Affirmative Action Bollinger Cases Equal Protection Among

1
Affirmative Action

• Bollinger Cases

2
Equal Protection

• Among the most important areas of the Supreme
• Courts work is in enforcing the equal
  protection clause of the 14th Amendment (Civil
  War Amendment)
• No State shall deny to any person within
  its jurisdiction the equal protection of the
  laws.
• Primary area for dealing with issues of race and
  discrimination in US

3
Separate But Equal

• Perhaps the most famous case in US history was
  Brown v. Board of Education (1954)
• Brown dealt with states could have separate
  facilities for African-Americans
• Separate but equal facilities (Jim Crow
  provisions) were upheld against constitutional
  challenge in Plessy v. Ferguson (1896)
• Justification was preservation of public peace
  and good order

4
Standard of Review

• Many laws discriminate -- if you have to be 18 to
  vote, it discriminates against young people
• Key Issue what standard of review to apply
• Over time, a tiered approach has emerged
• Highest level applies strict scrutiny to laws
  that discriminate on the basis of race or
  national origin
• If strict scrutiny, law will be unconstitutional
  unless there is a compelling justification
  IOW compelling State interest.

5
Other Standards of Review

• For gender discrimination, courts apply
  intermediate scrutiny
• For all other decisions, statutes will be judges
  under the rational basis standard
• In recent times, virtually nothing has been found
  irrational under this standard
• Thus, determining what level of review is often
  critical

6
Levels of Review Strict Scrutiny
(Race) Intermediate Scrutiny (Gender) Rational
Basis (Everything Else)
7
Suspect Class

• In explaining why strict scrutiny is justified
  for racial discrimination, courts have focused on
  African-Americans as a suspect class (discrete
  and insular minorities) that has
• (1) suffered from historical discrimination
• (2) the characteristic (race) is not changeable
• (3) impacts political rights

8
Affirmative Action

• Can a government, university, employer, or other
  entity take affirmative action to assist
  members of a particular group?
• DEFINITION A program in which those controlling
  access to an important social resource offer
  preferential access to particular groups thought
  to need or deserve special treatment

9
Justifications

• Restitution for past discrimination
• Redefining Merit More expansive way to determine
  merit
• Anti-Caste AA is a way to ensure that US does
  not develop a caste system
• Leadership Model AA will help develop a strong
  black middle class
• Diversity to promote US multiculturalism

10
Bakke

• I suspect that it would be impossible to
  arrange an affirmative-action program in a
  racially neutral way and have it successful. In
  order to get beyond racism, we must first take
  account of race. We cannot we dare not let
  the Equal Protection Clause perpetuate racial
  supremacy.
• Justice Blackmun in Bakke

11
Examples of Anti-Casting

• Voting US required creation of minority
  districts to ensure election of black officials
• Banking Regulations require banks to invest in
  low-income communities
• Construction Set-aside programs that require a
  certain of business for minority-owned
  businesses
• Broadcast Media US regulation favoring
  minority-purchase of radio and broadcasting
  rights

12
Timeline - 1961

• President John F. Kennedy's Executive Order
  No. 10925 requires contractors to "take
  affirmative action to ensure that applicants are
  employed ... without regard to their race, creed,
  color or national origin."

13
Timeline - 1964

• President Lyndon Johnson signs into law the
  Civil Rights Act of 1964. Included in the Act is
  Title VI, which prohibits race discrimination in
  education.
• Note Advocates of the bill stated that it would
  not lead to preferential treatment

14
Timeline - 1965

• President Lyndon Johnson issues Executive
  Order 11246, which repeats the language of
  Executive Order 10925 on affirmative action and
  establishes the Office of Federal Contract
  Compliance to ensure its enforcement.

15
Timeline - 1969

• President Richard Nixon's Philadelphia Plan
  requires potential federal contractors to submit
  affirmative action goals and timetables as a
  pre-condition to having their bids considered.

16
Timeline - 1974

• After agreeing to hear DeFunis v. Odegaard,
  the Supreme Court avoids the racial preference
  issue on the ground that it is moot. Marco
  DeFunis demonstrated that he had been rejected by
  the University of Washington Law School even
  though his academic record surpassed 36 of the 37
  admitted African-Americans, but interim case
  orders had forced the university to admit him, so
  when the case finally came up for decision, he
  was almost finished with law school.

17
Timeline - 1978

• In Regents of the University of California v.
  Bakke, the Supreme Court splits down the middle
  on the issue of racial preferences. Four state
  that race cannot be used as a factor in
  admissions another four say it can. Justice
  Lewis Powell -- issues a controlling opinion,
  which rejects the medical school's two-track
  admissions system, but suggests that some
  consideration of race might be appropriate to
  achieve "diversity."

18
Timeline - 1989

• In City of Richmond v. J.A. Croson Co., the
  Supreme Court rules that racial discrimination in
  the award of government contracts is governed by
  the same strict scrutiny standard regardless of
  whether the group advantaged by the
  discrimination is African-American or white.
• Note In order for a discriminatory law to
  survive the strict scrutiny test, there must be a
  compelling governmental interest at stake and the
  law must be narrowly tailored to serve that
  interest.

19
Timeline - 1995

• In Adarand Constructors, Inc. v. Pena, the
  Supreme Court applies the strict scrutiny test to
  federal affirmative action programs that
  discriminate on the basis of race, too.
• Note After remand came back twice to Supreme
  Court.

20
Timeline - 1996

• The Supreme Court declines to review the Court
  of Appeals decision in Hopwood v. Texas, in which
  it was held that race could not be used as a
  factor in admissions at the University of Texas
  Law School.
• Note Until the Bollinger cases this case
  governed Texas and other 5th Circuit schools.

21
Timeline - 1996

• California voters pass the California Civil
  Rights Initiative, also known as Proposition 209,
  a state constitutional amendment that bans
  preferential treatment based on race, sex, color,
  ethnicity or national origin in the operation of
  public employment, education or contracting.

22
Timeline - 1997

• The Supreme Court refuses to hear a challenge to
  Proposition 209, thus letting a Court of Appeals
  decision upholding the constitutionality of
  California's ban on preferential treatment.

23
Timeline - 1998

• Washington state voters pass Initiative 200,
  similar to Proposition 209.

24
Timeline - 2000

• Florida bans racial preferences in state college
  admissions, opting for a plan that admits to the
  University of Florida system all students who
  complete a college preparatory curriculum and
  graduate in the top 20 percent of their high
  school class.
• Note The One Florida plan was intended as a
  compromise between racial preference supporters
  and opponents. Preference supporters nevertheless
  vocally opposed the plan.
• Note Under One Florida minority contracting
  up 160, and significant rises in minority
  enrollment in college. At UF, black enrollment up
  43 in 2003.

25
Timeline - 2002

• The Supreme Court agrees to hear Grutter v.
  Bollinger, in which the University of Michigan
  Law School is accused of holding white applicant
  Barbara Grutter to a different and higher
  standard than minority applicants are held. The
  Court also agreed to hear a companion case, Gratz
  v. Bollinger, which deals with undergraduate
  admissions at Michigan.

26
Timeline - 2003

• U.S. Supreme Court delivered a landmark decision
  on affirmative action, ruling 5-4 in Grutter v.
  Bollinger that the University of Michigan law
  school may give an edge to minority applicants in
  the admission process. However, in a 6-3 vote the
  high court overturned the publicly funded
  school's undergraduate policy under which a point
  system gave specific "weight" to minority
  applicants in Gratz v. Bollinger.

27
Powells Bakke Opinion

• The guarantee of equal protection cannot mean
  one thing when applied to one individual and
  something else when applied to a person of
  another color. If both are not accorded the same
  protection, then it is not equal.

• Another goal is the attainment of a diverse
  student body. This clearly is a constitutionally
  permissible goal for an institution of higher
  education. The freedom of a university to make
  its own judgment as to education includes the
  selection of its student body.

28
Post Bollinger

• Race can be used as a factor in admissions.
• Quotas and substitutes for quotas cannot be used.
• Diversity in School is a compelling state
  interest meeting the strict scrutiny test.