Affirmative action and the Supreme Court

Description: Programs of governmental agencies or private institutions designed to provide members of marginalized groups with access to opportunities in education and employment.

Significance: Because of discrimination against members of marginalized groups, governmental agencies, businesses, and educational institutions gave them special opportunities, which some people criticized as discriminating against others. A divided Supreme Court struggled with the question of when such programs are acceptable.

Affirmative action is a highly controversial means of pursuing equal access to resources in education and employment. Although the term affirmative action first appeared in an official document in an executive order issued by President Lyndon B. Johnson in 1965, affirmative action did not emerge as a government policy until the 1970s. In Griggs v. Duke Power Co. (1971), the Supreme Court ruled that discrimination could be judged to exist when business practices resulted in limiting opportunities for marginalized people, even if there had been no evidence of intent to discriminate on the part of the employer. This altered the definition of discrimination, making it a matter of built-in racial bias.

Duke Power Company required either a high-school diploma or a passing grade on a general intelligence test for a job in its power plant. Fewer Black applicants than White applicants passed this test. The plaintiffs argued that in this case, educational credentials and test results had no direct relevance to job performance, so no justification existed for a job requirement that disproportionately affected members of the marginalized racial group. The Court, under Chief Justice Warren E. Burger, found that employment practices that exclude Black American job seekers and are not related to job performance are indeed discriminatory.

The concept of built-in discrimination established by Griggs helped lay the groundwork for political efforts to dismantle unintended barriers to full participation in American society. Affirmative action, according to the official government definition, involved action to overcome past or present barriers to equal opportunity. Two of the most obvious ways of overcoming such barriers were establishing quotas of marginalized people to be hired or admitted to educational programs and creating set-asides, positions reserved for marginalized people. These remedies, however, met with challenges by those in groups not benefiting from affirmative action, who charged that they were suffering from officially sanctioned discrimination.

In 1971 a Jewish man named DeFunis applied for admission to the University of Washington Law School but was rejected. The law school followed a practice of dividing its applicants into two categories, marginalized group members and people who were not members of marginalized groups, using lower standards for admitting marginalized group members. If DeFunis had been Black, American Indian, or Latino, his test scores and grades would have gained him entry. He sued, claiming that his rights to equal legal protection, guaranteed by the Fourteenth Amendment, had been violated.

DeFunis v. Odegaard came before the court in 1974. However, DeFunis had been admitted to the law school after a lower court found in his favor, and the school had said that he would be allowed to graduate, regardless of the court’s ruling. The court ruled the case moot because a ruling would not affect the outcome for the plaintiff, and it dismissed the appeal. Justice William O. Douglas wrote a dissent expressing his view that DeFunis had indeed been denied equal protection under the law.

Increasing Challenges

Although the court did not have to rule on preferential treatment of protected categories of people in the DeFunis case, challenges to affirmative action increased through the 1970s. One of the objections was the claim that affirmative action violated Title VII of the Civil Rights Act of 1964, which forbids discrimination on the basis of race. Many critics maintained that preferential treatment of marginalized group members could be viewed as discrimination against those who were not marginalized group members. In United Steelworkers of America v. Weber (1979), the court ruled that Title VII’s prohibition against racial discrimination does not condemn all private, voluntary race-conscious affirmative action plans. Kaiser Aluminum and Chemical Corporation and the United Steelworkers Union maintained a training program. As long as the percentage of Black Americans among Kaiser’s plant employees was less than the percentage of Black Americans in the local workforce, half of the openings on this program were reserved for Black Americans. Brian Weber, a White man who had not been allowed to enter the training program, sued, claiming that he had been a victim of racial discrimination.

Justice William J. Brennan Jr., writing for the majority of justices, maintained that Congress had not intended Title VII to prohibit private, voluntary efforts to overcome long-established patterns of racial discrimination in employment. In addition, the Fourteenth Amendment did not apply in this case because it did not involve any governmental actions. White people, in Brennan’s view, were not handicapped by the policy regarding the training program because no White people were fired and White people still had opportunities for advancement.

The best-known challenge to affirmative action to come before the court up to that point was Regents of the University of California v. Bakke (1978). Alan Bakke was a White man who had been denied admission to the University of California medical school at Davis. In 1972 the thirty-two-year-old Bakke was a Marine Corps veteran who had served in Vietnam and an engineer at a research center of the National Aeronautics and Space Administration (NASA) near Palo Alto, California. While working at NASA, he decided to become a medical doctor. He took classes to prepare himself for medical school and served as a volunteer in a local hospital emergency room.

Despite high scores on the Medical College Admissions Test and strong letters of recommendation, Bakke was rejected by the University of California and ten other schools to which he applied. Bakke wrote to the chair of admissions at the University of California, Davis, requesting reconsideration, charging that racially marginalized people who were less qualified had been admitted through a special admissions program. Bakke reapplied for early admissions in 1973 and prepared to sue if he was again rejected. In the summer of 1974 Bakke’s suit was officially filed in Yolo County Superior Court.

Bakke became one of the most celebrated court cases of the decade. It provoked national debate over affirmative action and brought wide attention to the practice of setting aside places in businesses or educational institutions for marginalized group members. The California supreme court found that Bakke had suffered racial discrimination. In November 1976, the Board of Regents of the University of California voted to appeal the decision to the Supreme Court.

Four justices, led by Justice Brennan, voted not to hear the case. Five chose to hear it, however, and it went on the court docket. Ultimately, the court reached a split decision. Four justices concluded that the University of California had clearly violated both the equal protection clause of the Fourteenth Amendment and the Civil Rights Act of 1964. Four other justices disagreed and wanted to uphold the constitutionality of taking race into consideration for education or employment. The swing vote, Justice Lewis F. Powell Jr., essentially divided his decision. He sided with the four who maintained that the set-aside program for marginalized groups at Davis was unconstitutional; however, he also stated that although racial quotas were unacceptable, race could be taken into consideration. The majority opinion, written by Brennan, incorporated Powell’s ambivalence. It stated that it was constitutional to take race into account to remedy disadvantages resulting from past prejudice and discrimination, but that race alone could not be the basis for making decisions about opportunities in employment or education.

After Bakke

Many legal scholars believe that Bakke established an unclear precedent. Although it did uphold the basic principle of affirmative action, it also left the door open for challenges to specific affirmative action policies. As a part of the 1977 Public Works Employment Act, Congress set aside 10 percent of all federal appropriations for public works contracts for marginalized contractors and subcontractors. This legislation came before the court in Fullilove v. Klutznick (1980). Once again, a controversial issue split the members of the court.

One of the differences between Fullilove and earlier affirmative action cases was that it involved the actions of Congress, which may act with greater power and authority than a private employer or a local school board and is also charged with seeking the present and future welfare of the nation. Chief Justice Burger’s opinion, joined by Justices Powell and Byron R. White, recognized this, stating that Congress has the power to act to remedy social evils and that there was a compelling governmental interest in seeking to counteract the deep-rooted disadvantages of marginalized contractors. Thurgood Marshall, joined by Justices Brennan and Harry A. Blackmun, wrote a concurring opinion arguing that the actions of Congress were constitutional because the set-aside provision was related to the congressionally approved goal of overcoming racial inequality. Justices Potter Stewart, William H. Rehnquist, and John Paul Stevens disagreed. Stewart and Rehnquist maintained that an unconstitutional practice could not be constitutional simply because it came from Congress rather than from a lesser source and that the set-aside involved distributing governmental privileges based on birth. Stevens objected to the governmental favoring of some groups over others and pointed out that those who were likely to benefit most were the least disadvantaged members of marginalized groups. Thus, although Fullilove established once more the principle of affirmative action, it also made it clear that there were fundamental disagreements on the principle, even among the justices.

Two major issues emerged from the Fullilove decision. One was the concept that affirmative action policies undertaken by the government merit a special deference because of the constitutional authority of Congress to make laws. The second was that because affirmative action is a means of pursuing governmental policies, agencies and organizations must be able to demonstrate that their affirmative action programs serve a compelling governmental interest. This second point placed the burden of justifying affirmative action programs on those seeking to establish the policies. Those seeking to pursue affirmative action policies must be able to demonstrate that these policies are narrowly designed to compensate for past discrimination or to bring about a clearly defined goal. For this reason, the court decided in Mississippi University for Women v. Hogan (1982) that a college could not deny men entry into a nursing program on the grounds that this was intended to compensate women for past discrimination. On the other hand, when past discrimination could be clearly demonstrated, affirmative action policies were deemed acceptable. A requirement in Alabama that one Black state trooper be promoted for every promotion of a White state trooper was upheld by the court in United States v. Paradise (1987) because it could be demonstrated that underrepresentation of Black Americans at high ranks was caused by past discrimination by the Alabama Department of Public Safety. In Richmond v. J. A. Croson Co. (1989), however, the court ruled that the Richmond city government’s minority business utilization plan failed to provide appropriate statistical data showing systematic underrepresentation of businesses owned by marginalized people. Therefore, the court found that the plan was not narrowly tailored to remedy the effects of prior discrimination and failed to demonstrate a compelling government interest for awarding a certain percentage of contracts to those businesses. Both the concept of the special status of Congress and of the legitimacy of affirmative action for compelling governmental interests were upheld in Metro Broadcasting v. Federal Communications Commission (1990), in which a majority of justices ruled that marginalized preference policies of the Federal Communications Commission were acceptable because they met both criteria.

Limits on Affirmative Action

During the 1990s there were a number of public challenges to affirmative action, notably in the Texas and California systems of higher education, where controversial laws passed in 1997 made it illegal to give preferential treatment to members of protected groups. Affirmative action proponent Marshall left the Court in 1991, and new justices appointed by Presidents Ronald Reagan and George Bush including Sandra Day O’Connor, Anthony M. Kennedy, Antonin Scalia, and Clarence Thomas appeared to be largely unsympathetic to affirmative-action-style policies. In his book on affirmative action and the court, Lincoln Caplan observed that in the middle to late 1990s Chief Justice Rehnquist and Justices O’Connor, Kennedy, Scalia, and Thomas never voted to uphold an affirmative action program based on race. Thomas, the only Black American among these justices, was the strongest and most open opponent of the preferential treatment of marginalized people, which he derided as “racial paternalism.” The limiting of affirmative action appeared in Adarand Constructors v. Peña (1995), in which the court expanded the idea that programs had to serve a compelling interest. Affirmative action programs, the court ruled, must be observed with the strictest scrutiny and must be necessary to meet a compelling state interest.

By the end of the twentieth century, many observers were predicting that the court would make a ruling that would end affirmative action. This perception made some defenders of affirmative action policies reluctant to bring cases before the court. This happened, for example, in the case of Sharon Taxman. Taxman, a White teacher, had been laid off from her job by the school district of Piscataway, New Jersey, in 1991. The school district needed to reduce its teaching force and had to choose between Taxman and an equally qualified Black teacher. Because Black teachers were underrepresented in the district, the school system used its voluntary affirmative action program to decide between the two teachers. Taxman sued, claiming racial discrimination. The case was poised to go to the court in late 1997. Fear that a court ruling in favor of Taxman would further weaken affirmative action led civil rights groups to support the Piscataway School Board’s decision to pay Taxman a $433,000 settlement in November 1997, rather than risk an unfavorable court decision.

The court also showed a reluctance to hear affirmative action cases at the end of the twentieth century. In March 1999, the Court refused to hear a case regarding a program in Dallas, Texas, that had been intended to benefit marginalized firefighters. A lower court, the Fifth Circuit Court of Appeals, earlier found that there was insufficient evidence of a historical pattern of discrimination against marginalized people in Dallas to justify preferential promotions for marginalized candidates. The two justices who had been appointed by President Bill Clinton, Stephen G. Breyer and Ruth Bader Ginsburg, issued a written dissent urging the majority of justices to take the case. Nevertheless, the court let the decision of the lower court stand. Many observers maintained that this case and others like it sent the message that the majority on the court saw racial preferences as a dying and disfavored strategy.

Debates around affirmative action continued into the early twenty-first century, with a pair of high-profile affirmative action cases reaching the Supreme Court in 2003. Both considered the affirmative action policies of the University of Michigan following lawsuits claiming racial discrimination filed by White applicants; the first case, Gratz v. Bollinger, resulted in the court deciding 6–3 that the institution's arts school did not have a sufficiently narrow policy. In the second case, Grutter v. Bollinger, the court ruled 5–4 that its law school followed an appropriately constitutional tailored policy that included race and ethnicity as one factor considered as part of many others. The court then heard arguments for the first time in the case of Fisher v. University of Texas at Austin, in which a White applicant had again cited racial discrimination, in 2013. In this instance, the court determined that the lower, Fifth Circuit Court of Appeals had not correctly considered the school's affirmative action policy in terms of the precedented scrutiny standard, sending the case back to the lower court. When the lower court again ruled in favor of the university, the defendant filed a second appeal that was granted by the Supreme Court, which subsequently ruled in 2016 that the university's affirmative action program was suitably narrowly tailored so as to not violate the Equal Protection Clause. Meanwhile, in 2014 the court had also upheld a Michigan constitutional amendment banning race considerations in admissions by state institutions.

In 2021, plaintiffs arguing that the race-conscious admissions programs of both Harvard University and the University of North Carolina (UNC) were unconstitutional, having lost cases involving each in lower courts, requested a simultaneous review by the Supreme Court. Despite protestations from the Department of Justice on the matter of reviewing, in early 2022 the Court conceded, and by later that year, arguments and questioning had commenced. Both cases argued that the colleges' admissions practices violated Title VI of the Civil Rights Act by intentionally discriminating against Asian Americans. Commentators soon speculated that this decision, made by a court that had become solidly majority conservative in the last few years, could lead to an end to affirmative action. Indeed, in June 2023, the Court announced their decision, ruling broadly against affirmative action in both cases. The ruling stated that affirmative action programs at Harvard and UNC violated the Equal Protection Clause of the US Constitution. Critics, including President Joe Biden, condemned the decision, citing the negative repercussions it would have on people of color and the likely declining rates of admission for such populations at elite universities. Conservatives, meanwhile, hailed the ruling as upholding the US Constitution as a "colorblind" document.

Bibliography

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