Affirmative Action (Update 2)

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There is no single definition of "affirmative action," either in American politics or in American constitutional law. The core of the debate over affirmative action concerns the consideration of race, ethnicity, or gender as a factor in selecting among applicants, with the aim of increasing the presence of traditionally disadvantaged groups among those selected. Where opponents of affirmative action see "quotas" or "preferences" or improper efforts to engineer "proportional representation" that result in the selection of "unqualified" applicants, supporters of affirmative action see race and gender as no more than a "plus factor" employed to assure "diversity" among fully qualified applicants. The debate rages in the courts, in electoral politics, and in the policymaking of public bodies.

In adarand constructors, inc. v. peÑa (1995), the Supreme Court held that all "racial classifications," however benign their intent, are subject to strict scrutiny by the courts. Post-Adarand affirmative action decisions in the federal courts of appeal have begun to determine which racially conscious programs constitute "racial classifications" and whether they survive strict scrutiny.

In the field of student admissions, the leading pre-Adarand case is regents of university of california v. bakke (1978), in which the separate but governing opinion of Justice lewis f. powell, jr. , endorsed the use of race as one factor among many to assure diversity in a student body. In hopwood v. texas (1996), the Fifth Circuit Court of Appeals declared that Powell's opinion was not binding precedent and struck down the University of Texas Law School's use of affirmative action in student admissions. That decision has been subject to much appropriate criticism. Powell's opinion is best understood as having applied strict scrutiny, and thus Adarand provides no basis for questioning Bakke 's authority. Even when Bakke is recognized as controlling authority, however, courts are now taking a hard look at whether affirmative action programs in education are in fact narrowly tailored to address legitimate diversity needs. For example, an affirmative action program at the high school level was rejected on narrow tailoring grounds (among others) by the First Circuit Court of Appeals in Wessman v. Gittens (1998).

In the field of government contracting, where Adarand is the Supreme Court's most recent decision, controversy exists over whether outreach and self-monitoring programs are "racial classifications" subject to strict scrutiny.

The Ninth Circuit Court of Appeals so held in Monterey Mechanical Co. v. Wilson (1998), which involved a California requirement that contractors make good faith efforts toward meeting minority hiring goals, a requirement that could be satisfied by a combination of outreach and data collection. The opinion triggered a vigorous dissent from several members of the court on a failed sua sponte request for rehearing en banc.

In the field of government employment, a plurality of the Supreme Court in wygant v. jackson board of education (1986) rejected the use of race-based affirmative action in teacher layoffs. The plurality rejected two commonly asserted grounds for affirmative action in employment: the remedying of societal discrimination and the provision of minority role models. Consequently, and on the strength of the analogy between student admissions and teacher hiring, educational employers widely rely on "diversity" as their asserted compelling state interest in employment cases in which the employer has no demonstrable history of past discrimination. The availability of diversity as a constitutional justification may be weaker for noneducational employers, despite the wide popularity of affirmative action among businesses seeking to serve diverse domestic and global clienteles. Then again, the decision of the Seventh Circuit Court of Appeals in Wittmer v. Peters (1996) suggests that employers in one noneducational field—law enforcement and corrections—may be given especially broad leeway in experimenting with racebased hiring aimed at improving the ability of the state to diminish crime in minority communities.

As in the case of government contracting, the question of the applicability of strict scrutiny to outreach programs has received post-Adarand judicial attention in employment cases. In Lutheran Church–Missouri Synod v. Federal Communications Commission (1998), the District of Columbia Circuit Court of Appeals applied strict scrutiny to, and struck down, an FCC policy requiring radio stations to engage in outreach, to monitor the effects of their hiring practices on minorities and women, and to report the racial and gender composition of their workforces to the agency. The policy did not tie any penalty or benefit to the reported results. It was struck down nonetheless because, in the court's view, "[t]he entire scheme is built on the notion that stations should aspire to a workforce that attains, or at least approaches, proportional representation." As in Monterey Mechanical, several members of the court dissented from the denial of rehearing en banc, arguing that outreach and self-monitoring aimed at avoiding discrimination are not "racial classifications" subject to strict scrutiny under Adarand. In contrast, the Eleventh Circuit Court of Appeals, in Allen v. Alabama State Board of Education (1999), refused to see in Adarand grounds to challenge a consent decree that required the Alabama Board of Education to develop nondiscriminatory teacher certification tests using a methodology that required it to monitor the test items for disparate racial impact. Thus, the question of when permissible "race consciousness" crosses the border into suspect "racial classification" remains unsettled after Adarand.

In the current legal environment, trial courts may well engage in a searching analysis to determine which justifications for affirmative action are "compelling" in which settings and which forms of affirmative action, if any, are "narrowly tailored" to meet the government's goals. Between the use of strict scrutiny and federal courts' increasing scrutiny of scientific expert testimony in all types of cases pursuant to the Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), the next generation of defenses of affirmative action programs will need to be fact-based and sophisticated in proving the validity of the government's means and ends.

Deborah C. Malamud


Chin, Gabriel, ed. 1998 Affirmative Action and the Constitution, 3 vols. New York: Garland.

Symposium 1998 Twenty Years After Bakke: The Law and Social Science of Affirmative Action in Higher Education. Ohio State Law Journal 59:663–1067.