Legal essay on affirmative action in the United States

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Affirmative action cases in the Supreme Court of the United States have centred around government contracting, broadcast licences, electing state officers and, of course, schooling.Each case, in one respect or another – and if the case has not been overruled – has precedential value, providing legal guidelines as to the acceptability of different affirmative action plans in different contexts. In the context of schooling in the United States, the involvement of federal funding makes affirmative action plans subject to the standard of strict scrutiny definitively established in Adarand and involves the application of the Fourteenth Amendment as well as Title VII of the Civil Rights Act 1964. This essay will address a) the arguments for affirmative action, and b) how it can be practiced without fear of legal challenge, under the two limbs of the long-established strict scrutiny test conveniently outlined in Seattle: for an affirmative action plan to pass constitutional muster it must 1) serve a compelling government interest, and 2) be narrowly tailored to achieve that goal. Within these two limbs are a number of important considerations that have been gleaned from the various affirmative action authorities and which apply to school-related cases.

Affirmative action has always been viewed as a “highly suspect tool” to achieve social justice in the United States. Perhaps for this reason there are only two currently accepted justifications for affirmative action. Those justifications are: 1) “remedying the effects of past intentional discrimination”, and 2) achieving diversity in higher education. Beyond these two “compelling government interests”, no affirmative action plan has been deemed legal in the United States.  The compelling interest of remedying past intentional discrimination was firmly established in Fullilove in 1980 (Weber in 1979 held the same but in the context of a local plan not concerning the Fourteenth Amendment). In that case a provision in the Public Works Employment Act which required that ten per cent of federal funds granted for local public works be used to employ the services of minority business enterprises was challenged. The race-based set aside of funds was upheld as constitutional because it was “narrowly tailored” to support minorities who had traditionally been discriminated against in the construction industry. It was also upheld because Congress’ power under the Commerce Clause of the Constitution allowed that type of discretion. It has been made clear, however, that: “This Court never has held that societal discrimination alone is sufficient to justify a racial classification. Rather, the Court has insisted upon some showing of prior discrimination by the governmental unit involved before allowing limited use of racial classifications in order to remedy such discrimination.” For this reason, arguments by the respondents in the school-related case of Seattle were rejected. In that case, both the admissions policies of the Jefferson County school district and Seattle school district were challenged as illegal because they took race strongly into consideration during their admissions processes. The argument that racial balancing was being undertaken to remedy past discrimination was quickly thrown out because a) Seattle never had segregated schools and thus had no past discrimination to rectify, and b) The Supreme Court had ruled in 2000 that the lingering impacts of segregation had finally been overcome, meaning that there was no longer any past discrimination to rectify. The second argument for affirmative action – diversity – was mentioned in Justice Powell’s opinion in Bakke in 1978 but not firmly established until the case of Grutter in 2003. The judgment by Justice O’Connor refers constantly back to Bakke, utilising arguments made by Justice Powell for the independence of universities in forming their admissions policies and the compelling interest of achieving diversity because the “nation’s future depends upon leaders trained through wide exposure to the ideas and mores of students as diverse as this Nation of many peoples.” The objective of diversity, as with rectifying past discrimination, also faces a strict legal test. Grutter affirmed the position of Justice Powell in Bakke, which was further affirmed by Seattle that “it is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups, that can justify the use of race.” The achievement of diversity requires a much more complex procedure than statistical balancing of numbers. The issue was addressed directly in both Grutter and Gratz (decided on the same day) and a contrast of the two cases reveals the requirements of the diversity test. Both cases considered admissions policies at the University of Michigan. The law school’s admissions policy was found permissible in Grutter because it only considered race as a “plus” factor alongside many other variables in a process that looked at each applicant in a highly individualistic way. The University of Michigan’s undergraduate admissions policy was held unconstitutional in Gratz, on the other hand, because it automatically gave 20 entry points (1/5 of those needed) to applicants based on their classification as a “minority”. The court said that this broad-brush approach – a virtual guarantee of entry for minority students with lower grades – and the adverse effects it had on non-minority students could not be tolerated. The court found that the 20-point assignment “operated as the functional equivalent of a quota and ran afoul of Justice Powell’s opinion in Bakke.” A principle taken from Bakke was also that race could not become a “decisive” factor in decision-making because this would operate in direct conflict with the law. Thus, Grutter’s holistic system was upheld while Gratz’s “automatic distribution of 20 points ha[d] the effect of making “the factor of race … decisive” for virtually every minimally qualified underrepresented minority applicant” was rejected.

These qualifications on the extent to which the arguments for affirmative action – diversity and rectifying past discrimination – can be applied constitute what the court has called “narrow tailoring”. Thus, once it has been established that an affirmative action plan conforms to one of the two compelling interests, the plan must be shown to be “narrowly tailored”. This test again involves a number of sub-considerations which, with regard to the authorities, can be outlined as follows: for a plan to be considered narrowly tailored it generally must 1) avoid the use of quotas, 2) have a logical stopping point, 3) have minimal or no impacts on non-minorities, and 4) be a last resort after race-neutral alternatives are exhausted or discounted. As already mentioned, the veritable quota system used by the University of Michigan in Gratz proved fatal to that affirmative action plan. The use of quotas in Seattle also proved fatal to admissions policies in the Jackson and Seattle school districts. The court in that case applied Bakke and Grutter, affirming the position that “If petitioner’s purpose is to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin, such a preferential purpose must be rejected … as facially invalid. Grutter itself reiterated that “outright racial balancing” is “patently unconstitutional.””

Another important requirement of affirmative action plans is that they have a logical stopping point. This has held especially true for affirmative action plans in the area of employment, while the stance of the court in school-related cases is a little more unclear. In cases such as Weber, it was considered essential to narrow tailoring that the affirmative action plan in that case had a logical point at which it terminated. “Preferential selection of craft trainees at the Gramercy plant will end as soon as the percentage of black skilled craftworkers in the Gramercy plant approximates the percentage of blacks in the local labor force.” That case concerned the correction of past discrimination against workers in a particular industry, while school-related cases are different in that they generally concern diversity. The objective of “diversity”, however, is a much more intangible goal than the straightforward balancing of the number of black workers in an industry with the number of blacks in the wider community. Diversity requires the attainment of a “critical mass” but, as the authorities hold, quotas are not to be used. Conflict arises from a comparison of Grutter and Gratz. Lawyer Shaakirrah R. Sanders, upon analysis Gratz and Grutter, wonders about the difference between the stated aims of each program. Their objectives were diversity, which required a “critical mass” of minority students. But “what distinguishes a quota from “critical mass” remains a mystery,” notes Sanders. “If a quota is a fixed number, how does one determine what constitutes more than a token number sufficient to meet the demands of diversity? The Court utterly failed to resolve or offer any guidance on this issue.” Similarly, Ransic has criticised the distinction made between Gratz and Grutter, stating that “the line between the addition of points to enhance an applicant’s total score and the favorable recruitment of black students to achieve a “critical mass” is so fine as to be arguably nonexistent.” Thus it is unclear whether there must be a logical stopping point for diversity-aimed affirmative action plans in schools since diversity is a fluid concept lacking any numerical grounding. Perhaps the court’s stance will become clearer as more litigation comes to the fore and perhaps the court will come to align with the ruling in Wygant. That case rejected the idea that an affirmative action plan could be justified on the basis that black students required black “role model” teachers, stating: “carried to its logical extreme, the idea that black students are better off with black teachers could lead to the very system the Court rejected in Brown v. Board of Education.” Carrying the concept of diversity to its logical conclusion would result in the type of affirmative action plan outlawed in Seattle, where the search for diversity – however well-intentioned – resulted in illegality.

Thirdly, for an affirmative action plan to be considered narrowly tailored it must have minimal or no adverse impacts on non-minorities. The major affirmative action cases from the US Supreme Court have concerned reverse discrimination against white applicants. In each case the court has considered how much of an impact the challenged affirmative action plan has on non-minorities. The test was established in Weber and is a requirement that “checks to ensure that the rights of non-beneficiaries of the affirmative action program are not unduly trammelled.” The test was affirmed in the school-related case of Wygant, where a collective bargaining agreement between the Jackson Board of Education and teachers was held unconstitutional because it had too much of an adverse impact on non-beneficiaries. The affirmative action plan at issue held that if there were to be staff lay-offs in schools, there could not be a greater percentage of African American teachers laid off than the percentage of minority teachers employed before the layoff. This plan resulted in several African American teachers being retained during lay-offs while more senior white teachers lost their jobs. The court gave the following reasoning for their decision: “In cases involving valid hiring goals, the burden to be borne by innocent individuals is diffused to a considerable extent among society generally. Though hiring goals may burden some innocent individuals, they simply do not impose the same kind of injury that layoffs impose. Denial of a future employment opportunity is not as intrusive as loss of an existing job.” Such reasoning allowed the decision in Weber to stand – where an affirmative action plan discriminated against white applicants in the hiring process – while further developing the required test for narrow tailoring. This requirement is yet another reason for the different decisions in Grutter and Gratz. The 20-point plan in Gratz had a larger negative impact on white applicants because it virtually guaranteed the entry of a minority student over a non-minority student where both students were equal in every respect. Because colour of skin was so decisive, the plan was held to be illegal. In Grutter, on the other hand, the individualistic and holistic comparison of students meant that adverse impacts against non-minorities were much more reduced.

Last, but by no means least, a proponent of an affirmative action plan faces the heavy burden of showing that the plan was either a last resort or the only option in the face of unreasonable or failed non-racial alternatives. This requirement proved to be the nail in the coffin for the affirmative action plans at issue in Seattle. The court, affirming Grutter, clearly stated that: “The districts have…failed to show that they considered methods other than explicit racial classifications to achieve their stated goals. Narrow tailoring requires serious, good faith consideration of workable race-neutral alternatives.” Justice Kennedy in Croson also noted: “I am confident that, in application, the strict scrutiny standard will operate in a manner generally consistent with the imperative of race neutrality, because it forbids the use even of narrowly drawn racial classifications except as a last resort.” In the most recent affirmative action case, Ricci, the court further expressed the extent of the burden on proponents of affirmative action plans. In that case New Haven’s Civil Service Board was being challenged in the Supreme Court because it refused to certify the results of a work-related test for fire fighters in New Haven. The court stated that “An employer may defend against liability by demonstrating that the practice is “job related for the position in question and consistent with business necessity.” Even if the employer meets that burden, however, a plaintiff may still succeed by showing that the employer refuses to adopt an available alternative employment practice that has less disparate impact and serves the employer’s legitimate needs.” Such a principle is plainly applicable to schools and universities, where a number of race-neutral alternatives are available and have been implemented in California, Florida and Texas, as mentioned in Gratz.

In summary, the legal arguments for affirmative action can be simplified down to the consideration of 1) whether an affirmative action plan is designed to rectify past illegal discrimination or 2) whether a plan is designed to achieve necessary diversity. To practice these forms of race-based discrimination, one must have regard to the two-step strict scrutiny test of the Supreme Court and the various sub-considerations imbedded within the two limbs of that test. Although this essay covers the current legal position in the United States on affirmative action, the Court’s position has inevitably been criticised. Arguments have been raised that the Court’s current position is too restrictive and actually contrary to the original intentions of the Framers of the Fourteenth Amendment. Brody writes, “The [Supreme Court] Majority’s simplified “colorblind” analysis of the Constitution directly contradicts the intent of the Fourteenth Amendment to acknowledge racial inequities present in the nation, and to address them directly with race-conscious remedies.” He goes on to argue that the Court’s stance is largely irrational because different standards of scrutiny are being applied depending on whether an affirmative action plan is legally controlled by Title VII of the Civil Rights Act or by the Fourteenth Amendment. He notes, “The Title VII analysis would allow the majority of affirmative action programs to survive so long as they were fair to both beneficiaries and non-beneficiaries. This analysis comports with the legislative intent of Title VII. In contrast, when applying a Fourteenth Amendment equal protection analysis, the Court reverts to a strict scrutiny standard, which requires a compelling state interest, and a program narrowly tailored to serve that interest.” Despite this criticism, the position of the United States Supreme Court looks to stay the same if not tend towards an even stricter approach as race, gender and other differential factors become less of an issue in society. In fact, an equivalent statement was made in Grutter that reveals what will perhaps become the Court’s position: “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

Parents Involved in Community Schools v. Seattle School District No. 1 551 U.S. 701 (2007) at 746.

Carl E. Brody, “A Historical Review of Affirmative Action and the Interpretation of its Legislative Intent by the Supreme Court,” Akron Law Review, 29 (1996): 291. at 328.

Brody, “A Historical Review of Affirmative Action and the Interpretation of its Legislative Intent by the Supreme Court,” at 327.

Seattle 551 U.S. 701 (2007) at 720.

Grutter v. Bollinger 539 U.S. 306 (2003) at 325.

Seattle 551 U.S. 701 (2007) at 720.

Seattle 551 U.S. 701 (2007) at 722.

Carol Daugherty Ransic, “The U.S. Supreme Court on Affirmative Action: Are some of us “More Equal” than others?” St. Mary’s Law Review on Minority Issues, 7 (2004): 23. at 32.

Ransic, “The U.S. Supreme Court on Affirmative Action: Are some of us “More Equal” than others?” at 27.

Wygant v. Jackson Board of Education 476 U.S. 267 (1986) at 274.

Seattle 551 U.S. 701 (2007) at 715.

Grutter 539 U.S. 306 (2003) at 324.

Grutter 539 U.S. 306 (2003) at 324.

Seattle 551 U.S. 701 (2007) at 722.

Grutter 539 U.S. 306 (2003) at 334.

Gratz v. Bollinger 539 U.S. 244 (2003) at 272.

Gratz 539 U.S. 244 (2003) at 259.

Regents of the University of California v. Bakke 438 U.S. 265 (1978) at 316.

Gratz 539 U.S. 244 (2003) at 272.

Seattle 551 U.S. 701 (2007) at 730.

United Steelworkers of America v. Weber 443 U.S. 193 (1979) at 208.

Gratz 539 U.S. 244 (2003) at 281.

Shaakirrah R. Sanders, “Twenty-Five Years of a Divided Court and Nation: “Conflicting” Views of Affirmative Action and Reverse Discrimination,” University of Arkansas at Little Rock Law Review, 26 (2003): 61. at 107.

Sanders, “Twenty-Five Years of a Divided Court and Nation: “Conflicting” Views of Affirmative Action and Reverse Discrimination,” at 108.

Ransic, “The U.S. Supreme Court on Affirmative Action: Are some of us “More Equal” than others?” at 57.

Wygant 476 U.S. 267 (1986) at 276.

Brody, “A Historical Review of Affirmative Action and the Interpretation of its Legislative Intent by the Supreme Court,” at 323.

Wygant 476 U.S. 267 (1986) at 282.

Seattle 551 U.S. 701 (2007) at 735.

City of Richmond v. J.A. Croson Co. 488 U.S. 469 (1989) at 519.

Ricci v. DeStefano 557 U.S. ___ (2009) at 507.

Gratz 539 U.S. 244 (2003) at 297.

Brody, “A Historical Review of Affirmative Action and the Interpretation of its Legislative Intent by the Supreme Court,” at 333.

Brody, “A Historical Review of Affirmative Action and the Interpretation of its Legislative Intent by the Supreme Court,” at 325.

Grutter 539 U.S. 306 (2003) at 342.

(c) Craig Robertson, 2010

Yes & No

Yes - Ναί (“Nai” or “nE”)

No - Όχι (“ohxi” or “ohee”)

Don’t get them the wrong way round! (No sounds like the English ”okay” and yes the English “nah”)

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