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					Modern Applications of Equal Protection:
         Affirmative Action


                         Bill of Rights Institute
                        University of New Mexico
                           Albuquerque, NM
                          September 15, 2009



                                   Artemus Ward
                             Dept. of Political Science
                            Northern Illinois University
                    http://polisci.niu.edu/polisci/faculty/ward/
                                 aeward@niu.edu
                 Affirmative Action
• It is plain that today older white Americans continue to be the
  most powerful demographic in American society:
   – They vote in greater numbers than any other demographic
       slice of America.
   – They contribute more money to organized interests and
       political campaigns.
   – They also comprise the largest demographic group of
       government officials, including Presidents, Senators,
       Congressmen, and Supreme Court Justices.
• Does this history of deliberate governmental racial discrimination
  justify positive governmental actions in order to realize equality?
• The federal government began affirmative action in the 1940s
  and by the 1960s Lyndon Johnson‘s administration was ordering
  the Labor Department to ensure that government contracting was
  nondiscriminatory. State governments and even private
  businesses followed suit and minority recruiting and numerical
  targets were established.
• Are racial quotas, or set-aside programs, constitutional?
   Regents of the University of California v.
                Bakke (1978)




•UC Davis Medical School set aside 16 places out of 100 spots in their
incoming class for members of minority groups. The average GPA of this
group was 2.6 and average MCAT score was in the 30th percentile.
•Allen Bakke, a white male, was denied admission despite his 3.5 GPA and
MCAT score in the 90th percentile. He sued under Title VI of the 1964 Civil
Rights Act which states: ―No person in the United States shall, on the
ground of race, color, or national origin, be excluded from participation in,
be denied the benefits of, or be subjected to discrimination under any
program or activity receiving federal financial assistance.‖
            Justice Lewis Powell
     Announced the Judgment of the Court
•   The Court was divided 4-4 with Justice Lewis
    Powell providing the deciding vote to strike
    down the program and order Bakke admitted.
•   Powell said that all racial classification
    (regardless of whether blacks or whites are
    burdened) are subject to ―strict scrutiny‖ which
    requires a compelling state interests and the
    law to be the least restrictive means of
    achieving that interest.
•   Powell said that while racial quotas are
    unconstitutional, diversity is a valid goal for
    universities. Hence race can be deemed a
    ―plus‖ in admissions when a range of factors
    are considered.
•   ―An otherwise qualified medical student with a
    particular background—whether it be ethnic,
    geographic, culturally advantaged or
    disadvantaged—may bring to a professional
    school of medicine experiences, outlooks, and
    ideas that enrich the training of its student
    body and better equip its graduates to render
    with understanding their vital service to
    humanity.‖
                 Bakke‘s Aftermath
• Though the quota program in Bakke was struck down, the Court
  continued to allow racial quotas but only in narrow circumstances
  such as when a specific history of racial discrimination demanded
  a strong remedy.
• For example, in United States v. Paradise (1987) the Court ruled
  5-4 that temporary quotas in hiring Alabama state troopers were
  constitutional.
• The Court was also more deferential to federal programs because
  of specific constitutional provisions granting congressional
  authority. Hence, a less exacting test than the strict scrutiny
  standard was applied.
• For example, in Fullilove v. Klutznick (1980) the justices upheld a
  1977 spending bill that required 10% of all federal funds going for
  public works projects to go to minority-owned companies. A
  plurality cited the Spending Power and Commerce Clause as
  authority.
• Also, in Metro Broadcasting v. FCC (1990) the Court upheld (5-4)
  a federal program to set-aside broadcast licenses for minority
  groups in order to promote future diversity in programming.
   City of Richmond v. Croson (1989)
• Writing for a 6-3 majority,
  Justice Sandra Day O‘Connor
  struck down a Richmond,
  Virginia plan requiring prime
  contractors to subcontract at
  least 30% of the dollar amount
  of the contract to minority
  business enterprises.
• O‘Connor applied strict scrutiny
  and found no compelling state
  interest: the city had not
  demonstrated past
  discrimination in the
  construction industry, which is
  what the Constitution requires
  in race discrimination cases.
 City of Richmond v. Croson (1989):
Justice Thurgood Marshall Dissenting
            •   ―It is a welcome symbol of racial progress when
                the former capital of the Confederacy acts
                forthrightly to confront the effects of racial
                discrimination in its midst.‖
            •   ―I find deep irony in second-guessing
                Richmond‘s judgment [about past
                discrimination]. As much as any municipality in
                the United States, Richmond knows what racial
                discrimination is; a century of decisions by this
                and other federal courts has richly documented
                the city‘s disgraceful history of public and private
                racial discrimination.‖
            •   ―Today‘s decision marks a deliberate and giant
                step backward in this Court‘s affirmative action
                jurisprudence….The new and restrictive tests
                [the majority] applies scuttle one city‘s effort to
                surmount its discriminatory past…I, however,
                profoundly disagree with the cramped vision of
                the Equal Protection Clause which the majority
                offers today and with its application of that vision
                to Richmond‘s laudable set-aside plan. The
                battle against pernicious racial discrimination or
                its effects is nowhere near won. I must dissent.‖
Adarand Constructors v. Pena (1995)
      • Adarand submitted the low bid on the guardrail
        portion of a federal highway project but was
        not awarded the subcontract because of a
        federal subcontractor compensation clause
        designed to provide the prime contractor with
        a financial incentive to hire ―socially and
        economically disadvantaged‖ business
        enterprises. Gonzales Construction Co. won
        the subcontract and the prime contractor
        received a $10,000 bonus.
      • Justice O‘Connor struck down the program for
        a 5-4 majority. She applied strict scrutiny and
        said that Congress did not show evidence of
        past discrimination in federal contracting.
      • She also explained that strict scrutiny applies
        to all cases—state and national—and, to the
        extent it is inconsistent with Adarand,
        overturned Metro Broadcasting v. FCC (1990).
Adarand Constructors v. Pena (1995):
 Justice Antonin Scalia Concurring
               • ―In my view, government can
                 never have a ‗compelling
                 interest‘ in discriminating on the
                 basis of race in order to make
                 up for past racial discrimination
                 in the opposite direction.‖
               • ―To pursue the concept of
                 racial entitlement—even for the
                 most benign of purposes—is to
                 reinforce and preserve for
                 future mischief the way of
                 thinking that produced race
                 slavery, race privilege and race
                 hatred. In the eyes of
                 government, we are just one
                 race here. It is American.‖
Adarand Constructors v. Pena (1995):
Justice Clarence Thomas Concurring
            • ―The government may not make distinctions
              on the basis of race.‖
            • ―So-called ‗benign‘ discrimination teaches
              many that because of chronic and
              apparently immutable handicaps, minorities
              cannot compete with them without their
              patronizing indulgence. Inevitably, such
              programs engender attitudes of superiority
              or, alternatively, provoke resentment among
              those who believe that they have been
              wronged by the government‘s use of race.
              These programs stamp minorities with a
              badge of inferiority and may cause them to
              develop dependencies or to adopt an
              attitude that they are ‗entitled‘ to
              preferences.‖
            • ―In my mind, government-sponsored racial
              discrimination based on benign prejudice is
              just as noxious as discrimination inspired by
              malicious prejudice. In each instance, it is
              racial discrimination, plain and simple.‖
    Adarand Constructors v. Pena (1995):
    Justice John Paul Stevens Dissenting
• ―There is no moral or constitutional
  equivalence between a policy that is
  designed to perpetuate a caste system and
  one that seeks to eradicate racial
  subordination. Invidious discrimination is
  an engine of oppression, subjugating a
  disfavored group to enhance or maintain
  the power of the majority. Remedial race-
  based preferences reflect the opposite
  impulse: a desire to foster equality in
  society.‖
• ―The Court‘s concept of ‗congruence‘
  assumes that there is no significant
  difference between a decision by the
  Congress of the United States to adopt an
  affirmative-action program and such a
  decision by a State or municipality. In my
  opinion that assumption is untenable. It
  ignores important practical and legal
  differences between federal and state or
  local decisionmakers.‖
  The Michigan Affirmative Action Cases (2003)
•In Gratz v. Bollinger (2003) the Court ruled 6-3 that the
University of Michigan‘s undergraduate admissions policy, in
which 100 points were needed for admission, violated the
Equal Protection Clause. The majority applied strict scrutiny
and said that automatically allotting 20 points to minority
applicants was not narrowly tailored to achieve the goal of
educational diversity. They said the system lacked the
individualized treatment of each applicant mentioned by
Justice Powell in Bakke.
•The same day, the Court ruled 5-4 in Grutter v. Bollinger
(2003) that Michigan Law School‘s admissions program,
which sought a ―critical mass‖ of minorities but was
individualized was constitutional. The justices cited briefs
filed by businesses and the military that worker/soldiers with
experience and training in a diverse environment were
beneficial—particularly for leadership positions.
•Justice O‘Connor wrote for the majority that ―race-conscious
admissions policies must be limited in time…. 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
increased. We expect that 25 years from now, the use of
racial preferences will no longer be necessary to further the
interest approved today.‖
                 Grutter v. Bollinger (2003)
           Justice Clarence Thomas Dissenting
•   ―I agree with the Court‘s holding that racial
    discrimination in higher education admissions will
    be illegal in 25 years. I respectfully dissent from
    the remainder of the Court‘s opinion and
    judgment, however, because I believe that the
    Law School‘s current use of race violates the
    Equal Protection Clause and that the
    Constitution means the same thing today as it
    will in 300 months.‖
•   ―The majority of black admitted to the Law
    School because of discrimination, and because
    of this policy al are tarred as undeserving. This
    problem of stigma does not depend on
    determinacy as to whether those stigmatized are
    actually the ‗beneficiaries‘ of racial discrimination.
    When blacks take positions in the highest places
    of government, industry, or academia, it is an
    open question today whether their skin color
    played a part in their advancement. The question
    itself is the stigma—because either racial
    discrimination did play a role, in which case the
    person may be deemed ‗otherwise unqualified,‘
    or it did not, in which case asking the question
    itself unfairly marks those blacks who would
    succeed without discrimination.‖
                 Parents Involved v. Seattle (2007)
    Chief Justice John Roberts Delivered the Majority Opinion
•   The school district never operated legally segregated schools
    and was never subject to court-ordered desegregation. Yet
    they voluntarily adopted a policy of assigning students to
    schools in order to overcome the effects of the city's
    segregated housing patterns on it's high schools. Specifically,
    they classified children as white or nonwhite, and used racial
    classifications as a ―tiebreaker‖ to allocate slots in particular
    high schools.
•   By a vote of 5-4 Chief Justice John Roberts wrote the
    majority opinion striking down the plan under strict scrutiny.
    Five justices said that the plan was not narrowly tailored.
    Roberts also said that local school districts do not have a
    compelling interest in racial diversity at the K-12 level. Yet
    only three other justices agreed with this position (Scalia,
    Thomas, and Alito).
•   Roberts concluded: ―Before Brown, schoolchildren were told
    where they could and could not go to school based on the
    color of their skin. The school districts in these cases have
    not carried the heavy burden of demonstrating that we should
    allow this once again—even for very different reasons. For
    schools that never segregated on the basis of race, such as
    Seattle, or that have removed the vestiges of past
    segregation…the way to ‗achieve a system of determining
    admission to the public schools on a nonracial basis‘ is to
    stop assigning students on a racial basis. The way to stop
    discrimination on the basis of race is to stop discriminating on
    the basis of race.‖
              Parents Involved v. Seattle (2007)
      Justice Anthony Kennedy Concurring
•   ―The plurality opinion is at least open to the
    interpretation that the Constitution requires school
    districts to ignore the problem of de facto
    resegregation in schooling. I cannot endorse that
    conclusion. To the extent the plurality opinion
    suggests the Constitution mandates that state and
    local school authorities must accept the status quo
    of racial isolation in schools, it is, in my view,
    profoundly mistaken.‖
•   ―This Nation has a moral and ethical obligation to
    fulfill its historic commitment to creating an
    integrated society that ensures equal opportunity
    for all of its children. A compelling interest exists in
    avoiding racial isolation, an interest that a school
    district, in its discretion and expertise, may choose
    to pursue. Likewise, a district may consider it a
    compelling interest to achieve a diverse student
    population. Race may be one component of that
    diversity, but other demographic factors, plus
    special talents and needs, should also be
    considered. What the government is not permitted
    to do, absent a showing of necessity not made               Kennedy speaks at Harvard Law School,
                                                                             March 2008.
    here, is to classify every student on the basis of         The event marked his 20th year on the Court.
    race and to assign each of them to schools based
    on that classification.‖
             Parents Involved v. Seattle (2007)
     Justice John Paul Stevens, Dissenting
•   ―There is a cruel irony in the Chief Justice‘s
    reliance on Brown. The first sentence of his
    concluding paragraph states: ‗Before Brown,
    schoolchildren were told where they could and
    could not got to school based on the color of
    their skin.‘ This sentence reminds me of
    Anatole France‘s observation: ‗The majestic
    equality of the law, forbids rich and poor alike
    to sleep under bridges, to beg in the streets,
    and to steal their bread.‘ The Chief Justice fails
    to note that it was only black schoolchildren
    who were so ordered; indeed, the history
    books do not tell stories of white children
    struggling to attend black schools. In this and
    other ways, the Chief Justice rewrites the
    history of one of this Court‘s most important
    decisions.‖
•   ―The Court has changed significantly
    since…1968. It was then more faithful to
    Brown and more respectful of our precedent
    than it is today. It is my firm conviction that no
    Member of the Court that I joined in 1975
    would have agreed with today's decision.‖
               Parents Involved v. Seattle (2007)
              Justice Stephen Breyer, Dissenting




       June 28, 2007. Justice Breyer (Left) reads his dissent from the bench. Next to him, Justice Kennedy leans back
       In his chair, while Justice Stevens sits upright and watches his colleague critique the majority opinion.

•   Breyer alluded to the Court‘s personnel changes by noting that the addition of Chief Justice
    Roberts and Justice Alito had made the difference in the case.
•   ―Rarely in the history of the law have so few undone so much so quickly.‖
•   Breyer explained that school districts should be allowed to pursue integration policies: ―They have
    asked us not to take from their hands the instruments they have used to rid their schools of racial
    segregation, instruments that they believe are needed to overcome the problems of cities divided
    by race and poverty. The plurality would decline their modest request. The plurality is wrong to do
    so. The last half-century has witnessed great strides toward racial equality, but we have not yet
    realized the promise of Brown. To invalidate the plans under review is to threaten the promise of
    Brown. The plurality‘s position, I fear, would break that promise. This is a decision the Court and
    the Nation will come to regret. I must dissent.‖
              Parents Involved v. Seattle (2007)
            Justice Clarence Thomas, Concurring
•   ―Racial imbalance is not segregation…. In the context
    of public schooling, segregation is the deliberate
    operation of a school system to ‗carry out a
    governmental policy to separate pupils in schools
    solely on the basis of race…. Racial imbalance is the
    failure of a school district‘s individual schools to match
    or approximate the demographic makeup of the
    student population at large…. Racial imbalance can
    result from any number of innocent private decisions,
    including voluntary housing choices. Because racial
    imbalance is not inevitably linked to unconstitutional
    segregation, it is not unconstitutional in and of itself.‖
•   Thomas pointed out that there is much debate about
    whether or not learning is enhanced through
    integration and that there are studies that show racial
    minorities doing well in schools which are majority
    minority: ―If our history has taught us anything it has
    taught us to beware of elites bearing racial theories.‖
•   In a footnote he commented, ―Justice Breyer's good
    intentions, which I do not doubt, have the shelf life of
    Justice Breyer's tenure. Unlike the dissenters, I am
    unwilling to delegate my constitutional responsibilities
    to local school boards and allow them to experiment
    with race-based decisionmaking on the assumption
    that their intentions will forever remain as good as
    Justice Breyer's.‖
    ―Don‘t Mourn Brown v. Board of Education‖
•   By Juan Williams, New York Times, June 29, 2007.
•   ―In 1990, after months of interviews with Justice Thurgood Marshall, who had been the
    lead lawyer for the N.A.A.C.P. Legal Defense Fund on the Brown case, I sat in his
    Supreme Court chambers with a final question. Almost 40 years later, was he satisfied
    with the outcome of the decision? Outside the courthouse, the failing Washington school
    system was hypersegregated, with more than 90 percent of its students black and Latino.
    Schools in the surrounding suburbs, meanwhile, were mostly white and producing some of
    the top students in the nation. Had Mr. Marshall, the lawyer, made a mistake by insisting
    on racial integration instead of improvement in the quality of schools for black children?
•   His response was that seating black children next to white children in school had never
    been the point. It had been necessary only because all-white school boards were
    generously financing schools for white children while leaving black students in
    overcrowded, decrepit buildings with hand-me-down books and underpaid teachers. He
    had wanted black children to have the right to attend white schools as a point of leverage
    over the biased spending patterns of the segregationists who ran schools — both in the 17
    states where racially separate schools were required by law and in other states where they
    were a matter of culture.
•   If black children had the right to be in schools with white children, Justice Marshall
    reasoned, then school board officials would have no choice but to equalize spending to
    protect the interests of their white children.‖
•   In the end, Williams related this anecdote to argue that what is needed is not integration
    for integration‘s sake. But instead, what is needed are simply better schools. But how will
    that be realized?
      Historically Black Colleges v.
     “The Big Three”: Endowments
For fiscal year 2005:
School                                   Endowment
Harvard University                       $28.62 billion
Yale University                          $17.95 billion
Stanford University                      $14.08 billion


Howard University                        $423.9 million
Spelman College                          $291.6 million
Hampton University                       $217.5 million
Morehouse College                        $121.0 million
Fisk University                          $7.5 million
Bowie State University                   $4.0 million
______________________________________________________________________
Note: An Endowment is simply the amount of money a school has "in the bank" or invested so that they can earn
    interest to pay for operating costs and roll over back into the endowment fund. Schools never touch their
    endowments and earn roughly 10% interest--though some earn more or less and that varies from year to year.
    The health and size of a college's endowment is an important indicator of the financial stability and long-term focus
    of an institution.
Source: Council for Aid to Education. Chicago Tribune, April 25, 2007.
                Conclusion
• Whether it is called ―resegregation‖ or ―racial
  imbalance‖ it is plain that society is becoming
  more segregated.
• The trend of the Court‘s decisions in recent
  years is unmistakable: government policies that
  seek to consider race in any way are becoming
  increasingly problematic.
• Will history consign Brown and its progeny as
  little more than a failed liberal experiment at
  social engineering?

				
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