Introduction [307-308]

 

The affirmative action cases examine the legitimacy of using race, ethnicity, or gender as criteria for preferring one candidate for a job or school over another. Constitutional and statutory affirmative action issues tend to overlap. Critics of affirmative action argue that it recognizes and utilizes racial, ethnic, and gender lines in a manner that the law has proscribed in other contexts. Proponents argue that these lines are justified, and indeed necessary, to redress past societal discrimination against minorities and women.

 

§10.01 Education [308-314]

In Grutter v. Bollinger, 123 S. Ct. 2325 (2003), the Court held that the use of race in admissions decisions by the University of Michigan Law School did not violate equal protection. Justice Powell’s opinion in Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978), required that government-imposed racial classifications must be “narrowly tailored to further compelling governmental interests.” 123 S. Ct. at 2337-38. Justice Powell did find compelling the interest in attaining “a diverse student body.” Id. The First Amendment has long been concerned with academic freedom. For the university to fulfill its mission of finding students who will contribute to the “robust exchange of ideas,’” [id. at 2336] the Court will presume its “‘good faith’” absent a contrary showing. The Law School is not aiming to obtain a “specified percentage of a particular” ethnic group, [id. at 2367] [reference to Grutter or to Bakke?] which would be unconstitutional racial balancing. Rather, it is trying to capture a “critical mass” sufficient to generate the educational benefits that arise from diversity. Establishing a quota or a separate admission track for minorities would not be narrowly tailored. Universities may, however, consider race a “‘plus’” in the individualized consideration of each applicant.

                 

In Gratz v. Bollinger, 123 S. Ct. 2411 (2003), the Court struck down the University of Michigan’s undergraduate admissions program. An applicant must receive 100 points to be guaranteed admission to the undergraduate program. An applicant that fell into the category of an “‘underrepresented minority’” automatically received 20 points based solely on his/her race. A policy that granted one-fifth of the points needed to be guaranteed admission to an applicant based entirely on the applicant’s race was “not narrowly tailored to achieve the interest in educational diversity.” Id. at 2427. Justice Powell’s opinion in Bakke stressed that a university should consider “each particular applicant as an individual, assessing all of the qualities that individual possesses, and in turn, evaluating that individual’s ability to contribute to the unique setting of higher education.” Id. at 2428. By distributing 20 points to an applicant based on his race, Michigan has made race a decisive factor “for virtually every minimally qualified underrepresented minority applicant.” Id.

 

§10.02 Employment [314-323]

 

            [1]  Title VII and the Equal Protection Clause

 

From the beginning, several factors have generally strongly influenced the result in affirmative action cases. For example, affirmative action in the layoff context is more difficult than in, for example, hiring or promotion. Another factor that strongly influences these cases is whether the Court perceives the program at issue as a goal or quota. Other influential factors include how flexible the remedy is, how long it will last, and how much weight is placed on race or gender in the employment decision.

 

            [2]  Government Set Asides

 

In City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), the Court invalidated a Richmond requirement that prime contractors working for it award 30 percent of their subcontracts to minority contractors. For the first time, a majority of the Court applied a compelling state interest test to affirmative action cases. A plurality of four afforded guidance regarding what steps state and local governments had to follow in formulating appropriate plans. Findings necessary to underpin an affirmative action plan included:

 

1) direct evidence that nonminority contractors had systematically excluded minority contractors;

 

2) significant statistical differences between the number of qualified minority contractors available and interested in performing a particular service and the number actually doing work; or

 

3) individual instances of discrimination supported by statistical proof. Individual instances standing alone support individual remedies rather than an affirmative action plan. Id. at 509.

 

Even when appropriate findings existed, an affirmative action plan should be proposed only “in extreme cases.” Id. The state or local government should first try anti-discrimination legislation or race-neutral measures such as helping to finance small businesses-which may include many minority businesses. Finally, any plan should be a temporary measure tailored in duration and scope to the injury described by the findings.

 

Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), extended strict scrutiny to a race-based affirmative action program established by the federal government.