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Affirmative Action


Affirmative Action We have seen that the Supreme Court strictly scrutinizes race-based classifications that disfavor members of a racial minority. – PowerPoint PPT presentation

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Title: Affirmative Action

Affirmative Action
  • We have seen that the Supreme Court strictly
    scrutinizes race-based classifications that
    disfavor members of a racial minority. But what
    if a race-based classification is designed to
    compensate for past discrimination and so favors
    the racial minority? Does that change the
  • How does affirmative action connect to theories
    of why discrimination is bad? Does it create
    second-class citizenship, reflect an unfair
    political process, or stigmatize people?
  • At one time, the Court applied a more lenient
    level of review to affirmative action programs,
    but now it employs strict scrutiny.

Affirmative Action
  • Settling on strict scrutiny tells us the standard
    of review, but it does not answer all the
    important questions about the constitutionality
    of affirmative action programs.
  • Does strict scrutiny operate in affirmative
    action the same way it operates when a
    governmental policy disfavors a racial minority?
    What kinds of affirmative action programs are
    permitted, and what kinds are prohibited (e.g.,
    does it matter whether the state employs a hard
    racial quota or a soft racial goal)?
  • Strict scrutiny requires a compelling
    governmental interest. Which interests are
    sufficiently compelling to justify using
    race-based affirmative action programs?
  • Does strict scrutiny operate the same way across
    different areas of law (e.g., does the Court
    implement affirmative action differently when it
    moves from education to employment to elections)?

  • Not clear whether strict or intermediate scrutiny
  • Governmental unit generallybut not alwaysneeded
    to have engaged in past discrimination
  • Generally unacceptable to deprive people of
    existing benefits
  • Burdens of affirmative action programs needed to
    be broadly diffused

  • Affirmative action programs should be temporary
    and have waiver provisions (in Fullilove, the
    requirement of giving 10 of funds for minority
    contractors could be waived if the higher costs
    of minority enterprises could be shown not to be
    caused by prior discrimination
  • Set asides (i.e., quotas) generally unacceptable,
    but could be justified in face of recalcitrance
    or light burdens on the majority
  • Congress given greater leeway than other
    governmental units (as would be expected from 5
    of the 14th Amendment)

  • What were the facts (page 555)?
  • The city of Richmond adopted a set-aside program
    modeled on the federal program upheld in
    Fullilove. Instead of a 10 percent set-aside,
    Richmond adopted a 30 percent set-aside.
  • Why 30 percent instead of 10 percent?
  • The minority population in Richmond is greater
    than in the United States (the figures were
    calculated from the midpoint between percentage
    of minority contractors and percentage of
    minorities in the populationprobably should have
    been 25 percent)

  • Why didnt the Court follow Fullilove?
  • Congress has greater authority than states or
    cities to remedy discrimination via 5 of the
    14th Amendment (page 556)
  • Scalia observed that racial discrimination is
    more likely to occur at the state and local level
    than at the federal level (page 556)
  • Richmond could remedy its own past
    discrimination, but not past societal
  • Nonminority contractors were unable to compete
    for a fixed percentage of public contracting
    dollars (page 557)Set-asides are highly
  • The waiver provision was weakerit applied only
    when it wasnt possible to find minority
    companies with which to contract
  • Strict scrutiny is needed to smoke out
    illegitimate uses of race classifications

  • Note how strict the Court was in applying strict
  • Minority businesses received less than one
    percent of prime contract dollars even though
    minorities constituted 50 percent of citys
  • Congress had found that past discrimination had
    stifled minority participation in the
    construction industry nationwide (and this was
  • There was testimony about past discrimination in
    the Richmond construction industry
  • Race-neutral policies should be tried first
    (e.g., a financing program for small firms) even
    though Congress had found that such measures are
    ineffective at eradicating the effects of past
    discrimination in the construction industry

  • The Court did recognize that a state or city can
    take steps to avoid being a passive
    participant in a system of racial exclusion
    practiced by elements of the local construction
  • Why didnt that interest justify the policy?
  • There were no data on minority subcontractors, so
    we dont know how many there were and how many
    dollars they received
  • We dont know if low minority participation
    resulted from discrimination in the construction
    industry, discrimination in education or other
  • Evidence of past societal discrimination is not
    sufficient to justify rigid racial preferences
  • How much of the Croson decision turned on the
    fact that the city used an inflexible set-aside?

  • Weve talked before about factors that
    demonstrate a poor fit between a policy and the
    states goals. How would you argue that there is
    not a good enough fit between the 30 percent
    set-aside and the goal of remedying past
  • Its overinclusive since minority businesses are
    favored even if they have not suffered from
    discrimination (e.g., no evidence of
    discrimination against Asian contractors, and not
    all black contractors have suffered from
  • Its underinclusive since nonminority businesses
    are not favored even if they have suffered from

  • What were the facts (pages 558-559)?
  • The plaintiff was a construction company that
    lost out on a bid for the guardrail portion of a
    federal highway construction project.
  • The prime contractor hired a different
    subcontractor because by doing so, the prime
    contractor qualified for a financial incentive
  • The financial incentive was tied to the hiring of
    socially and economically disadvantaged
    individuals, with blacks, Latinos, Native and
    Asian Americans presumed to be socially and
    economically disadvantaged
  • The prime contractor would receive 10 of the
    value of minority subcontracts all incentive
    payments could not exceed 2 of the total
    contract amount.

  • Which elements of the policy in Adarand might
    have made it less troubling than the policy in
  • It was a federal government program
  • It involved an incentive rather than a set-aside
  • Nonminority contractors could qualify for the
    incentive if they were controlled by socially and
    economically disadvantaged individuals

  • The Court first decided the standard of review.
    Why strict scrutiny (page 560)?
  • Courts should be skeptical about racial
  • An apparently benign classification might
    actually entail invidious discrimination
  • Affirmative actions may send a message that the
    benefited class is in some way inferior and that
    any accomplishments were not truly earned
  • Affirmative action creates an attitude of
    dependency or entitlement (Thomas, page 562)
  • Courts should treat racial classifications the
    same regardless of which race is burdened
  • Equal protection analysis should be the same
    under the 5th and 14th Amendments
  • But recall that in Croson, the Court employed
    strict scrutiny because state and local
    governments have less authority to adopt
    affirmative action.

  • With strict scrutiny, the state must show that
    its racial classification is narrowly tailored
    to further compelling governmental interests
    (page 560)
  • If strict scrutiny is the standard, does that
    mean affirmative action is dead (page 561)?
  • We wish to dispel the notion that strict
    scrutiny is strict in theory, but fatal in
  • The Court remanded for reconsideration rather
    than striking down the policy
  • Note the odd result mentioned by Stevens (page
    564)its more difficult to employ affirmative
    action for blacks than for women (or opticians)

  • Clearly strict scrutiny, but not fatal in fact
    (goal is to distinguish truly legitimate uses of
  • Governmental unit can remedy its own
    discrimination or private discrimination in which
    it would be a passive participant
  • Generally unacceptable to deprive people of
    existing benefits
  • Burdens of affirmative action programs need to be
    broadly diffused

  • Affirmative action programs should be temporary
    and have waiver provisions
  • Set asides (i.e., quotas) generally unacceptable,
    but maybe still justifiable in face of
    recalcitrance or light burdens on the majority
  • Congress held to same standard as state and local
  • Try race-neutral methods first
  • Whats the problem with treating race-neutral
    methods differently?
  • Its disparate impact with an intent to have the

  • What were the facts in this case (page 571)?
  • University of Michigan Law School gave primary
    weight to GPA and LSAT in admissions but also
    considered soft variables like enthusiasm of
    recommenders, difficulty of undergraduate
    courses, community service, travel abroad,
    fluency in foreign languages, and race or
  • Since were in strict scrutiny, could UM invoke a
    compelling interest for its policy?
  • Promotion of student body diversity (page 572)

  • In section III.A, page 572, the Court made a
    point about the importance of the states
    interest in diversity that seems at odds with the
    idea of strict scrutiny. What was that point?
  • The Court deferred to the law schools
    educational judgment that diversity is essential
    to its educational mission

  • Why is diversity in higher education a compelling
    state interest (page 573)?
  • It promotes cross-racial understanding, helps
    break down stereotypes, promotes higher quality
    classroom discussion
  • Businesses in the global marketplace want
    employees who have been exposed to a diversity of
    people, cultures and viewpoints
  • A racially diverse officer corps is essential to
    providing national security
  • Universities and law schools in particular are
    training grounds for the nations leaders, and
    the leaders will not be perceived as legitimate
    if the path of leadership is closed to some
  • Does this mean that providing minority role
    models is a compelling state interest?

  • Was the law schools affirmative action policy
    narrowly tailored (pages 574-576)?
  • No quotas 
  • However, there was a close correlation between
    the percentage of a minority group in the
    applicant pool and the percentage of the minority
    group admitted.
  • Race was one of many measures of diversity, and
    there was no fixed number of points for race or
    automatic acceptance because of race
  • Everyone who was admitted was qualified
  • As to race-neutral alternatives, a lottery system
    or a decreased emphasis on GPA and LSAT would
    reduce diversity and/or sacrifice academic
  • Must not be permanentcontinued reassessment to
    see if necessary, monitor experiments elsewhere,
    expect no more in 25 years

Grutter and Adarand
  • Why did the Court employ strict scrutiny in
    Grutter more deferentially than in Adarand?
  • Is diversity in higher education more important
    than diversity in the workplace?
  • Are measures of diversity used for good or bad
    reasons (athletes, children of alumni, children
    of donors, people from different places)?
  • Which arguments from Grutter carry over to the
  • Cross-racial understanding? Legitimacy?
  • As the notes indicate (page 584), the Grutter
    Court wrote that given the expansive freedoms of
    speech and thought associated with the university
    environment, universities occupy a special niche
    in our constitutional tradition.

Grutter and Gratz
  • Why did the Court reject the affirmative action
    policy at the University of Michigan for
  • Minority undergraduates were automatically given
    20 points, and that made the factor of race
    decisive for virtually every minimally qualified
    underrepresented minority applicant (page 588)
  • The points for most other measures of diversity
    were much lower than for race (outstanding
    leadership or public service would earn 5 points)
  • Why didnt the undergraduate admissions office
    follow Bakke as the law school did?
  • The volume of applicants makes it very expensive
    to employ an individualized process of review
    (page 588)

Grutter and Gratz
  • Universities may consider race on a limited basis
    when deciding whether to admit or reject an
  • Compelling state interests include remedying past
    discrimination and promoting diversity in the
    student body
  • No quotasseats in the entering class may not be
    reserved for only some applicants because of
    their race
  • Race is but one of many measures of diversity and
    is not a decisive factor in the decision whether
    to admit rigid assignment of points on the basis
    of race are problematic, especially if larger
    than points for other measures of
    diversityindividualized assessments are
  • Affirmative action program is temporary (but
    might be able to last until 2028)

Future of affirmative action
  • Over time, the Court has become less receptive to
    affirmative actionimposing strict scrutiny,
    narrowing the difference between federal and
    state affirmative action programs. Note the
    parallel to the Courts diminished receptivity to
    desegregation policies in the public schools
    (which we will revisit with Parents Involved).
  • Grutter was decided by a 5-4 vote, with OConnor
    in the majority. Would Alito vote the same way?
    Parents Involved is suggestive.
  • On the other hand, the federal program in Adarand
    was upheld by the 10th Circuit after remandthe
    appellate court felt that Congress had adequately
    demonstrated prior discrimination in the
    construction industry and that race-neutral
    policies were inadequate (228 F.3d 1147 (10th
    Cir. 2000)). The 8th Circuit also upheld the
    program in 2004.

Constitutional arguments
  • With invidious discrimination against blacks, we
    have representation-reinforcement problems
  • How does the representation-reinforcement
    analysis play out with affirmative action?
  • Can we be confident since the majority passes it?
    In other words, it looks like the favored
    minorities were not shut out of the political
  • Does that mean the Richmond policy should be
    treated differently than affirmative action
    adopted by Congress?
  • Do we have to worry that the majority buys off
    the elite of the minority, imposes the burden of
    affirmative action on non-elite whites (page
    568), and leaves non-elite minorities burdened
    by societal discrimination?
  • Note that original intent favors affirmative
    action, at least for blacks (page 566)

Constitutional arguments
  • How does affirmative action fit with the
    principle of relying only on relevant
    differences? Can we argue that race is relevant
    for affirmative action?
  • If blacks have been held back by discrimination,
    it may be necessary to compensate with racial
    preferences. Treating people the same when they
    start at different points just perpetuates the
    earlier disadvantage.
  • Recall Croson and a race-neutral state becoming a
    passive participant in the racial discrimination
    of the private sector.
  • Or, as some scholars have put it, to get to a
    society in which race is no longer a factor, we
    need to take race into account.
  • In this view, it wasnt enough to outlaw slavery,
    because states would then engage in other kinds
    of discrimination, and it wasnt enough to outlaw
    other kinds of racial discrimination, because the
    effects of discrimination are perpetuated by
    race-neutral policies. Affirmative action would
    be the final step in the effort to root out the
    effects of racial discrimination.

What about merit?
  • Has merit ever really been decisive?
  • Benefits often are allocated on less than
    meritorious grounds (consider judgeships or
    opportunities obtained because of family
    connections), and minorities lose out when that
  • Can we view affirmative action not as a program
    that ignores merit but as a program that ensures
    that minorities are not disadvantaged when
    factors other than merit are considered?

What about merit?
  • Can we be sure that our measures of merit are
  • Do GPAs and LSATs really tell us whether someone
    will be a good attorney, for example?
  • Even when we do employ accurate measures of
    merit, we often make very fine distinctions that
    may not matter much. Once we reach a certain
    level of qualification, small increments may not
    be as important as other considerations,
    especially concerns about having an integrated

  • When federal funds were given to state and local
    governments to build public facilities, 10
    percent of the funds were reserved for minority
    companies. The Court emphasized a few factors in
    upholding the policy
  • It was a temporary program
  • Congress has unique authority under 5 of the
    14th Amendment to remedy discrimination
  • The burden on nonminority firms was relatively
    light (the 10 percent of funds accounted for 0.25
    percent of all dollars spent on construction in
  • Waiver provision allowed deviation from the 10
    percent requirement where minority contractors
    higher bids could be shown not to have resulted
    from past discrimination

  • The 30 quota cannot in any realistic sense be
    tied to any injury suffered by anyone (page
  • Second, the 30 quota cannot be said to be
    narrowly tailored to any goal, except perhaps
    outright racial balancing. It rests upon the
    completely unrealistic assumption that
    minorities will choose a particular trade in
    lockstep proportion to their representation in
    the local population (full opinion).