth Amendment "protect[s] persons, not groups," all governmental action based on race—a group classification long recognized as in most circumstances irrelevant and therefore prohibited—should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed. Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 227 (1995)…. It follows from that principle that government may treat people differently because of their race only for the most compelling reasons. 3. This "strict scrutiny" standard in cases of group classifications predates affirmative action. In fact, it dates back to World War II, when the Supreme Court was asked to consider the constitutionality of military orders that singled out persons of Japanese descent, subjecting them to curfews and other restrictions and, in some instances, removing them to special camps far from their homes. Strict Scrutiny 4. In the case Korematsu v. United States, 323 U.S. 214 (1944), a Japanese-American challenged the policy of removing persons of Japanese descent to camps during World War II. The Court determined that the highly unusual demands of wartime security justified the military orders in question. However, in reaching this result, the Court made it clear that distinctions in law and practice based on race are "inherently suspect." The Justices held that such laws and practices must withstand "strict scrutiny" by the courts. 5. "Strict scrutiny" means that a law or practice that discriminates on the basis of race, national origin, alien status, or some other fundamental right such as freedom of speech or religion will be examined very closely by the courts. The government must show that it has a "compelling interest"—an extremely important reason—for treating people differently on one of these bases. It also must show that the government action was the least restrictive means to achieving its purpose and is narrowly tailored to advance this compelling interest. Equal Protection & Affirmative Action 6. In the 1960s and 1970s, the federal government, along with some state and local governments, began programs designed to overcome the effects of past societal discrimination. In the words of President Lyndon B. Johnson, "This is the next and more profound stage of the battle for civil rights. We seek… not just equality as a right and a theory, but equality as a fact and as a result." 7. The policy of affirmative action was embodied in executive orders that required that affirmative action programs be developed by government contractors and educational institutions receiving federal funds. 8. According to critics of the practice, the Equal Protection Clause of the Fourteenth Amendment forbids affirmative action programs, since they deny "the equal protection of the laws." Yet some 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." 9. 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. 10. 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. 11. 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. 12. In Richmond v. J. A. Croson Co., 488 U.S. 469 (1989), 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. Affirmative Action Today 13. In 2003, the Supreme Court considered two affirmative action cases from the state of Michigan. The issue before he Court in Gratz v. Bollinger was whether a University of Michigan undergraduate affirmative action program met constitutional muster. That program automatically gave one-fifth of the points needed to guarantee admission to every underrepresented minority applicant solely because of minority status. 14. The Court ruled that the program was unconstitutional. The reasoning was that the policy was not narrowly tailored to achieve educational diversity. It violated the Equal Protection Clause by not providing individualized consideration of each applicant. 15. In other words, the undergraduate affirmative action program at Michigan looked too much like an automatic preference, just based on the status of the applicant as a minority. 16. The result was different when the Court turned to the affirmative action policy of Michigan's Law School. The issue before the Court in Grutter v. Bollinger was whether the University of Michigan Law School's use of race as a consideration in admitting students was prohibited by the Equal Protection Clause. The Law School's admissions policy differed from the undergraduate program's policy. Rather than giving all minority candidates a bonus, simply because they were members of a minority group, the Law School favored a flexible approach. 17. Its flexible assessment of each applicant looks at the applicant's talents, experiences, and potential, as well as a personal statement, letters of recommendation, an essay describing how the applicant will contribute to Law School life and diversity, and the applicant's undergraduate grade point average (GPA) and Law School Admissions Test (LSAT) score. The policy does not define diversity solely in terms of racial and ethnic status and does not restrict the types of diversity contributions eligible for "substantial weight," but it does reaffirm the Law School's commitment to diversity. By enrolling a "critical mass" of underrepresented minority students, the policy seeks to ensure their ability to contribute to the Law School's character and to the legal profession. 18. The Court held that this policy did not violate the Equal Protection Clause, and thus was constitutional. The Court ruled that student-body diversity is a compelling state interest that can justify using race in university admissions and that that the law school's admissions program bears the hallmarks of a narrowly tailored plan. "Government may treat people differently because of their race only for the most compelling reasons…. Today we endorse [the] view that student body diversity is a compelling state interest that can justify the use of race in university admissions. When race-based action is necessary to further a compelling government interest, such action does not violate the constitutional guarantee of equal protection so long as the narrow-tailoring requirement is also satisfied." Justice Sandra Day O'Connor, majority opinion 19. Just as in the undergraduate case, the Court was divided. Four justices dissented. Justice Thomas was particularly forceful. "[R]acial classifications are per se harmful and … almost no amount of benefit in the eye of the beholder can justify such classifications." Justice Clarence Thomas, dissenting The Quota Question 20. Opponents of affirmative action often complain that it establishes a quota system, in which a certain percentage of jobs, or contracts, or admissions, are reserved for members of certain groups. The Court's majority opinion in Grutter addressed this question directly in asserting that the law school affirmative action program upheld there did not establish quotas. In the words of Justice O'Connor for the Court: As Justice Powell made clear in Bakke, truly individualized consideration demands that race be used in a flexible, nonmechanical way. It follows from this mandate that universities cannot establish quotas for members of certain racial groups or put members of those groups on separate admissions tracks. Nor can universities insulate applicants who belong to certain racial or ethnic groups from the competition for admission. Universities can, however, consider race or ethnicity more flexibly as a "plus" factor in the context of individualized consideration of each and every applicant. When Will Affirmative Action End? 21. Besides not establishing quotas, the Supreme Court has held that affirmative action programs must be limited in time. Justice O'Connor addressed this question in the Court's majority opinion in Grutter v. Michigan: The requirement that all race-conscious admissions programs have a termination point "assure[s] all citizens that the deviation from the norm of equal treatment of all racial and ethnic groups is a temporary matter, a measure taken in the service of the goal of equality itself." Richmond v. J. A. Croson Co., 488 U. S., at 510 We take the Law School at its word that it would "like nothing better than to find a race-neutral admissions formula" and will terminate its race-conscious admissions program as soon as practicable. It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today. 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"? The doctrine of "separate but equal" upheld in Plessy put African-Americans at a severe disadvantage. The practice upheld in Grutter gave African-Americans and members of certain other minorities an advantage in the law school's admissions policy. The dissents in both cases essentially argued that the Constitution is color-blind. Is it? Should it be? How should we deal with the possible harm some individuals caused by preferences established to advance the interests of members of historically disadvantaged groups? Does the "benign" intention of the preference make a difference? What are some examples of the distinction between an affirmative-action policy that is narrowly tailored, and one that is not? Should such distinctions be crucial to a court's analysis of whether the Equal Protection Clause has been violated? How can affirmative action programs avoid imposing strict quotas and still accomplish their ends? Speech Ideas/Talking Points Home | Equality/Equal Protection Home Tips on Volunteering Home