Affirmative Action Flashcards
General points
a) When there is a judicial determination/finding of a violation then it is permissible for a judge to issue a race based remedy in response to the race based discrimination
i) Lesson that comes out of Green / Swann: if there has been past de jure discrimination than it is appropriate for race to be a part of the remedy.
(1) In the narrowest, most explicit sense: an actual judge, in an actual court, finding an actual violation passes a remedy.
b) In 1974, an issue of Affirmative Action went to the court.
i) University of Washington Law School admittance question: Dude was denied admission to UW Law School Sued saying it was affirmative action that kept him out. UW decided to let him in temporarily, and by the time the case got to the Supreme Court the individual who bought suit was a 3L and they had decided not to throw him out even if they won the case.
Supreme Court said the case was moot
c) Summary / current state of the law
i) Affirmative action programs get strict scrutiny
(1) Not fatal in fact, can be satisfied
(2) State must have a compelling interest
(a) Interest in Diversity (Grutter)
(b) Remedying past discrimination: court issued race-based remedies permissible
(i) Remedying societal discrimination is not a compelling interest
(ii) A justification couched in terms of diversity will have a better chance than one based on past discrimination
Narrowly tailored:
(1) Requires serious, good faith consideration of workable race-neutral alternatives.
d) Brief issue: Does section 5 of the 14th amendment give power to Congress that it otherwise might not have
i) Most of what Congress does we assumed was granted in Art. 1 ii) But boilerplate: Congress has the legislative powers to enforce these provisions.
(1) Heart of Atlanta and Katzenbach: should not have twisted and bent interstate commerce such that Olli’s BBQ and hotel were engage in it, but instead say, ‘doing this under Sec. 5 of the 14th.”
(2) But SCOTUS thought Sec. 5 was limited to state and not private business
Regents of Univ. of California v. Bakke (1978)(p. 1374)
a) Medical School reserved 16 places in each entering class of 100 for “qualified” minorities, as part of the university’s affirmative action program, in an effort to redress longstanding, unfair minority exclusions from the medical profession. Bakke claims that without the separate tract for previously discriminated against minorities we would have gotten in.
i) Guide:
(1) Racial and ethnic Classifications are subject to stringent examination;
(2) We have never approved a classification that aids one race at the expense of individuals in the absence of judicial, legislative, or administrative findings of constitutional or statutory violations.
b) Two Rules:
i) Anything that looks like a quota is unconstitutional. Powell, Stewart, Rehnquist, Berger, Stevens.
ii) If it is not a quota, race may be taken into account – positive factor approach: the race of an applicant may tip the balance in his favour just as the artistic skills of another may tip the scales in their favour. Powell, Brennan, Marshall, White, Blackmun.
c) No majority opinion:
i) Four justices (Brennan, Marshall, White, Blackmun) would give rational basis
(1) The relevant category is the discrimination of basis of race for discrete and insular minorities in situations where the discrimination is stigmatising and that doesn’t exist here
(2) Using race for purposes other than to subordinate is not problematic.
ii) Four justices (Stewart, Rehnquist, Berger, Stevens)
(1) Decided the case based on a statute rather than the constitution: The Civil Rights Act prohibits the discrimination on the basis of race. Taking race into account isn’t allowed iii) Justice Powell
(1) Taking race into account is allowable as long as it is done for diversity purposes. Quotas are not allowed.
Grutter v. Bollinger (2003)(p.1379)
a) Race taken into consideration as a factor for the admission to University of Michigan Law.
b) Three Rules:
i. Race is involved, therefore strict scrutiny.
ii. Strict scrutiny isn’t fatal, compelling interest is the attainment of a diverse student body.
iii. Remedying of past discrimination no longer counts as a legitimate reason unless a court has found that you have discriminated in the past
(1) Justice O’Connor says: Strict scrutiny doesn’t mean that the state loses
(a) Burden of proof is on the state to justify it, the state must show that it couldn’t achieve its goal with a lesser restrictive alternative
(b) Here satisfies the compelling interest test - they have demonstrated that it is important and there is no easier way to accomplish the important goal
Gratz v. Bollinger (2003)(p.1389)
Undergraduate MI school policy - looks too much like a quota.
a) Court held the University of Michigan’s use of racial preferences in undergraduate admissions violated the EPC.
i) While rejecting the argument that diversity cannot constitute a compelling state interest, the Court said that the automatic distribution of 20 points, or one-fifth of the points needed to guarantee admission, to every single “underrepresented minority” applicant solely because of race was not narrowly tailored and did not provide individualized consideration (this looks like a quota)
ii) Quotas are out, adding numerical scores in a mechanical way is out, taking race into account in a holistic way is ok.
Fisher v. University of Texas (2013)(Supp. 70)
a) the TX legislature enacted a law requiring the University of Texas to admit all high school seniors who ranked in the top ten percent of their high school classes.
i) There is no doubt that TX did this in order to preserve some degree of minority enrollment.
ii) Adopting the 10% plan in order to increase the minority representation looks like a neutral plan with an impermissible motive.
iii) Affirmative action might be an exception to the notion that impermissible purposes render a constitutional statute unconstitutional
b) Fisher reaffirms rule: Strict Scrutiny means compelling interest. A plan that serves the compelling interest must be narrowly tailored. The question on whether it is narrowly tailored gets no deference.
i) The court will look closely at the soundness of the justification and the evidence in support of that justification
c) Fisher II: State made its case to show compelling interest and that it excluded less race-conscious alternatives (Top 10 % plan and holistic process v. racial quota)
- Wigan v. Jackson Board of Education (1986)(p. 1412)
Minority preference in teacher layoffs
a) Court held the agreement provision for race based layoffs violated the EPC.
i) Marks an era where the court issuing SS for any use of race regardless of whether that use is to discriminate against discrete and insular minorities or used to compensate for past discrimination.
(1) By the time of this case, it is clear that institutions cannot impose race conscious remedies on themselves even with a finding of past discrimination. Absent a court order, the remedying past discrimination rationale does not survive even though diversity does.
- Richmond v. J.A. Croon Co (1989)(p. 1414):
construction contracts to minority businesses
a) Court held the Richmond law violated EPC.
i) Richmond said that they had previously discriminated against minority contractors which is why they were instituting this plan. This would be too easy to find for themselves.
ii) Having other categories of other minorities made it clear that this was about broader goals than just remedying past discrimination.
Adarand Constructors, Inc. v. Pena (1995)(p. 1419)
a) Contractor would receive additional compensation if it hired small business controlled by “socially and economically disadvantaged individuals.”
b) Court held the presumption of disadvantage based on race alone, and the consequent allocation of favoured treatment is a discriminatory practice that violates the EPC.
Parents Involved in Community Schools v. Seattle School Dist. (2007)(p. 1399)
a) Seattle school district has ever been found by a court to have engaged in de jure segregation. The Jacksonville one had been found by a court to no longer engage in de jure. Those two situations are the same according to the court.
b) Court applied strict scrutiny framework and found the Districts racial tiebreaker plan unconstitutional under the EPC.
i) You can no longer be your own judge and jury and make your own determination that you engaged in discriminatory action in the past and are going to remedy it yourself.
ii) Breyer dissented, pointing to a long history of school segregation in Seattle and school officials had been involved. None of this evidence was in the record.
Schuette v. Coalition to Defend Affirmative action (2014)(Supp. 73):
MI banned affirmative action
a) Rule: Allowed. States are constitutionally permitted to practice affirmative action but are not required to do everything the constitution allows them to do.
b) Important because of logic of Con law: some number of states have said that taking race into account is impermissible. Cal. is the most prominent state to have done this. -
c) Argument against the ruling: by preventing race from being taken into account, you are acting with negative discrimination by deciding that based on race
i) i.e., Affirmatively deciding to stop doing things on the basis of race is to take race in to account in a negative way.
