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Legal limits of race-conscious affirmative action in higher education student admission programs

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Legal limits of race-conscious affirmative action in higher education student admission programs
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Schilling, Alvin J
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College students ( jstor )
Colleges ( jstor )
Equal protection ( jstor )
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Educational Leadership, Policy, and Foundations thesis, Ph. D
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by Alvin J. Schilling.

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LEGAL LIMITS OF RACE-CONSCIOUS AFFIRMATVF ACTION IN hIGHER
ED)CAION SUDENT ADMISSION PROGRAMS
















By

ALVIN J. SCHILLING


DISSERTATION PRESENTED TO-E GRADUATE SCHOOL OF THLE UNIVERSITY OF FLORP.)A IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR Ti-IF DEGREE OF DOCTOR OF PHILOSOPHY

UNIVERSITY OF FLORIDA


2004













ACKNOWLEDGMENTS

It is nearly impossible to thank all of the people who helped me complete this degree and this dissertation at the University of Florida. Before specifically acknowledging those persons most directly involved in the success of this project, I would like to thank all of the faculty, professional colleagues, fellow students, family, friends, and staff who assisted me during my doctoral program at the University of Florida.

The greatest thanks must, of course, be extended to the chair and members of my supervisory committee. Although they collectively assisted me by agreeing to serve on this committee and advise me in this project, each also contributed individually to my success at the University of Florida. I addition to chairing my committee, Dr. R. Craig Wood provided me with assistance and advice throughout my doctoral program. He assisted me in publishing several professional articles, and introduced me to those professional associations that will be most important in my future career. Dr. Wood more than successfully fulfilled the role of mentor, and I appreciate all he has done for me the past several years.

I also acknowledge the support and assistance of the other members of my

supervisory committee: Dr. David S. Honeyman, Dr. Charles H. Montgomery, and Dr. Lawrence W. Tyree. In addition to overseeing this dissertation and my qualifying exams, each contributed directly to my success at the University of Florida. Dr. Tyree agreed to become a member of my committee, after two former members successively retired from








the faculty and could, therefore, no longer serve as members. Dr. Honeyman provided regular advice and encouragement. Dr. Montgomery served as the outside member of my committee and, while I was a graduate student in the Department of History, also provided me with new insights into Twentieth Century American history.

I also appreciate the assistance of many other persons who directly assisted with the research and writing of this dissertation. I am particularly grateful to my friends Dr. Linda Stephens and Dr. Luke Cornelius for providing technical assistance during the preparation of this document. Their observations and assistance were invaluable in preparing this final manuscript. I would also like to thank the staff of the University of Florida libraries (especially Suzanne Brown, of the Education Library) for years of assistance and service. I also acknowledge the assistance of the entire faculty and staff of the Department of Educational Leadership, Policy, and Foundations (especially Angela Rowe and Eileen Swearingen).

Finally, I wish to acknowledge the love support of my parents, William and

Myrtle Schilling, both during this program and throughout my life. To my mother I owe my inquisitive mind and (as she was a Lutheran elementary school teacher) my grasp of the basics of English grammar. To my father I owe my sense of duty. When we are rejoined in heaven, I will thank them again.














TABLE OF CONTENTS

Page

ACKNOWLEDGMEN]S ................................................. ii

ABSTRACT ........................................................... Vi

CHAPTER

INTRODUCTION ................................................. I

Introduction ...................................................... I
Need for the Study ................................................. 2
Research Question ................................................. 4
Scope of the Study ................................................. 5
Limitations of the Study ............................................ 6
M ethods and M aterials ............................................. 8
Organization of the Study .......................................... 10
N otes .......................................................... 11

2 WHAT IS RACE-CONSCIOUS AFFIRMATIVE ACTION ............... 13

Introduction ..................................................... 13
D efinitions ...................................................... 13
Origins of Terminology ............................................ 18
Groups Included Under Affirmative Action ............................ 25
Varieties of Affirmative Action ...................................... 27
Affirmative Action Distinguished from Equal Opportunity and
Nondiscrimination ............................................... 33
N otes .......................................................... 35

HISTORY BEHIND TODAY'S AFFIRMATIVE ACTION ............... 40

Introduction ............................................... 40
Early History of Affirmative Action: The Nineteenth Century .............. 41
Later History of Affirmative Action. The Mid-Twentieth Century ........... 44
Recent History of Affirmative Action: The Late-Twentieth Century ......... 49 History of Affirmative Action in Higher Education ...................... 59
The Debate over Affirmative Action .................................. 66
N otes .......................................................... 70









4 LEGAL HISTORICAL ANTECEDENTS OF AFFIRMATIVE ACTION .... 75

Introduction ..................................................... 75
The Early Cases .................................................. 77
The Bakke Case .................................................. 82
Weber to Metro Broadcasting: 1979-1990 ............................. 94
The Adarand Case: 1995 .......................................... 108
N otes ......................................................... 112

5 SUPREME COURT RULING ON AFFIRMATIVE ACTION IN
HIGHER EDUCATION STUDENT ADMISSION PROGRAMS:
ANALYSIS, IMPLICATIONS, AND RECOMMENDATIONS ........... 118

Introduction .................................................... 118
The Equal Protection Clause ....................................... 119
Hopwood v. Texas ............................................... 121
Smith v. University of Washington Law School ........................ 123
Johnson v. Board of Regents of the University of Georgia ............... 125
The Sixth Circuit Rules in Grutter v. Bollinger ....................... 128
The District Court's Decision in Gratz v. Bollinger .................... 130
The Supreme Court Decides Gratz v. Bollinger ........................ 134
The Supreme Court Rules in Grutter v. Bollinger �..................... 137
The Implications of Gratz and Grutter ............................... 141
Recommendations and Conclusions ................................. 146
N otes ......................................................... 151

REFERENCES ....................................................... 155

TABLE OF CASES ................................................... 163

BIOGRAPHICAL SKETCH. ............................................ 167














Abstract of Dissertation Presented to the Graduate School
of the University of Florida in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy

LEGAL LIMITS OF RACE-CONSCIOUS AFFIRMATIVE ACTION IN HIGHER
EDUCATION STUDENT ADMISSION PROGRAMS By

Alvin J. Schilling

December 2004



Chair, R. Craig Wood
Major Department: Educational Leadership, Policy and Foundations

My study was a legal analysis of case law relating to race-conscious affirmative action in higher education student admission programs. My study addressed the legal limits of affirmative action law in public higher education. Using a variety of databases, including WestLaw and LEXIS, I sought to identify and analyze all published legal decisions regarding affirmative action in these contexts. The scope of the study was national, and encompassed legal rulings from federal courts.

My objective was to delineate, as specifically as possible, the legal limits between valid and invalid race-conscious affirmative action student admission programs under the U.S. Code and the Constitution. My study discussed the various types, origins, and definitions of affirmative action. It also discussed the general and legal history of affirmative action and, in particular, the legal history of affirmative action in higher








education student admissions. A case law review of federal district and circuit courts was followed by an evaluation of Supreme Court decisions.

I derived general and specific conclusions regarding race-conscious affirmative action student admission programs. In general, such programs are legally valid, because they fulfill the need of colleges and universities to provide a diverse student body, which is a legitimate government interest in education. Colleges and universities may, therefore, consider race as one of many factors in student admissions. Specifically, however, these institutions must understand the difference between a quota and a critical mass, because strict quotas are prohibited. These institutions must also use good faith in implementing race-conscious admission programs, while not having to exhaust every race neutral plan.












CHAPTER 1
INTRODUCTION TO THE STUDY

Introduction

As established by the Supreme Court (in the case of Regents of the University Qf California i Bakke),' race may be used as a factor in higher education student admission programs, and it may even be weighted more heavily than other factors, but it cannot be the sole and decisive factor. In reaching this conclusion, the Court hoped to provide an answer to the question of when or under what circumstances a student admissions affirmative action program is valid, both statutorily and constitutionally. For over a decade, the Bakke case appeared to have settled the matter once and for all time. However, while opponents of affirmative action programs were quieted, advocates at many colleges and universities were active creating and implementing new ones. Beginning in the mid 1990s, opponents started to challenge these new (and some established) affirmative action programs, alleging that they still violated the mandate provided in Bakke.2

Oddly, in many cases, advocates of affirmative action student admissions

programs defended them by using the Bakke case as precedent.3 In the case of Hopwood v. Texas,4 the Ninth Circuit became so frustrated with the lack of rules or standards provided by the high court's decision in Bakke, that it (on behalf of the Supreme Court) decided to overrule the case. 5 This scenario demonstrated that the Bakke case neither settled the issue of affirmative action in student admissions, nor clarified it.








My study was intended to better define and determine what constitutes a valid

affirmative action student admissions program in higher education under the Constitution and the U.S. Code. Since 1978, the year of the Bakke decision, what was once thought to be clear on the matter became more clouded. The legal case history on the issue demonstrates this. The issue recently culminated when the Supreme Court agreed to hear the cases of Grutter v. Bollinger6 and Gratz v. Bollinger.7 Consideration of these cases was the first time that the Court considered the specific area of higher education student admission programs, as they relate to affirmative action, since it ruled in the Bakke case. By examining the decisions rendered in cases of Grutter and Gratz, the goal of my study was to provide a practical and workable definition of statutorily and constitutionally sound affirmative action student admission policies.

Need for the Study

An extensive review of sources revealed the scarcity of discussions of raceconscious affirmative action in education. They become even more limited when confined to the subject of higher education student admissions programs. Many treatises have dealt with race-conscious affirmative action as a sociological, philosophical, or political issue, while enclosing little or no discussion of the historical or legal aspects of affirmative action.8 Even more legally orientated works tend to deal exclusively with a few key landmark rulings.9 This approach often seeks to utilize the general rules as described in these rulings to determine the validity of affirmative action in specific circumstances.

In reviewing this literature, a few noteworthy texts offered more depth or practical value to the institutional practitioner. A Reader on Race, Civil Rights, and American Law:








A Multiracial Approach'10 (edited by Timothy Davis, Kevin R. Johnson, and George A. Martinez) offered considerable material on affirmative action, with a separate section discussing race-conscious student admissions programs. 1 1 Another section considered in detail the affirmative action debate in higher education. 12 Although this text covered racial discrimination issues from early America to the present, it included a more comprehensive review of recent case law than most other practical guides. 13

Another useful source for practitioners was Lynne Eisaguirre's Affirmative

Action: A Reference Handbook,14 which provides a well-balanced, overall account of affirmative action. This work, which used a combination of biographical sketches, statistics, and historical perspectives to discuss distinct affirmative action issues that in some cases confront modem public college and university administrators, was a useful and valuable tool for both administrators and researchers.15 Few works attempted the sort of narrow topical approach used in my study.

Another source, more accessible to researchers than institutional practitioners,

was law review articles and other periodic journals. Conducting research for my study, no fewer than 200 current law review articles, and numerous other published works in both legal and educational literature, were identified and reviewed. Many were used in my study. Yet, the limitations of these sources were obvious. Many were case comments, dealing with a single case or issue. Often, especially in law review materials, authors dealt with more philosophical issues of the law, while ignoring judicial precedent in favor of their interpretations of the issue at hand. With a few exceptions'6 (even when journal authors sought to provide an overview of the topic), the editorial limitations of the medium restricted the ability of these authors to provide in-depth examination of specific








issues and controversies. 17 As research tools, such articles were invaluable. As practical guides for university administrators and others dealing with affirmative action issues, they were somewhat less useful and accessible.

There appeared to be few comprehensive reviews of case law in affirmative action of the sort contained in my study. My study sought to determine the breadth of the legal context of affirmative action regarding higher education student admissions programs. The focus was on past case law (such as the precedents set by the Supreme Court in Bakke, and then by various federal circuit courts, discussed in Chapter 6) and also on the most recent interpretation of these precedents by the high court, in the cases of Grutter 1'. Bollinger '8and Gratz v. Bollinger.19

Research Question

My research question was under what circumstances, if any, are affirmative action student admission programs in higher education valid under the provisions of the U.S. Constitution and the U.S. Code. The purpose of my study was to provide an unbiased (to the greatest extent possible) and in-depth discussion of the legal validity of affirmative action student admissions programs in higher education. My study examined the legal concept of affirmative action in higher education and determined under what circumstances affirmative action student admission programs are valid under federal law. This was accomplished by reviewing, as comprehensively as possible, all available case law regarding affirmative action student admission programs. Thus, my study was intended to provide guidance to higher educational administrators, and to assist them in implementing student admissions policies that respect constitutional and statutory








restrictions (thereby, helping them to avoid litigation). Such guidance for legal practitioners would obviously be valuable.

Scope of the Study

As indicated, this study was intended to be a comprehensive review of the law

regarding affirmative action in higher education admission programs. As such, the scope was quite narrow, as compared to a study of several or all areas of affirmative action. Yet, cases from all levels of the federal courts were used. While no examination of such a large area of case law can be completely exhaustive, the methods used in my study were intended to locate and identify the majority of significant case law amassed on the subject of affirmative action in student admissions since the practice was first litigated. However, as this was intended as a meaningful guide on the subject, editorial discretion favored emphasis on more recent decisions on certain subjects where earlier precedents may have been superceded. Likewise, as in any examination of case law, the precedential value of a decision was weighed by the stature of the court that issued the ruling. Hence, the decisions of higher courts, especially the Supreme Court and the U.S. Circuit Courts of Appeals, were given far greater weight. At the same time, it must be recognized that some controversies may have only been adjudicated by courts at a lower level. These precedents were included, where necessary, for the insights they may provide into similar cases elsewhere, but should be evaluated with the limited jurisdiction of the court in mind.

The scope of the study was principally to examine the concept of affirmative action as a constitutionally valid exercise of public colleges and universities' authority. The major emphasis was on affirmative action as it was defined and protected under the








Constitution, specifically under the Fourteenth Amendment, and under Title VI20 and Title V1121 of the Civil Rights Act of 1964. However, it was neither possible nor desirable to ignore the influence of additional guarantees and restrictions of state laws and constitutions. Also, the scope of my study extended, in a limited manner, to all areas of affirmative action, as defined by various court decisions over the years, in order to provide definitions and historical background for a discussion on affirmative action in student admissions. Thus a very liberal definition of affirmative action was applied in various sections of my study. For purposes of my study, affirmative action ranged from its application in employment contracting, to its usage by public higher education institutions in student admission programs.

Finally, my study discussed the recent judicial response of the Supreme Court to decisions issued by various federal courts of appeals on the use of affirmative action in public colleges and universities (particularly in student admissions policies). Finally, my study examined how the Supreme Court reconsidered its prior opinion in Bakke, in light of several intervening lower court decisions.

Limitations of the Study

My study was limited to examining affirmative action as it affected nonminority student applicants to public higher education institutions. A reading of pertinent case law and texts revealed that this is a legal topic distinct from the topic of the rights of other groups and individuals, such as faculty, administrators, and non-academic staff Within this limitation, my study was in congruence with the interpretations of the actual trial courts in sometimes determining which individuals qualified as students with proper standing. At the same time, this limitation did preclude the introduction of legal








precedents from outside the realm of college and university student applicants when these materials had direct bearing on the legal rights of these individuals.

A second limitation was that this was a study of the constitutional validity of affirmative action. Numerous works already existed discussing the historical, sociological, philosophical, and administrative policy aspects of affirmative action.2" Some of this material was examined for background, and this was accomplished in Chapters 2 and 3. Ultimately, however, these issues had little bearing on the operation of affirmative action as a legal concept. Many observers view affirmative action either as a valuable public policy or as a major social evil. The assumption of my study was that either position, or any other viewpoint, is irrelevant. Since at least the 1960s, affirmative action has existed as a legal concept, guarded by the Constitution (and by federal statutes, presidential executive orders, and legal precedent). It was the goal of my study to examine affirmative action purely as a legal concept.

Similarly, some precision was required to define the legal concepts under investigation. Therefore, mine was a study particularly focused on the Fourteenth Amendment of the Constitution. Typically, all cases categorized within "affirmative action" raise Fourteenth Amendment issues. In addition, many plaintiffs also raised issues under Title VI and Title VII of the Civil Rights Act of 1964. Likewise, having raised these federal constitutional and statutory issues, plaintiffs may have also referred to state constitutional guarantees and statutory provisions.

It was the goal of my study to deal primarily with the federal protections of

affirmative action. Using federal constitutional precedents provided a reliable legal basis for defining affirmative action nationwide. Still, some state constitutions and laws may








provide additional protections or restrictions. Furthermore, the predominant federal nature of these protections clearly was indicated by the prevalence of affirmative action cases that were filed in the federal courts. Nonetheless, my study addressed state claims included in federal cases.

Methods and Materials

My study was designed primarily as a review of case law. The emphasis was on primary source materials, namely published federal court decisions. In addition, a wide variety of secondary sources were consulted and evaluated, both to provide background to the study and for assistance in interpreting some primary sources. Case Materials

By far the most extensive research in my study was to locate the primary source materials, in the form of reported case decisions. Various tools and methods were used to achieve the most comprehensive possible results. I mainly used the following investigative tools and strategies.

West's Education Law Reporter Digest was consulted. All issues of this index were researched under both key word and key numbers. Key terms included "Constitutional Law" and "Colleges and Universities." All indicated case references then were referenced manually in either the Educational Law Reporter or the original case reporter. The Westlaw system also was consulted extensively. Using terms and connectors, searches were conducted using the term "Affirmative Action" crossreferenced with the term "Colleges and Universities." All search terms and combinations were used in ALLFEDS, ALLSTATES, and ALLCASES databases. All indicated cases then were referenced manually in the appropriate case reporters. Searches similar to these








also were conducted on the LEXIS/NEXIS system to ensure accuracy. This system especially was used to locate more recent case decisions, although those already in print were referenced manually.

Publications of the Education Law Association (formerly the National

Organization on Legal Problems of Education), specifically ELANOLPE Notes and the ELA, NOLPE School Law Reporter were consulted, especially to locate recently reported decisions. Additional related cases were sought to be identified by using a variety of legal reference materials, including digests for the various case reporters and Shepard's Law Review nations. After identifying cases from the methods listed previously, these cases were reviewed individually for references to related cases not located in the initial searches. Similar procedures were used to locate additional cases and texts identified in secondary sources.

For the sake of uniformity, most cases were cited from the various legal reporters compiled by West's National Reporter System. These include the federal reporters (Supreme Court Reporter, Federal Reporter, and Federal Supplement) and the regional reporters (Atlantic, North Eastern, North Western, South Eastern, South Western, Southern, and Pacific). However, in order to follow proper protocol and to be inclusive, all U.S. Supreme Court decisions were cited initially to the Court's official reporter, U.S. Reports, ending with reference to the Lawyer's Edition. The manuals of style for this study were The Blue Book: A Uniform System of Citaton23 and the Chicago Manual of Style.24








Secondary Sources

A variety of secondary sources were reviewed and used. Books and similar texts were located through the use of the LUIS on-line catalogue, which also provided access to other academic libraries. Journal materials were located through several different sources, including LUIS (which includes both Index to Legal Periodicals, for law review articles, and the ERIC system for educational journals and microfiches) and LEXIS/NEXIS. A search also was conducted in Dissertation Abstracts, which found no unpublished dissertations similar to this project or of direct assistance to it.

Organization of the Study

My study represented an effort to fully survey the range of legal controversies and judicial rulings under the rubric of affirmative action in student admissions policies. This information was analyzed and organized into a format that is useful for a variety of users. Chapter 1 gave an overview of my study and discussion of the research methods used. Chapter 2 provided definitions, origins of terminology, groups included under, and varieties of affirmative action. Chapters 3 and 4 discussed the general and legal historical antecedents of affirmative action. Chapter 5 reviewed various recent U.S. Courts of Appeals decisions related to affirmative action in student admissions programs. This survey was designed so that the later chapters can be considered in light of past interpretations of precedents established by the Supreme Court. Chapter 5 then evaluated the 2003 Supreme Court decisions in Gratz i. Bollinger 25 and Grutter v. Bollinger 26 particularly as they relate to the Court's own precedents. Chapter 5 was also the conclusion. As such, the chapter presented a summary of various generalized conclusions that were drawn from the comprehensive review of case law in the preceding chapters,









The chapter also presented legal tests to define affirmative action policy in student

admissions protected under the Constitution and the U.S. Code.

Notes


'438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed 2d 750 (1978).
2See Hopwood v. Texas. 78 F.3d 932 (5th Cir. 1996); Smith v. Univ. of Wash., 233 F.3d 1188 (9th
Cir. 2000); Johnson v. Bd. of Regents, 263 F.3d 1234 (11h Cir. 2001).
3See Hopwood v. Texas, 78 F.3d 932 (5t" Cir. 1996); Smith v. Univ. of Wash., 233 F.3d 1188 (9th
Cir. 2000); Johnson v. Bd. of Regents, 263 F.3d 1234 (11 n Cir. 2001).
478 F.3d 932 (5"' Cir. 1996), cert. denied. 518 U.S. 1033, 116 S. Ci. 2581, 135 L. Ed. 1097
(1996).
578 F. 3d 932, 944.
6123 S. Ct. 2325, 156 L. Ed. 2d 304 (2003), reh 'g denied, 124 S. Ct. 35, 156 L. Ed. 2d694 (2003).
'123 S. Ct. 2411, 156L. Ed. 2d 257 (2003).
8See. e.g., Stephen L. Carter, Reflections of an Affirmative Action Baby (New York: Basic Books,
1991); Carl Cohen. Naked Racial Preferences: The Case Against Affirmative A ction (Lanham, Md.:
Madison Books, 1995); Nathan Glazer, Affirmative Discrimination: Inequaliiv and Public Policy (New
York: Basic Books, 1975); Byron R. Taylor, 4ffirmative Action at Work: Law, Politics and Ethics
(Pittsburgh: University of Pittsburgh Press. 1991): Linda Chavez, Out of the Barrio: Toward a New
Politics of Hispanic Assimilation (New York: Basic Books. 1991): Douglas Massey and Nancy A.
Denton, American Apartheid Segregation and the Making of the Underclass (Cambridge: Harvard
Press, 1993).
9See. e.g.. Michael A. Olivas, The Law and Higher Education: Cases and Materials on Colleges
in Court (2" ed., Durham, N. C.: Carolina Academic Press, 1997). 981-1125; F. Michael
Higginbotham, Race Law: Cases, Commentaries, and Questions (Durham, N. C.: Carolina Academic
Press, 2001), 166-172, 360-92. 453-59.
'(Durham, N.C.: Carolina Academic Press. 2001).
" Ibid.. 376-406.
'l2bid., 296-311.
13However, the cases were not discussed in great detail.
4(Santa Barbara, Calif.: ABC-CLIO, 1999).
"5As a general text, this book addressed all facets of affirmative action. Since the author is an
attorney who specializes in helping organizations solve employee relations problems, it is
recommended as a useful training tool and guide for current and aspiring administrators in higher
education.
16See, e.g., David B. Oppenheimer, Distinguishing Five Models ofAffirmative Action. 4 BERKELEY
WOMEN'S L. J. 42 (1988-1989).
"7See, e.g., Eric Schnapper. Affirmative Action and the Legislative History of the Fourteenth
Amendment, 71 VA. L. REv. 753 (1985); Myrl Duncan. The Future ofAffirmative Action: A
Jurisprudential/Legal Critique, 17 HARV. C.R.-C.L.L. REV. 503 (1982).
18123 S. Ct. 2325, 156 L. Ed. 2d 304 (2003).
'9123 S. Ct. 2411, 156 L. Ed. 2d 694 (2003).
2"42 U.S.C. �� 2000d-2000d-7 (2000).
2142 U.S.C. �� 2000e-2000e-17 (2000).
22123 S. Ct. 2411. 156 L. Ed. 2d 257.
23Harvard Law Review Assoc., et al., The Blue Book: A Uniform System of Citation (16th ed..
Harvard Law Review Association 1996).
24The University of Chicago. The Chicago Alanual of StVle (14h ed., University of Chicago Press
1993).
2'123 S. Ct. 2411. 156 L. Ed. 2d 257 (2003).





12


26123 S. Ct. 2325. 156 L. Ed. 2d 304 (2003). reh 'g denied, 124 S. Ct. 35. 156 L. Ed. 2d 694
(2003).












CHAPTER 2
WHAT IS RACE-CONSCIOUS AFFIRMATIVE ACTION Introduction

Here we discussed specific and general definitions of various types of affirmative action in the United States, with particular attention to race-based or race-conscious affirmative action. The purpose of this chapter was to provide a contextual framework for a historical overview of affirmative action in Chapters 3 and 4, and for a legal case precedent overview in chapter 5. In chapters 3, 4, and 5, again, special emphasis was placed on race-conscious affirmative action, in particular how it relates to student recruitment and admission policies in public higher education.

Definitions

On July 19 1995 in a speech supporting affirmative action, President Bill Clinton offered the following definition: "Affirmative action is an effort to develop a systematic approach to open the doors of education, employment, and business development opportunities to qualified individuals who happen to be members of groups that have experienced long-standing and persistent discrimination."' In contrast to this brief definition, law professors Charles R. Lawrence and Mari J. Matsuda provided a more literary, yet seminal, definition:

Affirmative action can have a shallow or deep meaning. The shallow meaning
goes something like this: there were once laws and practices that denied people of
color access to schools, jobs, and housing. There was a need to make sure that these explicit practices of segregation and discrimination ended. The practices were mistakes or things done by a few bad people. We regret them and we will
invite a few token persons from minority communities into our institutions to
make up for that mistake. We also recognize that it would help the children of the








powerful to learn more about the nonwhite world if a few nonwhites were around,
but we will decide whom to invite. We will decide who is qualified to serve our purpose of creating an environment where we can learn what we need to know
about them.

The deep meaning of affirmative action, however, is radically different and
recognizes that the only remedy for racial subordination based on the systemic
establishment of structures, institutions, and ideologies is the systemic
disestablishment of those structures, institutions, and ideologies. Radical
affirmative action goes beyond the remedy of simply declaring that discrimination
is illegal and pretending that our culture is colorblind.2

The two descriptions considered together disclose the fact that definitions of affirmative action can differ greatly in nature. In many instances, individuals' motivations in providing a definition determine its nature (e.g., either to support or to detract from affirmative action). Often the answer to the question of what is affirmative action has been dependent upon where one stands on the issue. For example, Myrl Duncan, a law professor and supporter of affirmative action, provided a definition that was impliedly critical of social practices. "The term [affirmative action] refers to public and private programs designed to equalize hiring and admission opportunities for historically disadvantaged groups by taking into consideration those very characteristics which have been used to deny them equal treatment."3

Affirmative action has been generally defined as "public or private actions or

programs that provide or seek to provide opportunities or other benefits to persons on the basis of, among other things, their membership in a specified group."4 Another general definition (common to many sociologists) that has been propounded states, "Affirmative action exists whenever an organization goes out of its way to help realize the goal of true equality among people."5 This is also the same as the definition that occurs in official materials published by the U. S. Department of Labor, like Fact Sheet 95-17, which








specified that certain employers must "take affirmative action to ensure that equal opportunity is provided in all aspects of their employment."6

A one-sentence definition is the following: "Affirmative action is the protective or preferential treatment of persons in employment, the admission to selective schools and universities, and the granting of other social goods and services (e.g., government contracts and licenses, set asides) by giving positive consideration to specified races and ethnicities and to one gender or the other. ,7 These specified identifiers, in a peculiar way, become proxies for merit. The established justification for such practices is to compensate for past injurious discrimination. A more recent justification is to promote diversity. The advancement of diversity is the idea that desirable and powerful positions in society should reflect the racial, ethnic, and gender composition of the population. The concept of diversity has been included in the admission policies at many colleges and universities on the premise that students need to study in an atmosphere similar to the one that they will live and work in after graduation. Diversity, in many situations, has become a euphemism for affirmative action.8

Affirmative action generally applies to education and employment. The term is not used in discussions about voting rights, legislative redistricting, housing, public accommodation, or membership in organizations. These areas are covered by Title II of the Civil Rights Act of 19649 and the Voting Rights Act of 1965.10 There is general agreement that affirmative action is mostly applicable to higher-status positions over lower-status ones, white-collar work over blue collar work, skilled work over nonskilled work, and managerial and supervisory positions over those that are not."










Even ardent supporters disagree about what constitutes a proper definition of affirmative action, since the reality is that there is a spectrum of affirmative action solutions, depending upon which specific program is being debated. However, there seems to be little disagreement that when it was originally envisioned, the program entailed casting a wider net; one that would make sure that potential students, employees, and government contractors from minority backgrounds were sought out and considered for positions. Various government agencies, legal battles, and in some cases the organizations themselves moved from this version of affirmative action to different versions of goals, timetables, and quotas."2 In accordance with Lawrence and Matsuda's terminology, they moved from using a shallow meaning to using a deep meaning.

Affirmative action has at least three components. The first component is affirmative recruitment. Affirmative recruitment means that institutions of higher education or employers aggressively encourage racial minorities to apply for admission or employment. To accomplish this goal, colleges and universities have sent students and professors into inner-city neighborhoods, to help high school students understand what college is all about and gain the confidence needed to apply for admission. Employers, on the other hand, might advertise employment opportunities in newspapers that have a large minority readership. The various branches of the armed forces have used affirmative recruitment to successfully achieve a more integrated force, turning one of the most racially divided organizations in society into one of the most racially integrated. Most Americans seem to support the concept of affirmative recruitment. 13 This meaning relates directly to Lawrence and Matsuda's "shallow meaning" of affirmative action.








The second component is affirmative fairness. Affirmative fairness means going out of the way to make sure that a minority candidate for a college entering class, an employment position, or a promotion has been considered fairly. In college admissions, fair treatment may mean looking at the particular background of an applicant to determine if it is fair to apply the usual admission requirements in his or her particular case. Such a review might consider whether the applicant lived in circumstances that make it unlikely that the standard admission test will properly measure his or her mental ability. This consideration is based on the supposition that usual measures applied to suburban middle-class students do not provide proper information about students from the inner cities and poor rural areas. Another possible consideration is whether the applicant had to overcome obstacles to finish high school, that other students did not face. Such obstacles include having to work so as to help support one's family; or attending an inadequate school. In the employment context, the question is asked has the applicant actually been judged on merit, or has racism been a factor in the evaluation process. Most Americans seem to support affirmative fairness.14 This meaning falls somewhere between Lawrence and Matsuda's shallow and deep meanings of affirmative action.

The third component is affirmative preference. Affirmative preference means preferring someone of the fight race over someone who is of the wrong race. This preference can seem minor, such as preferring someone of a particular race when both candidates are equally qualified. The preference can seem more significant, however, when a highly qualified candidate for college admission or a job or a promotion is passed over for a minority applicant who is clearly less qualified. Because social scientists have not studied the phenomenon, it is not known how often this has happened since 1970,








when affirmative action became a significant part of American society Critics of affirmative action say it occurs all the time. Supporters of affirmative action say it almost never happens. Social scientists have found that most Americans do not favor affirmative preference.'5

Origins of Terminology

The term affirmative action predates the civil rights movement. The basic idea comes from the centuries-old English concept of equity, or the administration of justice according to what was fair in a particular situation, as opposed to rigidly following legal rules, which may have a harsh result. Some have contended that the phrase affirmative action first appeared as part of the 1935 National Labor Relations Act. There, it meant that an employer who was found to be discriminating against union members or union organizers would have to stop discriminating, and also take affirmative action to place those victims where they would have been without the discrimination. 16

In the civil rights context, the term affirmative action first appeared in President John F. Kennedy's Executive Order 10925, matched up with a color-blind view of society. '7 The term was repeated in President Lyndon Johnson's revision, Executive Order 11246.18 Firms under contract with the federal government were to not discriminate, and were also to "take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color or national origin." Section 706(g) of the Civil Rights Act of 1964 also permitted courts to order "affirmative action" in cases where an employer was "intentionally engaged in" an unlawful employment practice, such as the denial of opportunity on the basis of race. '9 As it was developed in the civil rights administrative








agencies and the courts, however, affirmative action, as well as simple nondiscrimination, came to mean something quite different from any color-blind approach. It came to mean race-conscious, rather than color-blind."'

The term affirmative action was again used in the era following Brown v. Board of Education,2' as a response to subtle forms of societal discrimination that continued to operate against racial minorities. Despite the invalidation of segregation laws in Brown,22 whites were still customarily granted priority over minorities in the allocation ofjobs and educational opportunities, even when the minorities possessed qualifications that were the same as or better than the qualifications of the whites receiving preferential treatment. In 1961 Vice-President Lyndon Johnson oversaw the drafting for President John F. Kennedy of Executive Order 10925, which prohibited racial discrimination in civil service hiring and government contracting. Executive Order 10925 stated in part, "The contractor will not discriminate against any employee or applicant for employment because of race, creed, color, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.",23

Laws and regulations developed that extended the Civil Rights Act of 1964 to

ensure equal opportunity. These included controversial affirmative action regulations and programs. Like the Civil Right Act, they arose in the time when opportunity for AfricanAmericans was the dominant issue, and the problem of opportunity for other groups, including Hispanics, Asian-Americans, and American Indians, was near the bottom of the national agenda.

As disclosed in the previous discussion, it was difficult to provide one all-









encompassing definition of affirmative action. For example, there were affirmative action regulations that some companies contracting with the government were supposed to follow with voluntary affirmative action programs. Many other companies had voluntary affirmative action programs. There was added complexity, because the regulations changed over time, and affirmative action programs were never the same for different types of opportunity. Affirmative action in employment was not the same as the mostly voluntary programs in higher education or professional school admissions, and neither of these was identical to affirmative action in legally mandated contract set-asides or in Small Business Administration assistance for minorities.24

Policy makers themselves were confused. The earliest uses of the term affirmative action in the context of civil rights enforcement lacked clear intentions. The term appeared in President John F. Kennedy's Executive Orders 10925 and 11114, prohibiting discrimination on the basis of race, national origin, and religion and requiring affirmative action to ensure nondiscrimination by government contractors.5 It appeared again in Title VII of the Civil Rights Act of 1964,26 where courts were empowered to order companies guilty of discriminating to take affirmative action to put discrimination victims in their rightful place. In 1965 the term was repeated in President Lyndon Johnson's Executive Order 11246.27 In none of these instances was affirmative action clearly defined.28

To some, affirmative action seemed to mean what was later called soft affirmative action. But this was by no means clear. The executive orders and Title VII listed some activities that might be included, such as hiring employees and giving back pay. The wording in Title VII suggested affirmative action aimed at identifiable, individual victims









of discrimination, but the executive orders, which required promises of affirmative action before a contractor was officially found to have discriminated, could not have meant that. A Johnson administration memorandum dated January 1964 highlighted the confused nature of the policy.29

The document, "Affirmative Action Commitment Under Executive Orders 10925 and 11114," intended to acquaint government contractors with the requirement of affirmative action. It explained that affirmative action was a relatively new concept in contract management. There was nothing in the provided definition that suggested race consciousness, later to have a major negative impact on affirmative action's political support. The memorandum stated, "Affirmative action means positive or firm or aggressive action as opposed to negative or infirm or passive action. Affirmative action encompasses the steps necessary to ensure that a contractor puts into practice his stated policies of equal employment opportunity without regard to race, color, creed or national origin." With a clear focus on Afro-Americans, the memorandum listed twenty-five suggested examples of affirmative action.30

The simplicity of the suggestions revealed the nature of race relations in the early 1960s when discrimination was severe and open.3' For example, one suggestion for affirmative action was to eliminate segregated washrooms, cafeterias, smoking areas, locker-rooms, drinking fountains, time clocks, pay-lines, contractor sponsored recreational programs, and so on. Another was a hallmark of soft affirmative action: employers should try publication and dissemination of a written policy of equal employment opportunity. Some of the stronger recommendations revealed both surprising differences with later beliefs concerning the nature of discrimination and








awareness of the taboo nature of race-consciousness and preferences. For instance, suggestion number nine gave no preference to minorities, "Seek, employ and develop minority group personnel, as well as others, in white collar classifications to ensure that the best talents and abilities of the others nation's manpower resources are utilized most advantageously." Although in later years most civil rights administrators saw the use of employment tests on which African-Americans performed poorly as culturally biased and discriminatory, example number eighteen suggested, "Re-evaluate qualifications of lower echelon minority employees to ensure equal consideration for job progression based on standards and qualifications which should be no higher or no lower than those established for white employees." Still, even in 1964 there was a harbinger of things to come. The document ended by declaring that each contractor would have to devise its own plan to achieve the maximum utilization of available manpower. In other words, affirmative action was not orientated toward some procedural justice, as was Title VII, but toward a substantive result.32

It was not long before a combination of forces led to the development of the affirmative action presently known. Scholars and pundits frequently have introduced affirmative action with the assumption that policy originators were trying to compensate African-Americans for centuries of discrimination. Sociologist John Skrentny argued, that while enforcing Title VII federal courts often ordered certain firms or public institutions to enforce racial hiring goals as compensation for past discrimination. Some civil rights groups also have made compensation arguments. But the original justification for affirmative action in employment put forth by those implementing the policy was administrative pragmatism.33 Civil rights enforcers said they needed an effective and








efficient means of stopping present discrimination. This was very difficult to prevent when the government relied solely on promises by employers or charges made by aggrieved individuals. Others justified the policy as a means to quell the crisis of urban racial unrest in the 1960s.34

In September 1965 President Lyndon Johnson signed Executive Order 11246,"5 36
just fifteen months since he had signed the Civil Rights Act. One section of that act permitted courts to order such affirmative action as may be appropriate to end discrimination and to establish restitution in cases where dejure or defacto discrimination had been found. The executive order went further. It required every federal contractor above a minimum size to function as an affirmative action employer.37

Under the executive order, to be an affirmative action employer was to make sure that the organization imposed no artificial barriers to persons in certain targeted categories. At present, the targeted categories are derived from considerations of gender and ethnicity. White females, ethnic minority females, and ethnic minority males make up the categories by the regulations that have flowed from Executive Order 11246. To these have been added qualified persons with disabilities by the Rehabilitation Act of 197338 and Vietnam War veterans by the Vietnam Era Veterans Readjustment Assistance Act of 1974.39 In the issuance of the executive order as amended, and regulations and legislative acts which followed, the elimination of artificial barriers for some groups of people was considered to be tantamount to assuring actual equal opportunity for all individuals.40

To assist employers, federal regulations delineated the method by which an organization can make sure that artificial barriers do not exist. The method was









supposedly simple and results orientated. If an organization employed people of various designated groups in proportion to their availability in the relevant labor market, then the organization had primafacie evidence that there is no discrimination, either in terms of disparate treatment or disparate impact.4'

Race-conscious affirmative action policies in the 1970s rapidly followed the

triumph of liberal nondiscrimination in the 1960s. As John Skrentny pointed out in his book, The Ironies of Affirmative Action, so powerful was the American belief in the principle of color-blind law by the 1970s that advocacy of racial preference became one of the third rails of American politics.42 Race-conscious affirmative action was familiar term ofjournalistic convenience. It identified unambiguously the controversial element of minority preferences in the distribution of benefits. But it also conflated racially targeted civil rights remedies with affirmative action preferences for groups, such as Hispanics and women, given protected class status irrespective of race. In order to correct any misunderstanding, one journal, The New Republic, substituted the term hard affirmative action for race-conscious affirmative action. The term hard affirmative action included nonracial as well as racial preferences, and it distinguished such remedies, available only to officially designated protected classes, from the soft affirmative action of the Kennedy-Johnson administrations, which emphasized special outreach programs for recruiting minorities but did so with a traditional liberal framework of equal individual rights for all citizens. The descriptors race-conscious affirmative action and hard affirmative action have often been used interchangeably.43

The architects of race-conscious affirmative action, Skentny observed, developed their remedy in the face of public opinion heavily arrayed against it. Unlike most public








policy in America, hard affirmative action was originally adopted without the benefit of any organized lobbying by the major interest groups involved. Instead, government bureaucrats, not benefiting groups, provided the main impetus. The race-conscious model of hard affirmative action was developed in trial and error fashion by a coalition of mostly white, second tier civil servants in the social service agencies of the executive branch of federal government, including the Department of Labor, the Department of Housing and Urban Development, and the Department of Health, Education, and Welfare. This was a network of Kennedy-Johnson administrations liberals in Washington's mission agencies, working with a small group of young, often black policy entrepreneurs, coordinating with allies in the Justice Department and the Equal Employment Opportunity Commission, and linked to counterparts in regional and municipal government by the sprawling federal grant network. Once started in this way, hard affirmative action spread during the 1970s with surprising little attempt by conservatives to stop it.44

Groups Included under Affirmative Action

Although the policy of affirmative action always included African-Americans and was developed to cope with their unique problems, it has formally included other groups from its inception. In the mid-I 960s these were the Hispanics, the Asian-Americans, and the American Indians. The reasons these groups were included and others were not are obscure, but it is possible that few thought it was a matter of importance because the nonblack groups were small in the mid-1960s. These basic categorizations have allowed affirmative action to go beyond African-Americans to include Caribbean and African blacks, persons from Latin America, the Spanish Caribbean, and Spain, and Asians, but








from eastern and southern Asia and the Pacific islands only. Eskimos and Aleuts have been included with American Indians as aboriginal beneficiaries of affirmative action. Affirmative action programs have increasingly included non-blacks, mixed-race persons, and non-African-American blacks.45

Historian Thomas Sugrue provided an original genealogy of the affirmative action controversy. Its origins, he argued, lie in the unintended consequences of the New Deal. President Franklin Roosevelt's New Deal policies worked to satisfy working class white Americans' desire for security, but left out African-Americans desire for security with equality. The late 1940s through the middle 1960s saw African-American civil rights groups using a discourse of color-blindness to press for equality without regard to color. But early state-level fair employment programs and the early federal civil rights protections did not immediately bring about equality, especially in trade unions.46

Roosevelt's pro-labor policies allowed the construction unions to become a solid step up the socioeconomic ladder for thousands of Americans, including many Catholics of Irish or eastern and southern European descent. These European-Americans maintained the trade unions as an ethnic niche for themselves. The federal government responded with affirmative action designed to force the unions to bring in AfiicanAmericans. Sugrue argued that the efforts of the Kennedy administration in this direction were weak, confused, and mostly ineffectual. But the threat that Kennedy's efforts symbolized produced a disproportionate emotional reaction from the unions The result was local African-American leaders' adoption of a race-conscious discourse and support for the new affirmative action policy, while the unions used the old civil rights language to resist.47








Varieties of Affirmative Action

There are a number of race-, ethnic-, and gender-conscious practices that have been called affirmative action. Five models or types of it were identified and distinguished by legal scholar David Oppenheimer. He suggested that it is useful to conceive of the varieties of affirmative action as existing on a continuum. At one extreme are those of an employer or educational institution, which affirmatively, positively and actively, carries out a policy of nondiscrimination on the basis of race, ethnicity, gender, or other characteristics not germane to the position of employee or student. At the other extreme is the deliberate seeking of a person because of his or her ascribed status, whether it is black skin, a Hispanic surname, or chromosomal makeup. Oppenheimer 48
called this the targeted hiring or outreach type in affirmative action programs. For instance, universities have commonly filled positions contingent upon finding a person of the desired race, ethnicity, or gender. Among the faculty searches approved for the 19921993 academic year by California State University, Los Angeles was "One probationary position in Sociology, to be filled only if a black or Hispanic colleague can be appointed."49 Sometimes positions were created to be filled only by a person of a specified ascribed characteristic.

The quota type is what most people who oppose affirmative action have meant in usage of the term. The type includes all the programs that set specific numbers. The University of California at Davis, before the Regents of the University of California v. Bakke decisionn of the Supreme Court, set aside sixteen of one hundred places in its law school's entering class specifically for minority students. In Kaiser Aluminum and Chemical Corporation v. Weber,51 the Supreme Court approved a quota plan whereby 50








percent of the positions in a training program were to be reserved for black employees, until such time as the proportion of crafl workers was similar to the proportion of blacks in the local work-force. In 1988 Duke University adopted a plan requiring every department and program in the university to hire at least one new black by 1993 or face penalties from the administration. 52 In the same year, the I Jniversity of WisconsinMadison announced plans to employ seventy minority professors during the next three years.53 Many law schools, such as Berkeley, Georgetown, and Texas, have had quotatype admissions programs.54

A third type of affirmative action are preference programs. These are programs

that do not have not have quotas, but give preference to certain categories of persons. For example, "As part of its Affirmative Action Program, Marquette [University] gives preference in hiring to Jesuits," wrote the chairman of that university's sociology department to a job applicant.55 University student admission programs that give preference to individuals of certain racial and ethnic background are more common. Another example of preference programs includes those that provide veterans bonus points on civil service examinations. An illustration of this is found in Personnel Administrator of Massachusetts v. Feenej,.56 There, Massachusetts established a hiring preference for veterans by granting them bonus points on a civil service examination. As a result, although there was no quota, veterans had a significant advantage over nonveterans in competing for state jobs.57 Another example is the consent decree entered into by the city of Memphis,5- which became the focus of the Supreme Court's decision in Firefighters Local Union No. 1784 v. Stots, resulting from a claim of racial discrimination against the city's fire department.9 The agreement was that women and








minority city emp!oyees not employed by the fire department could apply for openings there before white maie city employees or any non-city employees. In Johnson v. Transportatioi7 L)arnienl, Sana Clara County,60 the Court decided that a preference program involving gender was in accord with Title VII of the Civil Rights Act of 1964.61

The self-examination type, the fourth kind of affirmative action program acknowledged by Oppdiiheimer, is common in government, universities, and large private industries. Typically, research is done to deter-mine what the numerical situation is with respect to minorities and women. Then goals and timetables are set up for increasing their proportions in certain, generally upper-level, job categories. The attempt is to achieve representation of underrepresented categories corresponding to the proportions of persons qualified to fill the positions. Sometimes, particularly for many professional and scientific specialties, minorities are only a very small or nonexistent proportion. At the other extreme, those considered qualified to fill a particular job category or training program are the same as the category's proportion in the local work force.62

A fifth type of affirmative action is nondiscrimination. According to

Oppenheimer, nondiscrimination is composed of two subtypes: active and passive nondiscrimination. The former may involve a variety of practices to avoid discrimination, such as sensitivity training of employees and abandoning practices that are believed to have a discriminator,/ effect, like tests and educational requirements, most usually for high school graduation. The latter would be similar to what is sometimes called soft affirmative action, as discussed previously.63

To some, passive nondiscrimination would logically be outside of a discussion of affirmative action. But, Oppenheimer argued that public perception of affirmative action








and nondiscrimination are intertwined. This is an important aspect of the intellectual confusion that surrounds affirmative action. Oppenheimer argued that,

When a court's decision that an individual was the victim of unlawful
discrimination results in the payment of damages and an order of employment,
admission or reinstatement, the remedy is likely to be perceived as a form of
affirmative action. When an employer-defendant, or potential defendant, agrees to
a remedy to settle or avoid a discrimination action, it is even more likely to be
seen as affirmative action, by observers if not by the participants. The failure to
recognize that at least some of the participants in a public debate about affirmative action are likely to use the term to include nondiscrimination compounds the confusion which occurs when the subject is discussed.64

Others, such as Tomasson, Crosby, and Herzberger, have argued to the contrary. Simply because the public does intertwine perceptions of nondiscrimination and affirmative action and that the above examples are intuitively reasonable, is not sufficiently convincing to regard passive nondiscrimination as belonging under the rubric of affirmative action. Such regard confuses the issue of what is affirmative action. And, it lends to affirmative action the moral high ground of nondiscrimination.65

Tomasson, Crosby, and Herzberger have further contended that race-conscious affirmative action in higher education is quite unnecessary in a country oversupplied with colleges and universities. They found that preferential undergraduate admissions has relevance for only a very small, but very significant, proportion of colleges and universities, those that are able to be selective. Fewer that 5 percent of freshman are enrolled in the twenty-five highest ranked universities and the twenty-five highest ranked
66
small colleges. The great majority of freshman enrolls in institutions that require little more than graduating from high school with some mild provisions regarding grade point averages and test scores. Some state colleges and universities, sometimes by legislative mandate, have no admission requirements beyond high school graduation. And,








community colleges, as part of their very nature of existence, admit anyone. But affirmative action is a major concern to elite colleges and universities. Recently, the reason most often given for such concern is the need to achieve a diverse student body. The old reason, to compensate for past harmful discrimination, has been replaced as the beneficiaries of affirmative action have expanded beyond blacks to include other groups for whom the claim of past discrimination is not compelling. For example, there is a virtual absence of gender-based affirmative action in undergraduate higher education, although it is still present in some graduate and professional schools.67

There is another type of preference, much less publicly touted by colleges and universities than that of achieving racial and ethnic diversity. It is affirmative action for the privileged. And, in certain cases, it is used to justify racial and ethnic preferences. Some colleges and universities have argued that if special treatment is given to the offspring of alumni, it is equally just to give similar treatment to racial minority applicants. One cannot accept the former sort of preference and not the latter. Justice Lewis Powell argued this very point in his famous Regents of the University of California v. Bakke opinion of 1978.68 But, as John Jefflies, Jr. wrote in his biography of the Justice, he intended it to be only a temporary measure, maybe to last a decade. The Justice feared that special admissions programs like those at the University of California at Davis would become entrenched bureaucracies, and minorities would come to regard them as perpetual entitlements. For Powell, race-conscious preferences were a short-term response to a pressing need.69

At Harvard College in 1968 almost half of alumni sons who applied were admitted. This has declined in recent years to approximately 40 percent of alumni








children against 14 percent of non-alumni applicants Harvard University has attempted to justify this preference by claiming that alumni are one of the constituencies important to the university. Others have contended that it exists to encourage alumni to be generous with their financial contributions. Overall, preferential treatment of legacies in elite colieges and universities has received little criticism, despite the fact that some believe it to be a deplorable practice.70

In part due to America's past racial discrimination, affirmative action programs moved beyond simple race-neutral nondiscrimination of the type initially undertaken by University of Wisconsin administrative officials in the late 1960s, toward a more aggressive plan that would lead to diversity on campus. Such a proactive plan meant providing preferential treatment to members of certaiff identified racial groups. It also meant rejection of'the legal concept of color-blind Constitution.7'

There have been at least three varieties of affirmative action programs created by colleges and universities. One type of affirmative action admission policies is modeled after the Harvard admission program,72 as discussed previously. Under such a program, the college or university's admissions committee seeks out qualified minority applicants who will provide diversity to the incoming class of students. And the race of an applicant is a positively weighted factor in the admissions decisions of the committee.73

A second type focuses on the ethnicity of its applicants in order to enroll a small number of minority students in each entering class, whether undergraduate or graduate and professional schools. The dominant weight in the admissions process is given to the traditional numerical scores, standardized test results, and grade point averages. However, administrators create minority recruitment goals to diversify the student








population. For example, admissions committee members are given a goal of 5 percent minority admissions. Consequently, the admissions committee recommends minority applicants who score in the average range but who are considered the most qualified minority applicants. Implicit is the understanding that the goal may not be met because the committee members could not identify a sufficient number of qualified minority applicants.74

A third type of affirmative action higher education admission programs sets aside a fixed number of seats for minority applicants and employs a dual admissions screening process. Sometimes called a quota or set-aside program, this affirmative action plan differs from the second in that it fills every one of the seats reserved for minority applicants to the institution.75

Affirmative Action Distinguished from Equal Opportunity and Nondiscrimination The lawfulness of affirmative action relies primarily on two separate sources of law; the Equal Protection Clause of the Fourteenth Amendment76 and Title VII of the 77
Civil Rights Act of 1964. A violation of the Fourteenth Amendment requires an intention to commit invidious racial discrimination,78 and liability for such discrimination can attach equally for official discrimination against either non-minority or minority individuals.79 Similarly, at the time of the civil rights movement of the 1960s, and especially during the congressional debate and enactment of the Civil Rights Act of 1964 and its Title VII most public officials and lawyers thought that the purpose of Title VII was solely to rectify, by a uniform standard, specific racial harms intentionally inflicted by employers, and later by government agencies, on victims of either race; not to promote racial preferences or quotas.80 This type of color-blind, voluntary standard was








summarized many years later by the U.S. Court of Appeals for the Ninth Circuit in its decision in the case of Coalition for Economic Equity v. Wilson.81 Here the court proclaimed its approval of California Proposition 20982 stating:

The standard of review under the Equal Protection Clause does not depend on the
race or gender of those burdened or benefited.... Proposition 209 amends the
California Constitution simply to prohibit state discrimination against or
preferential treatment to any person on account of race or gender.... To be
constitutional, a racial classification, regardless of its purported motivation, must
be narrowly tailored to serve a compelling governmental interest, an extraordinary
justification.83

Because, however, affirmative action depends on some form of preferential treatment of marginalized groups whose unjust treatment does not lend itself to redress through ordinary litigation based on conventional proof, these early views against proportional treatment or quotas, through persistence and reappearance, provide an unavoidable background against which the competing and conflicting justifications of affirmative action have emerged. 84

In contrast to these early color-blind and volitional rationales for antidiscrimination doctrine and the rationales later acceptance to render affirmative action anathema in Hopwood i'. Texas "5and Proposition 209, affirmative action emerged in the late 1960s and early 1970s as a preferential method to attack racial segregation and discrimination in the operations of government contractors. These first plans came neither from the Equal Protection Clause nor from Title VII but from a series of presidential orders and decisions and administrative directives, discussed previously, requiring overtly racial hiring by government contractors, generally without imposing a precondition of intent or design to discriminate against minorities on these contractors' parts. The plans were mainly a pragmatic response to the civil strife of the time, which









often fed on racial injustice.6 These developments culminated in the creation of a

contract compliance plan by President Richard Nixon, a traditional civil rights opponent,

in the Philadelphia construction trades.87 Remnants of this approach tying affirmative

action to government contractors exist today, as the rejection of one such plan, mandated

by Congress, in the case of Adarand Constructors, Inc. v. Pena 8showedY9

Notes


1"Excerpts from Clinton Talk on Affirmative Action," New York Times, 20 July 1995, late edition.
2Charles R Lawrence and Mari J. Matsuda, We Won't Go Back: Making a Case for Affirmative
Action (Boston: Houghton Mifflin, 1997), 27.
3See, Donald Altschiller, ed., preface to Affirmative Action, The Reference Shelf, vol. 6, no. 14
(New York: H. W. Wilson Co.. 1991). 5. MyI Duncan is a professor of law at The School of Law,
Washburn University, Topeka, Kansas. See Myrl Duncan, The Future ofAffirmative Action: A
Jurisprudential/Legal Critique, 17 HARV. C.R.-C.L.L. REv. 503 (1982). for a discussion of the legal
aspects of affirmative action.
4James E. Jones, The Genesis and Present Status ofAffirmative Action in Employment: Economic,
Legal and Political Realities, 70 IowA L. REv. 4, 903 (1985).
5Audrey J. Murrell et al.. "Racism and Resistance to Affirmative Action: Perceptions of Justice
Are Not Necessarily Color Blind." Basic andApplied Social Psychology 15 (1-2): 71-86 (1994). See.
e.g., Sjiera de Vries and Thomas F. Pettigrew, "A Comparative Perspective on Affirmative Action:
Positieve Aktie in the Netherlands," Basic and Applied Social P.ychology 15 (1-2): 179-199 (1994)Marlene E. Turner and Anthony R- Pratkanis. "Affirmative Action as Help: A Review of Recipient
Actions to Preferential Selection and Affirmative Action," Basic andApplied Social Psychology 15 (12): 43-69 (1994); Marlene E. Turner and Anthony R. Pratkanis, "Affirmative Action: Insights from
Social Psychology and Organizational Research." Basic and Applied Social Psychologv 15 (1-2): 1-11
(1994).
6U.S. Department of Labor. Employment Standards Administration. Program Highlights: Fact
Sheet ESA 1995-17. Washington, D.C.. 1995.
'Richard F. Tomasson, Faye J. Crosby, and Sharon D. Herzberger, Affirmative Action: The Pros
and Cons of Policy and Practice (Washington. D. C.: University Press of America, 1996), 123-124.
8bid.
'42 U.S.C. �� 2000a-2000a-6 (2000).
'�42 U.S.C. �� 1973-1973gg-10 (2000).
"See, Tomasson, Crosby, and Herzberger, .4ffirmative Action, 124.
12Lynne Eisaguirre, Affirmative Action: A Reference Handbook (Santa Barbara, Calif.: ABCCLIO, 1999), 3.
13Darien A. McWhirter, The End ofAffirmative Action: Jhere Do We Go from Here? (New York:
Carol Publishing Group. 1996). 4-5.
4Ibid., 5.
15Ibid., 6.
16See, James E. Jones. Jr. "The Rise and Fall of Affirmative Action," in Race in America: The
Struggle for Equality, eds. Herbert Hill and James E. Jones, Jr. (Madison: University of Wisconsin
Press, 1993), 345-69. Under the National Labor Relations Act of 1935, the National Labor Relations Board was authorized to order an employer guilty of engaging in unfair labor practices to cease and
desist from the practice "and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this Act." See National Labor Relations (Wagner)
Act of 1935, 29 U.S.C. �� 151-169 (2000). The term affirmative action was also used to describe











remedial measures that might be ordered in an employment discrimination suit, as well as voluntary measures by private employers to hire blacks. See Elmer A. Carter, Practical Considerations ofAntidiscrimination Legislation under the New York Law Against Discrimination, 40 CORNELL L. Q. 44 (1964); Note, Civil Rights-Minnesota Fair Employment Practice Act-Supervision as Affirmative Action, 42 MINN. L. REV. 1163 (1958).
17Exec. Order No. 10,925, 3 C.F.R. 448, 449-50 (1959-1963), reprinted in 1961 U.S.C.C.AN.
1274 (1961).
"Exec. Order No. 11,246. 3 C.F.R. 339, 340 (1964-1965). reprinted in 1965 U.S.C.C.A.N. 4416
(1965).
'942 U.S.C. � 2000e (5g) (2000).
20See. John D. Skrentnv, The Ironies ofAffirmative Action: Politics, Culture, and Justice in America (Chicago: University of Chicago Press, 1996), 7.
21347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954). (Hereinafter referred to as Brown I)
(invalidating separate-but-equal public schools). 349 U.S. 294, 75 S. Ct. 753, 99 L. Ed. 1083 (1955). (Hereinafter referred to as Brown II) (ordering dismantling of segregated school systems "with all deliberate speed").
22Brown I. 347 U.S. 483 (1954).
23Exec. Order No. 10,925, 3 C.F.R. 448, 449-50 (1959-1963). reprinted in 1961 U.S.C.C.A.N.
1274. 1276 (1961). See, e.g., Middleton v. City of Flint, 92 F. 3d 396, 404 & n. 6 (6th Cir. 1996) (discussing evolution in use of term affirmative action)- Nicholas Lemann, "Taking Affirmative Action Apart," New York Times, 23 November 1997, late edition.
24See, John David Skrentny, ed. introduction to Color Lines: Affirmative Action, Immigration, and Civil Rights Options for America (Chicago: University of Chicago Press, 2001), 4.
25Exec. Order No. 11,114, 3 C.F.R. 774, 777 (1959-1963), reprinted in 1963 U.S.C.C.A.N. 1740
(1963), 1742. Exec. Order No. 10,925, supra note 14, at 1276.
2642 U.S.C. �� 2000e-2000e (17) (2000).
2?Exec. Order No. 11,246, 3 C.F.R. 339, 340 (1964-1965), reprinted in 1965 U.S.C.C.A.N. 4416
(1965).
28See, Skrentny, Color Lines. 4.
29Ibid., 4-5. See, "Affirmative Action Commitment Under Executive Orders 10925 and 11114," in Civil Rights During the Johnson Administration, 1963-1969: A Collection from the Holdings of the Lyndon Baines Johnson Library,. ed. Steven F. Lawson (Lyndon Baines Johnson Library, Austin Frederick, Md.: University Publications of America, 1984), microfilm, University of Florida Libraries, part II, reel 3. frame 809.
3�Ibid., 5.
31Numerous commentators have written about race relations in the United States. See, e.g..
Alexander Bickel, The Morality of Consent (New Haven: Yale University Press, 1975); John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge: Harvard University Press. 1980); Eric Foner. Reconstruction: America's Unfinished Revolution, 1863-1877 (New York: Perennial Classics, 2002); Clifford Geertz. "The Thick Description: Toward an Interpretive Theory of Culture," in The Interpretation of Cultures: Selected Essays (New York: Basic Books, 1973); A. Leon Higginbothan, In the Matter of Color: Race and the American Legal Process (New York: Oxford University Press, 1978): Charles R. Lawrence. The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism. 39 STAN. L. REv. 317 (1987)- Eric Scluapper, Af/lrmative Action and the Legislative History of the Fourteenth Amendment, 71 VA. L. REv. 753 (1985); Girardeau A. Spann,. Color-Coded Standing, 80 CORNELL L. REv. 1422 (1995); Girardeau A. Spann. Proposition 209, 47 DuiKE L. J. 187 (1997); Girardeau A. Spann, Race Against the Court: The Supreme Court and Minorities in Contemporary America (New York: New York University Press, 1993); Geoffrey R. Stone et al., Constitutional Law (Gaithersburg, Md.: Aspen Law and Business, 2001); Eugene Volokh, The California Civil Rights Initiative: An Interpretive Guide, 44 U.C.L.A. L. REv. 1335 (1997).
32Lawson, "Affirmative Action Commitment," part 1H, reel 3, frame 809, See, Skrentny, Color Lines, 5-6.
33There were many sources for the widespread belief that affirmative action was created to compensate blacks. One was a much cited speech by President Lyndon Johnson at the 1965 commencement of Howard University that was an eloquent justification of government sponsored










compensatory treatment. Johnson argued that freedom was not enough for blacks and that fair competition required special help for this group long hobbled by discrimination. Johnson added that the next frontier was equality as a fact and as a result. But there was no evidence in the speech that he had in mind the racial hiring goals, timetables, or quotas of affirmative action. See, Lee Rainwater and William L. Yancev. The Movnihan Report and the Politics of Controversy (Cambridge: MIT Press. 1967), 126. The speech, written by Richard Goodwin and Daniel Patrick Moynihan, said nothing about affirmative action. Instead, it was much more in line with less controversial compensatory measures, such as the Head Start education program and other monetary aid packages. See, Gareth Davies, From Opportunity to Entitlement: The Transformation and Decline of Great Society Liberalism (Lawrence: University Press of Kansas, 1996), 70-71. Thus, the most often cited justification for affirmative action was not at all about affirmative action.
34See, Skrentny, Color Lines, 6.
35Exec. Order No. 11,246, 3 C.F.R 339 (1965), reprinted in 1965 U.S.C.C.A.N. 4416 (1965).
3642 U.S.C. �� 2000e-2000e (17) (2000).
31See, Tomasson, Crosby, and Herzberger, Affirmative Action, 12.
m29 U.S.C. � 793 (a) (2000).
'938 U.S.C. � 4212 (a) (1994).
40Ibid. Executive Order 11246 did not originally include gender. Gender was added later. In 1973 Section 503 of the Rehabilitation Act extended affirmative action to qualified individuals with disabilities. The Vietnam Era Veteran's Readjustment Assistance Act of 1974 extended protection to certain classes of veterans.
41Ibid., 12-13. Disparate treatment refers to intentional acts of discrimination. Disparate impact means that some are adversely affected by what appears to be a neutral policy. Intent to discriminate need not be present for disparate impact to exist.
42Skrentny, The Ironies of Affirmative Action, 3.
43See, Hugh Davis Graham, Collision Course: The Strange Convergence ofAffirmative Action and Immigration Policy in America (New York: Oxford University Press, 2002), 65.
44Ibid., 65-66.
15Skrentny, Color Lines, 8.
461bid.. 8-9. See. Thomas Sugrue. "Breaking Through: The Troubled Origins of Affirmative Action in the Workplace," in Color Lines, 31-52.
47Ibid.
48David B. Oppenheimer, Distinguishing Five Models ofAffirmative Action, 4 BERKELEY
WOMEN's L.J. 42, 48 (1988-1989). See, Tomasson, Crosby, and Herzberger, Affirmative Action, 135136.
49Mary Elizabeth Shutler to Donald Dewey, Office of Provost, California State University, Los
Angeles, memorandum, 12 July 1991. See, Tomasson, Crosby, and Herzberger, Affirmative Action, 13.
50438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978).
5'443 U.S. 193, 99 S. Ct. 2721, 61 L. Ed. 2d 480 (1979).
5,See, Dinesh D'Souza, Illiberal Education: The Politics of Race and Sex on Campus (New York: The Free Press, 1991), 158.
53The Madison Plan, Office of the Chancellor. University of Wisconsin at Madison, 9 February 1988. 11. See, D'Souza, Illiberal Education, 17. See also, Jeffrey Selingo, "Affirmative Action Without Numerical Goals," The Chronicle of Higher Education, 28 May 1999.
14 See Oppenheimer, Distinguishing Five Models. 43-45. See, also. Tomasson. Crosby. and Herzberger, Affirmative Action, 137.
--David R Buckholdt to Richard M. Coughlin, Marquette University, 11 January 1978.
56442 U.S. 256. 99 S. Ct. 2282, 60 L. Ed. 2d 870 (1979).
5'1d. at 264.
58Stotts v. Memphis Fire Department, 679 F. 2d 541, 571-73 (6' Cir. 1982), rev 'd, 467 U.S. 561. 104 S. Ct. 2576.81 L. Ed. 2d 483 (1984).
59467 U.S. 561, 104 S. Ct. 2576. 81 L. Ed. 2d483 (1984).
60480 U.S. 616, 107 S. Ct. 1442, 94 L. Ed. 2d 615 (1987).
6142 U.S.C. �� 2000e-2000e (17) (2000). See Oppenheimer, Distinguishing Five Models, 46. See also, Tomasson, Crosby, and Herzberger, Affirmative Action, 138.










62Oppenheimer, Distinguishing Five Models, 46-48. See, Tomasson, Crosby, and Herzberger, Affirmative Action, 139.
63Oppenheimer, Distinguishing Five Models, 48. See, Tomasson, Crosby, and Herzberger, Affirmative Action, 140.
64Oppenheimer, Distinguishing Five Models, 49-50. See, Tomasson. Crosby, and Herzberger. Affirmative Action, 140.
65Tomasson, Crosby, and Herzberger, Affirmative Action, 141.
66Ibid., 190. See, Richard Harwood, "The New Elite in American Society." Cosmos, 1995., 13-19.
6-Tomasson, Crosby, and Herzberger, Affirmative Action, 190.
68438 U.S. 265, 306, (1978).
69John C. Jeffries, Justice Lewis F Powell, Jr. (New York: Charles Scribner's Sons, 1994), 455501. See, Tomasson. Crosby, and Herzberger, Affirmative Action, 190-191.
7�Robert Klitgaard, Choosing Elites (New York: Basic Books, 1985), 56-61, 71-75. See,
Tomasson, Crosby, and Herzberger, Affirmative Action, 191. For examples of criticism of preferential treatment of legacies, see Thomas Sowell, Preferential Policies: An International Perspective, (New York: Morrow, 1990); Thomas Sowell, Race and Culture: A World View, (New York: Basic Books, 1994); Michael Lind, The Next American Nation (New York: Free Press, 1995), 152-53, 164, 168-71, 180, 331.
" See, Howard Ball, The Bakke Case: Race, Education, andAffirmative Action (Lawrence: University Press of Kansas, 2000), 9,
72See, Klitgaard, Choosing Elites, 17, 18, 23-3 1.
"See, Ball, The Bakke Case, 9.
14Ibid.
"lbid., 9-10.
76U.S. CONST. amend. XIV, Section 1.
7 42 U.S.C. �� 2000e-2000e-17 (2000).
'8Washington v. Davis, 426 U.S. 229, 239 (1975).
79See, e.g., the opinions of Justice Powell in Regents of the University of California v. Bakke, 438 U.S. 265, 289-90 (1978), and Wygant v. Jackson Board of Education, 476 U.S. 267, 273.
8�See 42 U.S.C. � 2000e (2j) (2000) (prohibiting any requirement that an employer grant
preferential treatment to satisfy a racial quota); Bernard D. Meltzer, The Weber Case: The Judicial Abrogation of the Antidiscrimination Standard in Employment, 47 U. CHi. L. REv. 423, 425, 430-31 (1980).
8'122 F. 3d 692, 702, 703 (9" Cir. 1997). cert. denied, 118 S. Ct. 397 (1997).
82CAL. CONST., art. 1, � 31 (a).
83122 F. 3d 692, 702.
84See. W. Robert Gray. The Four Faces ofAffirmative Action: Fundamental Answers and Actions (Westport, Conn.: Greenwood Press, 2001). 3-4.
85236 F. 3d 256 (5h Cir. 2000). cert. denied, 533 U.S. 929, 121 S. Ct. 2550, 150 L. Ed. 2d 717 (2001). This case dealt with the issue of affirmative action in student admissions at the University of Texas' law school. Here the Ninth Circuit sustained its 1996 decision that essentially decided not to follow the U.S. Supreme Court 1978 decision in Regents of the University of California v. Bakke. which permitted race to be considered in admissions to compensate for past discrimination.
86See, Skrentny, The Ironies ofAffirmative Action, 93, 101, 109-110, 114.
8Ibid., 177-78, 181-82.
88515 U.S. 200, 205-10 (1995). In this case, the prime contactor under a federal highway
construction contract containing a subcontractor compensation clause awarded a subcontract to a company that was certified as a small disadvantaged business. Petitioner Adarand Constructors, Inc., which submitted the low bid on the subcontract but was not a certified business, filed suit against respondent federal officials, claiming that the race-based presumptions used in the subcontractor compensation clause violate the equal protection component of the Fifth Amendment's Due Process Clause. The district court granted respondents summary judgment. In affirming, the Tenth Circuit assessed the constitutionality of the federal race-based action under a lenient standard, resembling intermediate scrutiny, which it determined was required by Fullilove v. Klutznick 448 U. S. 448, and Metro Broadcasting, Inc. v. FCC, 497 U. S. 547.





39


89Gray. The Four Faces of Affirmative Action. 4.













CHAPTER 3
HISTORY BEHIND TODAY'S AFFIRMATIVE ACTION Introduction

Since the end of the Civil War, black Americans have struggled for economic justice, an equal opportunity to enter the workplace and to have access to higher education. Generations of blacks swept the floors in factories while being denied the opportunity to become higher-paid operatives on the machines. In grocery and department stores, clerks were white and janitors and elevator operators were black. College-educated blacks worked as bellboys, porters, and domestic servants if they could not get the scarce teaching positions in local all-black schools, which were usually the only alternative to religious ministry or working in the post office. Some progress in employment opportunities for blacks was made during the labor shortages of World War II and beyond, but it was limited. By the 1960s blacks were still segregated for the most part in low-wage jobs.1

The era proceeding affirmative action racial reality also included thousands of towns and cities in which police and fire departments remained entirely white and male, Women and blacks were even forbidden to apply for employment. There were no merit standards for employing the white men who occupied the best jobs, because merit would have required accepting applications from all interested individuals and selecting the best among them. White men had these jobs to themselves.2

Thomas Jefferson may have inadvertently started the debate on affirmative action by declaring in the Declaration of Independence that "We hold these truths to be self-








evident ... that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty, and the pursuit of Happiness."3 During the course of the debates on slavery, discrimination, and affirmative action, most Americans have agreed with Jefferson's statement as an ideal. However, putting the ideal into practice has been difficult. For example, in 1857 the Supreme Court, in the case of Scott v. Sandford, 4declared that no black person could claim citizenship. The decision also held that Congress could not prohibit slavery in U.S. territories. When the Civil War ended and slavery was abolished, the federal government still kept most blacks in a different status. For instance, in 1896 the Supreme Court decision in Plessy v. Ferguson called for separate but equal facilities,5 and this lead to many forms of segregation sanctioned by the government, including public schools, transportation, the armed services, and public accommodations. Similarly, women were denied the right to vote and, in many states, the right to own property, until 1920.6

Early History of Affirmative Action: The Nineteenth Century

The programs known collectively as Reconstruction, implemented in 1865-1877, were actually previously conceptualized during the Civil War and represented a fusion of elements in much the same way that affirmative action operates today. In this regard, although affirmative action is a compromise civil rights enforcement effort, Reconstruction was much more assertive. The first efforts by the federal government to forge equal opportunity and civil rights policies began shortly after the Civil War ended. But often these attempts fell short of the intended mark.7 President Abraham Lincoln's Emancipation Proclamation of 1863 was followed by the Civil Rights Act of 1866, which gave full and legal benefit of the all laws to American citizens. This law is still in force








and is used to combat discrimination, especially in the area of employment. Thereafter, in 1868 the Fourteenth Amendment was adopted, guaranteeing due process and equal protection to all citizens against action by state governments. Similar protections against the federal government were earlier provided under the Fifth Amendment, adopted in 1791. The Fifteenth Amendment, adopted in 1870, guarantees all citizens the right to vote without regard to the individual's race, color, or previous condition of servitude. Taken together, the Thirteenth, adopted in 1865 abolishing slavery, the Fourteenth, and the Fifteenth Amendments were enacted to provide equal civil rights to blacks. Despite the constitutional guarantees, the Supreme Court in a series of decisions dating back to 1873 generally denied equality of treatment to blacks.' However, in the first half of the Nineteenth Century, the Supreme Court also rendered several decisions that upheld the principle of nondiscrimination.9 Federal laws, including the Confiscation Act of 1862 and the Civil Rights Act of 1875, were designed to protect American blacks specifically, as well as white Unionist refugees, in the South and to serve as a first-time creation of federally guaranteed equal protection for all citizens. While modern critics and opponents of affirmative action insist that the Fourteenth and Fifteenth Amendments were color blind and contemporary advocates in fact insist on the amendments' universality, it is also true that both advocates and opponents during that time knew and argued on the basis of the corrective, pro-black nature of the amendments.' 0

The most crucial debates in both the Civil War and Reconstruction periods

revolved around several issues: the Freedmen's Bureau and whether blacks could own land;-" the nature of citizenship and whether blacks could enjoy equal protection in that status; and the unrestricted labor blacks that Frederick Douglass called for. The latter two








issues were the subject of debates and even riots in the North while the Civil War was raging against the southern Confederacy's attempt to create a base for a new slave empire with white supremacy as its ruling ideology With the end of the Civil War, Reconstruction represented the first attempt to rectify the effects of slavery and white supremacy and in that sense serves as the first antecedent to affirmative action. 12

According to Girardeau Spann, racial affirmative action is the race-conscious

allocation of resources, such as jobs, educational opportunities, and voting strength, that has been motivated by an intent to benefit racial minorities. Accordingly, the nations first racial affirmative action programs were adopted during the post Civil War Reconstruction period, contemporaneous with the adoption of the Fourteenth Amendment, when Congress created the Freedmen's Bureau to administer a series of race-conscious social welfare programs designed to benefit blacks. Those programs included assistance to blacks in the form of food, educational opportunities, regulation of labor contracts, distribution of abandoned lands, adjustment of real estate disputes, special freedmen's courts, aid to orphans, medical care, special protective legislation for black servicemen, and special laws prohibiting discrimination against freedmen. Although the term affirmative action was not then in use, the Reconstruction programs shared with contemporary race conscious programs a certain skepticism about the ability of race neutrality alone to provide adequate protection for racial minorities. 13

The debate over whether there was ever a Reconstruction era usage of the phrase affirmative action continues to the present time. John David Skrentny has maintained that the phrase affirmative action first appeared as part of the 1935 National Labor Relations Act. Therein, it meant that an employer who was found to be discriminating against union








members or organizers would have to stop discriminating, and also take affirmative action to place those victims where they would have been without the discrimination.14 Still the phrase affirmative action and others like it can be found in the Reconstruction debates. In 1871 during the Ku Klux Act debate, Congressman John Coburn cited the newly enacted Fourteenth Amendment's power both to protect blacks as well as restrain white terrorist mobs primarily in the South. Coburn stated, "... now, where the equal protection of the law ... is denied by domestic violence or any other case, the nation may interpose to afford it, by legislation, directing the use of military power and the interposition of the courts of the United States." Coburn then employed the use of a legal term, that being affirmative action, which has today become a controversial and racialized political expression, "Affirmative action or legislation is not the only method of a denial of protection by a State, State action not always being legislative action. A State may by positive enactment cut off from some the right to vote ... to do business to bear arms ... and many other such things...." This may be the earliest date that the term affirmative action was used in American government. In other Reconstruction era debates, the word affirmative was used in the context of protecting black civil rights. But here it is used in reference to safeguarding black civil rights from the white affirmative action of state sanctioned discrimination and refusal to stop white supremacist terrorism. 15

Later History of Affirmative Action: The Mid-Twentieth Century

Although it can be debated when affirmative action actually began, an important event occurred in its history, in the summer of 1941. Then, a conversation took place between President Franklin Roosevelt and A. Philip Randolph, the president of the








Brotherhood of Sleeping Car Porters, which was the most powerful black labor union of the time. According to contemporary reports, Randolph threatened to soon hold a mass march on Washington, D.C., if Roosevelt did not do something substantial for black Americans. What Randolph sought was for the federal government to pressure defense contractors to hire more black workers. In response, Roosevelt formed the Fair Employment Practices Commission (FEPC). The commission worked throughout World War II to ensure that blacks received fair treatment from defense contractors. However, since the nation was mobilized for war, anyone who could work usually could find employment. Therefore, the success or failure of the commission is difficult to determine. 16 After the war, the commission was abolished. 17

It is possible that Roosevelt's response to the conversation between himself and

Randolph was an early usage of affirmative action. On the other hand, some authors, such as Darien A. McWhirter, have argued that the response should be considered in the context of the times. In doing so, one might find that this was not a case of a black leader asking the president to do something to initiate new civil rights laws with some kind of affirmative action. In fact, there were no new federal civil rights laws established. Instead, it may have been much more like the kind of conversation that black political leaders had had over the decades with white, city bosses; a black leader would remind a city boss that his group helped him to get elected and then demand a part of the electoral spoils. In a city, such pressure might result in more city jobs for black residents. For the president in 1941 it meant making certain that blacks got a share of the new jobs being created in the defense industries. Most likely, the FEPC was as much in the business of








guaranteeing that a constituency of the Democratic Party received a reward from the elections as it was in encouraging fair employment practices.' 8

In 1948 President Harry Truman signed Executive Order 9980, which created a Fair Employment Board within the Civil Service Commission. The announced purpose of the board was to ensure that minorities, particularly blacks, got a fair chance to obtain federal jobs. The board disappeared soon after President Dwight Eisenhower took office. Again, while there was certainly some idealism involved, there was also some politics. A Democratic president was establishing a policy to help a constituency. A Republican president ended that policy after an election in which the Democratic coalition demonstrated it was not strong enough to retain the presidency.'9

As vice president, Lyndon Johnson was known to be interested in improving the economic status of blacks. At a presidential inaugural ball in January 1961 Johnson was introduced to Hobart Taylor Jr., a black attorney. Johnson asked Taylor to help draft an executive order for President John Kennedy's signature. Taylor and two individuals who would become Supreme Court Justices, Abe Fortas and Arthur Goldberg, wrote an executive order that would attempt to reinstate President Truman's goal of including more blacks in the federal bureaucracy and President Roosevelt's intention of encouraging more federal contractors to hire minorities. Executive Order 10925 used the phrase affirmative action.2� It remains debatable whether this was the first use of the phrase affirmative action. The order merged two obscure committees into the President's Committee on Equal Employment Opportunity. This committee became primarily a platform for Lyndon Johnson's Plans for Progress program, which attempted to persuade large corporations with major federal contracts to hire more black employees. It was








charged with ensuring that affirmative action steps were taken to diversify the government's work force. Government contractors were not to engage in employment discrimination based on race, ethnicity, or national origin. The contracting firm had to agree to take affirmative action to ensure that applicants are employed and treated fairly.2' While the program was completely voluntary and there is no way of determining how much actual impact it had, it was viewed by black political leaders as beneficial to their constituents.22

In 1963 President Kennedy sent a civil rights bill to Congress. Later, after

Kennedy's assassination, President Johnson made passage of a civil rights bill a major priority of his administration. One significant argument against the bill was that it would create an incentive for reverse discrimination against whites. Senator James Eastland of Mississippi complained that given a choice between hiring a white or a black applicant, both with equal qualifications, employers would be unduly influenced to hire the black worker. In order to placate critics of the bill, such as Senator Eastland, several provisions were added to and removed from the bill. Section 7030) was included to make it explicit that nothing in the bill required employers to grant preferential treatment to anyone. The section was added specifically to persuade southern legislators, the main opponents of the bill, that it would not result in reverse discrimination against whites. Still, the bill, enacted as the Civil Rights Act of 1964,23 had a significant impact on American society. It outlawed discrimination in employment and public accommodation. Other federal laws, including a voting rights act, changed the political and legal landscape of America. Politicians in the South and elsewhere were forced to consider the black vote in their districts.24








From the 1940s until the middle of the 1960s mainline civil rights organizations were firmly committed to the principles of individual rights and equality before the law. These principles were abandoned as these groups came nearer their goals. Whitney Young of the National Urban League was one of the early backers of a new regime of preferences, calling for a decade of discrimination in favor of black youth and urging the board of directors of the league to endorse a compensatory, preferential Marshall Plan for black Americans.25 This view was also enunciated at the highest level of government when, on June 4 1965 President Johnson gave the commencement address at Howard University, a predominantly black institution in Washington, D.C.26 In the address, he asked, "Is reasonable to start a race between two runners, one of whose legs are shackled at the beginning of the race and unshackled halfway into the contest and declare a fair ending without adjusting for the handicap?" The question was analogous to the experience of American blacks being raised from slavery, yet later having to compete with whites never under such a disadvantage.27 In attempting to answer the question, President Johnson had a suggestion. Borrowing a phrase drafted by a young Daniel Patrick Moynihan, he said, "We seek... not just equality as a right and a theory but equality as a fact and equality as a result."28 Achieving equality would be a difficult task. It was clear to anyone observing America in the summer of 1965, particularly after the riots in primarily black urban neighborhoods, such as Watts in Los Angeles, that simply making discrimination illegal was not going to produce equality. Yet, this was the first official announcement of a federal endorsement of the principle of equality of results, a possible euphemism for affirmative action.29








On September 24 1965 President Johnson signed Executive Order 11246, which required companies that contracted with the federal government to act affirmatively to guarantee that employees were not treated differently because of their race. As amended, it ordered federal contractors to take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex or national origin.30 It was not clear, however, who would enforce this new requirement. Previously, in February 1965 Johnson created the President's Council on Equal Opportunity, headed by Vice President Hubert Humphrey. During the spring of 1965 Johnson ordered the vice president to develop a program to ensure that federal contractors complied with anti-discrimination laws. The vice president proposed that this function be administered by the President's Council on Equal Opportunity. Johnson endorsed this idea but later changed his mind. It may be that his aides felt that establishing such a high profile job in the White House would draw controversy. Whether that was the prime consideration or not, the president ultimately decided to abolish the council with Executive Order 11246. The duty of ensuring that government contractors abided by the dictates of the civil rights laws would fall instead to the Labor Department and ultimately to the Office of Federal Contract Compliance (OFCC)."

Recent History of Affirmative Action: The Late-Twentieth Century

Between 1961 and 1981 affirmative action was implemented as a national, state, and local public policy, in employment, contracting, and education areas, by Republican presidents (Richard Nixon, 1969-1974, and Gerald Ford, 1974-1977) as well as Democratic chief executives (John Kennedy, Lyndon Johnson, and Jimmy Carter, 1977-








1981). From 1981 to 1993, two Republican presidents, Ronald Reagan, 1981-1989, and George Bush, 1989-1993, did what they could to end affirmative action programs. However, Democratic president Bill Clinton, 1993-2001, continued the federal 32
government's support of these programs.

Lyndon Johnson was one of the originators of affirmative action, and so was his successor, Richard Nixon. The creation and development of affirmative action was a bipartisan affair. The new policy advanced not just in the federal government but also in the states, and not just in the public sector but also in the private sector. During this advancement, it encompassed other racial and ethnic groups, and also women, and it came to possess justifications other than the original remedial one. By the end of the 1970s the policy was officially validated when the Supreme Court refused to condemn affirmative action for its departure from color-blind principles.33

The pursuit of preferential treatment under Executive Order 11246 was part of an increasingly race-conscious civil rights policy, which the Johnson administration left to the incoming administration of Richard Nixon. For several years, the federal Office of Education had interpreted Title VI of the Civil Rights Act of 1964 to require racially balanced integration of public schools.34 In the electoral area, the concern of the Voting Rights Act of 1965 to eliminate barriers to the ballot box was being transformed by the Department of Justice into an interest in preventing dilution of minority votes that rested on the logic of proportionate representation.35 After four years of race riots and black power agitation growing out of the civil rights movement, Nixon's election appeared to signal a return to law and order, a lessened emphasis on civil rights, and the restoration of more traditional equal rights concepts. At the same time, however, it was an article of








liberal and bipartisan faith, expounded in official commission reports, that the riots were caused by racism and discrimination. This determination was the basis on which more rigorous civil rights enforcement could be demanded to prevent renewed urban violence. In such a preventive strategy, enforcement of equal employment opportunity was seen as especially important.36

By 1969 the bipartisan consensus on which the Civil Rights Act was based had dissipated, and civil rights became a bitterly partisan issue. The Democratic Party was politically identified with the views of the civil rights lobby. Trying to retain the support of organized labor and middle class opinion, however, it failed to disclose much of its growing commitment to race-conscious measures, provoking the intra-party conflict seen in the controversy over quotas in the federal contract program. This division was temporarily made whole by the election of Nixon, whose call for law and order and an end to the riots was dismissed as a code word for opposing civil rights enforcement.37

Far from being an opponent of civil rights, Richard Nixon was an ardent supporter of them. As chairman of the Government Contracts Committee in the Eisenhower Administration, he showed a willingness to promote employment equality.38 Political reasons reinforced Nixon's tendency to focus on this area of civil rights policy. Democratic Party unity on civil rights was weak, especially with respect to employment discrimination, where the civil rights lobby and organized labor were at odds. Republicans might have been able to gain politically by forcing the employment bias issue and driving a wedge between significant constituent groups in the Democratic Party. At the same, the Nixon Administration had political reasons for relaxing civil rights enforcement in the area of school desegregation. Heavily dependent on southern








support for his election, Nixon had to accommodate white opposition to racially balanced school integration. These conflicting interests led the Nixon Administration to take a more conservative position on race-conscious remedies in school desegregation and a more liberal one on preferential treatment in employment discrimination policy.39

In employment discrimination, the Administration proposed to curb bureaucratic excesses while continuing to regard affirmative action as a minority employment program. Instead of attacking quotas and preferential treatment, Nixon officials promised greater administrative efficiency. The Transportation Department, for example, began to accept standardized, multi-employer affirmative action plans in the highway construction industry, as contractors had urged. Denying that the administration was relaxing enforcement pressure, the Secretary of Transportation told congressional Democrats that paperwork and pious words do not achieve equal opportunity results, and results are what we are after.4�

Nixon's major contribution to affirmative action lay in reviving and extending the Philadelphia Plan, a program of race-based hiring goals for the construction industry, inherited from the Johnson Administration.41 Soon after the 1968 election, Nixon designated the economist George Schultz as his secretary of labor, and Schultz, in a speech outlining his department's priorities, stressed the need for special measures to employ blacks. The Secretary wanted to bring back the Philadelphia Plan, and Nixon wanted to do something about racial discrimination on the part of unions. Nixon was aware that restoring the Philadelphia Plan might create tension between two blocks of traditionally Democratic voters, union members and blacks, that could ultimately work to his benefit in seeking a second term in office.42








In reviving the Philadelphia Plan, Nixon's labor officials had a dilemma to

resolve. On the one hand, they faced the comptroller general's objection, which was that the Labor Department could not award a contract and then, later, impose on a contractor a new requirement of specific goals and timetables for hiring minorities. On the other hand, they were cautious of insisting on actual numbers of minorities to be hired as part of the pre-contract negotiation because Title VII of the Civil Rights Act explicitly prohibited preferences in order to achieve racial balance. The drafters of the revised plan decided upon the following formula. The OFCC would establish not a specific number of minorities whom a contractor would have to hire in each area of employment but a target range of minorities to be hired, expressed as a percentage that the contractor would try to meet. In the invitation for bids, the OFCC would make known what these ranges were, and in their bids the contractors would indicate how they might reach these targets. Because there would be no negotiations after the bids were opened, the comptroller general's objections would be satisfied. And because percentages would be used to define the ranges, even though they could be translated into numbers. Title VII's ban on quotas could not be invoked to interfere with the plan. Anticipating future defenses of affirmative action, the drafters maintained that the percentage goals were not quotas, which contractors had only to make a good faith effort to meet them, and that in striving to meet the goals contractors did not have to discriminate against any qualified person.41

The issue of whether the Philadelphia Plan was in conflict with the color-blind

requirements of Title VII eventually moved to the lower federal courts, which ruled that it was not.44 With the Supreme Court declining to review the decision, the Labor Department was able to pursue affirmative action in terms of proportional representation.








Yet, in extending affirmative action requirements to construction contractors in cities other than Philadelphia, and then to non-construction contractors everywhere, thus reaching one-third of the nation's workforce, the department did not do so on the basis of any specific findings of discrimination. Instead, department officials assumed that the rest of the nation was like Philadelphia and equally guilty of discrimination. In announcing the renewed Philadelphia Plan, Nixon's first OFCC director, Arthur Fletcher, noted that there was a legacy of discrimination against minorities, this discrimination explained obvious imbalances in employment, and visible, measurable goals were needed to correct them.45 Thus, the OFCC's affirmative action aimed at correcting for societal discrimination, as in everything adverse that had happened to Johnson's metaphorical shackled runner long before he got to the starting line.46

The first Nixon term produced a second major advance for affirmative action.

This involved the Equal Employment Opportunity Commission's (EEOC) effort to define broadly the discrimination outlawed by Title VII. In 1971 the Supreme Court endorsed the commission's new definition of discrimination in the case of Griggs v. Duke Power CO.47 The power company required a high school diploma for certain jobs. Many fewer black than white applicants could meet this condition, which the Court unanimously ruled was in violation of Title VII. In its opinion, the Court stated that Title VII proscribes not only overt discrimination but also practices that are fair in form but discriminatory in operation. It meant practices that have an adverse impact upon minorities. Not even good intent could redeem employment procedures or testing mechanisms that operate as builtin headwinds for minority groups. Only if an employer could demonstrate business necessity, that such procedures or mechanisms had a manifest relationship to the









employment in question, could it avoid Title VII liability. The Griggs decision threw into question every employment practice having a disparate impact upon minorities. Because of the potential liability, employers now had to consider whether or not the percentage of minorities working in their companies represented the percentage of minorities in area labor forces. The decision also created great pressure to hire and promote by race and sex. This pressure would also be felt in 1972, when Congress extended the application of Title VII to state and local governments.48

A third advance for affirmative action under the Nixon Administration concerned the practice of setting aside a certain amount of federal business for minorities. In 1969 Nixon used an executive order to create the Office of Minority Business Enterprise within the Commerce Department, the purpose of which was to distribute $100 million to minority businesses.49 The office disclaimed awarding grants on the basis of race alone, however, the funds were set aside and went only to minority businesses. Nixon's enthusiasm for developing black capitalism became apparent in 1971, when those administrating the distribution of funds reported to him that their work was done and their function could be eliminated. According to historian Herbert Parmet, Nixon declined to do so, because his interest in what they were doing was too great to let it go out of existence.�

During the presidency of Jimmy Carter, affirmative action accelerated. While

Carter stated that he was uncomfortable with any kind of discrimination, whether in the favor of or against people, because of sex or race, many in his administration were committed to affirmative action. The Carter Administration moved into the area of setting aside some government contracts or grant programs for minorities. The concept received








major support in 1977, when Congress passed the Public Works Employment Act,;5 which required that at least 10 percent of all federal funds granted to state and local governments to build public works projects be used to procure goods and services from minority business enterprises (MBEs). An MBE was any business that was at least 51 percent owned by Negroes, Spanish-speaking, Orientals, Indians, Eskimos, and Aleuts. The law prevented the participation by MBEs whose access to public contracting opportunities is not impaired by the effects of prior discrimination. However, it did not describe how it would be determined which M1BE had or had not been impaired by such discrimination. With the passage of this law and the determination of the Carter Administration to move more aggressively in this direction, the number of federal programs that set aside contracts or grants for businesses that matched the list multiplied. By the 1990s, 162 federal programs would grant some kind of preference based on race or sex, most without authorization from Congress.52

By the end of the 1970s, the promotion of affirmative action was concentrated in three areas: colleges and universities; private businesses; and government agencies. The emphasis moved away from trying to make up for past instances of discrimination and toward the direction of attempting to create in various parts of society a microcosm of the larger society. The guiding principle for advocates of affirmative action became diversity rather than discrimination. This new emphasis on diversity made it even more difficult to know how to count by the numbers. During this period, the media devoted a great amount of time to the issue of affirmative action. Many white men, whether or not they had any personal experience with affirmative action, came to believe that the federal government was discriminating against them. Nixon had hoped that affirmative action would drive a









wedge between two traditional Democratic Party constituents; minorities and white bluecollar workers. As noted previously, that was one of the reasons he decided to revive the Philadelphia Plan. He assumed that minorities would see this as a Republican initiative that did something significant to help them and vote Republican in response. What happened in the presidential election of 1980 was the reverse. White blue-collar workers perceived affirmative action as a Democratic plan to deprive them of their jobs. These white male voters were called Reagan Democrats, and most analysts agree that they made Ronald Reagan's victory possible.53

When Reagan became president, many assumed that he would do something to change affirmative action, or at least that is what the Reagan Democrats hoped. Numerous proposals were put forward soon after his election in 1980. Some suggested getting rid of all affirmative action programs. Reagan's first attorney general, William French Smith, said that quotas were discredited and ineffective. Others suggested changing the regulations so that only larger companies with a minimum of 250 employees and $1 million worth of contracts would be subjected to the goals and timetables regulations of the OFCC. That would have eliminated 75 percent of the 200,000 companies that were under the control of the OFCC in the early 1980s.54

Daniel Seligman argued that affirmative action would probably survive Ronald Reagan and that if it did it would survive anything." Meanwhile, many in the Reagan Administration, including Clarence Thomas, then the conservative chairman of the EEOC, and William Bradford Reynolds, the conservative assistant attorney general for civil rights, said that quotas should be eliminated. However, Secretary of Labor Ray Donovan, a more important official in the administration, was against terminating the use









of goals and timetables. Anyone wanting to reduce or eliminate the OFCC would have to gain the president's approval to supersede Donovan's decision. And, as Seligman suggested, that would not happen. Moreover, while the business community was unhappy with some of the affirmative action regulations, they were not advocating an end to the OFCC or for repeal of Executive Order 11246.56

When Reagan was reelected in 1984, many thought that he would finally do

something concerning affirmative action. The following year, there was a well-publicized dispute between Donovan and Ed Meese, the attorney general, regarding affirmative action. The media indicated that everyone believed that Reagan's second term would bring about the end of affirmative action or at least the end of Executive Order 11246. In August 1985 there were rumors that Reagan would at least amend the order. At that time, Anne Fisher explained why it would not happen.17 According to Fisher, what the dispute over affirmative action, during the summer of 1985, revealed was that big business liked regulations. Regulations generally provided larger enterprises with an advantage over smaller ones, which cannot afford to hire the number of bureaucrats needed to comply with the array of regulations. In the case of affirmative action, almost every large business had spent a great deal of time and money creating an affirmative action bureaucracy to encounter successfully the federal bureaucracy at the OFCC. They understood what was expected of them and were not willing to try something completely new. More importantly, they had found that federally sanctioned goals and timetables provided them an edge against anyone who brought a lawsuit based on race or sex discrimination. The average business with federal contracts could argue not only that they did not discriminate but also that they were working with the federal government to bring








about affirmative action. The discussion terminated when the National Association of Manufacturers came out in favor of affirmative action. In December 1985 Congress lent support to this effort, when it sent a letter signed by two hundred members to President Reagan urging him not to tamper with affirmative action.8

Reagan's successor to the presidency, George Bush, followed his direction. He vetoed the Civil Rights Act of 1990, declaring it a quota bill. Bush signed the Civil Rights Act of 1991, only after he was convinced that it would not bring about quotas and that if he vetoed it two-thirds of both the House of Representatives and the Senate were prepared to override the veto. Bush publicly projected the image of a president opposed to quotas, yet he did nothing about Executive Order 11246 or the OFCC. Later, President Bill Clinton apparently had no desire to reexamine the issue of affirmative action or to do anything other than follow the policies of the Carter administration. Throughout two terms as president, Clinton made it clear that he preferred to leave the entire issue alone.59

History of Affirmative Action in Higher Education

Black Americans found themselves in a predicament prior to World War II. Then, most black men and women lived out of common view in rural communities, mainly in the South. Approximately 90 percent lived in poverty.60 They earned less than half what whites earned. The education they received was markedly inferior to what whites received. Black children in the South went to predominantly, if not exclusively, black schools, in which on average pupil-teacher ratios were one-quarter greater than those in white schools. Terms in black schools were 10 percent shorter than in white schools and black teachers were paid half the salary of white teachers.6' The median amount of education received by blacks aged 25-29 was about seven years.62 Only 12 percent of








blacks aged 25-29 had completed high school and less than 2 percent had received a college degree.63 World War II generated a great demand for factory labor and a new wave of migration from the South to the North, trends that did much to better the material circumstances of blacks Educational levels also increased for blacks as they moved from the rural South to the urban North and as Southern states improved black schools in an effort to slow the outward migration of cheap labor. Despite these gains, little progress was made in opening the best class of occupations to blacks.64

The early years following World War II brought several Supreme Court rulings that changed the impact of the Constitution on black Americans. Most of these decisions involved educational opportunity. In 1938, the Supreme Court rendered an opinion in the case of Missouri ex rel. Gaines i'. Canada, that found that the state of Missouri had violated the Equal Protection Clause of the Fourteenth Amendment by barring blacks from attending the state university's law school, giving them tuition money instead to attend an out-of-state law school.61 In 1950 the Court went further, deciding in the case of Sweatt v. Painter that the state of Texas could not satisfy the Fourteenth Amendment by establishing a separate law school for blacks.66 Later, in 1954 the Supreme Court handed down a unanimous decision in the case of Brown v. Board of Education, putting an end to school desegregation in the South.67

In the early 1960s, the outlook for blacks was quite uncertain. Their economic

position had improved significantly but was still quite inferior to that of whites. Although blacks had acquired important new constitutional rights, the aforementioned Supreme Court decisions had not yet produced much tangible change. In particular regard to higher education, colleges and professional schools enrolled few black students. For example, in








1965 only 4.8 percent of all college students were black.68 The position of blacks in selective colleges and universities was even more marginal than in higher education generally. Occasionally, a particular college attempted to attract black students. As early as 1835 Oberlin College declared that education of people of color is a matter of great interest and should be encouraged and sustained at its institution.69 Beginning in 1941 Antioch College initiated plans to recruit black students and managed to enroll 123 black undergraduates before ending the program in 1955. However, prior to 1960 no selective college or university made efforts to recruit substantial numbers of blacks.70

By the mid-I 960s, amid rising concern over civil rights, a number of institutions began to recruit black students. Nevertheless, the numbers actually enrolled remained small, with blacks making up only 1 percent of the enrollment of selective New England colleges in 1965.7' According to one author, the reasons for this were explainable. The selective colleges would rather be selective than integrated.72 Therefore, although they might recruit black students, they did not modify their regular standards for admission and financial aid. Their academic standards were too demanding to accommodate more than a small number of black students, and their tuition was more than most of those who were admitted could afford. Similarly, few blacks were enrolled in professional schools. In 1965 barely 1 percent of all law students were black, and over one-third of them were enrolled in all black schools.73 Only 2 percent of all medical students were black, and more than three-fourths of them attended two all black institutions, Howard University and Meharry Medical College.74

In the years that followed, most leading colleges and professional schools became convinced that they had a responsibility in helping to educate minority students. Often








motivated by student protests on their own campuses, college and university officials initiated active programs to recruit minority applicants and to take race into consideration in the admissions process by accepting qualified black students even if they had lower grades and test scores than most white students. Some institutions stated that they were acting out of a desire to rectify past racial injustices. However, most college and university leaders adopted these policies for two other reasons, both related to the traditional aims of their institutions. First, they sought to enrich the education of all their students by including race as another element in assembling a diverse student body of varying talents, backgrounds, and perspectives. Second, perceiving a need for more members of minority groups in business, government, and the professions, they acted on the conviction that minority students would have a special opportunity to become leaders in all areas of society. These efforts soon appeared to be successful. According to one study, the percentage of blacks enrolled in Ivy League colleges increased from 2.8 percent in 1967 to 6.3 percent in 1976, while the percentages in other selective colleges and universities grew from 1.7 percent to 4.8 percent.75 At the same time, the proportion of black medical students had risen to 6.3 percent by 1975, and black law students had increased their share to 4.5 percent.76

Much had changed, however, from the early efforts to recruit black students to the methods employed in the 1970s. The ideological commitment that was so evident earlier had led many institutions to place an emphasis on recruiting disadvantaged students from poor communities. It was often assumed that once minority students were admitted, they would quickly become assimilated. However, the absorption of black students into higher education turned out to be a complex matter. Some black students were disillusioned by








their experiences in white institutions, and there was debate on many campuses about admissions criteria, support programs, residential arrangements, and curricular offerings. While selective colleges and universities continued efforts to recruit minority students, often increasing their admissions staffs for this purpose, the number of black matriculants at these schools began to reach a level of stability. Also, by the mid- to late 1970s, many liberal arts colleges had discontinued their programs directed toward enrolling high-risk or under-prepared blacks, while adopting other modes of minority recruitment.77

The law was not instrumental in increasing minority enrollments. To the contrary, some college and university administrators feared that race-conscious admissions might violate Title VI of the Civil Rights Act, which stated, in part, that no person in the United States shall, on the grounds of race, color, or national origin be subjected to discrimination under any program or activity receiving federal financial assistance. By the early 1970s, however, federal government agencies and commissions had incorporated reports on student enrollment into the affirmative action plans they required of colleges and universities, thereby seeming to make race-conscious admissions not only permissible but mandatory. As the economic conditions of colleges and universities improved in the late-1980s, there was a resurgence of recruitment of minority students, particularly black students.78 At the same time, competition for places at the most selective colleges and universities was intensifying. Black students were now competing not only with rising numbers of very well qualified white applicants but also with much larger numbers of well prepared Asian Americans and Hispanics The result of this competition was that the percentages of black students remained largely constant through the 1980s, while the relative numbers of Asian Americans and Hispanics increased. Yet,









during the entire period from the beginning of the civil rights movement to the 1980s, the percentage of black students graduating from colleges and professional schools grew enormously. From 1960 to 1995 the percentage of blacks aged 25 to 29 who had graduated from college rose from 5.4 percent to 15.4 percent.79 Similarly, the percentage of medical students who were black rose from 2.2 percent in1964 to 8.1 percent in 1995.80

It was in higher education that the diversity rationale for affirmative action emerged. The argument for rationale contended that there is educational value in a racially and ethnically diverse student body, because people of color enhance the learning environment by providing intellectual perspectives otherwise missing on campus. The diversity rationale was tied explicitly to numbers of minorities admitted. If there were too few admitted, they might become isolated on campus, their education might suffer, and their slight presence would not adequately enrich the educational experience available to all students.8'

At the undergraduate level, there was no lack of colleges where black and other minorities might be admitted under the same academic standards as all other students. Most likely, had there been no affirmative action, the same numbers of minority students would have been enrolled in undergraduate institutions. Only the distribution of students would have changed. In regard to professional and graduate schools, the total number of minorities enrolled probably would have been lower, with the distribution of these students also altered. Most aggressively pursued by the more select undergraduate colleges and most graduate and professional schools, affirmative action thus was a policy that drew minority students into schools otherwise beyond their reach. It was carried out








on the understanding, perhaps well expressed by Alexander Heard, the chancellor of Vanderbilt University, that to treat minority students equally they must be treated differently.82

As an example of this approach, the medical school at the University of California at Davis decided to treat minority applicants differently after it enrolled its first class in 1968. The school had no special admissions program for minority students, and the fifty students in that first class included no blacks, no Hispanics, no native-Americans, and three Asians. Over the next two years, the school established a special admissions program that admitted five blacks and three Hispanics in 1970 and, the class size having been doubled to one hundred, four blacks, nine Hispanics, and two Asians in 1971. Had the school not employed special admissions policies, it would have admitted, under the standards applying to all other students, four Asians in 1970 and one black and eight Asians in 1971.83

During the balance of the 1970s, affirmative action continued to gain acceptance, including vital legal support from the Supreme Court. In higher education, though the federal government was not going to intervene against race-based admissions policies, it was still possible that students who believed such policies had discriminated against them might bring a lawsuit. In addition, a student challenging a race-based admissions policy at a public institution might claim that it violated not only Title VI but also the Fourteenth Amendment's equal protection clause, which applies to the states. In 1978 the Supreme Court decided this type of case, a majority of five Justices ruling in Regents of the University, of arnia v. Bakke that neither the Constitution nor Title VI prohibits a university from taking race into account in its admissions procedures.84








It has been argued that preferential treatment combines justice and expediency, and that, despite appearances to the contrary, it is actually an effective way of enforcing the colorblind equal rights principle. Since the nondiscrimination principle of Title VII and the executive orders was in large measure abrogated from the outset in the 1960s, it is uncertain that matters would have been better had equal opportunity been enforced as intended. The fact is that it never really was tried. Yet, it is questionable that the politicization of civil rights under race-conscious affirmative action saved the nation from social convulsion, or conversely, that enforcement of equal opportunity as intended would have propelled blacks into social revolution.85

To conclude that the urban disorders of the 1960s that provided the rationale for affirmative action were caused by white racism, as official commissions at the time declared, is to acknowledge that the problem was not that the equal rights principle was tried and found deficient. Race-conscious policies were adopted by federal officials at the urging of the civil rights lobby without seriously attempting to implement the equal rights principle. A political decision was made to revive race as a criterion of public policy in the belief that race-based decision making, when employed in the service of a good cause and used not to stigmatize or offend those whose rights are thereby denied, has no corrupting effect, but rather is consistent with democratic justice. Combined with practical political considerations, this was the underlying rationale of the Johnson and Nixon administrations' support of affirmative action. 86 The Debate Over Affirmative Action

The arguments favoring and opposing racial affirmative action have been easy enough to state in ways that make them seem appealing. However, because neither the









Constitution nor federal statutes speak clearly to the issue, the Supreme Court has had great difficulty in its efforts to produce a stable resolution of the affirmative action debate. The arguments favoring and opposing affirmative action were both rooted in the belief that racial discrimination is morally wrong, constitutionally impermissible under the Fifth and Fourteenth Amendments, and prohibited by federal anti-discrimination statutes such as Title VII and the Voting Rights Act. Although each side in the affirmative action debate has claimed that its position is based on the proposition that race is virtually always an impermissible legislative classification, the two sides have diverged when confronted with the problem of how to deal with the issue of past discrimination. Compensation for past discrimination has not necessarily been the only, or even the best, potential justification for affirmative action. Some commentators have argued that the best justification for affirmative action is the need to avoid a permanent underclass that is identified by race, regardless of the reason for the initial emergence of that underclass. 87 Nevertheless, the remedy for past discrimination justification has been the justification on which the Supreme Court, and most members of the public, appear to have focused.88

Advocates of affirmative action have begun their arguments with the proposition that racial discrimination is wrong because race is rarely, if ever, a legitimate basis for governmental classification.89 Unfortunately, however, racial discrimination has been persistently present since the establishment of the nation.9� Much of this discrimination was officially mandated, such as the laws regulating slavery,9' and the laws requiring segregation in the use of public facilities.92 Although the Supreme Court has been charged with the responsibility of defending the rights of racial minorities,93 it has not








always done so.94 The Court upheld the institution of slavery in the case of Scott v. Sandford.9' When that case was negated by the Civil War and the subsequent Reconstruction amendments to the Constitution, the Court adopted strict readings of those amendments in the Slaughter-House Cases,96 and narrow interpretations of Reconstruction statutes in subsequent cases.97 The Court invalidated the Civil Rights Act of 1886 in The Five Civil Rights Cases on federalism grounds.98 This permitted Jim Crow laws to perpetuate the economic and social disadvantage of former black slaves. Those laws matured into a regime of official segregation that the Supreme Court then upheld in the case of Plessy v. Ferguson,99 which endorsed the constitutionality of separate but equal public facilities. Although the Court nominally rejected Plessy in Brown v. Board of Education,'00 invalidating the practice of de jure segregated education, the Court delayed implementation of any meaningful remedy,'0' and ultimately interpreted its ruling in Brown to permit the continued education of black children in de facto segregated schools that were inferior to the schools in which white children were educated.'02

According to proponents of affirmative action, the historical treatment of racial minorities, especially blacks, as inferior has had a pervasive effect on society, causing race to remain either a conscious or unconscious factor in virtually all societal decision making. The racial attitudes that continue to emanate from the country's long history of discrimination have placed racial minorities in a disadvantaged position in the competition for social resources. As a result, minorities continue to be systematically underrepresented relative to their proportion of the population in the allocation of educational, employment, and political opportunities. This, in turn, has caused racial








minorities to have lower standards of living, poorer health, and shorter life expectancies than members of the white majority. Proponents of affirmative action contend that the only way to compensate for the historical disadvantage of racial minorities is through the prospective race-conscious allocation of educational, employment, and political resources to minorities through affirmative action programs. Prospective race neutrality cannot provide adequate compensation for past inequities. It can only solidify the existing advantages that the white majority has over racial minorities. Once affirmative action programs have neutralized this unfair advantage, such programs can be eliminated and all races can coexist on equal terms in a color-blind society. '0

Opponents of affirmative action have also begun with the proposition that racial discrimination because it rarely, if ever, is a legitimate basis on which to rest governmental classifications. 104 There have been periods during which the nation has failed to respect this fundamental principle of racial equality by tolerating the institutions of slavery and official segregation. The Supreme Court has been implicated in unfortunate acts of racial discrimination through the issuance of decisions such as Scott v. Sandford and Plessy v. Fergeson. However, those decisions serve as embarrassing reminders that the country must exercise constant vigilance to avoid a recurrence of racial discrimination that distinguished a regrettable time in the nation's history. The principle of racial equality demonstrates the need to treat people as individuals rather than as mere members of racial groups.'05 Therefore, the disadvantages that individual members of racial minority groups have suffered as a result of identifiable acts of past discrimination should be neutralized through the implementation of remedies that will fully compensate those individuals. 106 However, remedies that go beyond compensation for identifiable









acts of racial discrimination, and provide for preferential treatment based on mere

membership in a racial minority group, constitute the very same type of racial

discrimination that originally caused the need for a remedy. In addition, such remedies

harm the beneficiaries of affirmative action by promoting dependence on government

largess rather than self-sufficiency, and by stigmatizing beneficiaries as undeserving of

the benefits and accomplishments that they secure.l�7

Notes


'See, Mary Frances Berry, "Affirmative Action: Why We Need It. Why Is It Under Attack." in The Affirmative Action Debate. ed. George E. Curry (Reading, Mass.: Addison-Wesley, 1996), 300-301.
"Ibid.
3THE DECLARATION OF INDEPENDENCE para. 2 (U. S. 1776).
'60 U.S. 393 (1857).
'163 U.S. 537. 16 S. Ct. 1138, 41 L. Ed. 256 (1896).
"See, Lynne Eisaguirre. Affirmative Action: A Reference Handbook (Santa Barbara, Cal,: ABC-CLIO, 1999). 27-28.
'See generally, James MacGregor Bums, The Workshop of Democracy: From the Emancipation Proclamation to the Era of the New Deal (New York: Vintage Books, 1985), for a discussion of federal government policy failures.
"See Slaughter-House Cases, 83 U.S. 36, 21 L. Ed. 394 (1873); The Five Civil Rights Cases. 109 U.S. 3. 3 S. Ct. 18, 27L. Ed. 835 (1883); and Plessy v. Furguson, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256
(1896). See also. Kermit L. Hall. ed.. The Oxford Companion to the Supreme Court of the United States (New York: Oxford University Press, 1992), 149.
9See Buchanan v. Warley, 245 U.S. 60, 38 S. Ct. 16, 62 L. Ed. 149 (1917); Shelly v. Kraemer, 334 U.S. 1. 68 S. Ct. 836, 92 L. Ed 1161 (1948); Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938); McLuarin v. Oklahoma State Regents, 339 U.S. 637, 70 S. Ct. 851, 94 L. Ed. 1149 (1950); Sweatt v. Painter, 339 U.S. 629, 70 S. Ct. 848, 94 L. Ed. 1114 (1950).
'See, Philip F. Rubio. A History of.Affirmative Action, 1619-2000 (Jackson: University Press of Mississippi, 2001). 34.
11See, Jo Ann Ooiman Robinson. ed.. Affirmative Action: A Documentar History (Westport, Conn.: Greenwood Press, 2001), 4, for a reproduction of the First Freedmen's Bill, March 3, 1865. Therein, Congress established what has been called the original federal civil rights agency. The bureau provided federally funded assistance. in the form of housing. employment, food, legal aid, and schooling, to white refugees who supported the Union and especially blacks released from slavery. Although the first enabling legislation stipulated that assistance could include the distribution to refugees and freedmen of abandoned confiscated. or purchased land in acre parcels., President Johnson returned most of such land to the original Confederate owners.
12See. Rubio, A History ofAffirmative Action, 34. See also. Edward C. SmithL ed., The Constitution of the United States with Case Summaries, 11"h ed. (New York: Barnes and Noble, 1979), 52-53; Alfred Avins, ed., The Reconstruction Amendments 'Debates: The Legislative History and Contemporarv Debates in Congress on the 13'h, 14th, and 15th Amendments (Richmond: Virginia Commission on Constitutional Government, 1967), 200-268 335417; and W. E. B. Du Bois. Black Reconstruction in America, 18601880, chapters 8-9 (Cleveland: Meridian. 1968); for text, debate, and discussion of the Fourteenth and Fifteenth Amendments. Additionally, Section 1 of the Fourteenth Amendment significantly contained the first use of the phrase equal protection in a proposed constitutional provision. See, Bernard Schwartz, ed.. Statutory Iiistory of the United States: Civil Rights Part I (New York: Chelsea House, 1970), 185. For










modern critics of affirmative action who cite the Fourteenth and Fifteenth Amendments as racially neutral or color blind, see, e.g., Paul D. Moreno. "Racial Classifications and Reconstruction Legislation." Journal of Southern Historv 61, (2) (1995): 271-304. On slavery and white supremacy as the cornerstone of Confederate secession, see, Du Bois, Black Reconstruction, 48-53.
13See, Girardeau A. Spann. The Law ofAffirmative Action: Twenty-Five Years of Supreme Court Decisions on Race and Remedies (New York: New York University Press, 2000), 3-4.
14See, Rubio, A History ofAffirmative Action, 35. See, John David Skentny, The Ironies ofAffirmative Action Politics: Culture and Justice in America (Chicago: University of Chicago Press, 1996), 6.
15ee, Rubio. A Histoy ofAffirmative Action, 35-37. See also, Schwartz, Civil Rights Part 1, 619.
6See, Berry, "Affirmative Action," 299-313. The author contended that little progress resulted for blacks. The federal compliance programs were routinely understaffed and they lacked enforcement authority.
"7See, Darien A. McWhirter, The End of Affi rmative Action: Where Do We Go from Here (New York: Carol Publishing Group, 1996). 30.
18Ibid., 32.
19Ibid. Exec. Order No. 9980, 3 C.F.RI 720-721 (1943-1948), reprinted in 1948 U.S.C.C.S. 2671
(1948).
20Taylor stated that he chose the phrase affirmative action rather than positive action because it was alliterative. Exec. Order No. 10,925, 3 C.F.R. 448, 449-50 (1959-1963), reprinted in 1961 U.S.C.C.A.N.
1274 (1961).
21See. Howard Ball, The Bakke Case: Race, Education, and Affirmative Action (Lawrence: University Press of Kansas, 2000), 8.
22See, McWhirter, The End ofAffirmative Action, 32-33. See also, Berry, "Affirmative Action," 302303. Title VII of the Civil Rights Act of 1964 and its amendments were enacted to end discrimination by large private employers, whether or not they had government contracts. The Equal Employment Opportunity Commission, which was established under the act, was to resolve complaints. The act aims to compensate employees for illegal discrimination and to encourage employers to end discrimination. It calls for voluntary action. A valid affirmative action plan includes a systematic, comprehensive, and reviewable effort to dismantle discrimination processes. Measures that implicitly take race, sex, national origin, or religion into account may also be implemented apart from an affirmative action plan. Affirmative action may involve simply remaining aware of the need to broaden the search for qualified individuals unlike those already in the workforce.
2342 U.S.C. �� 2000e-2000e-17 (2000).
24Ibid., 33. Voting Rights Act of 1965, 42 U.S.C. �� 1973-1973gg (10) (2000).
25See, Terry Eastland. Ending Affirmative Action: A Case for Color Blind Justice (New York: Basic Books, 1996). 43.
26For a transcript of President Johnson's commencement speech see, "Johnson Address to Howard
University Graduates," New York Times, 5 June 1965. For a summary of the speech see, Eastland, Ending Affirmative Action, 3940.
27See, Eisaguirre, Affirmative Action. 86-87. for a summary of facts regarding the status of blacks
compared to whites quoted by Johnson in the address: in 1930 the unemployment rate for blacks and whites was about the same, but 35 years later the black rate of unemployment was twice as high- in 1948 the 8 percent unemployment rate for black teenage boys was actually less than that of whites, but by 1964 the rate had grown to 23 percent for blacks versus 13 percent for whites; from 1952 to 1963 the median income of black families compared to white families dropped from 57 percent to 53 percent; between 1955 and 1957, 22 percent of experienced black workers were unemployed at some point, but for the period 1961 through 1963 that proportion rose to 29 percent; since 1947 the number of white families living in poverty decreased 27 percent while the number of poorer nonwhite families decreased only 3 percent: in 1963 a fifth of the white population had incomes below the poverty line, compared to half of the black population the infant mortality rate of nonwhites in 1940 was 70 percent greater than whites, and twenty-two years later it was 90 percent greater.
28See, Garth E. Pauley. The Modern Presidency and Civil Rights: Rhetoric on Race from Roosevelt to Nixon (College Station: Texas A&M University Press, 2001), 200. The author points out that some blacks initially praised Johnson's commencement address at Howard University as a landmark of progress but then denounced the speech upon discovering its roots. Presidential speechwriters had grounded Johnson's











call for affirmative action in Daniel Patrick Moynihan's report, "The Negro Family: The Case for National Action," a study that civil rights advocates called fuel for new racism. given its emphasis on black inadequacies rather than white racism as the main cause of ghetto pathology.
29See, McWhirter, The End ofAffirmative Action, 33-34. See also, M. Ali Raza, A. Janell Anderson, and Harry Glynn Custred Jr.. The Ups and Downs ofAffirmative Action Preferences (Westport, Conn.: Praeger, 1999), 3.
0See. Ball, The Bakke Case, 8. Executive Order No. 11,246 called for each federal agency to establish and maintain a positive program of equal employment opportunity for all civilian employees and applicants for employment. In this effort, the use of numerical goals and timetables was appropriate for an institution to employ. An agency must show a good faith effort to diversify; to include groups that historically have not been included due to racial, ethnic, or religious discrimination.
31Ibid. Exec. Order No. 11,246, 3 C.FR- 339, 340 (1964-1965), reprinted in 1965 U.S.C.C.A.N 4416
(1965).
'2See, Ball, The Bakke Case, 8-9.
33See, Eastland, Ending Affirmative Action. 42.
34See, Lino A. Graglia, Disaster by Decree: The Supreme Court Decisions on Race and the Schools (Ithaca: Cornell University Press, 1976), 46-66.
35See, Abigail M. Thernstrom, flihose Ilotes Count? Affirmative Action and Minority Rights (Cambridge: Harvard University Press, 1987) 1-30.
36See, Herman Belz, Equality: A Quarter-Century ofAffirmative Action Transformed (New Brunswick N.J.: Transaction Publishers, 1991), 34.
31bid38See, Stephen E. Ambrose. Nixon: The Education of a Politician 1913-1962 (New York: Simon and Schuster, 1987). 395-96.
39See, Belz, Equalihy, 35.
40See. Senate Committee on the Judiciary, Hearings on Equal Employment Opportunity Procedure, 91"t Cong., 1t sess., 1969, 193. See also, Belz, Equality, 35.
41 See, Dean J. Kotlowski, Nixon's Civil Rights: Politics, Principle, and Policy (Cambridge: Harvard University Press, 2001), 99-102, for a summary of the origins of the Philadelphia Plan.
42See, Eastland. Ending Affirmative Action, 50-51.
43Ibid. 51.
44See, e.g., Contractors Ass'n v. Secretary of Labor. 311 F. Supp. 1002 (E.D. Pa. 1970).
45See, Hugh Davis Graham, The Civil Rights Era: Origins and Development of National Policy, 19601972 (New York: Oxford University Press, 1990), 326-327.
46See, Eastland, Ending Affirmative Action, 53.
4'401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971).
48See, Eastland. Ending Affirmative Action, 53-54.
49See Exec. Order No. 11,458, 3 C.F.R. 109 (1969). reprintedin 1969 U.S.C.C.A.N. 2874 (1969).
50See. Herbert S. Parmet. Richard Nixon 's America (New York: Little, Brown. 1990), 598. See also, Eastland, Ending Affirmative Action. 54-55.
5142 U.S.C. �� 6701-6710 (1982).
52 See McWhirter, The End ofAffirmative Action, 3940.
5"lbid., 41-42.
54Ibid., 42.
55See, Daniel Seligman, "Affirmative Action is Here to Stay," Fortune, 19 April 1982, 143-162.
56See, McWhirter, The End of Affirmative Action, 43.
57See, Anne Fisher, "Businessmen Like to Hire by the Numbers," Fortune, 16 September 1985, 26-30.
58See, McWhirter, The End ofAffirmative Action, 43-44.
9Ibid., 44.
60See, Gerald D. Jaynes and Robin M. Williams Jr., eds., A Common Destinv: Blacks andAmerican Society (Washington. D.C.: National Academy Press, 1989). 277.
61 See, David Card and Alan B. Krueger, "School Quality and Black-White Relative Earnings: A Direct Assessment." The Quarterly Journal of Economics 107. no. 1 (1992): 151-200.
62See, Jaynes and Williams, A Common Destiny. 334.










63See, Mary Francis Berry, "Affirmative Action: Why We Need It, Why It Is Under Attack," in The Affirmative Action Debate, ed. George E. Curry (Reading, Mass.: Addison-Wesley Publishing, 1996), 301. The author noted that in the area of higher education. most blacks attended predominantly black colleges, many of which were established by states as segregated institutions. Most concentrated on teacher training, to the exclusion of professional education. A few blacks went to largely white institutions. In 1954, that figure was about 1 percent of entering freshman.
64See, Department of Education, Digest of Educational Statistics (Washington, D.C.: GPO, 1997). 17. See also, William G. Bowen and Derek Bok, The Shape of the River: Long-Term Consequences of Considering Race in College and University Admissions (Princeton: Princeton University Press, 1998), 1-2.
65305 U.S. 337, 59 S. Ct. 232, 83 L. Ed 208 (1938).
66339 U.S. 629, 70 S. Ct. 848, 94 L. Ed. 1114 (1950).
67347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954). See also, Bowen and Bok. The Shape of the River. 2-3.
61See. Andrew Hacker, ed-, UIS: A Statistical Portrait of the American People (New York: Viking, 1983), 247.
69See, Elizabeth A. Duffy and Idana Goldberg, Crafting a Class: College Admissions and Financial Aid, 1955-1994 (Princeton: Princeton University Press, 1998), 137.
7�See, Bowen and Bok. The Shape of the River, 4.
71 See, S. A. Kendrick, "The Coming Segregation of Our Selective Colleges," College Board Review 66 (winter 1967).
72Ibid.
73See Robert M. O'Neil, PreferentialAdmissions: EqualizingAccess to Legal Education, 1979 U. TOL. L. REv. 300.
4See. Herbert W. Nickens. Timothy P. Ready, and Robert G. Petersdorf. "'Project 3000 by 2000:
Racial and Ethnic Diversity in U.S. Medical Schools," New England Journal of Medicine 331 (7) (1994): 472. See also, Bowen and Bok, The Shape of the River, 5.
75See, David Karen, "The Politics of Class, Race and Gender: Access to Higher Education in the United States, 1960-1986," American Journal of Education 99 (2) (1991): 208, 217.
76See, James E. Blackwell, Aainstreaming Outsiders: The Production of Black Professionals (2d ed.. Dix Hills, N.Y.: General Hall, 1987), 103, 290. See also, Bowen and Bok The Shape of the River, 7.
7See, Duffy and Goldberg, Crafting a Class, 152.
78Ibid.. 155.
79See. Department of Education, Digest of Educational Statistics (Washington. D.C.: GPO, 1997), 17.
80See, Michael T. Nettles and Laura W. Perna. The African American Education Data Book: Higher andAdult Education (Fairfax, Va.: Frederick D. Patterson Research Institute of the College Fund/UNCE, 1997), 330. See also, Bowen and Bok, The Shape of the River, 9-10.
81See Harvard College Admissions Plan, appended to Justice Powell's opinion in Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265. 98 S. Ct. 2733. 57 L. Ed. 2d 750 (1978). See also, Eastland. Ending
Affirmative Action, 49-50.
82See, McGeorge Bundy. "The Issue Before the Courts: Who Gets Ahead in America," Atlantic Monthy, November 1977, 54. See also, Eastland, Ending Affirmative Action, 50.
83See. Eastland, Ending Affirmative Action, 58-60.
84438 U.S. 265. 98 S. Ct. 2733. 57 L. Ed 2d 750 (1978). See, Eastland, EndingAffirmative Action, 6061.
85See, Belz, Equality, 40.
86Ibid.. 41.
87See. e.g., Owen Fiss, "Groups and the Equal Protection Clause," Journal of Philosophv and Public Affairs 5 (1976): 107, 147-70: Ruth Colker, Anti-Subordination Above All: Sex, Race and Equal Protection, 61 N.Y.U. L. REv. 1003, 1005 (1986); cf Kathleen M. Sullivan, Comment: Sins of Discrimination: Last Term 's Affirmative Action Cases, 100 HARV. L. REV. 78, 91-98 (1986).
88See. Girardeau A. Spann. The Law ofAffirmative Action: Twenty-Five Years of Supreme Court Decisions on Race and Remedies (New York: New York University Press, 2000), 5-6.
89See, e.g., Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 273 (1986) (Powell, J.) ("This Court has consistently repudiated distinctions between citizens solely because of their ancestry as being odious to a free people whose institutions are founded upon the doctrine of equality").










9�See, e.g., Adarand Constructors v. Pena. 515 U.S. 200, 271-76 (1995) (Ginsburg, J., dissenting) (discussing lingering effects of past discrimination); cf id. at 236 (O'Connor, J.) (same).
91See, e.g., Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 291 (Powell, J.) (discussing slavery origins of Fourteenth Amendment); id. at 326 (Brennan, J., concurring in part and dissenting in part) (same).
92See, e.g., Adarand Constructors v. Pena. 200, 272 (Ginsburg J. dissenting) (discussing Plessy v. Ferguson endorsement of official segregation).
93See United States v. Carolene Prods., 304 U.S. 144, 153 n. 4 (1938).
94See, Spann, The Law of Affirmative Action, 6.
9560 U.S. 393 (1857).
9683 U.S. 36 (1873).
97See, e.g., United States v. Harris, 106 U.S. 629 (1882) (Ku Klux Klan Act of 1871 did not permit
prosecution of white lynch mob because the Fourteenth Amendment did not reach private conduct): United States v. Cruikshank. 92 U.S. 542 (1875) (criminal conspiracy provisions of the Enforcement Act of 1870 did not permit prosecution for lynching blacks who were not engaged in act of petitioning federal government as required by the Fourteenth Amendment.
'109 U.S. 3 (1883).
99163 U.S. 537, 16 S. Ct. 1138.41 L. Ed. 256 (1896).
100See Brown I. 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954) (invalidating separate but equal public schools).
""ISee Brown II, 349 U.S. 294, 74 S. Ct. 686, 98 L. Ed. 873 (1955) (ordering dismantling of segregated school systems with all deliberate speed).
102See, e.g.. Milliken v. Bradley, 418 U.S. 717 (1974) (refusing to order inter-district school
desegregation remedies that included white suburban students necessary for significant desegregation of inner-city schools), San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973) (upholding constitutionality of property tax-based public school financing despite great discrepancies in funds allocated to white and minority schools). See, Spann, The Law ofAffirmative Action, 7.
103Ibid
1�4See, e.g., Adarand. 515 U.S. 200, 262) (O'Connor, J.) ("The Court observed, correctly, that distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality. and that racial discriminations are in most circumstances irrelevant and therefore prohibited."): id. at 239 (Scalia, J., concurring in part) (government cannot have compelling interest in racial classifications, even to compensate for past discrimination).
105See, e.g., id. at 236 (vigilant strict scrutiny necessary to prevent recurrence of racial discrimination).
1�6See, e.g., City of Richmond v. J. A. Croson Co., 488 U.S. 469, 518-19 (Kennedy, J., concurring) (rule limiting racial preferences to what is necessary to compensate actual victims of discrimination is appealing).
11 See, e.g., Bakke. 438 U.S. 265. 298-99 (Powell, J.) (affirmative action can harm intended beneficiaries through stigmatization). See, Spann, The Law of.Affirmative Action, 8-9.













CHAPTER 4
LEGAL HISTORICAL ANTECEDENTS OF AFFIRMATIVE ACTION Introduction

In 1978 the Supreme Court began hearing cases that raised accusations of reverse discrimination and other critical issues concerning the constitutionality of affirmative action policies. According to some, the prevailing attitude of the Court when presiding over these significant cases was to be intent on reversing progress achieved in Civil Rights legislation.' Others stated that these cases clarified matters in order to ease the transition toward lawful democratic, and equitable policy.2 Several cases pertaining to higher education and other institutions have enlightened the discussion, such as Regents of the University of California i. Bakke,3 Steelworkers v. Weber,4 and Adarand Contractors, Inc. v. Pena.5 Another example is the Fifth Circuit's decision in Hopwood v. Texas,6 the Fourth Circuit's decision in Podberesky v. Kirwan,7 and the role that the Supreme Court played in future policy by deciding not to hear these cases.8

The Bakke case represented the heart of the issue, but several subsequent cases highlighted the differences in interpretation of the legal view. In 1978 Bakke, and Weber heard one year later, became the first Supreme Court cases to weaken previously enacted executive orders, amendments, policies and programs focusing on equity and the alleviation of discrimination by means of affirmative action. Bakke maintained that a race preferential program where student spaces are set aside for individuals of a preferred








category was unconstitutional, yet race could be lawfully be considered as one of the criteria for academic admissions.9

In 1995 a University of Maryland scholarship program targeting black students was found to be racially discriminatory by the Fourth Circuit. The Supreme Court declined to hear Podberesky. As a result it became more difficult to administer raceexclusive financial aid scholarships. The Department of Education advised colleges and universities that the original decision held that they may establish race-targeted scholarships to remedy the present effects of prior discrimination, provided that they are narrowly tailored.'0 Also in 1995 the Supreme Court decided to hear Adarand. This case attracted much attention due to its restrictive ruling. However, many believed that it was a logical progression after several other cases avoided the issues highlighted in this case. Again, the Court held that racial classifications need to be scrutinized and narrowly tailored in order to be effective. While the limits may not have directly affected racebased admissions and hiring practices in colleges and universities, they did aggravate those receiving federal funds, including financial aid packages."

The Fifth Circuit in 1996 found in Hopwood that certain admissions procedures at the University of Texas School of Law violated the Equal Protection Clause of the Fourteenth Amendment. The court found that the use of race or ethnicity in admissions to promote the diversity of a student body was illegal. Although an appeals court cannot reverse a Supreme Court decision, tHopwood maintained that the university's program did not use race and ethnicity in a proper manner to promote diversity in its law school. Since the Supreme Court refused to hear this case, some institutions considered it a sign to reexamine race-conscious programs, admission procedures, and financial aid. Other








institutions ignored the circumstance, since the Hopwood ruling appeared to conflict with previous Supreme Court decisions that endorsed, even though narrowly, affirmative action, causing administrators to find new ways to encourage diversity while minimizing the mention of race.12

The Early Cases

In 1936 the first legal efforts leading to the 1954 Brown i. Board of Education'3 decision challenged the exclusion of blacks from the University of Maryland in the case of Pearson v. Murray.14 In 1938 the Supreme Court, in Missouri ex rel. Gaines v. Canada,5 invalidated a Missouri plan that denied admission to blacks but paid the tuition for black residents who attended law school outside the state, other states had similar programs. In 1948 the Supreme Court, in Sipuel v. Board of Regents,16 required Oklahoma to enroll a black law student because the state had no separate black law school. Oklahoma officials then admitted blacks but literally roped black students off from whites in the corner of classrooms and other school facilities. In McLaurin v. Oklahoma State Regents,17 the Supreme Court held this practice to be unconstitutional. In Texas, the state went so far as to establish a separate law school for blacks, Texas State, later renamed Texas Southern University, to keep blacks from enrolling at the University of Texas. But in Sweatt 1. Painter,]8 the Supreme Court held that there was such a substantial differential in the two schools that the practice could not be sanctioned. South Carolina also established a black law school rather than grant admissions to black students at white colleges.'9

The most notable case decided by the Supreme Court under Chief Justice Warren was its decision in 1954 in Brown 1, in which it declared racial segregation








unconstitutional and began the process of eliminating apartheid in the South.20 There were a few segregation cases during the years 1946 to 1953, when Frederick Vinson was' Chief Justice, but these did not confront the separate but equal rationale of Plessy 1'. Ferguson,"' and merely ruled that particular circumstances did not meet the equal part of the formula." Current problems with affirmative action can be traced back to Brown. In Brown I, the Supreme Court invalidated the separate but equal doctrine of Plessy, and held that, under the Equal Protection Clause of the Fourteenth Amendment, governmental use of racial classification was constitutionally suspect.23 Thereafter, in Brown 1J,24 the Court not only held that the Constitution required a remedy for the continuing effects of past discrimination but stressed that the use of racial classifications was constitutionally compelled where necessary to provide an effective remedy for the prior constitutional violation. As a result, Brown has been interpreted to support the various following propositions: racial classifications are constitutionally prohibited; racial classifications are constitutionally permissible; and racial classifications are constitutionally required. The uncertainty concerning proper characterization of affirmative action initiatives caused the Supreme Court to enter into an extended period of doctrinal instability and confusion.25

The school desegregation cases decided in the aftermath of Brown are not viewed as affirmative action cases, but those cases were nevertheless the precursors of contemporary affirmative action. They generally produced majority opinions that authorized the use of race-conscious remedies to dismantle formally segregated school systems. Brown 11 required desegregation of previously segregated school systems with all deliberate speed.26 Subsequent cases emphasized that contemplated desegregation








plans had to be effective in order to be acceptable.27 In Swanm v. Charlotte-Mecklenburg Board of Education,28 the Supreme Court authorized the use of race-based pupil assignment as a permissible remedy for prior constitutional violations.29 The Court also endorsed the use of mathematical ratios reflecting racial proportionality in the school district population as targets in formulating desegregation plans to remedy constitutional violations, and it did so despite a federal law that prohibited pupil assignment for the purpose of achieving racial balance.3� In a companion case, North Carolina State Board of Education v. Swan,,31 the Court held that a prohibition on race-based pupil assignment in favor of colorblind pupil assignment was also unconstitutional because it interfered with the school board's ability to create an effective remedy for past segregation.32 The Supreme Court remained supportive of affirmative efforts to promote school desegregation while the desegregation effort remained in the South, but the Court lost its resolve as the desegregation effort moved into northern states in the 1970s.33

In 1973 the Supreme Court considered the case of Keys v. School District No. 1, Denver, Colorado.34 The Court's decision limited court ordered desegregation to de jure rather than de facto segregated school systems.35 In the 1974 Milliken v. Bradley36 decision, the Court held that race-conscious desegregation remedies could not be imposed on suburban Detroit schools because segregation in the suburbs had resulted from de facto residential segregation rather than de jure school district policies.37 This was the first instance since Brown I that the Supreme Court had invalidated any school desegregation plan.38 The lessening of the Court's support for school desegregation reflected a loss of public support for desegregated schools in the North.39 In a climate of deceasing public support for school desegregation, the Supreme Court began to consider








the constitutionality of affirmative action plans that adopted race-conscious methods for attaining societal goals other than the elimination of de jure school segregation. In the mid-1970s the Supreme Court began to issue fractured decisions in considering the politically controversial use of these plans that have come to be known as affirmative action. And, it took fifteen years before the Court would be able to issue a majority 40
opinion in an affirmative action case.

The issue of racial affirmative action first came before the Supreme Court in the 1974 case of DeFunis v. Odegaard.41 DeFunis had been accepted at several law schools, but he wanted to live and practice in Seattle, and the University of Washington Law School had twice denied him admission. The school had a separate admissions process for blacks, Chicanos, Indians, and Filipinos, and DeFunis learned that of the thirty-seven minority candidates accepted for fall 1971, thirty-six had combined test and grade scores below his. Believing federal courts were too sympathetic to minorities, DeFunis sued in state court on claims of racial bias. He prevailed, and the trial court ordered him admitted to the law school. By the time the case reached the Supreme Court, DeFunis had been attending law school and would graduate regardless of the outcome. Five members of the Court, in a per curiam opinion, declared the question moot. As a result, the Court vacated a decision by the Supreme Court of Washington upholding the challenged admissions program, even though the case was not moot as a matter of Washington state law.42

Four Justices dissented from the Supreme Court's mootness holding in DeFunis.43 The dissenters agreed with both parties that the case was not moot. They also argued that the public interest in avoiding repetitious litigation required the Court to address the merits of the affirmative action issue promptly rather than sidestep the constitutional








issue because of its difficulty.44 Only Justice Douglas addressed the merits, arguing that even benign racial classifications should be subject to strict scrutiny.45 Nevertheless, the Supreme Court's vacating the Supreme Court of Washington decision on mootness grounds nullified the lower court decisions and legally left the University of Washington Law School affirmative action program in place. For this reason, DeFunis has been considered a decision that facilitated rather than frustrated affirmative action.46

In the 1977 case of United Jewish Organizations v. Carey,47 the Supreme Court considered the constitutionality of a race-conscious legislative apportionment plan adopted by the state of New York that was designed to increase the voting strength of blacks in order to comply with the Voting Rights Act of 1965 .4 The constitutionality of the apportionment plan was challenged by members of a Hasidic Jewish community whose voting strength had been diminished under the plan.49 Although the Court rejected the constitutional challenge, it was unable to agree upon a majority opinion. Four Justices stated that the racial classifications used in the plan were constitutionally permissible because they were adopted in order to comply with federal statute; that they were permissible even though no past constitutional violation had been established mandating the use of a remedial plan; and that they were not invalid because of their utilization of numerical quotas as targets.50 Three Justices stated that the plan was constitutionally permissible because it did not stigmatize either whites or minorities, and because it did not burden whites by minimizing or unfairly canceling out white voting strength.5' Two Justices voted to uphold the plan because, even though it was based upon a racial classification, there was no indication that it was adopted with the intention of disadvantaging white voters, as would be required for a Fourteenth Amendment








violation. 5 Only one participating Justice, Burger, dissented, finding the percentage targets of the apportionment plan to constitute impermissible racial quotas that were inconsistent with the melting pot objective of achieving a homogeneous society.53

DeFunis and United Jewish Organizations set the terms of the legal affirmative action debate that was to follow. DeFunis prefigured the fact that a majority of the Court would be unable to agree upon anything other than the contentiousness of the affirmative action issue. 4 United Jewish Organizations indicated that all of the Justices except Justice Burger were prepared to accept the constitutionality of race-conscious affirmative action plans.55 In Defumis, Justice Douglas introduced both the idea that benign affirmative action should be subjected to heightened judicial scrutiny and the concern that affirmative action might inadvertently stigmatize its intended minority beneficiaries.56 These concerns were endorsed and enlarged upon by Justice Brennan in United Jewish Organizations.57 In this case also, Justice White introduced consideration of the degree of burden on innocent whites as a constitutionally significant factor in determining the validity of an affirmative action plan,58 and Justice Burger introduced the idea of hostility to racial quotas as inconsistent with the concept of a colorblind society.59 Moreover, in United Jewish Organizations, four Justices upheld the use of explicit racial quotas, even in the absence of a determined constitutional violation, because they were authorized by
60
Congress.

The Bakke Case

On August 3 1973 Allan Bakke met with Peter Storandt in the admissions office of the University of California at Davis Medical School (UC Davis). Bakke was thirtythree, an aerospace engineer at a NASA research center, and white. Storandt was assistant








dean of student affairs at the medical school. Bakke had applied twice to UC Davis, in 1972 and 1973, and had been rejected both times. In addition, Bakke had been turned away by more than a dozen medical schools; most had told him that he was too old. Even UC Davis officials had cited present age as a factor in Bakke's rejection. But Bakke was convinced that he had lost his medical school place to a minority applicant with lower grades and test scores. After his first rejection in 1972, he discovered that the UC Davis medical school had an affirmative action program that set aside sixteen places in an entering class of one hundred for members of disadvantaged minorities. These sixteen places were known as Task Force seats, filled through a separate admissions process.6'

Before his meeting with Bakke, Storandt studied Bakke's file and found that he

had good grades and test scores. Bakke's undergraduate GPA was 3.46 and his scores on the science, verbal, and math sections of the Medical College Admission Test (MCAT) were in the 97h, 96', and the 94eh percentiles. Bakke's grades were higher than those of half of the students admitted to the eighty-four places not filled by Task Force students, and his MCAT scores were considerably higher than average. Compared to the Task Force students, Bakke had higher grades than all but one of those admitted in 1973. Their undergraduate grades averaged 2.88, and their MCAT scores on the science, verbal, and math sections averaged in the 46e1, 24th, and 35th percentiles.62

The major reason provided by UC Davis for Bakke's rejections was that he had received lukewarm reviews on his admission interviews with medical school faculty and students. The sole interviewer in 1972 had reported that Bakke's main handicap was the unavoidable fact that he was now 33 years of age. But he considered Bakke a very desirable applicant and recommended him. However, his interview score, added to his








grade and test scores, left Bakke two points short of admission. When he applied again in 1973, after suggesting that he might sue the university for giving preference to minority applicants with lower scores, his interview scores dropped sharply. The dean of student affairs, who had received Bakke's first complaint, interviewed him personally and reported him to be a rather rigidly oriented young man who was certainly not an outstanding candidate for the medical school.63

At their meeting in August 1973, Storandt explained the Task Force program to Bakke and gave him several documents about it. He later wrote to Bakke and encouraged him to pursue his research into admissions policies based on quota orientated minority recruiting. Storandt also included several legal references and a Washington state court opinion, directing the state's law school to admit a rejected white applicant, Marco DeFunis. Ruling in 1974,64 the Supreme Court declined to hear the state's appeal on the ground that the case was moot because DeFunis was nearing graduation. Justice Brennan predicted in dissent that reverse discrimination cases would not disappear from the Court's docket. They would, instead, inevitably return to the federal courts and ultimately to the Court.65 Bakke filed suit against the Regents of the University of California in state court in June 1974, alleging he was discriminated against because of his race contrary to the requirement of the equal protection clause of the Fourteenth Amendment and � 601 of Title gI.66 The latter states that no person shall, on the grounds of race, be excluded from participation in or be denied benefits of or be subjected to discrimination under any program receiving federal financial assistance.67 Bakke won his case in the trial court, and the California Supreme Court upheld the ruling, striking down the UC Davis minority admissions program and ordering Bakke's admission to the medical school.68








Unlike the Washington court in the DeFunis case, however, the state court issued a stay of its order while the Regents asked the Supreme Court to review the ruling. This avoided any mootness problem when the Court granted the Regents' petition for certiorari in 1977.69 In a 5-4 decision, the U.S. Supreme Court affirmed this result, declaring the affirmative action plan unlawful.70 The political, legal, and moral impact of the decision was unclear, however, because deep divisions within the Court prevented the adoption of a majority opinion on central issues of affirmative action policy.

Five Justices voted to uphold Bakke's claim, but disagreed about why the

affirmative action plan was unlawful.7' A second group of five Justices approved race as a legitimate factor in professional school admission policies, but disagreed on the constitutional reasoning to support this conclusion.72 Justice Powell, presenting a centrist position, belonged to both groups. He announced the judgment of the Court and delivered an opinion declaring the affirmative action plan an unconstitutional quota.73 His opinion also approved the use of racial classification as a matter of constitutional principle. No other Justice agreed with his reasoning, however. Chief Justice Burger and Justices Rehnquist, Stewart, and Stevens concurred in the judgment for Bakke, but joined in an opinion written by Justice Stevens justifying the result on narrow statutory grounds. The second group, consisting of Justices Brennan, Blackmun, Marshall, and White, agreed with Powell that racial classification was constitutional, but used different reasoning to reach the conclusion that the UC Davis plan was constitutional.74

The problem faced by Justice Powell and the Brennan group was how they might justify racial classification under the Constitution and Title VI. Despite the broad extent of preferential policies in education and in public and private employment, and








notwithstanding Supreme Court decisions approving racial remedies in school desegregation and voting rights cases, this task was difficult.75 First, Bakke did not arise in a context of historic southern racial discrimination, as the school and voting cases did. Second, Title VI, like Title VII, most obviously protected any person against exclusion on racial grounds. The question in Bakke was whether the rules and standards defining equality and unlawful discrimination were the same for blacks and whites. In dealing with desegregation, the Court had evolved the doctrine since the mid-1960s that racial classifications, although not necessarily unconstitutional, were suspect. They could be implemented only if justified by a compelling state interest, if narrowly structured to serve that interest, and if no alternative non-racial means were available. This has been referred to as the strict scrutiny standard of judicial review. Whenever it has been employed, the questioned racial classification had been found unlawful. Bakke posed the issue of whether a racial classification intended to benefit blacks should also be subjected to strict scrutiny analysis.76

Justice Powell held that the UC Davis plan should be examined under the strict scrutiny standard. Asserting that Title VI incorporated a constitutional standard,77 he decided the case on constitutional as well as statutory grounds. Restating traditional equal rights theory, he said that the guarantees of the Fourteenth Amendment were personal rights that had the same meaning for all persons irrespective of race. Rejecting the argument that strict scrutiny review should apply only to racial classifications considered hostile to minorities, Justice Powell argued that such an approach would reduce civil rights law to a subjective political process. He further criticized the theory of giving preferences to overcome societal discrimination. "By hitching the meaning of the Equal








Protection Clause to these transitory considerations," he warned, "we would be holding, as a constitutional principle, that judicial scrutiny of classifications touching on racial and ethnic background may vary with the ebb and flow of political forces.78

Justice Powell acknowledged the Court's recent approval of race-conscious measures. These were premised on findings of constitutional or statutory violations resulting in identified, race-based injuries to individuals. In Bakke, by contrast, there was no determination that UC Davis had discriminated, and "we have never approved a classification" he asserted, "that aids persons perceived as members of relatively victimized groups at the expense of other innocent individuals in the absence of judicial, legislative, or administrative findings of constitutional or statutory violations." While conceding that the state had a legitimate interest in eliminating the effect of identified discrimination, he stated this was a far more focused goal than remedying the effects of societal discrimination, "an amorphous concept of injury that may be ageless in its reach into the past."79

Having argued against preferential treatment, Justice Powell proceeded to offer a justification for racial preference. He offered the view that race was a legitimate factor to be taken into account in securing the constitutionally permissible goal of a diverse student body. Student diversity promoted an atmosphere of speculation, excitement, and creativity. It was a goal protected by the First Amendment. Race, therefore, could properly be considered. The way to do so, however, was not by setting a racial quota, but by regarding race as a plus in a competitive process in which each individual would be evaluated as an individual and no one would be rejected simply because of race.80








Justice Powell's concept of diversity attempted to justify racial preference in a manner consistent with the principle of merit. The Brennan group that voted to uphold the medical school admission policy was less ambiguous in seeking to accommodate the demand for preferential treatment emanating from the civil rights establishment in the late 1970s. The next stage of the civil rights movement envisioned by supporters of affirmative action was to discard the make whole theory of relief for individual victims of discrimination and adopt racial preferences as compensation for historic societal discrimination against blacks as a group. Although it was originally used to expand the scope of preferential policy, the make whole theory now constituted a limitation on new racism. The lower courts were divided on the question of whether remedies could be awarded only to identifiable victims of discrimination or also conferred on members of the protected group who had not suffered individual injury. In either case, the prerequisite for awarding relief was a finding of discrimination. The opinion of the Brennan bloc in Bakke, however, obviated the issue of make whole relief by contending that racial preference could be awarded in the absence of unlawful discrimination in order to counter the effects of societal discrimination."

The Brennan bloc accepted the equivalence of Title VI and the Constitution concerning the meaning of equality and unlawful discrimination. Neither in the Constitution nor the Civil Rights Act, however, did it find a requirement of racial neutrality. The school desegregation decisions were cited to show the constitutional permissibility of race-conscious remedies.82 To argue that Title VI permitted racial decision making, when it expressly prohibited it, challenged Justice Brennan's interpretive skill. In general, Brennan simply argued that the statute did not mean what it








said. He stated that it was inconceivable, in view of the legislative intent to encourage voluntary compliance with the Civil Rights Act, that Congress would forbid voluntary race-conscious remedies by recipients of federal aid to cure acknowledged or obvious statutory violations.83 Recipients who were guilty of discrimination should not be expected to await a finding of unlawful practices by a court or administrative agency. The opinion then argued that although Congress prohibited discrimination in Title VI, it did not define it. According to Brennan, Congress specifically eschewed any static definition of discrimination in favor of broad language that could be shaped by experience, administrative necessity, and evolving judicial doctrine.84 The constitutional standard of discrimination was supposed to supply the content of Title VI, the Brennan group reasoned, but since this standard was in a state of flux and rapid evolution, the inference followed that the meaning of discrimination in the statute, expressed as it was in cryptic language, should evolve with the interpretation of the demands of the Constitution. Therefore, "any claim that the use of racial criteria is barred by the plain language of the statute," the opinion stated, "must fail in light of the remedial purpose of Title VI and its legislative history.''5

Having disposed of Title VI, the Brennan opinion elaborated on the

constitutionality of race-conscious policies. Although race classification was suspect and required strict scrutiny, the UC Davis affirmative action plan was not suspect. It designated minorities for special treatment, but it did not, however, stigmatize whites, which as a class were not burdened with disabilities or subjected to unequal treatment. The admissions policy did not contravene the cardinal principle that racial classifications that stigmatize, because the classifications are drawn on the presumption that one race is








inferior to another or because the classifications put the weight of government behind racial hatred and separatism, are invalid without more. But if strict scrutiny were inapplicable, so was the more relaxed rational basis standard, the test ordinarily applied in non-racial situations. The Brennan group proposed an intermediate standard of review under which the state could employ a racial classification that was shown to serve important governmental objectives and was substantially related to achievement of those objectives.86 The purpose of remedying the effects of past societal discrimination was sufficiently important to justify a race-conscious admission policy where there was a sound basis for concluding that minority under-representation was substantial and chronic, and the handicap of past discrimination impeded access of minorities to the medical school.87

In separate dissenting opinions, Justices Marshall and Blackmun defended

compensatory racial preference. Justice Marshall reasoned that since the Constitution had been interpreted for 200 years as permitting the most ingenious and pervasive forms of discrimination against blacks, he could not believe that the Constitution stands as a barrier to state actions attempting to remedy the effects of that discrimination. Dismissing the consideration that unlawful discriminatory action was a necessary basis for preferential treatment, he declared, "It is unnecessary in 20th century [sic] America to have individual Negroes demonstrate that they have been victims of racial discrimination." Blacks' different experience entitled them to greater protection as special wards under the Fourteenth Amendment, where it was necessary to remedy the effects of past discrimination. Justice Blackmun, looking to a time when "persons will be regarded as persons," nevertheless believed it was impossible at present "to arrange an








affirmative action program in a racially neutral way and have it successful." "In order to get beyond racism," he said, "we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently.""8

Justice Stevens, joined by Justices Rehnquist, Stewart, and Chief Justice Burger, submitted the fifth opinion in Bakke. Concurring in the judgment that Bakke be admitted to the medical school, Stevens stated that admission policy clearly violated Title VI. The law plainly prohibited the exclusion of any individual from a federally funded program because of race, regardless of whether the exclusion carried a racial stigma. The Stevens bloc, therefore, considered it unnecessary to examine the constitutional issue and inappropriate to inquire whether race could ever be a factor in an admission program.89

The result in Bakke could be considered a compromise. Critics of affirmative action alleged success because the Court upheld the reverse discrimination claim and struck down the admission policy as a quota. Supporters of affirmative action declared success because a majority of the Justices approved race-conscious measures for remedial purposes. Bakke could also be considered not to be a compromise because the competing principles, equal rights for individuals without distinction of race and compensatory preference for racial groups, were ultimately irreconcilable.90

Since only one member of the majority voting to strike down the quota was

willing to deal with the problem of affirmative action in constitutional and public policy terms, the deeper meaning of Bakke, as the Brennan bloc stated, was to confirm existing policies of racial preference in educational programs and in employment.91 In this basic sense, Bakke was a victory for affirmative action, despite the appearance of a compromise and notwithstanding Justice Powell's attempt to reconcile equal rights and









racial group preference. Powell's ingenious effort appealed to many observers, including some opponents of affirmative action, as a pragmatic solution. His opinion avoided broad condemnation of preferential treatment while withholding unqualified approval of raceconscious measures, and possibly even confusing the entire issue of affirmative action by insisting on strict scrutiny of compensatory preference.92 Justice Powell alone, however, required strict scrutiny review of affirmative action, and his defense of individual rights was nullified by his argument that race should be considered a plus in admission policies. Once race was admitted to the decision process, it could be subjectively manipulated to 93
reach any number, just as in a quota program.

Justice Powell's diversity rationale, based on First Amendment considerations, was apparently intended to make less troublesome the issue of preferential treatment by asserting, in effect, that if institutions and employers were not too blatant about it, they could use race-conscious measures and work out their own compromise between the values in conflict. This approach lacked frankness. If there were much confusion in affirmative action policy already, Powell's solution, perhaps, encouraged more of it. Even though Powell's conscientious quest, admired by many and described by one commentator as perhaps the greatest finesse of a searing legal issue in Supreme Court history, it rested on no consensus and no clear doctrinal foundation in anti-discrimination theory.94

In the context of widespread adoption of preferential policies, the Brennan group opinion, in conjunction with Justice Powell's approval of race as a legitimate consideration, emerged as the Court's principal doctrine on the problem of reverse discrimination. Together, these opinions obscured the narrow and opaque opinion of the








Stevens bloc. Although the Brennan group lost on the specific quota in question, it prevailed strategically by presenting a bloc of five Justices, including Powell, who supported race-conscious measures on constitutional grounds. This was a majority in favor of preferential treatment without the requirement of a finding of unlawful discrimination.95 A more solid majority held preferential remedies constitutional to eliminate the effects of existing discrimination, pursuant to legislative, judicial or administrative findings of unlawful practices. Although Bakke resolved little that was not already, namely that an absolute quota was unlawful, and consequently technically could be said to stand for very little, it was generally viewed as sanctioning existing affirmative action programs in higher education. Besides, although the decision had no direct effect on Title VII enforcement, in the opinion of one supporter of preferential remedies it "caused a surprisingly large number of people of good will to rethink their commitments to affirmative action and to express a more ready willingness to be forthright and open about efforts taken to cure problems associated with race and sex bias in this nation.96

The majority that supported Bakke's claim may have considered that it would be counterproductive to hand down a decision clearly outlawing reverse discrimination. Such a result would expose educational institutions, corporations, and unions to reverse discrimination lawsuits and outrage the civil rights bureaucracy, minority groups, and liberal opinion in general.97 Although Bakke might be considered to have added confusion to the issue of affirmative action, the vision of proportional racial representation held out by the Brennan group appeared more likely to be advanced as a result of the decision.98




Full Text

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LEGAL LIMITS OF RACE-CONSCIOUS AFFIRMATIVE ACTION LN HIGHER EDUCATION SFUDENT ADMISSION PROGRAMS By ALVIN J. SCHILLING DISSERTATION PRESENTED TO THE GK^DL^ATE SCHOOL OF THE UNI^'ERStTY OF FLORU)A I>i PARTLAI. FULFILLMENT OF THE REQUIREMENTS FOR THE DEGRF;E OF DOCTOR OF PHILOSOPHY LINIVERSITY OF FLORIDA 2004

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ACKNOWLEDGMENTS It is nearly impossible to thank all of the people who helped me complete this degree and this dissertation at the University of Florida. Before specifically acknowledging those persons most directly involved in the success of this project, I would like to thank all of the faculty, professional colleagues, fellow students, family, fi-iends, and staff who assisted me during my doctoral program at the University of Florida. The greatest thanks must, of course, be extended to the chair and members of my supervisory committee. Although they collectively assisted me by agreeing to serve on this committee and advise me in this project, each also contributed individually to my success at the University of Florida. I addition to chairing my committee. Dr. R. Craig Wood provided me with assistance and advice throughout my doctoral program. He assisted me in publishing several professional articles, and introduced me to those professional associations that will be most important in my future career. Dr. Wood more than successfully fialfilled the role of mentor, and I appreciate all he has done for me the past several years. I also acknowledge the support and assistance of the other members of my supervisory committee: Dr. David S. Honeyman, Dr. Charles H. Montgomery, and Dr. Lawrence W. Tyree. In addition to overseeing this dissertation and my qualifying exams, each contributed directly to my success at the University of Florida. Dr. Tyree agreed to become a member of my committee, after two former members successively retired from ii

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the faculty and could, therefore, no longer serve as members. Dr. Honeyman provided regular advice and encouragement. Dr. Montgomery served as the outside member of my committee and, while I was a graduate student in the Department of History, also provided me with new insights into Twentieth Century American history. I also appreciate the assistance of many other persons who directly assisted with the research and writing of this dissertation. I am particularly grateful to my friends Dr. Linda Stephens and Dr. Luke Cornelius for providing technical assistance during the preparation of this document. Their observations and assistance were invaluable in preparing this final manuscript. I would also like to thank the staff of the University of Florida libraries (especially Suzanne Brown, of the Education Library) for years of assistance and service. I also acknowledge the assistance of the entire faculty and staff of the Department of Educational Leadership, Policy, and Foundations (especially Angela Rowe and Eileen Swearingen). Finally, I wish to acknowledge the love support of my parents, William and Myrtle Schilling, both during this program and throughout my life. To my mother I owe my inquisitive mind and (as she was a Lutheran elementary school teacher) my grasp of the basics of English grammar. To my father I owe my sense of duty. When we are rejoined in heaven, I will thank them again. iii

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TABLE OF CONTENTS Page ackno\\t:.edgments » ABSTRACT. vi CHAPTER 1 INTRODUCTION 1 Introduction ^ Need for the Study 2 Research Question 4 Scope of the Study 5 Limitations of the Study. 6 Methods and Materials 8 Organization of the Study 10 Notes H 2 WHAT IS RACE-CONSCIOUS AFFIRMATIVE ACTION 13 Introduction 13 Definitions 13 Origins of Terminology 18 Groups Included Under Affirmative Action 25 Varieties of Affirmative Action 27 Affirmative Action Distinguished from Equal Opportunity and Nondiscrimination 33 Notes 35 3 HISTORY BEHINT) TODAY' S AFFIRMATIVE ACTION 40 Introduction 40 Early History of .Affirmative Action; The Nineteenth Century 41 Later History of Affirmative Action The Mid-Twentieth Century 44 Recent History of Affirmative Action: The Late-Twentieth Century 4*5 Historv' of Affirmative Action in Higher Education 59 The Debate ov er .Affirmative Action 66 Notes 70 iv

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4 LEGAL fflSTORIC AL ANTECEDENTS OF AFFIRMATIVE ACTION ... .75 Introduction The Early Cases 77 The Bakke Case 82 Weber to Metro Broadcasting: 1 9791 990 94 The Adarand Case: 1 995 ^08 Notes 5 SUPREME COURT RULING ON AFFIRMATIVE ACTION IN HIGHER EDUCATION STUDENT ADMISSION PROGRAMS; ANALYSIS, IMPLICATIONS, AND RECOMMENDATIONS 118 Introduction The Equal Protection Clause 119 Hopwood V. Texas 121 Smith V. University of Washington Law School 123 Johnson v. Board of Regents of the University of Georgia 1 25 The Sixth Circuit Rules in Grutter v. BoUinger 128 The District Court's Decision in Gratz v. Bollinger 130 The Supreme Court Decides Gratz v. BoUinger 134 The Supreme Court Rules in Grutter v. Bollinger 137 The Implications of Gratz and Grutter 141 Recommendations and Conclusions 146 Notes 151 REFERENCES 155 TABLE OF CASES 163 BIOGRAPHICAL SKETCR 167 V

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Abstract of Dissertation Presented to the Graduate School of the University of Florida in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy LEGAL LIMITS OF RACE-CONSCIOUS AFFIRMATIVE ACTION IN HIGHER EDUCATION STLT)EN1 ADMISSION PROGRAMS By Alvin J. Schilling December 2004 Chair, R. Craig Wood Major Department: Educational Leadership, Policy and Foundations My study was a legal analysis of case law relating to race-conscious affirmative action in higher education student admission programs. My study addressed the legal limits of affirmative action law in public higher education. Using a variety of databases, including WestLaw and LEXIS, I sought to identify and analyze all published legal decisions regarding affirmative action in these contexts. The scope of the study was national, and encompassed legal rulings fi"om federal courts. My objective was to delineate, as specifically as possible, the legal limits between valid and invalid race-conscious affirmative action student admission programs under the U.S. Code and the Constitution. My study discussed the various types, origins, and definitions of affirmative action. It also discussed the general and legal history of affirmative action and, in particular, the legal history of affirmative action in higher vi

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education student admissions. A case law review of federal district and circuit courts was followed by an evaluation of Supreme Court decisions. I derived general and specific conclusions regarding race-conscious affirmative action student admission programs. In general, such programs are legally valid, because they fulfill the need of colleges and universities to provide a diverse student body, which is a legitimate government interest in education. Colleges and universities may, therefore, consider race as one of many factors in student admissions. Specifically, however, these institutions must understand the difference between a qiiota and a critical mass, because strict quotas are prohibited. These institutions must also use good faith in implementing race-conscious admission programs, while not having to exhaust every race neutral plan. vii

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CHAPTER 1 INTRODUCTION TO THE STUDY Introduction As established by the Supreme Court (in the case of Regents of the University o f California v. Bakke),^ race may be used as a factor in higher education student admission programs, and it may even be weighted more heavily than other factors, but it cannot be the sole and decisive factor. In reaching this conclusion, the Court hoped to provide an answer to the question of when or under what circumstances a student admissions affirmative action program is valid, both statutorily and constitutionally. For over a decade, the Bakke case appeared to have settled the matter once and for all time. However, while opponents of affirmative action programs were quieted, advocates at many colleges and universities were active creating and implementing new ones. Beginning in the mid 1990s, opponents started to challenge these new (and some established) affirmative action programs, alleging that they still violated the mandate provided in Bakke. Oddly, in many cases, advocates of affirmative action student admissions programs defended them by using the Bakke case as precedent.^ In the case of Hopwood V. Texas f the Ninth Circuit became so frustrated with the lack of rules or standards provided by the high court's decision in Bakke, that it (on behalf of the Supreme Court) decided to overrule the case.^ This scenario demonstrated that the Bakke case neither settled the issue of affirmative action in student admissions, nor clarified It. 1

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2 My study was intended to better define and determine what constitutes a valid affirmative action student admissions program in higher education under the Constitution and the U.S. Code. Since 1978, the year of the Bakke decision, what was once thought to be clear on the matter became more clouded. The legal case history on the issue demonstrates this. The issue recently culminated when the Supreme Court agreed to hear the cases ofGrutter v. Bollinger'^ and Gratz v. Bollinger.' Consideration of these cases was the first time that the Court considered the specific area of higher education student admission programs, as they relate to affirmative action, since it ruled in the Bakke case. By examining the decisions rendered in cases of Gruffer and Gratz, the goal of my study was to provide a practical and workable definition of statutorily and constitutionally sound affirmative action student admission policies. Need for the Study An extensive review of sources revealed the scarcity of discussions of raceconscious affirmative action in education. They become even more limited when confined to the subject of higher education student admissions programs. Many treatises have dealt with race-conscious affirmative action as a sociological, philosophical, or political issue, while enclosing little or no discussion of the historical or legal aspects of affirmative action.^ Even more legally orientated works tend to deal exclusively with a few key landmark rulings.^ This approach often seeks to utilize the general rules as described in these rulings to determine the validity of affirmative action in specific circumstances. In reviewing this literature, a few noteworthy texts offered more depth or practical value to the institutional practitioner. A Reader on Race, Civil Righfs, and American Law:

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3 A Multiracial Approach^^ (edited by Timothy Davis, Kevin R, Johnson, and George A. Martinez) offered considerable material on affirmative action, with a separate section discussing race-conscious student admissions programs. Another section considered in detail the affirmative action debate in higher education.'^ Although this text covered racial discrimination issues from early America to the present, it included a more 1 3 comprehensive review of recent case law than most other practical guides. Another useful source for practitioners was Lynne Eisaguirre's Affirmative Action: A Reference Hondbook,^"^ which provides a well-balanced, overall account of affirmative action. This work, which used a combination of biographical sketches, statistics, and historical perspectives to discuss distinct affirmative action issues that in some cases confront modem public college and university administrators, was a useful and valuable tool for both administrators and researchers.^^ Few works attempted the sort of narrow topical approach used in my study. Another source, more accessible to researchers than institutional practitioners, was law review articles and other periodic journals. Conducting research for my study, no fewer than 200 current law review articles, and numerous other published works in both legal and educational literature, were identified and reviewed. Many were used in my study. Yet, the limitations of these sources were obvious. Many were case comments, dealing with a single case or issue. Often, especially in law review materials, authors dealt with more philosophical issues of the law, while ignoring judicial precedent in favor of their interpretations of the issue at hand. With a few exceptions'^ (even when journal authors sought to provide an overview of the topic), the editorial limitations of the medium restricted the ability of these authors to provide in-depth examination of specific

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4 issues and controversies.'^ As research tools, such articles were invaluable. As practical guides for university administrators and others dealing with affirmative action issues, they were somewhat less useful and accessible. There appeared to be few comprehensive reviews of case law in affirmative action of the sort contained in my study. My study sought to determine the breadth of the legal context of affirmative action regarding higher education student admissions programs. The focus was on past case law (such as the precedents set by the Supreme Court in Bakke, and then by various federal circuit courts, discussed in Chapter 6) and also on the most recent interpretation of these precedents by the high court, in the cases oiGrutter v. Bollinger '^and Gratz v. Bollinger ^'^ Research Question My research question was under what circumstances, if any, are affirmative action student admission programs in higher education valid under the provisions of the U.S. Constitution and the U.S. Code. The purpose of my study was to provide an unbiased (to the greatest extent possible) and in-depth discussion of the legal validity of affirmative action student admissions programs in higher education. My study examined the legal concept of affirmative action in higher education and determined under what circumstances affirmative action student admission programs are valid under federal law. This was accomplished by reviewing, as comprehensively as possible, all available case law regarding affirmative action student admission programs. Thus, my study was intended to provide guidance to higher educational administrators, and to assist them in implementing student admissions policies that respect constitutional and statutory

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5 restrictions (thereby, helping them to avoid litigation). Such guidance for legal practitioners would obviously be valuable. Scope of the Study As indicated, this study was intended to be a comprehensive review of the law regarding affirmative action in higher education admission programs. As such, the scope was quite narrow, as compared to a study of several or all areas of affirmative action. Yet, cases from all levels of the federal courts were used. While no examination of such a large area of case law can be completely exhaustive, the methods used in my study were intended to locate and identify the majority of significant case law amassed on the subject of affirmative action in student admissions since the practice was first litigated. However, as this was intended as a meaningful guide on the subject, editorial discretion favored emphasis on more recent decisions on certain subjects where earlier precedents may have been superceded. Likewise, as in any examination of case law, the precedential value of a decision was weighed by the stature of the court that issued the ruling. Hence, the decisions of higher courts, especially the Supreme Court and the U.S. Circuit Courts of Appeals, were given far greater weight. At the same time, it must be recognized that some controversies may have only been adjudicated by courts at a lower level. These precedents were included, where necessary, for the insights they may provide into similar cases elsewhere, but should be evaluated with the limited jurisdiction of the court in mind. The scope of the study was principally to examine the concept of affirmative action as a constitutionally valid exercise of public colleges and universities' authority. The major emphasis was on affirmative action as it was defined and protected under the

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6 Constitution, specifically under the Fourteenth Amendment, and under Title VI^*^ and Title VII^^ of the Civil Rights Act of 1964. However, it was neither possible nor desirable to ignore the influence of additional guarantees and restrictions of state laws and constitutions. Also, the scope of my study extended, in a Umited manner, to all areas of affirmative action, as defined by various court decisions over the years, in order to provide definitions and historical background for a discussion on affirmative action in student admissions. Thus a very liberal definition of affirmative action was applied in various sections of my study. For purposes of my study, affirmative action ranged from its application in employment contracting, to its usage by public higher education institutions in student admission programs. Finally, my study discussed the recent judicial response of the Supreme Court to decisions issued by various federal courts of appeals on the use of affirmative action in public colleges and universities (particularly in student admissions policies). Finally, my study examined how the Supreme Court reconsidered its prior opinion in Bakke, in light of several intervening lower court decisions. Limitations of the Study My study was limited to examining affirmative action as it affected nonminority student applicants to public higher education institutions. A reading of pertinent case law and texts revealed that this is a legal topic distinct from the topic of the rights of other groups and individuals, such as faculty, administrators, and non-academic staff. Within this limitation, my study was in congruence with the interpretations of the actual trial courts in sometimes determining which individuals qualified as students with proper standing. At the same time, this limitation did preclude the introduction of legal

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7 precedents from outside the realm of college and university student applicants when these materials had direct bearing on the legal rights of these individuals. A second limitation was that this was a study of the constitutional validity of affirmative action. Numerous works already existed discussing the historical, sociological, philosophical, and administrative policy aspects of affirmative action. Some of this material was examined for background, and this was accomplished in Chapters 2 and 3. Ultimately, however, these issues had little bearing on the operation of affirmative action as a legal concept. Many observers view affirmative action either as a valuable public policy or as a major social evil. The assumption of my study was that either position, or any other viewpoint, is irrelevant. Since at least the 1960s, affirmative action has existed as a legal concept, guarded by the Constitution (and by federal statutes, presidential executive orders, and legal precedent). It was the goal of my study to examine affirmative action purely as a legal concept. Similarly, some precision was required to define the legal concepts under investigation. Therefore, mine was a study particularly focused on the Fourteenth Amendment of the Constitution. Typically, all cases categorized within "affirmative action" raise Fourteenth Amendment issues. In addition, many plaintiffs also raised issues under Title VI and Title VII of the Civil Rights Act of 1964. Likewise, having raised these federal constitutional and statutory issues, plaintiffs may have also referred to state constitutional guarantees and statutory provisions. It was the goal of my study to deal primarily with the federal protections of affirmative action. Using federal constitutional precedents provided a reliable legal basis for defining affirmative action nationwide. Still, some state constitutions and laws may

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s provide additional protections or restrictions. Furthermore, the predominant federal nature of these protections clearly was indicated by the prevalence of affirmative action cases that were filed in the federal courts Nonetheless, my study addressed state claims included in federal cases. Methods and Materials My study was designed primarily as a review of case law. The emphasis was on primary source materials, namely published federal court decisions. In addition, a wide variety of secondary sources were consulted and evaluated, both to provide background to the study and for assistance in interpreting some primary sources. Case Materials By far the most extensive research in my study was to locate the primary source materials, in the form of reported case decisions. Various tools and methods were used to achieve the most comprehensive possible results. 1 mainly used the following investigative tools and strategies. West 's Education Lent' Reporter Digest was consulted. All issues of this index were researched under both key word and key numbers. Key terms included "Constitutional Law" and "Colleges and Universities." All indicated case references then were referenced manually in either the Educational Law Reporter or the original case reporter. The Westlaw system also was consulted extensively. Using terms and connectors, searches were conducted using the term "Affirmative Action" crossreferenced with the term "Colleges and Universities." All search terms and combinations were used in ALLFEDS, ALLSTATES, and ALLCASES databases. All indicated cases then were referenced manually in the appropriate case reporters. Searches similar to these

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also were conducted on the LEXIS/NEXIS system to ensure accuracy. This system especially was used to locate more recent case decisions, although those already in print were referenced manually. Publications of the Education Law Association (formerly the National Organization on Legal Problems of Education), specifically ELA/NOLPE Notes and the ELA/NOLPE School Law Reporter were consulted, especially to locate recently reported decisions. Additional related cases were sought to be identified by using a variety of legal reference materials, including digests for the various case reporters and Shepard's Law Review Citations. After identifying cases from the methods listed previously, these cases were reviewed individually for references to related cases not located in the initial searches. Similar procedures were used to locate additional cases and texts identified in secondary sources. For the sake of uniformity, most cases were cited from the various legal reporters compiled by West's National Reporter System. These include the federal reporters (Supreme Court Reporter, Federal Reporter, and Federal Supplement) and the regional reporters (Atlantic, North Eastern, North Western, South Eastern, South Western, Southern, and Pacific). However, in order to follow proper protocol and to be inclusive, all U.S. Supreme Court decisions were cited initially to the Court's official reporter, U.S. Reports, ending with reference to the Lawyer's Edition. The manuals of style for this study were The Bhie Book: A Uniform System of Citation^' and the Chicago Manual of

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10 Secondary Sources A variety of secondary sources were reviewed and used. Books and similar texts were located through the use of the LUIS on-line catalogue, which also provided access to other academic libraries. Journal materials were located through several diflferent sources, including LUIS (which includes both hidex to Legal Periodicals, for law review articles, and the ERIC system for educational journals and microfiches) and LEXIS/NEXIS. A search also was conducted in Dissertation Abstracts, which found no unpublished dissertations similar to this project or of direct assistance to it. Organization of the Study My study represented an effort to folly survey the range of legal controversies and judicial rulings under the rubric of affirmative action in student admissions policies. This information was analyzed and organized into a format that is useful for a variety of users. Chapter 1 gave an overview of my study and discussion of the research methods used. Chapter 2 provided definitions, origins of terminology, groups included under, and varieties of affirmative action. Chapters 3 and 4 discussed the general and legal historical antecedents of affirmative action. Chapter 5 reviewed various recent U.S. Courts of Appeals decisions related to affirmative action in student admissions programs. This survey was designed so that the later chapters can be considered in light of past interpretations of precedents established by the Supreme Court. Chapter 5 then evaluated the 2003 Supreme Court decisions in Gratz v. Bollinger ^' and Grutter v. Bollinger particularly as they relate to the Court's own precedents. Chapter 5 was also the conclusion. As such, the chapter presented a summary of various generalized conclusions that were drawn from the comprehensive review of case law in the preceding chapters.

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11 The chapter also presented legal tests to define affirmative action policy in student admissions protected under the Constitution and the U.S. Code. Notes '438 U.S. 265. 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978). ^See Hopwood v. Texas. 78 F.3d 932 (5* Cir. 1996); Smith v. Univ. of Wash., 233 F.3d 1188 (9* Cir. 2000); Johnson v. Bd. of Regents, 263 F.3d 1234 (11* Cir. 2001). ^See Hopwood v. Texas, 78 F.3d 932 (5* Cir. 1996); Smith v. Univ. of Wash., 233 F.3d 1 188 (9 Cir, 2000); Johnson v. Bd. of Regents. 263 F.3d 1234 (11"' Cir. 2001). '78 F.3d 932 (5* Cir. 1996), cert, denied, 518 U.S. 1033, 1 16 S. Ct. 2581, 135 L. Ed. 1097 (1996). '78 F. 3d 932, 944. ^^123 S. Ct. 2325. 156 L. Ed. 2d 304 (2003), reh 'g denied, 124 S. Ct. 35, 156 L. Ed. 2d 694 (2003). ''123 S. Ct. 2411. 156 L. Ed. 2d 257 (2003). ^See. e.g., Stephen L. Carter, Reflections of an Affirmative Action Baby (New York: Basic Books, 1991); Carl Cohen. Naked Racial Preferences: The Case Against Affirmative Action (Lanham, Md.; Madison Books, 1995); Nathan G\wLet,Affirmative Discrimination: Inequality and Public Policy (New York: Basic Books, 1975); Byron R. Taylor. Affirmative Action at Work: Lav\', Politics and Ethics (Pittsburgh: Universit\' of Pittsburgh Press, 1991); Linda Chavez. Out of the Barrio: Toward a New Politics of Hispanic Assimilation (New York: Basic Books. 1991); Douglas Massey and Nanc>' A. Denton, American Apartheid: Segregation and the Making of the Underclass (Cambridge: Harvard Press, 1993). 'See. e.g.. Michael A. Oiivas, The Law and Higher Education: Cases and Materials on Colleges in Court (2"°ed., Durham. N. C: Carolina Academic Press, 1997). 981-1 125; F, Michael Higginbothani. Race Law: Cases, Commentaries, and Questions (Durham, N. C: Carolina Academic Press, 2001). 166-172. 360-92. 453-59. '"(Durham, N.C.: Carolina Academic Press, 2001). "Ibid.. 376-406. ''Ibid., 296-311. '^However, the cases were not discussed in great detail. •\Santa Barbara, Calif: ABC-CLIO. 1999). '-'As a general text, this book addressed all facets of affirmative action. Since the author is an attorney who specializes in helping organizations solve employee relations problems, it is recommended as a useful training tool and guide for current and aspiring administrators in higher education. '*5ee, e.g., DavidB. Oppenheimer, Distinguishing Five Models of Affirmative Action, 4 Berkeley Women's L. J. 42 (1988-1989). ' ''See, e.g. , Eric Schnapper, A ffirmative A ction and the Legislative History of the Fourteenth Amendment. 71 Va. L. Rev. 753 (1985); Myrl Duncan. The Future of Affirmative Action: A Jurisprudential/Legal Critique, 17 Harv. c'.R-C.L.L. Rev. 503 (1982). "^123 S. Ct. 2325. 156 L. Ed. 2d 304 (2003). '*I23 S. Ct. 241 1. 156 L. Ed. 2d 694 (2003). '°42 U.S.C. §§ 2000d-2000d-7 (2000). ^'42 U.S.C, §§ 2000e-2000e-17 (2000). "123 S. Ct. 2411. 156 L.Ed. 2d 257. ^ "^Harvard Law Review Assoc., et ai, The Blue Book: A Uniform System of Citation (16 ed.. Harvard Law Review Association 1996). ^"The Universitj' of Chicago, The Chicago Manual of Style (14'*' ed. University of Chicago Press 1993). '^123 S. Ct. 241 1, 156 L. Ed. 2d 257 (2003).

PAGE 19

12 '"123 S. Ct. 2325. 156 L. Ed. 2d 304 (2003). reh 'g denied, 124 S. Ct. 35. 156 L. Ed. 2d 694 (2003).

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CHAPTER 2 WHAT IS RACE-CONSCIOUS AFFIRMATIVE ACTION Introduction Here we discussed specific and general definitions of various types of affirmative action in the United States, with particular attention to race-based or race-conscious affirmative action. The purpose of this chapter was to provide a contextual fi-amework for a historical overview of affirmative action in Chapters 3 and 4, and for a legal case precedent overview in chapter 5, In chapters 3, 4, and 5, again, special emphasis was placed on race-conscious affirmative action, in particular how it relates to student recruitment and admission policies in public higher education. Deflnitions On July 19 1995 in a speech supporting affirmative action. President Bill Clinton offered the following definition: "Affirmative action is an effort to develop a systematic approach to open the doors of education, employment, and business development opportunities to qualified individuals who happen to be members of groups that have experienced long-standing and persistent discrimination."' In contrast to this brief definition, law professors Charles R. Lawrence and Mari J. Matsuda provided a more literary, yet seminal, definition: Affirmative action can have a shallow or deep meaning. The shallow meaning goes something like this: there were once laws and practices that denied people of color access to schools, jobs, and housing. There was a need to make sure that these explicit practices of segregation and discrimination ended. The practices were mistakes or things done by a few bad people We regret them and we will invite a few token persons from minority communities into our institutions to make up for that mistake. We also recognize that it would help the children of the 13

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14 powerful to learn more about the nonwhite world if a few nonwhites were around, but we will decide whom to invite. We will decide who is qualified to serve our purpose of creating an environment where we can learn what we need to know about them. The deep meaning of affirmative action, however, is radically different and recognizes that the only remedy for racial subordination based on the systemic establishment of structures, institutions, and ideologies is the systemic disestablishment of those structures, institutions, and ideologies. Radical affirmative action goes beyond the remedy of simply declaring that discrimination is illegal and pretending that our culture is colorblind.^ The two descriptions considered together disclose the fact that definitions of affinnative action can differ greatly in nature. In many instances, individuals' motivations in providing a definition determine its nature (e.g., either to support or to detract from affirmative action). Of^en the answer to the question of what is affirmative action has been dependent upon where one stands on the issue. For example, Myrl Duncan, a law professor and supporter of affirmative action, provided a definition that was impliedly critical of social practices. "The term [affirmative action] refers to public and private programs designed to equalize hiring and admission opportunities for historically disadvantaged groups by taking into consideration those very characteristics which have been used to deny them equal treatment." Affirmative action has been generally defined as "public or private actions or programs that provide or seek to provide opportunities or other benefits to persons on the basis of, among other things, their membership in a specified group. ""^ Another general definition (common to many sociologists) that has been propounded states, "Affirmative action exists whenever an organization goes out of its way to help realize the goal of true equality among people."' This is also the same as the definition that occurs in official materials published by the U. S. Department of Labor, like Fact Sheet 95-17, which

PAGE 22

15 specified that certain employers must "take affirmative action to ensure that equal opportunity is provided in all aspects of their employment ."'' A one-sentence definition is the following: "Affirmative action is the protective or preferential treatment of persons in employment, the admission to selective schools and universities, and the granting of other social goods and services (e.g., government contracts and licenses, set asides) by giving positive consideration to specified races and ethnicities and to one gender or the other."^ These specified identifiers, in a peculiar way, become proxies for merit. The established justification for such practices is to compensate for past injurious discrimination. A more recent justification is to promote diversity. The advancement of diversity is the idea that desirable and powerful positions in society should reflect the racial, ethnic, and gender composition of the population. The concept of diversity has been included in the admission policies at many colleges and universities on the premise that students need to study in an atmosphere similar to the one that they will live and work in after graduation. Diversity, in many situations, has become a euphemism for affirmative action.^ Affirmative action generally applies to education and employment. The term is not used in discussions about voting rights, legislative redistricting, housing, public accommodation, or membership in organizations. These areas are covered by Title 11 of the Civil Rights Act of 1964^ and the Voting Rights Act of 1965. ''^ There is general agreement that affirmative action is mostly applicable to higher-status positions over lower-status ones, white-collar work over blue collar work, skilled work over nonskilled work, and managerial and supervisory positions over those that are not."

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16 Even ardent supporters disagree about what constitutes a proper definition of affirmative action, since the reality is that there is a spectrum of affirmative action solutions, depending upon which specific program is being debated. However, there seems to be little disagreement that when it was originally envisioned, the program entailed casting a wider net; one that would make sure that potential students, employees, and government contractors fi-om minority backgrounds were sought out and considered for positions. Various government agencies, legal battles, and in some cases the organizations themselves moved fi-om this version of affirmative action to different versions of goals, timetables, and quotas.'^ In accordance with Lawrence and Matsuda's terminology, they moved fi-om using a shallow meaning to using a deep meaning. Affirmative action has at least three components. The first component is affirmative recruitment. Affirmative recruitment means that institutions of higher education or employers aggressively encourage racial minorities to apply for admission or employment. To accomplish this goal, colleges and universities have sent students and professors into inner-city neighborhoods, to help high school students understand what college is all about and gain the confidence needed to apply for admission. Employers, on the other hand, might advertise employment opportunities in newspapers that have a large minority readership. The various branches of the armed forces have used affirmative recruitment to successfiilly achieve a more integrated force, turning one of the most racially divided organizations in society into one of the most racially integrated. Most Americans seem to support the concept of affirmative recruitment. This meaning relates directly to Lawrence and Matsuda's "shallow meaning" of affirmative action.

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17 The second component is affirmative fairness. Affirmative fairness means going out of the way to make sure that a minority candidate for a college entering class, an employment position, or a promotion has been considered fairly. In college admissions, fair treatment may mean looking at the particular background of an applicant to determine if it is fair to apply the usual admission requirements in his or her particular case. Such a review might consider whether the applicant lived in circumstances that make it unlikely that the standard admission test will properly measure his or her mental ability. This consideration is based on the supposition that usual measures applied to suburban middle-class students do not provide proper information about students from the inner cities and poor rural areas. Another possible consideration is whether the applicant had to overcome obstacles to finish high school, that other students did not face. Such obstacles include having to work so as to help support one's family; or attending an inadequate school. In the employment context, the question is asked has the applicant actually been judged on merit, or has racism been a factor in the evaluation process. Most Americans seem to support affirmative fairness.'"* This meaning falls somewhere between Lawrence and Matsuda's shallow and deep meanings of affirmative action. The third component is affirmative preference. Affirmative preference means preferring someone of the right race over someone who is of the wrong race. This preference can seem minor, such as preferring someone of a particular race when both candidates are equally qualified. The preference can seem more significant, however, when a highly qualified candidate for college admission or a job or a promotion is passed over for a minority applicant who is cleariy less qualified. Because social scientists have not studied the phenomenon, it is not known how oft;en this has happened since 1970,

PAGE 25

when affirmative action became a significant part of American society Critics of affirmative action say it occurs all the time. Supporters of affirmative action say it almost never happens. Social scientists have found that most Americans do not favor affirmative preference.'' Origins of Terminology The term affirmative action predates the civil rights movement. The basic idea comes from the centuries-old English concept of equity, or the administration of justice according to what was fair in a particular situation, as opposed to rigidly following legal rules, which may have a harsh result. Some have contended that the phrase affirmative action first appeared as part of the 1935 National Labor Relations Act. There, it meant that an employer who was found to be discriminating against union members or union organizers would have to stop discriminating, and also take affirmative action to place those victims where they would have been without the discrimination.'^ In the civil rights context, the term affirmative action first appeared in President John F. Kennedy's Executive Order 10925, matched up with a color-blind view of society" The term was repeated in President Lyndon Johnson's revision. Executive Order 1 1246.'^ Firms under contract with the federal government were to not discriminate, and were also to "take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color or national origin." Section 706(g) of the Civil Rights Act of 1964 also permitted courts to order "affirmative action" in cases where an employer was "intentionally engaged in" an unlawfijl employment practice, such as the denial of opportunity on the basis of race '^ As it was developed in the civil rights administrative

PAGE 26

agencies and the courts, however, affirmative action, as well as simple nondiscrimination, came to mean something quite different from any color-blind approach. It came to mean 20 race-conscious, rather than color-blind. The term affirmative action was again used in the era following BroM'n v. Board of Education as a response to subtle forms of societal discrimination that continued to 22 operate against racial minorities. Despite the invalidation of segregation laws in Brown, whites were still customarily granted priority over minorities in the allocation of jobs and educational opportunities, even when the minorities possessed qualifications that were the same as or better than the qualifications of the whites receiving preferential treatment. In 1961 Vice-President Lyndon Johnson oversaw the drafting for President John F. Kennedy of Executive Order 10925, which prohibited racial discrimination in civil service hiring and government contracting. Executive Order 1 0925 stated in part, "The contractor will not discriminate against any employee or applicant for employment because of race, creed, color, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin." Laws and regulations developed that extended the Civil Rights Act of 1964 to ensure equal opportunity. These included controversial affirmative action regulations and programs. Like the Civil Right Act, they arose in the time when opportunity for AfiicanAmericans was the dominant issue, and the problem of opportunity for other groups, including Hispanics, AsianAmericans, and American Indians, was near the bottom of the national agenda. As disclosed in the previous discussion, it was difficult to provide one all-

PAGE 27

20 encompassing definition of affirmative action. For example, there were affirmative action regulations that some companies contracting with the government were supposed to follow with voluntary affirmative action programs. Many other companies had voluntary affirmative action programs. There was added complexity, because the regulations changed over time, and affirmative action programs were never the same for different types of opportunity. Affirmative action in employment was not the same as the mostly voluntary programs in higher education or professional school admissions, and neither of these was identical to affirmative action in legally mandated contract set-asides or in Small Business Administration assistance for minorities.^" Policy makers themselves were contused. The earliest uses of the term affirmative action in the context of civil rights enforcement lacked clear intentions. The term appeared in President John F. Kennedy's Executive Orders 10925 and 1 11 14, prohibiting discrimination on the basis of race, national origin, and religion and requiring affirmative action to ensure nondiscrimination by government contractors.^^ It appeared again in Title VII of the Civil Rights Act of 1964,^^ where courts were empowered to order companies guilty of discriminating to take affirmative action to put discrimination victims in their rightful place. In 1965 the term was repeated in President Lyndon Johnson's Executive Order 11 246.^' In none of these instances was affirmative action clearly defined.^^ To some, affirmative action seemed to mean what was later called soft afFirmative action. But this was by no means clear. The executive orders and Title VII Usted some activities that might be included, such as hiring employees and giving back pay. The wording in Title VTI suggested affirmative action aimed at identifiable, individual victims

PAGE 28

21 of discrimination, but the executive orders, which required promises of affirmative action before a contractor was officially found to have discriminated, could not have meant that. A Johnson administration memorandum dated January 1964 highlighted the confused 29 nature of the policy. The document, "Affirmative Action Commitment Under Executive Orders 10925 and 1 11 14," intended to acquaint government contractors with the requirement of affirmative action. It explained that affirmative action was a relatively new concept in contract management. There was nothing in the provided definition that suggested race consciousness, later to have a major negative impact on affirmative action's political support. The memorandum stated, "Affirmative action means positive or firm or aggressive action as opposed to negative or infirm or passive action. Affirmative action encompasses the steps necessary to ensure that a contractor puts into practice his stated policies of equal employment opportunity without regard to race, color, creed or national origin." With a clear focus on Afi-oAmericans, the memorandum listed twenty-five • 30 suggested examples of affirmative action. The simplicity of the suggestions revealed the nature of race relations in the early 1960s when discrimination was severe and open.^' For example, one suggestion for affirmative action was to eliminate segregated washrooms, cafeterias, smoking areas, locker-rooms, drinking fountains, time clocks, pay-lines, contractor sponsored recreational programs, and so on. Another was a hallmark of soft affirmative action: employers should try publication and dissemination of a written policy of equal employment opportunity. Some of the stronger recommendations revealed both surprising differences with later beliefs concerning the nature of discrimination and

PAGE 29

22 awareness of the taboo nature of race-consciousness and preferences. For instance, suggestion number nine gave no preference to minorities, "Seek, employ and develop minority group personnel, as well as others, in white collar classifications to ensure that the best talents and abilities of the others nation's manpower resources are utilized most advantageously." Although in later years most civil rights administrators saw the use of employment tests on which Afiican-Americans performed pooriy as culturally biased and discriminatory, example number eighteen suggested, "Re-evaluate quahfications of lower echelon minority employees to ensure equal consideration for job progression based on standards and qualifications which should be no higher or no lower than those established for white employees." Still, even in 1964 there was a harbinger of things to come. The document ended by declaring that each contractor would have to devise its own plan to achieve the maximum utilization of available manpower. In other words, affirmative action was not orientated toward some procedural justice, as was Title VII, but toward a substantive resuh?^ It was not long before a combination of forces led to the development of the affirmative action presently known. Scholars and pundits fi"equently have introduced affirmative action vnth the assumption that policy originators were trying to compensate Airican-Americans for centuries of discrimination. Sociologist John Skrentny argued, that while enforcing Title VII federal courts often ordered certain firms or public institutions to enforce racial hiring goals as compensation for past discrimination. Some civil rights groups also have made compensation arguments. But the original justification for affirmative action in employment put forth by those implementing the policy was administrative pragmatism.^'' Civil rights enforcers said they needed an effective and

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23 efficient means of stopping present discrimination. This was very difficult to prevent when the government relied solely on promises by employers or charges made by aggrieved individuals. Others justified the policy as a means to quell the crisis of urban racial unrest m the 1960s.''* 35 In September 1965 President Lyndon Johnson signed Executive Order 11 246, just fifteen months since he had signed the Civil Rights Act.'^ One section of that act permitted courts to order such affirmative action as may be appropriate to end discrimination and to establish restitution in cases where de jure or de facto discrimination had been found. The executive order went further. It required every federal contractor above a minimum size to fianction as an affirmative action employer. Under the executive order, to be an affirmative action employer was to make sure that the organization imposed no artificial barriers to persons in certain targeted categories. At present, the targeted categories are derived fi-om considerations of gender and ethnicity. White females, ethnic minority females, and ethnic minority males make up the categories by the regulations that have flowed fi"om Executive Order 1 1246. To these have been added qualified persons with disabilities by the Rehabilitation Act of 1973^^ and Vietnam War veterans by the Vietnam Era Veterans Readjustment Assistance Act of 1974.'^ In the issuance of the executive order as amended, and regulations and legislative acts which followed, the elimination of artificial barriers for some groups of people was considered to be tantamount to assuring actual equal opportunity for all individuals.'*^ To assist employers, federal regulations delineated the method by which an organization can make sure that artificial barriers do not exist. The method was

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24 supposedly simple and results orientated. If an organization employed people of various designated groups in proportion to their availability in the relevant labor market, then the organization had prima facie evidence that there is no discrimination, either in terms of disparate treatment or disparate impact.'" Race-conscious affirmative action policies in the 1970s rapidly followed the triumph of liberal nondiscrimination in the 1960s. As John Skrentny pointed out in his book, 77?^ Ironies of Affirmative Action, so powerful was the American belief in the principle of color-blind law by the 1970s that advocacy of racial preference became one of the third rails of American politics."^ Race-conscious affirmative action was famiUar term of journalistic convenience. It identified unambiguously the controversial element of minority preferences in the distribution of benefits. But it also conflated racially targeted civil rights remedies with affirmative action preferences for groups, such as Hispanics and women, given protected class status irrespective of race. In order to correct any misunderstanding, one journal. The New Republic, substituted the term hard affirmative action for race-conscious affirmative action. The term hard affirmative action included nonracial as well as racial preferences, and it distinguished such remedies, available only to officially designated protected classes, fi"om the soft affirmative action of the KennedyJohnson administrations, which emphasized special outreach programs for recruiting minorities but did so with a traditional liberal framework of equal individual rights for all citizens. The descriptors race-conscious affirmative action and hard affirmative action have often been used interchangeably.''' The architects of race-conscious affirmative action, Skentny observed, developed their remedy in the face of public opinion heavily arrayed against it. Unlike most public

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25 policy in America, hard affirmative action was originally adopted without the benefit of any organized lobbying by the major interest groups involved. Instead, government bureaucrats, not benefiting groups, provided the main impetus. The race-conscious model of hard affirmative action was developed in trial and error fashion by a coalition of mostly white, second tier civil servants in the social service agencies of the executive branch of federal government, including the Department of Labor, the Department of Housing and Urban Development, and the Department of Health, Education, and Welfare. This was a network of Kennedy-Johnson administrations Uberals in Washington's mission agencies, working with a small group of young, often black policy entrepreneurs, coordinating with allies in the Justice Department and the Equal Employment Opportunity Commission, and linked to counterparts in regional and municipal government by the sprawling federal grant network. Once started in this way, hard affirmative action spread during the 1970s with surprising little attempt by conservatives to stop it.'*^ Groups Included under Afiirmative Action Although the policy of affirmative action always included Afiican-Americans and was developed to cope with their unique problems, it has formally included other groups fi-om its inception. In the mid1 960s these were the Hispanics, the AsianAmericans, and the American Indians. The reasons these groups were included and others were not are obscure, but it is possible that few thought it was a matter of importance because the nonblack groups were small in the mid-1960s. These basic categorizations have allowed affirmative action to go beyond Afiican-Americans to include Caribbean and Afiican blacks, persons fi-om Latin America, the Spanish Caribbean, and Spain, and Asians, but

PAGE 33

26 from eastern and southern Asia and the Pacific islands only. Eskimos and Aleuts have been included with American Indians as aboriginal beneficiaries of affirmative action. Affirmative action programs have increasingly included non-blacks, mixed-race persons, and non-African-American blacks."*^ Historian Thomas Sugrue provided an original genealogy of the affirmative action controversy. Its origins, he argued, lie in the unintended consequences of the New Deal. President Franklin Roosevelt's New Deal policies worked to satisfy working class white Americans' desire for security, but left out African-Americans desire for security with equality. The late 1940s through the middle 1960s saw AfricanAmerican civil rights groups using a discourse of color-blindness to press for equality without regard to color. But early state-level fair employment programs and the early federal civil rights protections did not immediately bring about equality, especially in trade unions.'*^ Roosevelt's pro-labor policies allowed the construction unions to become a solid step up the socioeconomic ladder for thousands of Americans, including many Catholics of Irish or eastern and southern European descent. These EuropeanAmericans maintained the trade unions as an ethnic niche for themselves. The federal government responded with affirmative action designed to force the unions to bring in AfricanAmericans. Sugrue argued that the efforts of the Kennedy administration in this direction were weak, confused, and mostly ineffectual. But the threat that Kennedy's efforts symbolized produced a disproportionate emotional reaction from the unions The result was local AfricanAmerican leaders' adoption of a race-conscious discourse and support for the new affirmative action policy, while the unions used the old civil rights language to resist."*^

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27 Varieties of Affirmative Action There are a number of race-, ethnic-, and gender-conscious practices that have been called affirmative action. Five models or types of it were identified and distinguished by legal scholar David Oppenheimer. He suggested that it is useful to conceive of the varieties of affirmative action as existing on a continuum At one extreme are those of an employer or educational institution, which affirmatively, positively and actively, carries out a policy of nondiscrimination on the basis of race, ethnicity, gender, or other characteristics not germane to the position of employee or student At the other extreme is the deliberate seeking of a person because of his or her ascribed status, whether it is black skin, a Hispanic surname, or chromosomal makeup. Oppenheimer called this the targeted hiring or outreach type in affirmative action programs.'*^ For instance, universities have commonly filled positions contingent upon finding a person of the desired race, ethnicity, or gender. Among the faculty searches approved for the 19921 993 academic year by California State University, Los Angeles was "One probationary position in Sociology, to be filled only if a black or Hispanic colleague can be appointed."'*^ Sometimes positions were created to be filled only by a person of a specified ascribed characteristic. The quota type is what most people who oppose affirmative action have meant in usage of the term. The type includes all the programs that set specific numbers. The University of California at Davis, before the Regents of the University of California v. Bakke '^decision of the Supreme Court, set aside sixteen of one hundred places in its law school's entering class specifically for minority students. In Kaiser Aluminum and Chemical Corporation v. Weber, the Supreme Court approved a quota plan whereby 50

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28 percent of the positions m a training program were to be reserved for black employees, until such time as the proportion of craft workers was similar to the proportion of blacks in the local workforce. In 1988 Duke University adopted a plan requiring every department and program in the university to hire at least one new black by 1993 or face penalties from the administration." In the same year, the University of WisconsinMadison announced plans to employ seventy minonty professors during the next three years.^^ Many law schools, such as Berkeley, Georgetown, and Texas, have had quotatype adnussions programs.^'' A third type of affirmative action are preference programs. These are programs that do not have not have quotas, but give preference to certain categories of persons. For example, "As part of its Affirmative Action Program, Marquette [University] gives preference in hiring to Jesuits," wTote the chairman of that university's sociology department to a job applicant. " "'' University student admission programs that give preference to individuals of certain racial and ethnic background are more common. Another example of preference programs includes those that provide veterans bonus points on civil service examinations. An illustration of this is found in Personnel Administrator of Massachusetts v. Feeney.^^ There, Massachusetts established a hiring preference for veterans by granting them bonus points on a civil service examination. As a result, although there was no quota, veterans had a significant advantage over nonveterans in competing for state jobs "''' Another example is the consent decree entered into by the city of Memphis,"^ which became the focus of the Supreme Court's decision in Firefighters Local Union No. 17 84 v. Stotts, resulting from a claim of racial discrimination against the city's fire department.'^ The agreement was that women and

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29 minority city employees not employed by the fire department could apply for openings there before white male city employees or any non-city employees. In Johmoti v. Transportatiov Depcn mmit, Sania Clara County f'^' the Court decided that a preference program involving gender was in accord with Title VII of the Civil Rights Act of 1964.** The self-examination type, the founh kind of affirmative action program acknowledged by Oppenheimer, is common in government, universities, and large private industries. Topically, research is done to determine what the numerical situation is with respect to minorities and women. Then goals and timetables are set up for increasing their proportions in certain, generally upper-level, job categories. The attempt is to achieve representation of underrepresented categories corresponding to the proportions of persons qualified to fill the positions Sometimes, particularly for many professional and scientific specialties, minorities are only a very small or nonexistent proportion. At the other extreme, those considered qualified to fill a particular job category or training program are the same as the category'' s proportion in the local work force. A fifth type of affirmative action is nondiscrimination. According to Oppenheimer, nondiscrimination is composed of two subtypes; active and passive nondiscrimination The former may involve a variety of practices to avoid discrimination, such as sensitivity training of employees and abandoning practices that are believed to have a discriminator^' effect, like tests and educational requirements, most usually for high school graduation. The latter would be similar to what is sometimes called soft affirmative action, as discussed previously.*^ To some, passive nondiscrimination would logically be outside of a discussion of affirmative action. But, Oppenheimer argued that public perception of affirmative action

PAGE 37

30 and nondiscrimination are intertwined. This is an important aspect of the intellectual confusion that surrounds afifirmative action. Oppenheimer argued that. When a court's decision that an individual was the victim of unlawful discrimination results in the payment of damages and an order of employment, admission or reinstatement, the remedy is likely to be perceived as a form of afifirmative action. When an employer-defendant, or potential defendant, agrees to a remedy to settle or avoid a discrimination action, it is even more likely to be seen as affirmative action, by observers if not by the participants. The failure to recognize that at least some of the participants in a public debate about affirmative action are likely to use the term to include nondiscrimination compounds the confusion which occurs when the subject is discussed. Others, such as Tomasson, Crosby, and Herzberger, have argued to the contrary. Simply because the public does intertwine perceptions of nondiscrimination and affirmative action and that the above examples are intuitively reasonable, is not sufficiently convincing to regard passive nondiscrimination as belonging under the rubric of affirmative action. Such regard confuses the issue of what is affirmative action. And, it lends to affirmative action the moral high ground of nondiscrimination.^^ Tomasson, Crosby, and Herzberger have further contended that race-conscious affirmative action in higher education is quite unnecessary in a country oversupplied with colleges and universities. They found that preferential undergraduate admissions has relevance for only a very small, but very significant, proportion of colleges and universities, those that are able to be selective. Fewer that 5 percent of fi-eshman are enrolled in the twenty-five highest ranked universities and the twenty-five highest ranked small colleges. The great majority of freshman enrolls in institutions that require little more than graduating from high school with some mild provisions regarding grade point averages and test scores. Some state colleges and universities, sometimes by legislative mandate, have no admission requirements beyond high school graduation. And,

PAGE 38

31 community colleges, as part of their very nature of existence, admit anyone. But affirmative action is a major concern to elite colleges and universities. Recently, the reason most often given for such concern is the need to achieve a diverse student body. The old reason, to compensate for past harmful discrimination, has been replaced as the beneficiaries of affirmative action have expanded beyond blacks to include other groups for whom the claim of past discrimination is not compelling. For example, there is a virtual absence of gender-based affirmative action in undergraduate higher education, 67 although it is still present in some graduate and professional schools. There is another type of preference, much less publicly touted by colleges and universities than that of achieving racial and ethnic diversity. It is affirmative action for the privileged. And, in certain cases, it is used to justify racial and ethnic preferences. Some colleges and universities have argued that if special treatment is given to the offspring of alumni, it is equally just to give similar treatment to racial minority applicants. One cannot accept the former sort of preference and not the latter. Justice Lewis Powell argued this very point in his famous Regents of the University of California V. Bakke opinion of 1978 .^^ But, as John Jeffries, Jr. wrote in his biography of the Justice, he intended it to be only a temporary measure, maybe to last a decade. The Justice feared that special admissions programs like those at the University of California at Davis would become entrenched bureaucracies, and minorities would come to regard them as perpetual entitlements. For Powell, race-conscious preferences were a short-term response to a pressing need.^^ At Harvard College in 1968 almost half of alumni sons who applied were admitted. This has declined in recent years to approximately 40 percent of alumni

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children against 14 percent of non-alumni applicants Harvard University has attempted to justify this preference by claiming that alumni are one of the constituencies im.portant to the university. Others have contended that it exists to encourage alumni to be generous with their financial contributions. Overall, preferential treatment of legacies in elite colieges and universities has received little criticism, despite the fact that some believe it to be a deplorable practice. ^° In part due to America's past racial discrimination, affirmative action programs moved beyond simple race-neutral nondiscrimination of the type initially undertaken by University of Wisconsin administrative officials in the late 1960s, toward a more aggressive plan that would lead to diversity on campus. Such a proactive plan meant providing preferential treatment to members of certain identified racial groups. It also 71 meant rejection of the legal concept of a color-blind Constitution. There have been at least tliree varieties of affirmative action programs created by colleges and universities. One type of affirmative action admission policies is modeled after the Har/ard admission program,^^ as discussed previously. Under such a program, the college or university's admissions committee seeks out qualified minority applicants who will provide diversity to the incoming class of students. And the race of an applicant is a positively weighted factor in the admissions decisions of the committee,^'' A second type focuses on the ethnicity of its applicants in order to enroll a small number of minority students in each entering class, whether undergraduate or graduate and professional schools. The dominant weight in the admissions process is given to the traditional numerical scores, standardized test results, and grade point averages. However, administrators create minority recruitment goals to diversify the student

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33 population. For example, admissions committee members are given a goal of 5 percent minority admissions. Consequently, the admissions committee recommends minority applicants who score in the average range but who are considered the most qualified minority applicants. Implicit is the understanding that the goal may not be met because the committee members could not identify a sufficient number of qualified minority applicants.^'' A third type of affirmative action higher education admission programs sets aside a fixed number of seats for minority applicants and employs a dual admissions screening process. Sometimes called a quota or set-aside program, this affirmative action plan differs fi-om the second in that it fills every one of the seats reserved for minority • • • 75 applicants to the mstitution. Affirmative Action Distinguished from Equal Opportunity and Nondiscrimination The lawfiihiess of affirmative action relies primarily on two separate sources of 76 law; the Equal Protection Clause of the Fourteenth Amendment and Title VII of the Civil Rights Act of 1964. A violation of the Fourteenth Amendment requires an intention to commit invidious racial discrimination,^* and liability for such discrimination can attach equally for official discrimination against either non-minority or minority 79 mdividuals. Similarly, at the time of the civil rights movement of the 1960s, and especially during the congressional debate and enactment of the Civil Rights Act of 1 964 and its Title VTI most public officials and lawyers thought that the purpose of Title VII was solely to rectify, by a uniform standard, specific racial harms intentionally inflicted by employers, and later by government agencies, on victims of either race; not to promote racial preferences or quotas.*" This type of color-blind, voluntary' standard was

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34 summarized many years later by the U.S. Court of Appeals for the Ninth Circuit in its decision in the case of Coalition for Economic Equity v. Wilson. Here the court proclaimed its approval of California Proposition 209 statmg: The standard of review under the Equal Protection Clause does not depend on the race or gender of those burdened or benefited .... Proposition 209 amends the California Constitution simply to prohibit state discrimination against or preferential treatment to any person on account of race or gender. ... To be constitutional, a racial classification, regardless of its purported motivation, must be narrowly tailored to serve a compelling governmental interest, an extraordinary justification. Because, however, affirmative action depends on some form of preferential treatment of marginalized groups whose unjust treatment does not lend itself to redress through ordinary litigation based on conventional proof, these early views against proportional treatment or quotas, through persistence and reappearance, provide an unavoidable background against which the competing and conflicting justifications of affirmative action have emerged. In contrast to these early color-blind and volitional rationales for antidiscrimination doctrine and the rationales later acceptance to render affirmative action anathema in Hopwood v. Texas ^'and Proposition 209, affirmative action emerged in the late 1960s and early 1970s as a preferential method to attack racial segregation and discrimination in the operations of government contractors These first plans came neither fi-om the Equal Protection Clause nor fi-om Title VII but fi"om a series of presidential orders and decisions and administrative directives, discussed previously, requiring overtly racial hiring by government contractors, generally without imposing a precondition of intent or design to discriminate against minorities on these contractors' parts. The plans were mainly a pragmatic response to the civil strife of the time, which

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35 often fed on racial injustice These developments culminated in the creation of a contract compliance plan by President Richard Nixon, a traditional civil rights opponent, in the Philadelphia construction trades.*^ Remnants of this approach tying affirmative action to government contractors exist today, as the rejection of one such plan, mandated 88 89 by Congress, in the case Adarand Constructors, Inc. v. Pena showed. Notes '"Excerpts from Clinton Talk on Affirmative Action," New York Times, 20 July 1995, late edition. ^Charles R. Lawrence and Mari J. Matsuda, We Won 't Go Back: Making a Case for Affirmative Action (Boston. Houghton Mifflin, 1997), 27. ^See, Donald Altschiller, ed, preface to Affirmative Action, The Reference Shelf, vol. 6, no. 14 (New York: H. W. Wilson Co., 1991), 5. Myrl Duncan is a professor of law at The School of Law, Washburn University, Topeka, Kansas. See Myrl Dimcan, The Future of Affirmative Action: A Jurisprudential/Legal Critique, 17 Harv. C.R.-C.L.L. Rev. 503 (1982), for a discussion of the legal aspects of affirmative action. James E. Jones, The Genesis and Present Status of Affirmative Action in Employment: Economic, Legal and Political Realities, 70 Iowa L. Rev. 4, 903 (1985). ^Audrey J. Murrell et al., "Racism and Resistance to Affirmative Action: Perceptions of Justice Are Not Necessarily Color Blind" Basic and Applied Social Psychology 15 (1-2): 71-86 (1994). See, e.g., Sjiera de Vries and Thomas F. Pettigrew, "A Comparative Perspective on Affirmative Action: Positieve Aktie in the Netherlands," Basic and Applied Social Psychology 15 (1-2): 179-199 (1994); Marlene E. Turner and Anthony R Pratkanis, "Affirmative Action as Help: A Review of Recipient Actions to Preferential Selection and Affirmative Action, " Basic and A pplied Social Psychology 15(12): 43-69 (1994); Marlene E. Turner and Anthony R. Pratkanis. "Affirmative Action: Insights from Social Psychologj' and Organizational Research." Basic and Applied Social Psychology 15 (1-2): 1-11 (1994). \j.S. Department of Labor. Emplojinent Standards Administration. Program Highlights: Fact Sheet ESA 1995-17. Washington, D.C., 1995. ^Richard F. Tomasson, Faye J. Crosby, and Sharon D. Herzberger, Affirmative Action: The Pros and Cons of Policy and Practice (Washington, D. C. : University Press of America, 1996), 123-124. 'Ibid. '42 U.S.C. §§ 2000a-2000a-6 (2000). "^42 U.S.C. §§ 1973-1973gg-10 (2000). "See, Tomasson. Crosb>'. and Herzberger. Affirmative Action, 124. '^Lvnne Eisaguirre, Affirmative Action: A Reference Handbook (Santa Barbara, Calif.: ABCCLIO, 1999), 3. '^Darien A. McWhirter. The End of Affirmative Action: Where Do We Go from Here? (New York: Carol Publishing Group. 1996). 4-5. "Ibid. 5. '-'Ibid, 6. '*See, James E. Jones. Jr. "The Rise and Fall of Affirmative Action," in Race in America: The Struggle for Equality, eds. Herbert Hill and James E. Jones, Jr. (Madison: University of Wisconsin Press. 1993), 345-69. Under the National Labor Relations Act of 1935, the National Labor Relations Board was authorized to order an employer guilty of engaging in unfair labor practices to cease and desist from the practice "and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this Act." See National Labor Relations ( Wagner) Act of 1935, 29 U.S.C. §§ 151-169 (2000). The term affirmative action was also used to describe

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36 remedial measures that might be ordered in an employment discrimination suit as well as voluntarymeasures by private employers to hire blacks. See Elmer A. Carter, Practical Considerations of Antidiscrimination Legislation under the New York Law Against Discrimination, 40 Cornell L. Q. 44 (1964) ; Note, Civil Rights-Minnesota Fair Employment Practice Act-Supervision as Affirmative Action. 42 Minn. L. Rev. 1163 (1958). 'Exec. Order No. 10,925, 3 C.F.R. 448, 449-50 (1959-1963), reprinted in 1961 U.S.C.C.A.N. 1274(1961). '^Exec. Order No. 11,246. 3 C.F.R. 339, 340 (1964-1965), reprinted in 1965 U.S.C.C.A.N. 4416 (1965) . '^42 U.S.C. § 2000e (5g) (2000). ^°See, John D. Skrentny, The Ironies of Affirmative Action: Politics, Culture, and Justice in America (Chicago: Universits of Chicago Press, 1996), 7. ^'347 U.S. 483. 74 S. Ct' 686. 98 L. Ed. 873 (1954). (Hereinafter referred to as Brown I) (invalidaUng separate-but-equal public schools). 349 U.S. 294, 75 S. Ct. 753, 99 L. Ed. 1083 (1955). (Hereinafter referred to as Brown II) (ordering dismantling of segregated school systems "with all deliberate speed"). ^^Brown I, 347 U.S. 483 (1954). '^Exec. Oder No. 10,925. 3 C.F.R. 448, 449-50 (1959-1963), reprinted in 1961 U.S.C.C.A.N. 1274, 1276 (1%1). See, e.g., Middleton v. City of Flint, 92 F 3d 396, 404 & n. 6 (6"" Cir. 1996) (discussing evolution in use of term afBrmative action); Nicholas Lemann, "Taking Affirmative Action Apart," New York Times, 23 November 1997, late edition. ^''See, John David Skrentny, ed, introduction to Color Lines: Affirmative Action, Immigration, and Civil Rights Options for America (Chicago: University of Chicago Press, 2001). 4. -^Exec. Order No. 11,114, 3 C.F.R. 774. 777 (1959-1963), reprintedin 1963 U.S.C.C.A.N. 1740 (1963), 1742. Exec. Order No. 10,925, supra note 14, at 1276. ^*42 U.S.C. §§ 2000e-2000e (17) (2000). ^^Exec. Order No. 11,246, 3 C.F.R. 339, 340 (1964-1965), reprintedin 1965 U.S.C.C.A.N. 4416 (1965). **See, Skrentny. Color Lines. 4. ^id., 4-5. See. "Affirmative Action Commitment Under Executive Orders 10925 and 1 1 1 14," in Civil Rights During the Johnson Administration, 1 963-1 969: A Collection from the Holdings of the Lyndon Baines Johnson Library, ed. Steven F. Lawson (Lyndon Baines Johnson Library. Austin; Frederick, Md.: Universitj' Publications of America, 1984), microfilm, Universitj' of Florida Libraries, part 11, reel 3. frame 809. ^°Ibid., 5. ^'Numerous commentators have written about race relations in the United States. See, e.g.. Alexander Bickel, The hdorality of Consent (New Haven: Yale University Press, 1975); John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge: Harvard University Press. 1980); Eric Foner, Reconstruction: America's Unfinished Revolution, 1863-1877 (New York: Perennial Classics. 2002); Clifford Geertz. "The Thick Description: Toward an Interpretive Theory of Culture " in The Interpretation of Cultures: Selected Essays (New York: Basic Books, 1973); A. Leon Higginbothan. In the Matter of Color: Race and the American Legal Process (New York: Oxford Universitj' Press, 1978); Charles R. Lawrence. The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism. 39 Stan. L. Rev. 317 (1987); Eric Schnapper, Affirmative Action and the Legislative History of the Fourteenth Amendment, 71 Va. L. Rev. 753 (1985); Girardeau A. Spaim, Color-Coded Standing. 80 Cornell L. Rev. 1422 (1995); Girardeau A. Spann. Proposition 209, 47 DukeL. J. 187 (1997); Girardeau A. Spami, Race Against the Court: The Supreme Court and Minorities in Contemporary America (New York: New York Universitj Press. 1993); Geoffrej' R. Stone et al.. Constitutional Law (Gaithersburg, Md.: Aspen Law and Business, 2001); Eugene Volokh, The California Civil Rights Initiative: An Interpretive Guide, 44 U.C.L.A. L. REV. 1335 (1997). ^^Lawson, "Affirmative Action Commitment," part U, reel 3, frame 809. See, Skrentny. Color Lines, 5-6. ^^There were many sources for the widespread belief that affirmative action was created to compensate blacks. One was a much cited speech by President Ljudon Johnson at the 1965 commencement of Howard Universit)that was an eloquent justification of government sponsored

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37 compensator)' treatment. Johnson argued that freedom was not enough for blacks and that fair competition required special help for this group long hobbled by discrimination. Johnson added that the next frontier was equalitj' as a fact and as a result. But there was no evidence in the speech that he had in mind the racial hiring goals, timetables, or quotas of affirmative action. See, Lee Rainwater and William L. Yancey. The Moynihan Report and the Politics of Controversy (Cambridge: MIT Press. 1967), 126. The speech, written by Richard Goodwin and Daniel Patrick Moynihan, said nothing about affirmative action. Instead, it was much more in line with less controversial compensatory measures, such as the Head Start education program and other monetary aid packages. See, Gareth Da\'ies, From Opportunity to Entitlement. The Transformation and Decline of Great Society Liberalism (Lawrence: University Press of Kansas, 1996), 70-71. Thus, the most often cited justification for affirmative action was not at all about affirmative action. ^"See. Skrentny. Color Lines, 6. '^xec. Order No. 11,246, 3 C.F.R. 339 (1965), reprinted in 1965 U.S.C.C.A.N. 4416 (1965). ^^42 U.S.C. §§ 20(X)e-20(X)e (17) (2000). ^^See, Tomasson, Crosby, andHeTzbeigei, Affirmative Action, 12. ^29 U.S.C. § 793 (a) (2000). ^'38 u s e. §4212 (a) (1994). "^Ibid. Executive Order 1 1246 did not originally include gender. Gender was added later. In 1973 Section 503 of the Rehabilitation Act ex-tended affirmative action to qualified individuals with disabilities. The Vietnam Era Veteran's Readjustment Assistance Act of 1974 extended protection to certain classes of veterans. '"ibid. 12-13. Disparate treatment refers to intentional acts of discrimination. Disparate impact means that some are ad\'ersely affected b\' what appears to be a neutral policy. Intent to discriminate need not be present for disparate impact to exist. "^Skrentny, The Ironies of Affirmative Action, 3. ""^See, Hugh Da^^s Graham, CoUision Course: The Strange Convergence of Affirmative Action and Immigration Policv in America (New Yoric: Oxford University Press, 2002), 65. ""Ibid, 65-66." "'Skrentny, Color Lines. 8. "%id.. 8-9. See. Thomas Sugrue. "Breaking Through: The Troubled Origins of Affirmative Action in the Workplace." in Color Lines, 3 1-52. "^Ibid "*David B. C^jpenheimer, Distinguishing Five Models of Affirmative Action. 4 BERKELEY WoMEN'sL.J. 42, 48 (1988-1989). See, Tomasson, Crosbj', andHerzberger,4^ma/7ve.4crio/7, 135136. "^ary Elizabeth Shutler to Donald Dewey, Office of Provost. California State Unrv ersity, Los Angeles, memorandum, 12 July 1991. See. Tomasson, Crosby, andHerzberger,^j^rTOflrtve.4c/7o/j, 13. '°438 U.S. 265. 98 S. Ct. 2733. 57 L. Ed 2d 750 (1978)' -''443 U.S. 193. 99 S. Q. 2721. 61 L. Ed 2d 480 (1979). '^See, Dinesh D'Souza. Illiberal Education: The Politics of Race and Sex on Campus (New York: The Free Press, I99I), 158. '^The Madison Plan, Office of the Chancellor, University of Wisconsin at Madison, 9 February 1988. 11. See. D'Souza, Illiberal Education. 17. See also. Jeffiey Sehngo. "Affirmative Action Without Numerical Goals," The Chronicle of Higher Education, 28 May 1999. '" See Oppenheimer, Distinguishing Five Models. 43-45. See, also, Tomasson. Crosby, and Herzberger, Affirmative Action, 137. -'David R. Buckholdt to Richard M. Coughlin. Marquette University, 1 1 January 1978. '*442 U.S. 256. 99 S. Ct. 2282, 60 L. Ed. 2d 870 (1979). at 264. '^Stotts V. Memphis Fire Department. 679 F. 2d 541, 571-73 (6* Cir. 1982), rev 'd, 467 U.S. 561, 104 S. Ct. 2576. 81 L. Ed 2d 483 (1984). 61 467 U.S. 561. 104 S. Ct. 2576. 81 L. Ed 2d 483 (1984). '480 U.S. 616, 107 S. Ct. 1442, 94 L. Ed 2d 615 (1987). 42 U.S.C. §§ 2000e-2000e (17) (2000). See Oppenheimer. Distinguishing Five Models, 46. See also, Tomasson, Crosbj', sad\{eTz}x.xgtx, Affirmative Action, 138.

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38 ^^Oppenheimer. Distinguishing Five Models, 46-48. See, Tomasson, Crosb>\ and Herzberger, Affirmative Action. 139. ^^Oppenheimer, Distinguishing Five Models, 48. See, Tomasson, Crosby, and Herzberger, Affirmative Action, 140. ^^Oppenheimer. Distinguishing Five Models, 49-50. See, Tomasson. Crosby, and Herzberger, A ffi rmative Action, 140. "Tomasson, Croslw, saiW&rzbergQX, Affirmative Action, 141. **Ibid., 190. See, Richard Harwood, "The New Elite in American Society," Cosmos. 1995, 13-19. *Tomasson, Crosbj, and Herzberger, 4j!?i"'"3f//ve/lcfto«, 190. ^438 U.S. 265, 306, (1978). **John C. Jeffries, Justice Lewis F. Powell, Jr. (New York. Charles Scribner's Sons. 1994), 455501. See, Tomasson, Crosb>', and Herzberger. ^j^r/waftv Fullilove v. Klutznick, 448 U. S. 448, and Metro Broadcasting. Inc. v. FCC, 497 U. S. 547.

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39 'Gray, The Four Faces of Affirmative Action, 4.

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CHAPTER 3 fflSTORY BEHIND TODAY'S AFFIRMATIVE ACTION Introduction Since the end of the Civil War, black Americans have struggled for economic justice, an equal opportunity to enter the workplace and to have access to higher education. Generations of blacks swept the floors in factories while being denied the opportunity to become higher-paid operatives on the machines. In grocery and department stores, clerks were white and janitors and elevator operators were black. College-educated blacks worked as bellboys, porters, and domestic servants if they could not get the scarce teaching positions in local all-black schools, which were usually the only alternative to religious ministry or working in the post office. Some progress in employment opportunities for blacks was made during the labor shortages of Worid War II and beyond, but it was limited. By the 1960s blacks were still segregated for the most part in lowwage jobs.' The era proceeding affirmative action racial reality also included thousands of towns and cities in which police and fire departments remained entirely white and male Women and blacks were even forbidden to apply for employment. There were no merit standards for employing the white men who occupied the best jobs, because merit would have required accepting applications from all interested individuals and selecting the best among them. White men had these jobs to themselves. Thomas Jefferson may have inadvertently started the debate on affirmative action by declaring in the Declaration of Independence that "We hold these truths to be self40

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evident . . . that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty, and the pursuit of Happiness."^ During the course of the debates on slavery, discrimination, and affirmative action, most Americans have agreed with Jefferson's statement as an ideal. However, putting the ideal into practice has been difficult. For example, in 1857 the Supreme Court, in the case of Scott v. Sandford, ''declared that no black person could claim citizenship. The decision also held that Congress could not prohibit slavery in U.S. territories. When the Civil War ended and slavery was abolished, the federal government still kept most blacks in a different status. For instance, in 1896 the Supreme Court decision in Plessy v. Ferguson called for separate but equal facilities,^ and this lead to many forms of segregation sanctioned by the government, including public schools, transportation, the armed services, and public accommodations. Similarly, women were denied the right to vote and, in many states, the right to own property, until 1920.^ Early History of Affirmative Action: The Nineteenth Century The programs known collectively as Reconstruction, implemented in 1865-1877, were actually previously conceptualized during the Civil War and represented a fusion of elements in much the same way that affirmative action operates today. In this regard, although affirmative action is a compromise civil rights enforcement effort. Reconstruction was much more assertive. The first efforts by the federal government to forge equal opportunity and civil rights policies began shortly after the Civil War ended But often these attempts fell short of the intended mark.' President Abraham Lincoln's Emancipation Proclamation of 1863 was followed by the Civil Rights Act of 1866, which gave full and legal benefit of the all laws to American citizens. This law is still in force

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42 and is used to combat discrimination, especially in the area of employment. Thereafter, in 1 868 the Fourteenth Amendment was adopted, guaranteeing due process and equal protection to all citizens against action by state governments. Similar protections against the federal government were earlier provided under the Fifth Amendment, adopted in 1791. The Fifteenth Amendment, adopted in 1870, guarantees all citizens the right to vote without regard to the individual's race, color, or previous condition of servitude. Taken together, the Thirteenth, adopted in 1865 abolishing slavery, the Fourteenth, and the Fifteenth Amendments were enacted to provide equal civil rights to blacks. Despite the constitutional guarantees, the Supreme Court in a series of decisions dating back to 1873 generally denied equality of treatment to blacks.^ However, in the first half of the Nineteenth Century, the Supreme Court also rendered several decisions that upheld the principle of nondiscrimination.^ Federal laws, including the Confiscation Act of 1862 and the Civil Rights Act of 1875, were designed to protect American blacks specifically, as well as white Unionist refiigees, in the South and to serve as a first-time creation of federally guaranteed equal protection for all citizens. While modem critics and opponents of affirmative action insist that the Fourteenth and Fifteenth Amendments were color blind and contemporary advocates in fact insist on the amendments' universality, it is also true that both advocates and opponents during that time knew and argued on the basis of the corrective, pro-black nature of the amendments.'" The most crucial debates in both the Civil War and Reconstruction periods revolved around several issues: the Freedmen's Bureau and whether blacks could own land," the nature of citizenship and whether blacks could enjoy equal protection in that status; and the unrestricted labor blacks that Frederick Douglass caUed for. The latter two

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43 issues were the subject of debates and even riots in the North while the Civil War was raging against the southern Confederacy's attempt to create a base for a new slave empire with white supremacy as its ruling ideology With the end of the Civil War, Reconstruction represented the first attempt to rectify the effects of slavery and white rv 12 supremacy and in that sense serves as the first antecedent to affirmative action. According to Girardeau Spann, racial affirmative action is the race-conscious allocation of resources, such as jobs, educational opportunities, and voting strength, that has been motivated by an intent to benefit racial minorities. Accordingly, the nations first racial affirmative action programs were adopted during the post Civil War Reconstruction period, contemporaneous with the adoption of the Fourteenth Amendment, when Congress created the Freedmen's Bureau to administer a series of race-conscious social welfare programs designed to benefit blacks. Those programs included assistance to blacks in the form of food, educational opportunities, regulation of labor contracts, distribution of abandoned lands, adjustment of real estate disputes, special freedmen's courts, aid to orphans, medical care, special protective legislation for black servicemen, and special laws prohibiting discrimination against freedmen. Although the term affirmative action was not then in use, the Reconstruction programs shared with contemporary race conscious programs a certain skepticism about the ability 13 of race neutrality alone to provide adequate protection for racial minorities. The debate over whether there was ever a Reconstruction era usage of the phrase affirmative action continues to the present time. John David Skrentny has maintained that the phrase affirmative action first appeared as part of the 1935 National Labor Relations Act. Therein, it meant that an employer who was found to be discriminating against union

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members or organizers would have to stop discriminating, and also take affirmative action to place those victims where they would have been without the discrimination/'' Still the phrase affirmative action and others like it can be found in the Reconstruction debates. In 1871 during the Ku Klux Act debate, Congressman John Cobum cited the newly enacted Fourteenth Amendment's power both to protect blacks as well as restrain white terrorist mobs primarily in the South. Cobum stated, "... now, where the equal protection of the law ... is denied by domestic violence or any other case, the nation may interpose to affiard it, by legislation, directing the use of military power and the interposition of the courts of the United States." Cobum then employed the use of a legal term, that being affirmative action, which has today become a controversial and racialized political expression, "Affirmative action or legislation is not the only method of a denial of protection by a State, State action not always being legislative action. A State may by positive enactment cut off from some the right to vote ... to do business . . . to bear arms . . . and many other such things. . ." This may be the eariiest date that the term affirmative action was used in American government. In other Reconstruction era debates, the word affirmative was used in the context of protecting black civil rights. But here it is used in reference to safeguarding black civil rights from the white affirmative action of state sanctioned discrimination and refusal to stop white supremacist terrorism.'^ Later History of Affirmative Action; The Mid-Twentieth Century Although it can be debated when affirmative action actually began, an important event occurred in its history, in the summer of 1941 . Then, a conversation took place between President Franklin Roosevelt and A. Philip Randolph, the president of the

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45 Brotherhood of Sleeping Car Porters, which was the most powerful black labor union of the time. According to contemporary reports, Randolph threatened to soon hold a mass march on Washington, DC, if Roosevelt did not do something substantial for black Americans. What Randolph sought was for the federal government to pressure defense contractors to hire more black workers. In response, Roosevelt formed the Fair Employment Practices Commission (FEPC). The commission worked throughout World War II to ensure that blacks received fair treatment from defense contractors. However, since the nation was mobilized for war, anyone who could work usually could find employment. Therefore, the success or failure of the commission is diflficuh to determine.'* After the war, the commission was abolished.'^ It is possible that Roosevelt's response to the conversation between himself and Randolph was an early usage of affirmative action. On the other hand, some authors, such as Darien A. McWhirter, have argued that the response should be considered in the context of the times. In doing so, one might find that this was not a case of a black leader asking the president to do something to initiate new civil rights laws with some kind of affirmative action. In fact, there were no new federal civil rights laws established. Instead, it may have been much more like the kind of conversation that black political leaders had had over the decades with white, city bosses; a black leader would remind a city boss that his group helped him to get elected and then demand a part of the electoral spoils. In a city, such pressure might result in more city jobs for black residents. For the president in 1941 it meant making certain that blacks got a share of the new jobs being created in the defense industries. Most likely, the FEPC was as much in the business of

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guaranteeing that a constituency of the Democratic Party received a reward from the * 18 elections as it was in encouraging fair employment practices. In 1948 President Harry Truman signed Executive Order 9980, which created a Fair Employment Board within the Civil Service Commission. The announced purpose of the board was to ensure that minorities, particularly blacks, got a fair chance to obtain federal jobs. The board disappeared soon after President Dwight Eisenhower took office. Again, while there was certainly some idealism involved, there was also some politics. A Democratic president was establishing a policy to help a constituency. A Republican president ended that policy after an election in which the Democratic coalition demonstrated it was not strong enough to retain the presidency. As vice president, Lyndon Johnson was known to be interested in improving the economic status of blacks. At a presidential inaugural ball in January 1961 Johnson was introduced to Hobart Taylor Jr., a black attorney. Johnson asked Taylor to help draft an executive order for President John Kennedy's signature. Taylor and two individuals who would become Supreme Court Justices, Abe Fortas and Arthur Goldberg, wrote an executive order that would attempt to reinstate President Truman's goal of including more blacks in the federal bureaucracy and President Roosevelt's intention of encouraging more federal contractors to hire minorities. Executive Order 10925 used the phrase affirmative action.^*' It remains debatable whether this was the first use of the phrase affirmative action. The order merged two obscure committees into the President's Committee on Equal Employment Opportunity. This committee became primarily a platform for Lyndon Johnson's Plans for Progress program, which attempted to persuade large corporations with major federal contracts to hire more black employees. It was

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47 charged with ensuring that affirmative action steps were taken to diversify the government's work force. Government contractors were not to engage in employment discrimination based on race, ethnicity, or national origin. The contracting firm had to agree to take affirmative action to ensure that applicants are employed and treated fairiy .^' While the program was completely voluntary and there is no way of determining how much actual impact it had, it was viewed by black political leaders as beneficial to their constituents.^^ In 1963 President Kennedy sent a civil rights bill to Congress. Later, after Kennedy's assassination. President Johnson made passage of a civil rights bill a major priority of his administration. One significant argument against the bill was that it would create an incentive for reverse discrimination against whites. Senator James Eastland of Mississippi complained that given a choice between hiring a white or a black applicant, both with equal qualifications, employers would be unduly influenced to hire the black worker. In order to placate critics of the bill, such as Senator Eastland, several provisions were added to and removed from the bill. Section 703(j) was included to make it explicit that nothing in the bill required employers to grant preferential treatment to anyone. The section was added specifically to persuade southern legislators, the main opponents of the bill, that it would not resuh in reverse discrimination against whites. Still, the bill, enacted as the Civil Rights Act of 1964,^' had a significant impact on American society. It outlawed discrimination in employment and public accommodation. Other federal laws, including a voting rights act, changed the political and legal landscape of America. Politicians in the South and elsewhere were forced to consider the black vote in their districts.^''

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From the 1940s until the middle of the 1960s mainline civil rights organizations were firmly committed to the principles of individual rights and equality before the law. These principles were abandoned as these groups came nearer their goals. Whitney Young of the National Urban League was one of the early backers of a new regime of preferences, calling for a decade of discrimination in favor of black youth and urging the board of directors of the league to endorse a compensatory, preferential Marshall Plan for black Americans.^' This view was also enunciated at the highest level of government when, on June 4 1965 President Johnson gave the commencement address at Howard University, a predominantly black institution in Washington, D.C.^^ In the address, he asked, "Is reasonable to start a race between two runners, one of whose legs are shackled at the beginning of the race and unshackled halfway into the contest and declare a fair ending without adjusting for the handicap?" The question was analogous to the experience of American blacks being raised from slavery, yet later having to compete with whites never under such a disadvantage.^^ In attempting to answer the question. President Johnson had a suggestion. Borrowing a phrase drafted by a young Daniel Patrick Moynihan, he said, "We seek. . .not just equality as a right and a theory but equality as a fact and equality as a result. "^^ Achieving equality would be a difficult task. It was clear to anyone observing America in the summer of 1965, particularly after the riots in primarily black urban neighborhoods, such as Watts in Los Angeles, that simply making discrimination illegal was not going to produce equality. Yet, this was the first official announcement of a federal endorsement of the principle of equality of results, a possible euphemism for affirmative action.

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49 On September 24 1965 President Johnson signed Executive Order 1 1246, which required companies that contracted with the federal government to act aflBrmatively to guarantee that employees were not treated differently because of their race. As amended, it ordered federal contractors to take affirmative action to ensure that apphcants are employed, and that employees are treated during employment without regard to their race, color, religion, sex or national origin. '° It was not clear, however, who would enforce this new requirement. Previously, in February 1965 Johnson created the President's Council on Equal Opportunity, headed by Vice President Hubert Humphrey. During the spring of 1965 Johnson ordered the vice president to develop a program to ensure that federal contractors complied with anti-discrimination laws. The vice president proposed that this function be administered by the President's Council on Equal Opportunity. Johnson endorsed this idea but later changed his mind. It may be that his aides felt that establishing such a high profile job in the White House would draw controversy. Whether that was the prime consideration or not, the president ultimately decided to abolish the council with Executive Order 1 1246. The duty of ensuring that government contractors abided by the dictates of the civil rights laws would fall instead to the Labor Department and ultimately to the Office of Federal Contract Compliance (OFCC).^' Recent History of AfTirmative Action: The Late-Twentieth Century Between 1961 and 1981 affirmative action was implemented as a national, state, and local public policy, in employment, contracting, and education areas, by Republican presidents (Richard Nixon, 1969-1974, and Gerald Ford, 1974-1977) as well as Democratic chief executives (John Kennedy, Lyndon Johnson, and Jimmy Carter, 1977-

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50 1981). From 1981 to 1993, two Republican presidents, Ronald Reagan, 1981-1989, and George Bush, 1989-1993, did what they could to end affirmative action programs. However, Democratic president Bill Clinton, 1993-2001, continued the federal 32 government's support of these programs. Lyndon Johnson was one of the originators of affirmative action, and so was his successor, Richard Nixon. The creation and development of affirmative action was a bipartisan affair. The new policy advanced not just in the federal government but also in the states, and not just in the public sector but also in the private sector. During this advancement, it encompassed other racial and ethnic groups, and also women, and it came to possess justifications other than the original remedial one. By the end of the 1970s the policy was officially validated when the Supreme Court refused to condemn 33 affirmative action for its departure fi-om color-blind principles. The pursuit of preferential treatment under Executive Order 1 1246 was part of an increasingly race-conscious civil rights policy, which the Johnson administration left to the incoming administration of Richard Nixon. For several years, the federal Office of Education had interpreted Title VI of the Civil Rights Act of 1964 to require racially balanced integration of public schools. In the electoral area, the concern of the Voting Rights Act of 1965 to eliminate barriers to the ballot box was being transformed by the Department of Justice into an interest in preventing dilution of minority votes that rested on the logic of proportionate representation.^"^ After four years of race riots and black power agitation growing out of the civil rights movement, Nixon's election appeared to signal a return to law and order, a lessened emphasis on civil rights, and the restoration of more traditional equal rights concepts. At the same time, however, it was an article of

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51 liberal and bipartisan faith, expounded in official commission reports, that the riots were caused by racism and discrimination. This determination was the basis on which more rigorous civil rights enforcement could be demanded to prevent renewed urban violence. In such a preventive strategy, enforcement of equal employment opportunity was seen as especially important. By 1969 the bipartisan consensus on which the Civil Rights Act was based had dissipated, and civil rights became a bitterly partisan issue. The Democratic Party was politically identified with the views of the civil rights lobby. Trying to retain the support of organized labor and middle class opinion, however, it failed to disclose much of its growing commitment to race-conscious measures, provoking the intra-party conflict seen in the controversy over quotas in the federal contract program. This division was temporarily made whole by the election of Nixon, whose call for law and order and an 37 end to the riots was dismissed as a code word for opposing civil rights enforcement. Far fi-om being an opponent of civil rights, Richard Nixon was an ardent supporter of them. As chairman of the Government Contracts Committee in the Eisenhower Administration, he showed a willingness to promote employment equality. Political reasons reinforced Nixon's tendency to focus on this area of civil rights policy. Democratic Party unity on civil rights was weak, especially with respect to employment discrimination, where the civil rights lobby and organized labor were at odds. Republicans might have been able to gain politically by forcing the employment bias issue and driving a wedge between significant constituent groups in the Democratic Party. At the same, the Nixon Administration had political reasons for relaxing civil rights enforcement in the area of school desegregation. Heavily dependent on southern

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52 support for his election, Nixon had to accommodate white opposition to racially balanced school integration. These conflicting interests led the Nixon Administration to take a more conservative position on race-conscious remedies in school desegregation and a more liberal one on preferential treatment in employment discrimination policy.^^ In employment discrimination, the Administration proposed to curb bureaucratic excesses while continuing to regard affirmative action as a minority employment program. Instead of attacking quotas and preferential treatment, Nixon officials promised greater administrative efficiency. The Transportation Department, for example, began to accept standardized, multi-employer affirmative action plans in the highway construction industry, as contractors had urged. Denying that the administration was relaxing enforcement pressure, the Secretary of Transportation told congressional Democrats that paperwork and pious words do not achieve equal opportunity resuhs, and resuhs are what we are after. Nixon's major contribution to affirmative action lay in reviving and extending the Philadelphia Plan, a program of race-based hiring goals for the construction industry, inherited from the Johnson Administration.'" Soon after the 1968 election, Nixon designated the economist George Schultz as his secretary of labor, and Schultz, in a speech outlining his department's priorities, stressed the need for special measures to employ blacks. The Secretary wanted to bring back the Philadelphia Plan, and Nixon wanted to do something about racial discrimination on the part of unions. Nixon was aware that restoring the Philadelphia Plan might create tension between two blocks of traditionally Democratic voters, union members and blacks, that could ultimately work to his benefit in seeking a second term in office.''^

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53 In reviving the Philadelphia Plan, Nixon's labor officials had a dilemma to resolve. On the one hand, they faced the comptroller general's objection, which was that the Labor Department could not award a contract and then, later, impose on a contractor a new requirement of specific goals and timetables for hiring minorities. On the other hand, they were cautious of insisting on actual numbers of minorities to be hired as part of the pre-contract negotiation because Title VII of the Civil Rights Act explicitly prohibited preferences in order to achieve racial balance. The drafters of the revised plan decided upon the following formula. The OFCC would establish not a specific number of minorities whom a contractor would have to hire in each area of employment but a target range of minorities to be hired, expressed as a percentage that the contractor would try to meet. In the invitation for bids, the OFCC would make known what these ranges were, and in their bids the contractors would indicate how they might reach these targets. Because there would be no negotiations after the bids were opened, the comptroller general's objections would be satisfied. And because percentages would be used to define the ranges, even though they could be translated into numbers. Title VII's ban on quotas could not be invoked to interfere with the plan. Anticipating fiiture defenses of affirmative action, the drafters maintained that the percentage goals were not quotas, which contractors had only to make a good faith effort to meet them, and that in striving to meet the goals contractors did not have to discriminate against any qualified person.''^ The issue of whether the Philadelphia Plan was in conflict with the color-blind requirements of Title VII eventually moved to the lower federal courts, which ruled that it was not.'*^ With the Supreme Court declining to review the decision, the Labor Department was able to pursue affirmative action in terms of proportional representation.

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54 Yet, in extending affirmative action requirements to construction contractors in cities other than Philadelphia, and then to non-construction contractors everywhere, thus reaching one-third of the nation's workforce, the department did not do so on the basis of any specific findings of discrimination. Instead, department officials assumed that the rest of the nation was like Philadelphia and equally guilty of discrimination. In aimouncing the renewed Philadelphia Plan, Nixon's first OFCC director, Arthur Fletcher, noted that there was a legacy of discrimination against minorities, this discrimination explained obvious imbalances in employment, and visible, measurable goals were needed to correct them.'*' Thus, the OFCC's affirmative action aimed at correcting for societal discrimination, as in everything adverse that had happened to Johnson's metaphorical shackled runner long before he got to the starting line."*^ The first Nixon term produced a second major advance for affirmative action. This involved the Equal Employment Opportunity Commission's (EEOC) effort to define broadly the discrimination outlawed by Title VII. In 1971 the Supreme Court endorsed the commission's new definition of discrimination in the case of Griggs v. Duke Power Co.'*^ The power company required a high school diploma for certain jobs. Many fewer black than white applicants could meet this condition, which the Court unanimously ruled was in violation of Tule VII. In its opinion, the Court stated that Title VII proscribes not only overt discrimination but also practices that are fair in form but discriminatory in operation. It meant practices that have an adverse impact upon minorities. Not even good intent could redeem employment procedures or testing mechanisms that operate as builtin headwinds for minority groups. Only if an employer could demonstrate business necessity, that such procedures or mechanisms had a manifest relationship to the

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55 employment in question, could it avoid Title VII liability. The Griggs decision threw into question every employment practice having a disparate impact upon minorities. Because of the potential liability, employers now had to consider whether or not the percentage of minorities working in their companies represented the percentage of minorities in area labor forces. The decision also created great pressure to hire and promote by race and sex. This pressure would also be feh in 1972, when Congress extended the application of Title VII to state and local governments.''* A third advance for affirmative action under the Nixon Administration concerned the practice of setting aside a certain amount of federal business for minorities. In 1969 Nixon used an executive order to create the Office of Minority Business Enterprise within the Commerce Department, the purpose of which was to distribute $100 million to minority businesses.''^ The office disclaimed awarding grants on the basis of race alone, however, the funds were set aside and went only to minority businesses. Nixon's enthusiasm for developing black capitalism became apparent in 1971, when those administrating the distribution of funds reported to him that their work was done and their function could be eUminated. According to historian Herbert Parmet, Nixon declined to do so, because his interest in what they were doing was too great to let it go out of existence.'" During the presidency of Jimmy Carter, affirmative action accelerated. While Carter stated that he was uncomfortable with any kind of discrimination, whether in the favor of or against people, because of sex or race, many in his administration were committed to affirmative action. The Carter Administration moved into the area of setting aside some government contracts or grant programs for minorities. The concept received

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56 major support in 1977, when Congress passed the Public Works Employment Act/' which required that at least 10 percent of all federal funds granted to state and local governments to build public works projects be used to procure goods and services from minority business enterprises (MBEs). An MBE was any business that was at least 51 percent owned by Negroes, Spanish-speaking, Orientals, Indians, Eskimos, and Aleuts. The law prevented the participation by MBEs whose access to public contracting opportunities is not impaired by the effects of prior discrimination. However, it did not describe how it would be determined which MBE had or had not been impaired by such discrimination. With the passage of this law and the determination of the Carter Administration to move more aggressively in this direction, the number of federal programs that set aside contracts or grants for businesses that matched the list muhiplied. By the 1990s, 162 federal programs would grant some kind of preference based on race 52 or sex, most without authorization from Congress. By the end of the 1 970s, the promotion of affirmative action was concentrated in three areas: colleges and universities; private businesses; and government agencies. The emphasis moved away from trying to make up for past instances of discrimination and toward the direction of attempting to create in various parts of society a microcosm of the larger society. The guiding principle for advocates of affirmative action became diversity rather than discrimination. This new emphasis on diversity made it even more difficult to know how to count by the numbers. During this period, the media devoted a great amount of time to the issue of affirmative action. Many white men, whether or not they had any personal experience with affirmative action, came to believe that the federal government was discriminating against them. Nixon had hoped that affirmative action would drive a

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57 wedge between two traditional Democratic Party constituents; minorities and white bluecollar workers. As noted previously, that was one of the reasons he decided to revive the Philadelphia Plan. He assumed that minorities would see this as a Republican initiative that did something significant to help them and vote Republican in response. What happened in the presidential election of 1980 was the reverse. White blue-collar workers perceived aflRrmative action as a Democratic plan to deprive them of their jobs. These white male voters were called Reagan Democrats, and most analysts agree that they made 53 Ronald Reagan's victory possible. When Reagan became president, many assumed that he would do something to change affirmative action, or at least that is what the Reagan Democrats hoped. Numerous proposals were put forward soon after his election in 1980. Some suggested getting rid of all affirmative action programs. Reagan's first attorney general, William French Smith, said that quotas were discredited and ineffective. Others suggested changing the regulations so that only larger companies with a minimum of 250 employees and $1 million worth of contracts would be subjected to the goals and timetables regulations of the OFCC. That would have eliminated 75 percent of the 200,000 companies that were under the control of the OFCC in the early 1980s.^'' Daniel Seligman argued that affirmative action would probably survive Ronald Reagan and that if it did it would survive anything.'^ Meanwhile, many in the Reagan Administration, including Clarence Thomas, then the conservative chairman of the EEOC, and William Bradford Reynolds, the conservative assistant attorney general for civil rights, said that quotas should be eliminated. However, Secretary of Labor Ray Donovan, a more important official in the administration, was against terminating the use

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58 of goals and timetables. Anyone wanting to reduce or eliminate the OFCC would have to gain the president's approval to supersede Donovan's decision. And, as Seligman suggested, that would not happen. Moreover, while the business community was unhappy with some of the affirmative action regulations, they were not advocating an end to the OFCC or for repeal of Executive Order 1 1246.^^ When Reagan was reelected in 1984, many thought that he would finally do something concerning affirmative action. The following year, there was a well-publicized dispute between Donovan and Ed Meese, the attorney general, regarding affirmative action. The media indicated that everyone believed that Reagan's second term would bring about the end of affirmative action or at least the end of Executive Order 1 1246. In August 1985 there were rumors that Reagan would at least amend the order. At that time, Anne Fisher explained why it would not happen."^^ According to Fisher, what the dispute over affirmative action, during the summer of 1985, revealed was that big business liked regulations. Regulations generally provided larger enterprises with an advantage over smaller ones, which cannot afford to hire the number of bureaucrats needed to comply with the array of regulations. In the case of affirmative action, almost every large business had spent a great deal of time and money creating an affirmative action bureaucracy to encounter successfully the federal bureaucracy at the OFCC. They understood what was expected of them and were not willing to try something completely new. More importantly, they had found that federally sanctioned goals and timetables provided them an edge against anyone who brought a lawsuit based on race or sex discrimination. The average business with federal contracts could argue not only that they did not discriminate but also that they were working with the federal government to bring

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59 about affirmative action. The discussion terminated when the National Association of Manufacturers came out in favor of affirmative action. In December 1985 Congress lent support to this effort, when it sent a letter signed by two hundred members to President 58 Reagan urging him not to tamper with affirmative action. Reagan's successor to the presidency, George Bush, followed his direction. He vetoed the Civil Rights Act of 1990, declaring it a quota bill. Bush signed the Civil Rights Act of 1991, only after he was convinced that it would not bring about quotas and that if he vetoed it two-thirds of both the House of Representatives and the Senate were prepared to override the veto. Bush publicly projected the image of a president opposed to quotas, yet he did nothing about Executive Order 1 1246 or the OFCC. Later, President Bill Clinton apparently had no desire to reexamine the issue of affirmative action or to do anything other than follow the policies of the Carter administration Throughout two terms as president, Clinton made it clear that he preferred to leave the entire issue alone. History of Affirmative Action in Higher Education Black Americans found themselves in a predicament prior to World War II. Then, most black men and women lived out of common view in rural communities, mainly in the South Approximately 90 percent lived in poverty .^^ They earned less than half what whites earned. The education they received was markedly inferior to what whites received. Black children in the South went to predominantly, if not exclusively, black schools, in which on average pupil-teacher ratios were one-quarter greater than those in white schools. Terms in black schools were 1 0 percent shorter than in white schools and black teachers were paid half the salary of white teachers.^' The median amount of education received by blacks aged 25-29 was about seven years. Only 12 percent of

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60 blacks aged 25-29 had completed high school and less than 2 percent had received a college degree.^^ World War II generated a great demand for factory labor and a new wave of migration from the South to the North, trends that did much to better the material circumstances of blacks. Educational levels also increased for blacks as they moved from the rural South to the urban North and as Southern states improved black schools in an effort to slow the outward migration of cheap labor. Despite these gains, little progress was made in opening the best class of occupations to blacks.^'' The early years following World War II brought several Supreme Court rulings that changed the impact of the Constitution on black Americans. Most of these decisions involved educational opportunity. In 1938, the Supreme Court rendered an opinion in the case of Missouri ex rel. Gaines v. Canada, that found that the state of Missouri had violated the Equal Protection Clause of the Fourteenth Amendment by barring blacks from attending the state university's law school, giving them tuition money instead to attend an out-of-state law school. In 1950 the Court went fiirther, deciding in the case of Sweatt V. Painter that the state of Texas could not satisfy the Fourteenth Amendment by establishing a separate law school for blacks. Later, in 1954 the Supreme Court handed down a unanimous decision in the case of Brown v. Board of Education, putting an end to school desegregation in the South. In the early 1960s, the outlook for blacks was quite uncertain. Their economic position had improved significantly but was still quite inferior to that of whites. Although blacks had acquired important new constitutional rights, the aforementioned Supreme Court decisions had not yet produced much tangible change. In particular regard to higher education, colleges and professional schools enrolled few black students. For example, in

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61 1965 only 4 .8 percent of all college students were black .^* The position of blacks in selective colleges and universities was even more marginal than in higher education generally. Occasionally, a particular college attempted to attract black students As early as 1835 Oberlin College declared that education of people of color is a matter of great interest and should be encouraged and sustained at its institution.^^ Beginning in 1941 Antioch College initiated plans to recruit black students and managed to enroll 123 black undergraduates before ending the program in 1955. However, prior to 1960 no selective 70 college or university made efforts to recruit substantial numbers of blacks. By the mid-1960s, amid rising concern over civil rights, a number of institutions began to recruit black students. Nevertheless, the numbers actually enrolled remained small, with blacks making up only 1 percent of the enrollment of selective New England colleges in 1965.^' According to one author, the reasons for this were explainable. The selective colleges would rather be selective than integrated.^^ Therefore, although they might recruit black students, they did not modify their regular standards for admission and financial aid. Their academic standards were too demanding to accommodate more than a small number of black students, and their tuition was more than most of those who were admitted could afford. Similarly, few blacks were enrolled in professional schools. In 1965 barely 1 percent of all law students were black, and over one-third of them were enrolled in all black schools.'^ Only 2 percent of all medical students were black, and more than three-fourths of them attended two all black institutions, Howard University and Meharry Medical College.''' In the years that followed, most leading colleges and professional schools became convinced that they had a responsibility in helping to educate minority students Often

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62 motivated by student protests on their own campuses, college and university officials initiated active programs to recruit minority applicants and to take race into consideration in the admissions process by accepting qualified black students even if they had lower grades and test scores than most white students. Some institutions stated that they were acting out of a desire to rectify past racial injustices. However, most college and university leaders adopted these policies for two other reasons, both related to the traditional aims of their institutions. First, they sought to enrich the education of all their students by including race as another element in assembling a diverse student body of varying talents, backgrounds, and perspectives. Second, perceiving a need for more members of minority groups in business, government, and the professions, they acted on the conviction that minority students would have a special opportunity to become leaders in all areas of society. These efforts soon appeared to be successful. According to one study, the percentage of blacks enrolled in Ivy League colleges increased fi"om 2.8 percent in 1967 to 6.3 percent in 1976, while the percentages in other selective colleges and universities grew from 1.7 percent to 4.8 percent.^' At the same time, the proportion of black medical students had risen to 6 .3 percent by 1975, and black law students had increased their share to 4.5 percent . Much had changed, however, from the early efforts to recruit black students to the methods employed in the 1970s. The ideological commitment that was so evident earlier had led many institutions to place an emphasis on recruiting disadvantaged students from poor communities. It was often assumed that once minority students were admitted, they would quickly become assimilated. However, the absorption of black students into higher education turned out to be a complex matter. Some black students were disillusioned by

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63 their experiences in white institutions, and there was debate on many campuses about admissions criteria, support programs, residential arrangements, and curricular offerings. While selective colleges and universities continued efforts to recruit minority students, often increasing their admissions staffs for this purpose, the number of black matriculants at these schools began to reach a level of stability. Also, by the midto late 1970s, many liberal arts colleges had discontinued their programs directed toward enrolling high-risk • 77 or under-prepared blacks, while adopting other modes of minonty recruitment. The law was not instrumental in increasing minority enrollments. To the contrary, some college and university administrators feared that race-conscious admissions might violate Title VI of the Civil Rights Act, which stated, in part, that no person in the United States shall, on the grounds of race, color, or national origin be subjected to discrimination under any program or activity receiving federal financial assistance. By the early 1970s, however, federal government agencies and commissions had incorporated reports on student enrollment into the affirmative action plans they required of colleges and universities, thereby seeming to make race-conscious admissions not only permissible but mandatory. As the economic conditions of colleges and universities improved in the late1 980s, there was a resurgence of recruitment of minority students, particularly black students.'^ At the same time, competition for places at the most selective colleges and universities was intensifying. Black students were now competing not only with rising numbers of very well qualified white applicants but also with much larger numbers of well prepai ed Asian Americans and Hispanics The resuh of this competition was that the percentages of black students remained largely constant through the 1980s, while the relative numbers of Asian Americans and Hispanics increased. Yet,

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64 during the entire period from the beginning of the civil rights movement to the 1980s, the percentage of black students graduating from colleges and professional schools grew enormously. From 1960 to 1995 the percentage of blacks aged 25 to 29 who had graduated from college rose from 5.4 percent to 15.4 percent.^^ Similarly, the percentage of medical students who were black rose from 2.2 percent inl964 to 8. 1 percent in 1995 80 It was in higher education that the diversity rationale for aflBrmative action emerged. The argument for rationale contended that there is educational value in a racially and ethnically diverse student body, because people of color enhance the learning environment by providing intellectual perspectives otherwise missing on campus. The diversity rationale was tied explicitly to numbers of minorities admitted. If there were too few admitted, they might become isolated on campus, their education might suffer, and their slight presence would not adequately enrich the educational experience available to all students.^' At the undergraduate level, there was no lack of colleges where black and other minorities might be admitted under the same academic standards as all other students. Most likely, had there been no affirmative action, the same numbers of minority students would have been enrolled in undergraduate institutions. Only the distribution of students would have changed. In regard to professional and graduate schools, the total number of minorities enrolled probably would have been lower, with the distribution of these students also altered. Most aggressively pursued by the more select undergraduate colleges and most graduate and professional schools, affirmative action thus was a policy that drew minority students into schools otherwise beyond their reach. It was carried out

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65 on the understanding, perhaps well expressed by Alexander Heard, the chancellor of Vanderbilt University, that to treat minority students equally they must be treated differently.^^ As an example of this approach, the medical school at the University of California at Davis decided to treat minority applicants differently after it enrolled its first class in 1968. The school had no special admissions program for minority students, and the fifty students in that first class included no blacks, no Hispanics, no native-Americans, and three Asians. Over the next two years, the school established a special admissions program that admitted five blacks and three Hispanics in 1970 and, the class size having been doubled to one hundred, four blacks, nine Hispanics, and two Asians in 1971. Had the school not employed special admissions policies, it would have admitted, under the standards applying to all other students, four Asians in 1970 and one black and eight Asians in 1971.^^ During the balance of the 1 970s, affirmative action continued to gain acceptance, including vital legal support from the Supreme Court. In higher education, though the federal government was not going to intervene against race-based admissions policies, it was still possible that students who believed such policies had discriminated against them might bring a lawsuit. In addition, a student challenging a race-based admissions policy at a public institution might claim that it violated not only Title VI but also the Fourteenth Amendment's equal protection clause, which applies to the states. In 1978 the Supreme Court decided this type of case, a majority of five Justices ruling in Regents of the University of California v. Bakke that neither the Constitution nor Title VI prohibits a university from taking race into account in its admissions procedures.

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66 It has been argued that preferential treatment combines justice and expediency, and that, despite appearances to the contrary, it is actually an effective way of enforcing the colorblind equal rights principle. Since the nondiscrimination principle of Title VII and the executive orders was in large measure abrogated from the outset in the 1960s, it is uncertain that matters would have been better had equal opportunity been enforced as intended. The fact is that it never really was tried. Yet, it is questionable that the politicization of civil rights under race-conscious affirmative action saved the nation from social convulsion, or conversely, that enforcement of equal opportunity as intended 85 would have propelled blacks mto social revolution. To conclude that the urban disorders of the 1 960s that provided the rationale for affirmative action were caused by white racism, as official commissions at the time declared, is to acknowledge that the problem was not that the equal rights principle was tried and found deficient. Race-conscious policies were adopted by federal officials at the urging of the civil rights lobby without seriously attempting to implement the equal rights principle. A political decision was made to revive race as a criterion of public policy in the belief that race-based decision making, when employed in the service of a good cause and used not to stigmatize or offend those whose rights are thereby denied, has no corrupting effect, but rather is consistent with democratic justice. Combined with practical political considerations, this was the underiying rationale of the Johnson and Nixon administrations' support of affirmative action. The Debate Over Affirmative Action The arguments favoring and opposing racial affirmative action have been easy enough to state in ways that make them seem appealing. However, because neither the

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67 Constitution nor federal statutes speak clearly to the issue, the Supreme Court has had great difficulty in its efforts to produce a stable resolution of the affirmative action debate. The arguments favoring and opposing affirmative action were both rooted in the belief that racial discrimination is morally wrong, constitutionally impermissible under the Fifth and Fourteenth Amendments, and prohibited by federal anti-discrimination statutes such as Title VII and the Voting Rights Act. Although each side in the affirmative action debate has claimed that its position is based on the proposition that race is virtually always an impermissible legislative classification, the two sides have diverged when confi-onted with the problem of how to deal with the issue of past discrimination. Compensation for past discrimination has not necessarily been the only, or even the best, potential justification for affirmative action. Some commentators have argued that the best justification for affirmative action is the need to avoid a permanent underclass that is identified by race, regardless of the reason for the initial emergence of that underclass. Nevertheless, the remedy for past discrimination justification has been the justification on which the Supreme Court, and most members of the public, appear to have focused. Advocates of affirmative action have begun their arguments with the proposition that racial discrimination is wrong because race is rarely, if ever, a legitimate basis for governmental classification.^^ Unfortunately, however, racial discrimination has been persistently present since the establishment of the nation.^ Much of this discrimination was officially mandated, such as the laws regulating slavery,^' and the laws requiring segregation in the use of public facihties.^^ Although the Supreme Court has been charged with the responsibility of defending the rights of racial minorities,^' it has not

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68 always done so .^"* The Court upheld the institution of slavery in the case of Scott v. Sandford^^ When that case was negated by the Civil War and the subsequent Reconstruction amendments to the Constitution, the Court adopted strict readings of those amendments in the Slatighter-House Cases^^ and narrow interpretations of Reconstruction statutes in subsequent cases. The Court invalidated the Civil Rights Act of 1 886 in The Five Civil Rights Cases on federalism grounds. This permitted Jim Crow laws to perpetuate the economic and social disadvantage of former black slaves. Those laws matured into a regime of official segregation that the Supreme Court then upheld in the case of Plessy v. Ferguson,^^ which endorsed the constitutionality of separate but equal public facilities. Although the Court nominally rejected Plessy in Brown v. Board of Education, invalidating the practice of de jure segregated education, the Court delayed implementation of any meaningful remedy,'"' and uhimately interpreted its ruling in Brown to permit the continued education of black children in de facto segregated schools that were inferior to the schools in which white children were educated. '"^ According to proponents of affirmative action, the historical treatment of racial minorities, especially blacks, as inferior has had a pervasive effect on society, causing race to remain either a conscious or unconscious factor in virtually all societal decision making. The racial attitudes that continue to emanate from the country's long history of discrimination have placed racial minorities in a disadvantaged position in the competition for social resources. As a result, minorities continue to be systematically underrepresented relative to their proportion of the population in the allocation of educational, employment, and political opportunities. This, in turn, has caused racial

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69 minorities to have lower standards of living, poorer health, and shorter life expectancies than members of the white majority. Proponents of affirmative action contend that the only way to compensate for the historical disadvantage of racial minorities is through the prospective race-conscious allocation of educational, employment, and political resources to minorities through affirmative action programs. Prospective race neutrality cannot provide adequate compensation for past inequities. It can only solidify the existing advantages that the white majority has over racial minorities. Once affirmative action programs have neutralized this unfair advantage, such programs can be eliminated and all * • 103 races can coexist on equal terms in a color-blmd society. Opponents of affirmative action have also begun with the proposition that racial discrimination because it rarely, if ever, is a legitimate basis on which to rest governmental classifications."^'' There have been periods during which the nation has failed to respect this fundamental principle of racial equality by tolerating the institutions of slavery and official segregation. The Supreme Court has been implicated in unfortunate acts of racial discrimination through the issuance of decisions such as Scott v. Sandford and Plessy v. Fergeson. However, those decisions serve as embarrassing reminders that the country must exercise constant vigilance to avoid a recurrence of racial discrimination that distinguished a regrettable time in the nation's history. The principle of racial equality demonstrates the need to treat people as individuals rather than as mere members of racial groups. Therefore, the disadvantages that individual members of racial minority groups have suffered as a result of identifiable acts of past discrimination should be neutralized through the implementation of remedies that will fully compensate those individuals."^ However, remedies that go beyond compensation for identifiable

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70 acts of racial discrimination, and provide for preferential treatment based on mere membership in a racial minority group, constitute the ver> same type of racial discrimination that originally caused the need for a remedy. In addition, such remedies harm the beneficiaries of affirmative action by promoting dependence on government largess rather than self-sufficiency, and by stigmatizing beneficiaries as undeserving of 1 07 the benefits and accomplishments that they secure. Notes 'See, Mar\' Frances Berr*'. "Affinnative Action: Why We Need It. Why Is It Under Attack," in The Affirmative Action Debate, ed. George E. Curry (Reading, Mass.; Addison-Wesley, 1996), 300-301. -Ibid. ^The Declaration OF Independence para. 2 (U.S. 1776). ^60 U.S. 393 (1857). '163 U.S. 537. 16 S. Ct. 1138, 41 L. Ed. 256 (1896). ''See, Lynne Eisagaine. Affirmative Action: A Reference Handbook (Santa Barbara, Cal.: ABC-CLIO, 1999), 27-28. See generally, James MacGregor Bums, The Workshop of Democracy: From the Emancipation Proclamation to the Era of the New Deal (New York: Vintage Books, 1985), for a discussion of federal government policy failures. ^See Slaughter-House Cases, 83 U.S. 36, 21 L. Ed. 394 (1873); The Five Civil Rights Cases. 109 U.S. 3, 3 S. Ct. 18, 27 L. Ed. 835 (1883); and Pless> v. Furguson, 163 U.S. 537, 16 S. Ct. 1 138, 41 L. Ed. 256 (1896). See also, Kermit L. Hall, ed.. The Oxford Companion to the Supreme Court of the United States (New York: Oxford Universit>' Press, 1992). 149. '^See Buchanan V. Warley , 245 U.S. 60, 38 S. Ct. 16, 62 L. Ed. 149 (1917): Shelly v. Kraemer, 334 U.S. 1. 68 S. Ct. 836, 92 L, Ed. 1161 (1948); Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938); McLuarin v. Oklahoma State Regents. 339 U.S. 637, 70 S. Ct. 851, 94 L. Ed. 1 149 (1950); Sweatt v. Painter, 339 U.S. 629, 70 S. Ct. 848. 94 L. Ed. 1 1 14 (1950). '"See, Philip F. Rubio, J History of Affirmative Action, 1619-2000 (Jackson: University Press of Mississippi. 2001), 34. ' ' See. Jo Ann Ooiman Robinson, ed. . A ffirmative A ction: A Documentary History ( Westport, Conn. : Greenwood Press, 2001), 4, for a reproduction of the First Freedmen's Bill, March 3, 1865. Therein, Congress established what has been called the original federal civil rights agenc>'. The bureau proNided federally fiinded assistance, in the form of housing, employment, food, legal aid. and schooling, to white refijgees who supported the Union and especially blacks released from slaverv'. Although the first enabling legislation stipulated that assistance could include the distribution to refiigees and freedmen of abandoned, confiscated, or purchased land in acre parcels. President Johnson returned most of such land to the original Confederate owners. "'See. Rubio. A History of Affirmative Action. 34. See also. Edward C. Smith, ed.. The Constitution of the United States with Case Summaries, 1 1* ed. (New York: Barnes and Noble, 1979), 52-53; Alfred Avins, ed.. The Reconstruction Amendments' Debates: The Legislative History and Contemporary Debates in Congress on the 75'*, 14"', and 1 S"" Amendments (Richmond: Virginia Commission on Constitutional Government. 1967), 200-268. 335-417; and W, E. B. Du Bois, Black Reconstruction in America, 18601880, cliapters 8-9 (Cleveland: Meridian. 1968); for te.xt, debate, and discussion of the Fourteenth and Fifteenth Amendments. AdditionaUy. Section 1 of the Fourteenth Amendment significantly contained the first use of the phrase equal protection in a proposed constitutional pro\'ision. See, Bernard Schwartz, ed.. Statutory History of the United States: Civil Rights Part 7 (New York: Chelsea House, 1970), 185. For

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71 modem critics of afBrmative action who cite the Fourteenth and Fifteenth Amendments as racially neutral or color blind, see, e.g., Paul D. Moreno. "Racial Classifications and Reconstruction Legislation," Journal of Southern History 61, (2) (1995): 271-304. On slaver>' and white supremacy as the cornerstone of Confederate secession, see. Du Bois. Black Reconstruction, 48-53. '^See. Girardeau A. Spaim. The Law of Affirmative Action: Twenty-Five Years of Supreme Court Decisions on Race and Remedies (New York: New York Universit)' Press, 2000), 3-4. '"See, Rubio.yl History of Affirmative Action, 35. See, John David Skentny, The Ironies of Affirmative Action Politics: Culture and Justice in America (Chicago: University of Chicago Press. 1996), 6. "See, Rubio, A History of Affirmative Action, 35-37. See also, Schwartz, Civil Rights Part 7,619. '^See, Berry, ""Affirmative Action," 299-313. The author contended that little progress resulted for blacks. The federal compliance programs were routinely understaffed and they lacked enforcement authority. '^See, Darien A. McWhirter, TTie End of Affirmative Action: WTiere Do We Go from Here (New York: Carol Publishing Group, 1996). 30. '^Ibid., 32. "Ibid. Exec. Order No. 9980. 3 C.F.R. 720-721 (1943-1948), reprinted in 1948 U.S.C.C.S. 2671 (1948). "'^'Taylor stated that he chose the plirase affirmative action rather than positive action because it was alliterative. Exec. Order No. 10.925. 3 C.F.R. 448. 449-50 (1959-1963), reprinted in 1961 U.S.C.C.A.N. 1274(1961). ^'See, Howard Ball, The Bakke Case: Race, Education, and Affirmative Action (Lawrence: University Press of Kansas. 2000), 8. "See, McWhirter, The End of Affirmative Action, 32-33. See also. Berry, "Affirmative Action," 302303. Title VII of the Civil Rights Act of 1964 and its amendments were enacted to end discrimination by large private employers, whether or not they had government contracts. The Equal Employment Opportunity Commission, which was established under the act. was to resolve complaints. The act aims to compensate employees for illegal discrimination and to encourage employers to end discrimination. It calls for voluntary action. A valid affirmative action plan includes a systematic, comprehensive, and reviewable effort to dismantle discrimination processes. Measiu^s that implicitly take race, sex, national origin, or religion into account may also be implemented apart from an affirmative action plan. Affirmative action may involve simply remaining aware of the need to broaden the search for qualified individuals unlike those already in the workforce. ^^42 U.S.C. §§ 2000e-2000e-17 (2000). ^'Ibid., 33. Voting Rights Act of 1965. 42 U.S.C. §§ 1973-1973gg (10) (2000). ^^See, Terry Eastland. Ending Affirmative Action: A Case for Color Blind Justice (New York: Basic Books. 1996), 43. '^or a transcript of President Johnson's conmiencement speech see, "Johnson Address to Howard University Graduates," NeM' York Times. 5 June 1965. For a summary of the speech see. Eastland, Ending Affirmative Action, 39-40. '^See, Eisaguirre. Affirmative Action. 86-87. for a summary of facts regarding the status of blacks compared to whites quoted bv Johnson in the address: in 1930 the unemployment rate for blacks and whites was about the same, but 35 years later the black rate of unemployment was twice as high; in 1948 the 8 percent unemployment rate for black teenage boys was actually less than that of whites, but by 1964 the rate liad grown to 23 percent for blacks versus 13 percent for whites; from 1952 to 1963 tlie median income of black families compared to white families dropped firom 57 percent to 53 percent; between 1955 and 1957, 22 percent of experienced black workers were unemployed at some point, but for the period 1961 tlirough 1963 that proportion rose to 29 percent; since 1947 the number of white families living in poverty decreased 27 percent while the number of poorer nonwhite families decreased only 3 percent; in 1963 a fifth of the white population had incomes below the poverty line, compared to half of the black population; the infant mortality rate of nonwhites in 1940 was 70 percent greater than whites, and twenty-two years later it was 90 percent greater. "*See, Garth E. Pauley. The Modem Presidency and Civil Rights: Rhetoric on Race from Roose\'elt to Nixon (College Station: Texas A&M University Press, 2001), 200. The author points out that some blacks initially praised Johnson's commencement address at Howard University as a landmark of progress but then denounced the speech upon discovering its roots. Presidential speechwriters had grotmded Johnson's

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72 call for affirmative action in Daniel Patrick Moynihan's report, "The Negro Family: The Case for National Action," a study that civil rights adx ocates called fuel for new racism, given its emphasis on black inadequacies rather than white racism as the main cause of ghetto pathology. -'See. McWhirter, The End of Affirmative Action, 33-34. See also, M. Ali Raza, A. Janell Anderson, and Harry Glynn Custred Jr., The Ups and Downs of Affirmative Action Preferences (Westport, Conn.; Praeger. 1999), 3. ^°See. Ball, The Bakke Case, 8. Executive Order No. 1 1,246 called for each federal agenc>' to establish and maintain a positive program of equal employment opportunity for all civilian employees and applicants for employment. In this effort, the use of numerical goals and timetables was apqjropriate for an institution to employ. An agency must show a good faith effort to diversify; to include groups that historically have not been included due to racial, ethnic, or religious discrimination. ^'Ibid. Exec. Order No. 11,246, 3 C.F.R. 339, 340 (1964-1965), reprinted in 1965 U.S.C. C.A.N. 4416 (1965). ^'See. Ball. The Bakke Case. 8-9. ^'See. Eastland Ending Affirmative Action. 42. ^''See. Lino A. Graglia, Disaster by Decree: The Supreme Court Decisions on Race and the Schools (Ithaca: Cornell University Press, 1976), 46-66. ^*See, Abigail M. Themstrom. Whose Votes Count? .Affirmative Action and Minority Rights (Cambridge: Harvard University Press, 1987) 1-30. ^^See. Herman Belz, Equality: A Quarter-Century of Affirmative Action Transformed (New Brunswick, N.J.: Transaction Publishers. 1991), 34. 3'lbid. ^^See, Stephen E. Ambrose. Nixon: The Education of a Politician 191 3-1962 (New York: Simon and Schuster, 1987), 395-96. ''See, Belz, Equality, 35. ''"See. Senate Committee on the Judiciar>', Hearings on Equal Employment Opportunity Procedure, 91" Cong , 1" sess., 1969, 193. See also, Belz, Equality, 35. "'See, Dean J. Kotlowski, Nixon's Civil Rights: Politics, Principle, and Policy (Cambridge: Harvard University Press, 2001). 99-102. for a summary of the origins of tlie Philadelphia Plan. "^See. Eastland, Ending Affinnative .Action, 50-51. "'Ibid, 51. ""^e, e.g.. Contractors Ass'n v. Secretary of Ubor. 311 F. Supp. 1002 (E.D. Pa. 1970). "^See, Hugh Da\is Graham, The Civil Rights Era: Origins and Development of. National Policy, 19601972 (New York: Oxford University Press, 1990), 326-327. ''^See. Eastland, Ending Affirmative Action. 53. "'401 U.S. 424, 91 S. Q. 849, 28 L. Ed. 2d 158 (1971). "^See. EasUand. Ending .Affirmative Action, 53-54. '^See Exec. Order No. 11,458, 3 C.F.R. 109 (1969), reprinted in 1969 U.S.C.C.A.N. 2874 (1969). ^°See. Herbert S. Parmet. Richard Nixon 's America (New York: Little. Brown. 1990). 598. See also. Eastland, Ending Affirmative .Action, 54-55. "42 U.S.C. §§ 6701-6710 (1982). ^See McWhirter, The End of Affirmative Action, 39-40. ^'ibid.. 41-42. -"Ibid., 42. "See, Daniel Seligman, "Affirmative Action is Here to Stay," Fortune, 19 April 1982. 143-162. ^*See, McWhirter, The End of Affirmative Action, 43. "See, Anne Fisher, "Businessmen Like to Hire by the Numbers," Fortune. 16 September 1985, 26-30. ^*See. McWhirter, The End of Affirmative Action. 43-44. ''Ibid.. 44. *°See, Gerald D. Jaynes and Robin M. Williams Jr., eds., A Common Destiny: Blacks and .American Society (Washington. DC: National Academy Press. 1989). 277. *'See, David Card and Alan B. Krueger, "School Quality and BlackWhite Relative Earnings: A Direct Assessment." The Quarterly Journal of Economics 107. no. 1 (1992): 151-200. *"See. Javnes and Williams. v4 Common Destiny. 334.

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73 *^See, Mary Francis Berr>', "Affirmative Action: Why We Need It, Why It Is Under Attack," in The Affirmative Action Debate, ed. George E. Curry (Reading, Mass.; AddisonWesley Publishing, 1996), 301. The autlior noted that in the area of higher education, most blacks attended predominantly black colleges, many of which were established b\' states as segregated institutions. Most concentrated on teacher training, to the exclusion of professional education. A few blacks went to largely white institutions. In 1954, that figure was about 1 percent of entering freshman. *''See. Department of Education, Digest of Educational Statistics (Washington, D.C.: GPO, 1997), 17. See also, William G. Bowen and Derek Bok, The Shape of the River: Long-Term Consequences of Considering Race in College and University Admissions (Princeton: Princeton University Press, 1998), 1-2. *-305 U.S. 337. 59 S. Ct. 232, 83 L. Ed. 208 (1938). ^339 U.S. 629. 70 S. Ct 848. 94 L. Ed. 1114 (1950). *^347 U.S. 483. 74 S. Ct. 686. 98 L. Ed. 873 (1954). See also, Bowen and Bok. The Shape of the River, 2-3. **See. Andrew Hacker, ed.. U/S: A Statistical Portrait of the American People (New York: Viking. 1983). 247. *'See, Elizabeth A. DuflS' and Idana Goldberg, Crafting a Class: College Admissions and Financial Aid, 1955-1994 (Princeton: Princeton University Press, 1998), 137. ''"See. Bowen and Bok. The Shape of the River, 4. ^'See, S. A. Kendrick, "The Coming Segregation of Our Selective Colleges," College Board Review 66 (winter 1967). ^%id. ^^See Robert M. O'Neil, Preferential Admissions: Equalizing Access to Legal Education, 1979 U. ToL. L. Rev. 300. ''See, Herbert W. Nickens, Timothy P. Read\'. and Robert G. Petersdorf, "Project 3000 b\' 2000: Racial and Ethnic Diversity in U.S. Medical Schools," New England Journal of Medicine 331 (7) (1994): 472. See also, Bowen and Bok. The Shape of the River, 5. ^'See, David Karen. "The Politics of Class, Race and Gender: Access to Higher Education in the United States, 1960-1986," American Journal of Education 99 (2) (1991): 208, 217. ^*See, James E. Blackwell, Mainstreaming Outsiders: The Production of Black Professionals (2d ed., Dix Hills, N.Y.: General Hall, 1987), 103, 290. See also, Bowen and Bok, The Shape of the River, 7. ^ 'See, Dufiy' and Goldberg. Crafting a Class, 152. '*Ibid., 155. ^'See. Department of Education, Digest of Educational Statistics (Washington. DC: GPO, 1997), 17. ^°See, Michael T. Nettles and Laura W. Pema. The African American Education Data Book: Higher and Adult Education (Fairfax. Va.: Frederick D. Patterson Research Institute of the College FundAJNCE, 1997), 330. See also. Bowen and Bok. The Shape of the River, 9-10. ^^See Han'ard College Admissions Plan, appended to Justice Powell's opinion in Regents of the Univ. of Cal. V. Bakke, 438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978). See also, EasUand, Ending Affirmative Action, 49-50. ^^See, McGeorge Bund>', "The Issue Before the Courts: Who Gets Ahead in America," Atlantic Monthly, November 1977, 54. See also, Eastland, Ending Affirmative Action, 50. 61. See. Eastland, Ending Affirmative Action, 58-60. 438 U.S. 265. 98 S. Ct. 2733. 57 L. Ed. 2d 750 (1978). See, Eastland, Ending Affirmative Action, 6085, See, Belz, Equality, 40. *%id..4I. 87c See, e.g., Owen Fiss, "Groups and the Equal Protection Clause," Journal of Philosophy and PubUc Affairs 5 (1976): 107, 147-70; Ruth Co\ker,Anti -Subordination Above All: Sex, Race and Equal Protection, 61 N.Y.U. L. Rev. 1003. 1005 (1986); cf Kathleen M. Sullivan, Comment: Sins of Discrimination: Last Term's Affirmative Action Cases. 100 Harv. L. Rev. 78, 91-98 (1986). ^^See, Girardeau A. Sparm. The Law of Affirmative Action: Twenty-Five Years of Supreme Court Decisions on Race and Remedies (New York: New York University Press, 2(XX)), 5-6. ^'^See, e.g., Wygant v. Jackson Bd. of Educ, 476 U.S. 267, 273 (1986) (Powell, J.) ("This Court has consistently repudiated distinctions between citizens solely because of their ancestr\' as being odious to a free people whose institutions are founded upon the doctrine of equality").

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74 '^See. e.g., Adarand Constructors v. Pena. 515 U.S. 200, 271-76 (1995) (Ginsburg, J., dissenting) (discussing lingering eifects of past discrimination); cf. id at 236 (O'Connor, J.) (same). ^^See, e.g.. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 291 (Powell, J.) (discussing slavery origins of Fourteenth Amendment); id at 326 (Brennan, J., concurring in part and dissenting in part) (same). e.g., Adarand Constructors \ . Pena. 200, 272 (Ginsburg, J. dissenting) (discussing Pless>' v. Ferguson endorsement of official segregation). ''See United States v. Carolene Prods., 304 U.S. 144, 153 n. 4 (1938). '"See, Spann, The Law of Affirmative Action, 6. '^60 U.S. 393 (1857). '^83 U.S. 36 (1873). ^'See, e.g.. United States v. Harris. 106 U.S. 629 (1882) (Ku Klux Klan Act of 1871 did not permit prosecution of white lynch mob because the Fourteenth Amendment did not reach private conduct); United States V. Cruikshank. 92 U.S. 542 (1875) (criminal conspiracy provisions of the Enforcement Act of 1870 did not permit prosecution for lynching blacks who were not engaged in act of petitioning federal government as required b\' the Fourteenth Amendment. '*109 U.S. 3 (1883). " ''163 U.S. 537. 16 S. Ct. 1138. 41 L. Ed. 256 (1896). '^See Brown I, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954) (invalidating separate but equal public schools). '"'See Brown II, 349 U.S. 294, 74 S. Ct. 686, 98 L. Ed. 873 (1955) (ordering dismantling of segregated school systems with all deliberate speed). '"^See.e.g.. Milliken v. Bradley, 418 U.S. 717 (1974) (refusing to order inter-district school desegregation remedies that included white suburban students necessary for significant desegregation of inner-city schools); San Antonio Independent School District v. Rodriguez, 41 1 U.S. 1 (1973) (upholding constitutionality of property tax-based public school financing despite great discrepancies in fimds allocated to white and minority schools). See. Spann. The Law of Affirmative Action. 7. '°-^Ibid. '^See, e.g.. Adarand. 515 U.S. 200, 262) (O'Connor, J.) ("The Court observed, correctly, that distinctions between citizens solely because of their ancestrj' are b^' their very natiu^e odious to a free people whose institutions are founded upon the doctrine of equality, and that racial discriminations are in most circumstances irrelevant and therefore prohibited."); id. at 239 (Scalia, J., concurring in part) (government cannot have compelling interest in racial classifications, even to compensate for past discrimination). '°^See, e.g., id. at 236 (vigilant strict scrutiny necessary to prevent recurrence of racial discrimination). '°*See, e.g.. City of Richmondv. J. A. Croson Co.. 488 U.S. 469. 518-19 (Kennedy. J., concurring) (rule limiting racial preferences to what is necessary to compensate actual xictims of discrimination is appealing). '°'See, e.g., Bakke. 438 U.S. 265. 298-99 (Powell, J.) (affirmative action can harm intended beneficiaries through stigmatization). See. Spann. The Law of Affirmative Action, 8-9.

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CHAPTER 4 LEGAL fflSTORICAL ANTECEDENTS OF AFFIRMATIVE ACTION Introduction In 1978 the Supreme Court began hearing cases that raised accusations of reverse discrimination and other critical issues concerning the constitutionality of affirmative action policies. According to some, the prevailing attitude of the Court when presiding over these significant cases was to be intent on reversing progress achieved in Civil Rights legislation.' Others stated that these cases clarified matters in order to ease the transition toward lawfiil democratic, and equitable policy.^ Several cases pertaining to higher education and other institutions have enlightened the discussion, such as Regents of the University of California v. Bakke,^ Steelworkers v. Weber, ^ and Adarand Contractors, Inc. v. Pena^ Another example is the Fifth Circuit's decision in Hopwood v. Texas,^ the Fourth Circuit's decision in Podheresky v. KirwanJ and the role that the Supreme Court played in future policy by deciding not to hear these cases. The Bakke case represented the heart of the issue, but several subsequent cases highlighted the differences in interpretation of the legal view. In 1978 Bakke, and Weber heard one year later, became the first Supreme Court cases to weaken previously enacted executive orders, amendments, policies and programs focusing on equity and the alleviation of discrimination by means of affirmative action. Bakke maintained that a race preferential program where student spaces are set aside for individuals of a preferred 75

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76 category was unconstitutional, yet race could be lawftilly be considered as one of the criteria for academic admissions.^ In 1995 a University of Maryland scholarship program targeting black students was found to be racially discriminatory by the Fourth Circuit. The Supreme Court declined to hear Podberesky. As a resuU it became more difficult to administer raceexclusive financial aid scholarships. The Department of Education advised colleges and universities that the original decision held that they may establish race-targeted scholarships to remedy the present effects of prior discrimination, provided that they are narrowly tailored.^" Also in 1995 the Supreme Court decided to htds Adarand . This case attracted much attention due to its restrictive ruling. However, many believed that it was a logical progression after several other cases avoided the issues highlighted in this case. Again, the Court held that racial classifications need to be scrutinized and narrowly tailored in order to be effective. While the limits may not have directly affected racebased admissions and hiring practices in colleges and universities, they did aggravate those receiving federal funds, including financial aid packages.^' The Fifth Circuit in 1 996 found in Hopwood that certain admissions procedures at the University of Texas School of Law violated the Equal Protection Clause of the Fourteenth Amendment. The court found that the use of race or ethnicity in admissions to promote the diversity of a student body was illegal. Although an appeals court cannot reverse a Supreme Court decision, i/o/^wooJ maintained that the university's program did not use race and ethnicity in a proper manner to promote diversity in its law school. Since the Supreme Court refijsed to hear this case, some institutions considered it a sign to reexamine race-conscious programs, admission procedures, and financial aid. Other

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77 institutions ignored the circumstance, since the Hopwood ruUng appeared to conflict with previous Supreme Court decisions that endorsed, even though narrowly, affirmative action, causing administrators to find new ways to encourage diversity while minimizing the mention of race.^^ The Early Cases In 1936 the first legal efforts leading to the 1954 Brown v. Board of EducatwrP decision challenged the exclusion of blacks fi-om the University of Maryland in the case o^ Pearson v. Murray In 1938 the Supreme Court, m Missouri ex re I. Gaines v. Canada,^^ invalidated a Missouri plan that denied admission to blacks but paid the tuition for black residents who attended law school outside the state, other states had similar programs. In 1948 the Supreme Court, in Sipuel v. Board of Regents}^ required Oklahoma to enroll a black law student because the state had no separate black law school. Oklahoma officials then admitted blacks but literally roped black students off fi-om whites in the comer of classrooms and other school facilities. In McLaurin v. Oklahoma State Regents,^^ the Supreme Court held this practice to be unconstitutional. In Texas, the state went so far as to establish a separate law school for blacks, Texas State, later renamed Texas Southern University, to keep blacks from enrolling at the University of Texas. But in Sweatt v. Painter,^^ the Supreme Court held that there was such a substantial differential in the two schools that the practice could not be sanctioned. South Carolina also established a black law school rather than grant admissions to black students at white colleges. The most notable case decided by the Supreme Court under Chief Justice Warren was its decision in 1954 in Brown I, in which it declared racial segregation

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78 20 unconstitutional and began the process of eliminating apartheid in the South. There were a few segregation cases during the years 1946 to 1953, when Frederick Vinson was ' Chief Justice, but these did not confront the separate but equal rationale of Plessy v. Fergusoji,^^ and merely ruled that particular circumstances did not meet the equal part of the formula.^^ Current problems with affirmative action can be traced back to Brown. In BroM'ti I, the Supreme Court invalidated the separate but equal doctrine of Plessy, and held that, under the Equal Protection Clause of the Fourteenth Amendment, governmental use of racial classification was constitutionally suspect.^^ Thereafter, in Brown 11^'^ the Court not only held that the Constitution required a remedy for the continuing effects of past discrimination but stressed that the use of racial classifications was constitutionally compelled where necessary to provide an effective remedy for the prior constitutional violation. As a result. Brown has been interpreted to support the various following propositions: racial classifications are constitutionally prohibited; racial classifications are constitutionally permissible; and racial classifications are constitutionally required. The uncertainty concerning proper characterization of affirmative action initiatives caused the Supreme Court to enter into an extended period of doctrinal instability and confiasion.^^ The school desegregation cases decided in the aftermath of Brown are not viewed as affirmative action cases, but those cases were nevertheless the precursors of contemporary affirmative action. They generally produced majority opinions that authorized the use of race-conscious remedies to dismantle formally segregated school systems. Brown II required desegregation of previously segregated school systems with all deliberate speed. Subsequent cases emphasized that contemplated desegregation

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79 plans had to be eflFective in order to be acceptable. In Swami v. Charlotte-Mecklenburg Board of Mucation^^ the Supreme Court authorized the use of race-based pupil assignment as a permissible remedy for prior constitutional violations.^^ The Court also endorsed the use of mathematical ratios reflecting racial proportionality in the school district population as targets in formulating desegregation plans to remedy constitutional violations, and it did so despite a federal law that prohibited pupil assignment for the purpose of achieving racial balance.^" In a companion case. North Carolina State Board of Education v. Swami,^^ the Court held that a prohibition on race-based pupil assignment in favor of colorblind pupil assignment was also unconstitutional because it interfered with the school board's ability to create an effective remedy for past segregation.^^ The Supreme Court remained supportive of affirmative efforts to promote school desegregation while the desegregation effort remained in the South, but the Court lost its * 33 resolve as the desegregation effort moved into northern states m the 1970s. In 1973 the Supreme Court considered the case of Keys v. School District No. I, Denver, Colorado.^'* The Court's decision limited court ordered desegregation to de jure rather than de facto segregated school systems.^' In the \974 Milliken v. Bradley'^ decision, the Court held that race-conscious desegregation remedies could not be imposed on suburban Detroit schools because segregation in the suburbs had resulted from de facto residential segregation rather than de jure school district policies. This was the first instance since Brown I that the Supreme Court had invalidated any school desegregation plan.^* The lessening of the Court's support for school desegregation reflected a loss of public support for desegregated schools in the North.^^ In a climate of deceasing public support for school desegregation, the Supreme Court began to consider

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80 the constitutionality of affirmative action plans that adopted race-conscious methods for attaining societal goals other than the elimination of de jure school segregation. In the mid-1970s the Supreme Court began to issue fractured decisions in considering the politically controversial use of these plans that have come to be known as affirmative action. And, it took fifteen years before the Court would be able to issue a majority opinion in an affirmative action case.'"' The issue of racial affirmative action first came before the Supreme Court in the 1974 case ofDeFwiis v. Odegaard!^^ DeFunis had been accepted at several law schools, but he wanted to live and practice in Seattle, and the University of Washington Law School had twice denied him admission. The school had a separate admissions process for blacks, Chicanos, Indians, and Filipinos, and DeFunis learned that of the thirty-seven minority candidates accepted for fall 1 97 1 , thirty-six had combined test and grade scores below his. Believing federal courts were too sympathetic to minorities, DeFunis sued in state court on claims of racial bias. He prevailed, and the trial court ordered him admitted to the law school. By the time the case reached the Supreme Court, DeFunis had been attending law school and would graduate regardless of the outcome. Five members of the Court, in a per curiam opinion, declared the question moot. As a resuh, the Court vacated a decision by the Supreme Court of Washington upholding the challenged admissions program, even though the case was not moot as a matter of Washington state law."^ Four Justices dissented from the Supreme Court's mootness holding in DeFunis.'*^ The dissenters agreed with both parties that the case was not moot. They also argued that the public interest in avoiding repetitious litigation required the Court to address the merits of the affirmative action issue promptly rather than sidestep the constitutional

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81 issue because of its difficulty /*^ Only Justice Douglas addressed the merits, arguing that even benign racial classifications should be subject to strict scrutiny."*^ Nevertheless, the Supreme Court's vacating the Supreme Court of Washington decision on mootness grounds nullified the lower court decisions and legally left the University of Washington Law School affirmative action program in place. For this reason, DeFunis has been considered a decision that facilitated rather than frustrated affirmative action."*^ In the 1977 case of United Jewish Organizatiom v. Carey, '^^ the Supreme Court considered the constitutionality of a race-conscious legislative apportionment plan adopted by the state of New York that was designed to increase the voting strength of blacks in order to comply wdth the Voting Rights Act of 1965. The constitutionality of the apportionment plan was challenged by members of a Hasidic Jewish community whose voting strength had been diminished under the plan.''^ Although the Court rejected the constitutional challenge, it was unable to agree upon a majority opinion. Four Justices stated that the racial classifications used in the plan were constitutionally permissible because they were adopted in order to comply with federal statute; that they were permissible even though no past constitutional violation had been established mandating the use of a remedial plan; and that they were not invalid because of their utilization of numerical quotas as targets. Three Justices stated that the plan was constitutionally permissible because it did not stigmatize either whites or minorities, and because it did not burden whites by minimizing or unfairly canceling out white voting strength.^' Two Justices voted to uphold the plan because, even though it was based upon a racial classification, there was no indication that it was adopted with the intention of disadvantaging white voters, as would be required for a Fourteenth Amendment

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82 violation. Only one participating Justice, Burger, dissented, finding the percentage targets of the apportionment plan to constitute impermissible racial quotas that were 53 inconsistent with the meking pot objective of achieving a homogeneous society. DeFunis and United Jewish Organizations set the terms of the legal affirmative action debate that was to follow. DeFunis prefigured the fact that a majority of the Court would be unable to agree upon anything other than the contentiousness of the affirmative action issue. United JeM'ish Organizations indicated that all of the Justices except Justice Burger were prepared to accept the constitutionality of race-conscious affirmative action plans." In Defimis, Justice Douglas introduced both the idea that benign affirmative action should be subjected to heightened judicial scrutiny and the concern that affirmative action might inadvertently stigmatize its intended minority beneficiaries.^^ These concerns were endorsed and enlarged upon by Justice Brennan in United JeM' ish Organizations.^^ In this case also. Justice White introduced consideration of the degree of burden on innocent whites as a constitutionally significant factor in determining the validity of an affirmative action plan,"^ and Justice Burger introduced the idea of hostility to racial quotas as inconsistent with the concept of a colorblind society. Moreover, in United Jewish Organizations, four Justices upheld the use of explicit racial quotas, even in the absence of a determined constitutional violation, because they were authorized by /-> 60 Congress. The Bakke Case On August 3 1973 Allan Bakke met with Peter Storandt in the admissions office of the University of California at Davis Medical School (UC Davis). Bakke was thirtythree, an aerospace engineer at a NASA research center, and white. Storandt was assistant

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83 dean of student affairs at the medical school. Bakke had applied twice to UC Davis, in 1972 and 1973, and had been rejected both times. In addition, Bakke had been turned away by more than a dozen medical schools; most had told him that he was too old. Even UC Davis officials had cited present age as a factor in Bakke' s rejection. But Bakke was convinced that he had lost his medical school place to a minority applicant with lower grades and test scores. After his first rejection in 1972, he discovered that the UC Davis medical school had an affirmative action program that set aside sixteen places in an entering class of one hundred for members of disadvantaged minorities. These sixteen places were known as Task Force seats, filled through a separate admissions process.^' Before his meeting with Bakke, Storandt studied Bakke' s file and found that he had good grades and test scores. Bakke's undergraduate GPA was 3.46 and his scores on the science, verbal, and math sections of the Medical College Admission Test (MCAT) were in the 97*, 96*, and the 94* percentiles. Bakke's grades were higher than those of half of the students admitted to the eighty-four places not filled by Task Force students, and his MCAT scores were considerably higher than average. Compared to the Task Force students, Bakke had higher grades than all but one of those admitted in 1973. Their undergraduate grades averaged 2.88, and their MCAT scores on the science, verbal, and math sections averae ed in the 46*, 24*, and 35* percentiles." The major reason provided by UC Davis for Bakke's rejections was that he had received lukewarm reviews on his admission interviews with medical school faculty and students. The sole interviewer in 1972 had reported that Bakke's main handicap was the unavoidable fact that he was now 33 years of age. But he considered Bakke a very desirable applicant and recommended him. However, his interview score, added to his

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84 grade and test scores, left Bakke two points short of admission. When he applied again in 1973, after suggesting that he might sue the university for giving preference to minority applicants with lower scores, his interview scores dropped sharply. The dean of student affairs, who had received Bakke' s first complaint, interviewed him personally and reported him to be a rather rigidly oriented young man who was certainly not an outstanding candidate for the medical school." At their meeting in August 1973, Storandt explained the Task Force program to Bakke and gave him several documents about it. He later wrote to Bakke and encouraged him to pursue his research into admissions policies based on quota orientated minority recruiting. Storandt also included several legal references and a Washington state court opinion, directing the state's law school to admit a rejected white applicant, Marco DeFunis. Ruling in 1974,^'' the Supreme Court declined to hear the state's appeal on the ground that the case was moot because DeFunis was nearing graduation. Justice Brennan predicted in dissent that reverse discrimination cases would not disappear fi-om the Court's docket. They would, instead, inevitably return to the federal courts and ultimately to the Court. Bakke filed suit against the Regents of the University of California in state court in June 1974, alleging he was discriminated against because of his race contrary to the requirement of the equal protection clause of the Fourteenth Amendment and § 601 of Title VI. The latter states that no person shall, on the grounds of race, be excluded from participation in or be denied benefits of or be subjected to discrimination under any program receiving federal financial assistance. Bakke won his case in the trial court, and the California Supreme Court upheld the ruling, striking down the UC Davis minority admissions program and ordering Bakke' s admission to the medical school.

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85 Unlike the Washington court in the DeFtmis case, however, the state court issued a stay of its order while the Regents asked the Supreme Court to review the ruling. This avoided any mootness problem when the Court granted the Regents' petition for certiorari in 1977.^^ In a 5-4 decision, the U.S. Supreme Court affirmed this resuh, declaring the affirmative action plan unlawful. The political, legal, and moral impact of the decision was unclear, however, because deep divisions within the Court prevented the adoption of a majority opinion on central issues of affirmative action policy. Five Justices voted to uphold Bakke's claim, but disagreed about why the affirmative action plan was unlawful.'' A second group of five Justices approved race as a legitimate factor in professional school admission policies, but disagreed on the constitutional reasoning to support this conclusion.'^ Justice Powell, presenting a centrist position, belonged to both groups. He announced the judgment of the Court and delivered 73 • * an opinion declaring the affirmative action plan an unconstitutional quota. His opimon also approved the use of racial classification as a matter of constitutional principle. No other Justice agreed with his reasoning, however. Chief Justice Burger and Justices Rehnquist, Stewart, and Stevens concurred in the judgment for Bakke, but joined in an opinion written by Justice Stevens justifying the result on narrow statutory grounds. The second group, consisting of Justices Brerman, Blackmun, Marshall, and White, agreed with Powell that racial classification was constitutional, but used different reasoning to reach the conclusion that the UC Davis plan was constitutional.''* The problem faced by Justice Powell and the Brennan group was how they might justify racial classification under the Constitution and Title VI. Despite the broad extent of preferential policies in education and in public and private employment, and

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86 notwithstanding Supreme Court decisions approving racial remedies in school desegregation and voting rights cases, this task was difficult.^^ First, Bakke did not arise in a context of historic southern racial discrimination, as the school and voting cases did. Second, Title VI, like Title VII, most obviously protected any person against exclusion on racial grounds. The question in Bakke was whether the rules and standards defining equality and unlawilil discrimination were the same for blacks and whites. In dealing with desegregation, the Court had evolved the doctrine since the mid-1960s that racial classifications, although not necessarily unconstitutional, were suspect. They could be implemented only if justified by a compelling state interest, if narrowly structured to serve that interest, and if no alternative non-racial means were available. This has been referred to as the strict scrutiny standard of judicial review. Whenever it has been employed, the questioned racial classification had been found unlawfiil. Bakke posed the issue of whether a racial classification intended to benefit blacks should also be subjected to strict scrutiny analysis. Justice Powell held that the UC Davis plan should be examined under the strict scrutiny standard. Asserting that Title VI incorporated a constitutional standard,^^ he decided the case on constitutional as well as statutory grounds. Restating traditional equal rights theory, he said that the guarantees of the Fourteenth Amendment were personal rights that had the same meaning for all persons irrespective of race. Rejecting the argument that strict scrutiny review should apply only to racial classifications considered hostile to minorities. Justice Powell argued that such an approach would reduce civil rights law to a subjective political process. He fiarther criticized the theory of giving preferences to overcome societal discrimination. "By hitching the meaning of the Equal

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87 Protection Clause to these transitory considerations," he warned, "we would be holding, as a constitutional principle, that judicial scrutiny of classifications touching on racial and 78 ethnic background may vary with the ebb and flow of political forces. Justice Powell acknowledged the Court's recent approval of race-conscious measures. These were premised on findings of constitutional or statutory violations resuhing in identified, race-based injuries to individuals. In Bakke, by contrast, there was no determination that UC Davis had discriminated, and "we have never approved a classification" he asserted, "that aids persons perceived as members of relatively victimized groups at the expense of other innocent individuals in the absence of judicial, legislative, or administrative findings of constitutional or statutory violations." While conceding that the state had a legitimate interest in eliminating the effect of identified discrimination, he stated this was a far more focused goal than remedying the effects of societal discrimination, "an amorphous concept of injury that may be ageless in its reach into the past."''^ Having argued against preferential treatment. Justice Powell proceeded to offer a justification for racial preference. He offered the view that race was a legitimate factor to be taken into account in securing the constitutionally permissible goal of a diverse student body. Student diversity promoted an atmosphere of speculation, excitement, and creativity. It was a goal protected by the First Amendment. Race, therefore, could properly be considered. The way to do so, however, was not by setting a racial quota, but by regarding race as a plus in a competitive process in which each individual would be evaluated as an individual and no one would be rejected simply because of race.*"

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88 Justice Powell's concept of diversity attempted to justify racial preference in a manner consistent with the principle of merit. The Brennan group that voted to uphold the medical school admission policy was less ambiguous in seeking to accommodate the demand for preferential treatment emanating from the civil rights establishment in the late 1970s. The next stage of the civil rights movement envisioned by supporters of affirmative action was to discard the make whole theory of relief for individual victims of discrimination and adopt racial preferences as compensation for historic societal discrimination against blacks as a group. Although it was originally used to expand the scope of preferential policy, the make whole theory now constituted a limitation on new racism. The lower courts were divided on the question of whether remedies could be awarded only to identifiable victims of discrimination or also conferred on members of the protected group who had not suffered individual injury. In either case, the prerequisite for awarding relief was a finding of discrimination. The opinion of the Brennan bloc in Bakke, however, obviated the issue of make whole relief by contending that racial preference could be awarded in the absence of unlawful discrimination in order to counter the effects of societal discrimination.^' The Brennan bloc accepted the equivalence of Title VI and the Constitution concerning the meaning of equality and unlawful discrimination. Neither in the Constitution nor the Civil Rights Act, however, did it find a requirement of racial neutrality. The school desegregation decisions were cited to show the constitutional permissibility of race-conscious remedies . To argue that Title VI permitted racial decision making, when it expressly prohibited it, challenged Justice Brennan's interpretive skill. In general, Brennan simply argued that the statute did not mean what it

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89 said. He stated that it was inconceivable, in view of the legislative intent to encourage voluntary compliance with the Civil Rights Act, that Congress would forbid voluntary race-conscious remedies by recipients of federal aid to cure acknowledged or obvious statutory violations.^^ Recipients who were guilty of discrimination should not be expected to await a finding of unlawful practices by a court or administrative agency. The opinion then argued that although Congress prohibited discrimination in Title VI, it did not define it. According to Brennan, Congress specifically eschewed any static definition of discrimination in favor of broad language that could be shaped by experience, administrative necessity, and evolving judicial doctrine.^'' The constitutional standard of discrimination was supposed to supply the content of Title VI, the Brennan group reasoned, but since this standard was in a state of flux and rapid evolution, the inference followed that the meaning of discrimination in the statute, expressed as it was in cryptic language, should evolve v^th the interpretation of the demands of the Constitution. Therefore, "any claim that the use of racial criteria is barred by the plain language of the statute," the opinion stated, "must fail in light of the remedial purpose of Title VI and its legislative history."^^ Having disposed of Title VI, the Brennan opinion elaborated on the constitutionality of race-conscious policies. Although race classification was suspect and required strict scrutiny, the UC Davis affirmative action plan was not suspect. It designated minorities for special treatment, but it did not, however, stigmatize whites, which as a class were not burdened with disabilities or subjected to unequal treatment. The admissions policy did not contravene the cardinal principle that racial classifications that stigmatize, because the classifications are drawn on the presumption that one race is

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90 inferior to another or because the classifications put the weight of government behind racial hatred and separatism, are invalid without more. But if strict scrutiny were inapplicable, so was the more relaxed rational basis standard, the test ordinarily applied in non-racial situations. The Brennan group proposed an intermediate standard of review under which the state could employ a racial classification that was shown to serve important governmental objectives and was substantially related to achievement of those objectives.^^ The purpose of remedying the effects of past societal discrimination was sufficiently important to justify a race-conscious admission policy where there was a sound basis for concluding that minority under-representation was substantial and chronic, and the handicap of past discrimination impeded access of minorities to the medical school. In separate dissenting opinions. Justices Marshall and Blackmun defended compensatory racial preference. Justice Marshall reasoned that since the Constitution had been interpreted for 200 years as permitting the most ingenious and pervasive forms of discrimination against blacks, he could not believe that the Constitution stands as a barrier to state actions attempting to remedy the effects of that discrimination. Dismissing the consideration that unlawful discriminatory action was a necessary basis for preferential treatment, he declared, "It is unnecessary in 20*^ century [sic] America to have individual Negroes demonstrate that they have been victims of racial discrimination." Blacks' different experience entitled them to greater protection as special wards under the Fourteenth Amendment, where it was necessary to remedy the effects of past discrimination. Justice Blackmun, looking to a time when "persons will be regarded as persons," nevertheless believed it was impossible at present "to arrange an

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91 affirmative action program in a racially neutral way and have it successful." "In order to get beyond racism," he said, "we must first take account of race. There is no other way. 88 And in order to treat some persons equally, we must treat them differently." Justice Stevens, joined by Justices Rehnquist, Stewart, and Chief Justice Burger, submitted the fifth opinion in Bakke. Concurring in the judgment that Bakke be admitted to the medical school, Stevens stated that admission policy clearly violated Title VI. The law plainly prohibited the exclusion of any individual fi-om a federally fianded program because of race, regardless of whether the exclusion carried a racial stigma. The Stevens bloc, therefore, considered it unnecessary to examine the constitutional issue and 1 • • 89 inappropriate to inquire whether race could ever be a factor m an admission program. The resuh in Bakke could be considered a compromise. Critics of affirmative action alleged success because the Court upheld the reverse discrimination claim and struck down the admission policy as a quota. Supporters of affirmative action declared success because a majority of the Justices approved race-conscious measures for remedial purposes. Bakke could also be considered not to be a compromise because the competing principles, equal rights for individuals without distinction of race and compensatory preference for racial groups, were ultimately irreconcilable.^" Since only one member of the majority voting to strike down the quota was willing to deal with the problem of affirmative action in constitutional and public policy terms, the deeper meaning of Bakke, as the Brennan bloc stated, was to confirm existing policies of racial preference in educational programs and in employment .^' In this basic sense, Bakke was a victory for affirmative action, despite the appearance of a compromise and notwithstanding Justice Powell's attempt to reconcile equal rights and

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92 racial group preference. Powell's ingenious effort appealed to many observers, including some opponents of affirmative action, as a pragmatic solution. His opinion avoided broad condemnation of preferential treatment while withholding unqualified approval of raceconscious measures, and possibly even confusing the entire issue of aflfinnative action by insisting on strict scrutiny of compensatory preference.^^ Justice Powell alone, however, required strict scrutiny review of affirmative action, and his defense of individual rights was nullified by his argument that race should be considered a plus in admission poHcies. Once race was admitted to the decision process, it could be subjectively manipulated to 93 reach any number, just as m a quota program. Justice Powell's diversity rationale, based on First Amendment considerations, was apparently intended to make less troublesome the issue of preferential treatment by asserting, in effect, that if institutions and employers were not too blatant about it, they could use race-conscious measures and work out their own compromise between the values in conflict. This approach lacked frankness. If there were much confusion in affirmative action policy already, Powell's solution, perhaps, encouraged more of it. Even though Powell's conscientious quest, admired by many and described by one commentator as perhaps the greatest finesse of a searing legal issue in Supreme Court history, it rested on no consensus and no clear doctrinal foundation in anti-discrimination theory.^" In the context of widespread adoption of preferential policies, the Brennan group opinion, in conjunction with Justice Powell's approval of race as a legitimate consideration, emerged as the Court's principal doctrine on the problem of reverse discrimination. Together, these opinions obscured the narrow and opaque opinion of the

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93 Stevens bloc. Although the Brennan group lost on the specific quota in question, it prevailed strategically by presenting a bloc of five Justices, including Powell, who supported race-conscious measures on constitutional grounds. This was a majority in favor of preferential treatment without the requirement of a finding of unlawful discrimination.^^ A more solid majority held preferential remedies constitutional to eliminate the effects of existing discrimination, pursuant to legislative, judicial or administrative findings of unlawful practices. Although Bakke resolved little that was not already, namely that an absolute quota was unlawfial, and consequently technically could be said to stand for very little, it was generally viewed as sanctioning existing affirmative action programs in higher education. Besides, although the decision had no direct effect on Title VII enforcement, in the opinion of one supporter of preferential remedies it "caused a surprisingly large number of people of good will to rethink their commitments to affirmative action and to express a more ready willingness to be forthright and open about efforts taken to cure problems associated with race and sex bias in this nation. "^^ The majority that supported Bakke' s claim may have considered that it would be counterproductive to hand down a decision clearly outlawing reverse discrimination. Such a result would expose educational institutions, corporations, and unions to reverse discrimination lawsuits and outrage the civil rights bureaucracy, minority groups, and liberal opinion in general. Although Bakke might be considered to have added confusion to the issue of affirmative action, the vision of proportional racial representation held out by the Brennan group appeared more likely to be advanced as a resuh of the decision.^^

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94 Weber to Metro Broadcasting: 1979-1990 During the 1980s, the Supreme Court attempted to determine the correct level of scrutiny that affirmative action programs must satisfy in order to remain constitutionally allowable. The process of determining an appropriate standard was difficult because of the shifting legal theories used by plaintiffs in maintaining their cause of action, and because in each case a different kind of affirmative action program was being questioned. Actions challenging affirmative action programs brought during this period were variously resolved by the Fourteenth Amendment, the Fifth Amendment and Title VII of the Civil Rights Act, thereby requiring different constitutional interpretations of different racial or gender classifications. The Court was also required to decide the constitutionality of different types of affirmative action. These differing approaches involved distinguishing between the status of the entity implementing the affirmative 99 action program. Voluntary private affirmative action has been the least controversial of all affirmative action programs. Only one major court decision in this area has been decided. The issue involved concerns the ability of a private entity to use proactive measures to remedy past and present discrimination. Private affirmative action is unique in that neither the Fourteenth nor the Fifth Amendment is applicable, since there is no government action involved. Accordingly, plaintiffs seeking redress fi^om private affirmative action programs are required to rely upon Title VII. The seminal case in this area is United Steehvorkers v. Weber. Weber involved an affirmative action plan contained within a collective bargaining agreement between Kaiser Aluminum and Chemical Corporation and the United Steelworkers. The plan was meant to eliminate the

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95 imbalance that existed in the company's nearly all white craft workforce Kaiser decided to begin a new training program to instruct employees on the necessary skills to become a craft worker, and made the program available to both blacks and whites. But, because blacks has historically been excluded from craft unions, the bargaining agreement required 50 percent of the new trainees be black. This requirement would remain in place until the percentage of black craft workers at the company approximated the percentage of blacks in the local community."^' Brian Weber, a white production worker desiring to participate in the training program, was not chosen to join, even though he had more seniority than several of the black workers chosen. Consequently, Weber challenged the plan as being discriminatory on the basis of race in violation of Title VII. Weber argued that a literal interpretation of §§ 703(a) and (b) prohibited race-conscious affirmative action plans. He also argued that the analysis of Title VII should be applied evenly, regardless of the race of the alleged injured party. While the Court acknowledged some empathy for this argument, it nonetheless interpreted Title VII in light of legislative intent. Writing for the majority. Justice Brennan explained that Title VII should be interpreted within the historical context of its creation. When Congress brought about Title VII, it intended to provide protections to black citizens in the arena of employment, thereby giving them a fair and 1 03 equal opportunity to be included within society's economic sphere. The Court determined that affirmative action achieved this goal, and it would be counterproductive and contrary to the intent of the law to eliminate programs intended to ftjrther the goal.'"'* Justice Brennan next proceeded to interpret § 703(j), which explicitly prohibits quotas, to allow for affirmative action programs. Brennan explained that if Congress

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96 intended to prohibit all voluntary private affirmative action, it would have declared that an employer is not required to engage in affirmative action to balance its workforce, and such actions would be impermissible. The intent of Title VII was to avoid undue federal intrusion. '^^ In conclusion. Justice Brennan stated that Congress enacted Title VII to eliminate the last vestiges of discrimination in this country,'"^ and because affirmative action programs were helpful in this endeavor, they were permissible under the Act. As the majority opinion in Weber discloses, the Court understood the legislative intent of Title VII, and followed its mandate. In doing so, the Court laid out a judicial standard to determine the permissibility of private affirmative action programs according to this understanding. The Court determined that the purpose of the plan must be to eliminate conspicuous racial imbalance in traditionally segregated job categories; not be an absolute bar to the interests of white employees, or otherwise unnecessarily trammel their interests; be a temporary measure intended merely to achieve racial balance rather than to maintain racial balance.'"^ Therefore, by following the legislative intent of Title VII, the Court confirmed the permissibility of affirmative action programs, but limited their scope to prevent any abuses that might occur. Under § 706(g) of Title VII and the Fourteenth Amendment, federal courts have the authority to order employers to implement raceor gender-conscious affirmative action programs. This action is provided only in egregious circumstances, and only when the remedy is narrowly tailored to minimize the burden on white employees. '^"^ This remedy is also difficult to end because it must satisfy the same criteria to be terminated as was required to impose it. A court ordered program will only be concluded when the defendant employer demonstrates that it has achieved a stable racial balance that will not

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97 be immediately destroyed."' The nature of the alleged injury relates to the program's constitutionality. Thus, the reviewing court must determine whether the lower courts' relief was tailored narrowly enough to accomplish the desired remedy. The first court ordered aflBrmative action case was Firefighters Local Union No. 1784 V. Stotts^^^ in which a group of black firefighters filed a class action suit charging the city fire department with discriminatory hiring and promotion practices. The parties later agreed to a consent decree to remedy these practices "'' Subsequently, the black firefighters sought an injunction against the fire department to prevent it from adhering to its seniority system when the department made layoff decisions. The black firefighters contended that, by following the seniority system, they would be the first to be laid off and they would lose the gains that they had achieved pursuant to the consent decree. The federal district court agreed, and ordered that layoffs be made in a manner that would protect the newly hired black firefighters, thereby circumventing the seniority system."'* The firefighters union appealed to the Supreme Court. The Court held that because Title VII specifically protects bona fide seniority systems, and because the union was not a party to the consent decree, the district court abused its discretion in ordering the injunction."^ The Court found that the consent decree did not address the issue of layoffs, nor did it suggest that the seniority system in place should be ignored."^ In addition, it interpreted Title VII to protect bona fide seniority systems."^ The Court determined that the district court had abused its discretion in altering the seniority system in favor of the black firefighters, because the court inadvertently granted competitive seniority to the minority firefighters."^ The Court explained that pursuant to § 706(g), a court may grant

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98 competitive seniority only to victims who have directly suffered from intentional discrimination."^ To their detriment, the black firefighters did not address in their brief the issue of whether the department's seniority system intentionally discriminated against black firefighters. In the absence of an argument to the contrary, the Court presumed that any discriminatory effects were unintentional. Therefore, by basing its decision on the questionable interpretation that only those intentionally discriminated against may receive competitive seniority, the Court disregarded the legislative intent of Title VII as recognized in United Sieeh'orkers, namely to eliminate the effects of prior discrimination. In Sheet Metal Workers' International Ass 'n v. EEOC}^^ the government brought suit under Title VII to enjoin a labor union and its apprenticeship committee from discriminating on the basis of race. The federal district court ordered the defendants to establish a 29 percent minority membership goal to be met by a specified date, and appointed an administrator to make sure that this target was reached. After the union failed to reach the goal, the court, several years later, imposed a fine and ordered the union to implement an amended affirmative action program to increase minority participation. The union unsuccessfully challenged these actions on Title VTI and equal protection grounds. The Supreme Court, in a plurality opinion written by Justice Brennan, again interpreted § 706(g) as not prohibiting federal courts from ordering raceconscious relief to correct past discrimination in appropriate circumstances.'^^ The Court indicated that such relief was not restricted to direct victims of past discrimination. '^^ The Court rejected the EEOC's argument that the legislative history of § 706(g) revealed that it was intended to benefit only identified victims of intentional discrimination, but instead

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99 determined that Title VII could also provide relief for those whom were unintentionally discriminated against. Yet, the Court explained that the purpose of § 706(g) was to assure employers that they would not violate the statute by merely having a racial imbalance in the workforce.'^'* This would prohibit a court from requiring an employer to adopt racial preferences simply to correct to correct a workforce imbalance, thereby precluding any • 125 inequities in the implementation of court ordered affirmative action. In summary, the Court decided that the district court's order was not prohibited, because the union had a history of persistent and conspicuous discrimination and the order did not require union membership for those who had been refused admission for nondiscriminatory reasons. The court also explained that Title VII's purpose is realized by allowing courts to order race-conscious relief as a class remedy. Thus, because the motivation behind the order was to attack the effects of intentional and continuing discriminatory practices against a class that the union refused to address, the district court's order did not violate Title VII. The next case to come before the Supreme Court was International Ass 'n of Firefighters v. City of Cleveland. '^^ In this case, minority firefighters filed a class action against the city of Cleveland, alleging violations of Title VII for discrimination on the basis of race in hiring and promoting. The federal district court adopted, over the union's objection, a consent decree that had been approved of by the plaintiffs and the city. The decree required a specified number of promotions be given to minority firefighters over a four-year period. The union appealed to the Supreme Court. Once more the Court was called upon to interpret § 706(g), this time in relation to a consent decree awarding hiring and promotional preferences to minority union members who were not direct victims of

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100 an employer's intentional discrimination. Adhering to the legislative intent of Title MI, the Court acknowledged that reasonable race-conscious measures intended to acliieve the purposes of Title VII were permissible in situations where the measures imposed were voluntary. Because § 706(g) does not regulate voluntary agreements providing raceconscious relief, the district courts are not constrained by the § 706(g) limits when approving consent decrees. '^^ Accordingly, the Court allowed the parties to arrive at their own solution wathout overiy burdensome intervention. This interpretation is in accord with the true intent of Congress by allowing remedial relief to achieve the aims of Title VII. The last case in the area of court ordered affirmative action programs was United Slates V. Paradise. In this case, the Supreme Court considered a district court order requiring the Alabama Department of Public Safety to promote one black trooper for every white trooper promoted to the rank of corporal. This mandate was limited in duration, and the black trooper promoted must have been qualified for the position The same one to one ratio was also required for upper rank promotions. The district court order was based on findings that the department had a long history of excluding blacks from employment and promotions, thereby providing a basis for a claim of persistent or egregious discrimination. The department also failed to comply with prior court orders. '^^ Despite past resistance, the department complied with the immediate order by promoting eight blacks and whites to the rank of corporal.'^'' In addition, it submitted an affirmative action plan that provided for fair promotional procedures as required by the court. Thereafter, the district court terminated the one to one promotional requirement, and permitted the department's program to control promotions, because the department had

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101 complied with the court's mandate. However, the Department of Justice challenged the district court order, maintaining that it violated the Equal Protection Clause of the 136 Fourteenth Amendment, as it overburdened non-minority troopers. The Supreme Court confirmed the district court order, and held that the promotional requirement did not constitute an equal protection violation Once again writing for a plurality. Justice Brennan stressed that race-conscious affirmative action is a well-established remedy for past and present discrimination.^^' The Court refi"ained from adopting strict scrutiny as the appropriate measure of the constitutionality of affirmative action programs. Brennan acknowledged the Court's inability to reach a consensus on this issue, and in so doing, the Court again avoided the question of the correct level of judicial review to be applied to affirmative action. Brennan ignored the issue of strict scrutiny. Instead, he found that the race-conscious relief ordered was necessary to serve the compelling governmental interest of ending the department's longstanding and pervasive discrimination in its hiring and promotional practices. Justice Brennan also determined that the societal interest in ensuring compliance with federal court orders to be compelling, because of the department's history of noncompliance with similar federal court orders.''"' The promotional mandate also satisfied the narrowly tailored requirement, because it was specifically focused to remedy the effect of the department's discriminatory exclusion of blacks fi-om the upper ranks.''*' In the main, the opinions of the Supreme Court in court ordered affirmative action cases supported an interpretation of the Fourteenth Amendment and Title VII that recognizes the history of these enactments and acknowledges the intent of their fi-amers to provide a remedy to groups that suffered fi-om historic discrimination. By making such

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102 an acknowledgment, it was hoped that federal courts would be able to deal directly with these problems. Therefore, regardless of which standard was applied, support for fair and equitable affirmative action programs was available. ''^^ Voluntary state and local affirmative action programs involve situations where public employers institute programs intended to provide equal employment opportunity' to minorities or women. These programs are subject to the Fourteenth Amendment's Equal Protection Clause, because government action is involved. The case of Wygant v. Jackson Board of Education^^^ involved a collective bargaining contract between a teacher's union and a local board of education. The agreement provided that when layoffs were necessary, those teachers with the least seniority would be furloughed first, except at no time would there be a higher percentage of minority employees laid off than the current percentage of minority personnel employed at the time of the layoff.'"*^ Accordingly, the school district laid-ofif several non-minority teachers with greater seniority over minority teachers with less seniority. Subsequently, the white teachers challenged the layoff policy, alleging that it violated the Equal Protection Clause.'''^ The Supreme Court supported the plaintiffs' claim and found that the layoff provisions violated equal protection under the Fourteenth Amendment. The Court ruled that redressing societal discrimination was not a sufficiently compelling reason to justify the lay off provision in the affirmative action program.'"*^ To justify such programs, the Court required that the defendant provide a specific demonstration of prior discrimination by the governmental entity.''" The Court stated that general societal discrimination was insufficient to provide a compelling state interest, since such discrimination had no relationship to the prior discriminatory hiring practices that the affirmative action

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103 program sought to make up for.'''^ Without a showing of direct discrimination, the Court supposed, the potential for abuse was great, because the program could be continued after its legitimate remedial purpose had been achieved.'''^ Johnson v. Transportation Department, Santa Clara Coiinty^^^ stands as the only major decision determining the legality of a gender-based affirmative action program under Title VII. In this case, the Supreme Court considered a reverse discrimination charge under Title VII against a public employer's selection of a female candidate in compliance with an affirmative action plan. Twenty-two percent of the agency's employees were female, still not one of its 238 skilled craft workers was a woman. The affirmative action plan included a goal of 36.4 percent female employees in every job category, based on the percentage of women in the area job market. The plaintiff", a male, lost out to a woman in his application for promotion, despite his higher qualification rating. The agency's plan set aside no specific number of positions for women or minorities. Instead, it authorized gender or race to be considered as a factor in evaluating qualified candidates for jobs in which members of such groups were poorly represented. The plaintiff charged the agency with discrimination and was granted judgment by the federal district court. The Ninth Circuit reversed, and the Supreme Court affirmed, by a vote of6to3.'^^ In determining the validity of a voluntary affirmative action plan under Title VII, the Court held that the principles articulated in Steelworkers v. Weber must guide the analysis.'"^ In order to be valid, the plan must first be designed to correct a manifest imbalance, where females are underrepresented in traditionally segregated job categories. To ascertain whether such an imbalance exists, the Court approved the

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104 comparison of the percentages of women in the workforce with those of the general population in jobs for which no special skill is required.'"' This requirement of showing a statistical imbalance is consistent with Weber and the purpose of Title VII, which is to encourage affirmative action. The second consideration was whether the affirmative action plan, as 1 ^ V implemented, unnecessarily hampered the rights of male employees. " The Court reasoned that because the applicant's sex was one of many factors the agency considered, a male applicant's sex did not operate as a complete bar to promotion.'^* In addition, male applicants would still remain eligible for other, non-program promotions. The Court also noted that the agency's affirmative action plan was temporary, and it sought to attain a balanced workforce rather than to maintain a balance. The Court concluded that the agency's voluntary affirmative action program did not unnecessarily infringe upon the plaintiffs equal employment rights. This test, where the Court looks for an evident imbalance in the workforce and then checks to ensure that the rights of nonbeneficiaries of the affirmative action program are not unduly hampered, can be seen as a form of a more lenient scrutiny of voluntary affirmative action programs under Title VII. In City of Richmond V. J. A. Croson Co./^' the city council passed an ordinance requiring major contractors awarded city contracts to subcontract at least 30 percent of the dollar amount of each contract to minority owned businesses. The plan was later challenged on equal protection grounds by a prime contractor, which had lost a municipal contract after being denied a waiver by the city. The Supreme Court applied strict scrutiny to the program, and decided that it was unconstitutional.'^^ The Court held that the city did not prove a compelling governmental interest sufficient to justify the plan

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105 because there were no findings of prior discrimination that would allow for raceconscious mitigation/^^ Therefore, the Court went back to the Wygant analysis, in which a state or local government is required to demonstrate prior intentional discrimination in order to be successful in defending its remedial plan. The Court determined that the strict numerical set aside required more than assertions that discrimination in the construction industry was prevalent or societal.'^'' Even though the city cited factors, such as a lack of working capital, an inability to meet bonding requirements, and a lack of training and experience, contributing to continued discrimination in the field, the Court found that specific acts of prior discrimination were required in order for race-conscious remedies to be applied.^" The Court's requirement of intentional past discrimination, according to some, is not in accord with the intent of the Fourteenth Amendment. Requiring specific instances of apparent discrimination before affirmative action programs are permissible does not assist blacks in being assimilated as fiill members of society. For example. Justice Marshall, in his dissent, explained that there is a great difference between race-conscious remedies employed by a state seeking to correct the effects of past societal discrimination and those meant to perpetuate it.'^^ Thus, Marshall rejected the strict scrutiny approach and argued for an intermediate level of scrutiny, under which the city ordinance in question would have been validated. Generally, the Supreme Court was applying diflFering standards depending on the nature of the claim filed. Under a Title VII analysis, a voluntary state or local affirmative action plan was allowed, assuming that it passed the two-part Weber test. The Title VII analysis would also permit the majority of affirmative action programs to survive so long

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106 as they were fair to both beneficiaries and non-beneficiaries. This analysis comports with the legislative intent of Title VII. In contrast, when applying a Fourteenth Amendment equal protection evaluation, the Court reverted to a strict scrutiny standard, which requires a compelling state interest, and a program narrowly tailored to serve that interest. The application of strict scrutiny to an affirmative action program under review was fatal 1 68 to its existence. Until the case Adarand Contractors, Inc. v. Pe?ia^^^ in 1995 affirmative action programs initiated by the federal government were consistently analyzed under an intermediate level of scrutiny. These programs were granted a more lenient standard of review because of the Supreme Court's deference to Congress. The Court appeared to be impliedly supporting Congress in continuing the process of realizing the overall goal of the Fourteenth Amendment and Title VII to eliminate the effect of discrimination in the woricplace. In Fullilove v. Klutznick}''^ the Court approved the provision of the Public Works Employment Act of 1977'^' requiring that 10 percent of federal funds awarded to state and local government entities, for local public works projects, must be used to purchase services or supplies from minority businesses.''^ The program was challenged by several contractor associations. They alleged that it violated the concept of equal protection inherent in the Due Process Clause of the Fifth Amendment.''^ The Court stated that the congressional objective was to ensure that those contractors receiving federal fLinds would not utilize practices that would permit the effects of past discrimination in public contracting to continue. '''' The Court held that Congress had the authority to enact such legislation pursuant to the Commerce Clause,''^ because the Act imposed economic regulations on private contractors receiving federal

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107 funds. In addition, the Court held that Congress could also impose such requirements on state governments according to its enforcement powers contained in Section Five of the Fourteenth Amendment. The Court explained that the 10 percent set aside program at issue in the case was limited and properly tailored to correct the effects of prior discrimination, and was, therefore, permissible even though some innocent parties may be burdened.'^'' The Court allowed this type of remedy because Congress has broad remedial authority to enforce equal protection guarantees. The Court explained that the provision could apply to minority groups only because it was not intended simply to benefit those groups, but to remedy the effects of prior discrimination by infusing some degree of equity into the contracting process. In general, the Fullilove Court acknowledged congressional authority to implement the legislative intent of the Fourteenth Amendment and other equal protection laws through the use of affirmative action programs. Likewise, mMetro Broadcasting v. FCC}^'^ the Court found that two minority inclusive policies, adopted by the FCC to comply with its statutory duty to promote diversity in programming under the Communications Act of 1934,'^° were valid. One program provided an enhancement to minority owned businesses applying for a radio or television broadcasting license to be used as a factor to determine whether such applicants would receive a license. The other program permitted stations at risk of losing their licenses to transfer the license to a qualifying minority business. Both policies were challenged under the Fifth Amendment Due Process Clause. The Court supported the FCC policies, thereby granting appropriate deference to the congressional intent that these programs remain in place. The racial components of these policies were

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108 examined under an intermediate level of scrutiny, under which the program needed merely to serve an important government purpose, and be substantially related to the attainment of that purpose. The Court recognized that the promotion of broadcast diversity constituted an important purpose, and the program instituted by the FCC was sufficiently tailored to meet that goal. Thus, the affirmative action program did not * * 1 83 establish an equal protection violation. In general, until the Court's 1995 decision xnAdarand, it was assumed that federal affirmative action programs were constitutional as long as they did not exceed certain limits and become unfair to non-beneficiaries. Although the Court in FuUilove did not resolve the question of which specific standard of review would be applied to federal affirmative action programs, the Court in Metro Broadcasting settled on a standard of intermediate scrutiny. This standard provides proper deference to congressional authority to enact affirmative action programs that attempt to achieve the goal of putting an end to racial discrimination.'^'* The /l
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109 percent set aside for all disadvantaged businesses in federal highway contracts pursuant to the Surface Transportation and Uniform Relocation Assistance Act of 1987 (STURAA),^^^ which provides that not less than 10 percent of funds appropriated for highway contracts be expended for the benefit of socially and economically disadvantaged firms. Adarand Constructors, a non-minority firm, submitted the lowest bid on the $100,000 contract, but was not awarded the contract. MCG granted the subcontract to Gonzales Company, a minority business, despite the fact that Adarand 's bid was $1,700 lower. MGC later testified that Adarand would have received the contract except for the incentive provided pursuant to STURAA regulations.'^^ Adarand filed suit in federal district court. Both the district court and the Tenth Circuit found in favor of DOT. Adarand appealed to the Supreme Court, alleging that the racial classification and the presumption of social and economic disadvantage, are an unfair burden on white businesses that do not benefit fi-om them. Adarand also argued that the additional compensation for hiring disadvantaged firms impermissibly burdened its equal protection rights as a non-beneficiary. In considering the case, the Court began with a historical overview of the Fifth Amendment Due Process Clause and its relation to equal protection. It narrated the American-Japanese internment cases,'^' which granted almost unlimited deference to federal regulations by separating the obligations of equal protection as between the states and the federal government. '^^ Later, the Court began to recognize that the Due Process Clause in the Fifth Amendment incorporated the concept of equal protection. By 1975 the Court explicitly provided that the equal protection provisions in the Fifth and

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11 Fourteenth Amendments were equivalent.'^'' Therefore, the Court agreed with Adarand that its claim pursuant to the Fifth Amendment provided sufficient grounds upon which to base an equal protection violation. This finding allowed the Court to apply a Fourteenth Amendment equal protection analysis to the regulation at issue. After concluding that a Fourteenth Amendment analysis should apply, despite the fact that suit was brought under the Fifth Amendment, the Court next reviewed a procession of affirmative action cases where affirmative action plans were challenged pursuant to the Fourteenth Amendment. In all of the cases considered, the burdened group was a member of the majority in the citizenry. In the early cases, such as Bakke,^^^ Fullilove, and Wygant, the Court could not gamer a majority, but a plurality of the Court both validated and invalidated affirmative action programs. In these cases, the Justices disagreed on the level of scrutiny to be applied to affirmative action programs which provide a preference based on race and are designed to address discrimination and its effects on those burdened. The conservative Justices, which included Powell, Stewart, Rehnquist and Stevens, supported the application of strict scrutiny. Under this analysis, any racial classification would be a suspect classification and, therefore, receive the most involved examination of the need for the program and the extent to which the program attained that need without exceeding its limits. The liberal Justices, Brennan, Blackmun and Marshall, on the other hand, considered such programs to be benign in nature, since the intent of the programs was to remedy past discrimination and its lasting effects. These Justices supported an intermediate level of scrutiny. Under this approach, remedial programs implemented to correct past and present racial discrimination would receive a less strenuous level of review and have a better opportunity to survive a constitutional

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11] examination. Consequently, Justice O'Connor determined that there was no prior consensus on the proper standard of review to be applied concerning race-conscious classifications under equal protection analysis. The Court next discussed the strict scrutiny analysis applied in Croson^^ citing it as the controlling precedent on the issue. The Court extended Croson to make strict 202 scrutiny applicable to all government programs that involved race. In doing so, the Court overruled its decision in Metro Broadcasting^^^ which determined that raceconscious federal programs intended to benefit minorities constituted benign discrimination and, thus, were subject to an intermediate level of scrutiny. Justice O'Connor supported the Court's decision to abandon Metro Broadcasting. The Court determined that the Metro Broadcasting decision incorrectly interpreted the Fourteenth and Fifth Amendments to protect groups rather than persons. Therefore, the Court held that any governmental classification based on race must be subject to strict scrutiny.^°^ In general, the Court held that federal classifications must serve a compelling governmental interest and be narrowly tailored to meet that interest in order to be valid. The Court intimated that only in cases of overt discrimination would the validity of federal affirmative action programs be upheld. The majority alluded to Paradise^^^ as an example of the types of facts necessary to justify an affirmative action program.^'" In Paradise, the Court validated an affirmative action program because of the pervasive, systematic, and obstinate discriminatory conduct in the Alabama Department of Public Safety. Therefore, only in such outrageous situations will the Court approve a program to remedy discriminatory practices. In all other cases, the application of strict scrutiny will

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112 find programs designed to provide equal opportunity to be unconstitutional because they violate equal protection.^'' Thus, by the mid-1990s, the Supreme Court had narrowly come together around the strict scrutiny standard of review for affirmative action, while purportedly not condemning all programs. Numerous questions remained unanswered for policy makers and the public as they struggled with the constitutional scope of a variety of affirmative action programs. Neal Devins opined that the decisions are so highly indeterminate as to be essentially nonbonding, and they, therefore, encourage resolution in the political, rather than judicial, processes. Notes 'See, John R. Howard. "Affirmative Action in Historical Perspective." in Affirmative Action 's Testament of Hope: Strategies for a NeMEra in Higher Education, ed. Mildred Garcia (Albanv: State Universityof New York Press, 1 997). 33-45. 'See, Mildred Garcia, ed.. Affirmative Action 's Testament of Hope, 12-13. ^438 U.S. 265. 98 S. Ct. 2733. 57 L. Ed. 2d 750 (1978). "443 U.S. 193. 99 S. Ct. 2721, 61 L. Ed. 2d 480 (1979). ^513 U.S. 1012, 1 15 S. Ct. 569. 130 L. Ed. 2d 486 (1995). *78 F. 3''' 932 (5* Cir. 1996). cert, denied. 518 U.S. 1033, 1 16 S. Ct. 2581. 135 L. Ed. 2d 1097 (1996). '38 F. 3'^'^ 147 (4* Cir. 1994), cert denied 514 U.S. 1128. 115 S. Ct. 2001. 131 L. Ed.2d 1002 (1995). *See, Beverly Lindsay and Manuel J. Justiz, "The Landscape for Conceptual and Pohcy Issues," in The Quest for Equity in Higher Education: Toward .New Paradigms in Evolving Affirmative Action Era, eds. Beverly Lindsay and Manual J. Justiz (Albany: State University of New York Press, 2001), 12. 'See, Elaine R. Jones. "Race and the Supreme Court's 1994-95 Term," in The Affirmative Action Debate, ed. George E. Curry (Reading. Mass.: AddisonWesley, 1996), 150. "^See. Judith Winston. General Counsel. United States Department of Education, to College and University Counsel, memorandum, 1995, regarding the Supreme Court's denial of certiorari in Podberesky V. Kirwin and its decision in Adarand Contractors v. Pena. "See. Lindsay and Justiz. "The Landscape for Conceptual and Policy Issues," 13. '"See. Ronald A. Taylor, "Fighting Back: Affirmative Action Professionals on the Front Line." Black Issues in Higher Education 13 (2) (1996): 14. See also. Lindsay and Justiz, "The Landscape for Conceptual and Policy Issues," 13. '^347 U.S. 483. 74 S. Ct. 686. 98 L. Ed. 873 (1954). "182 A. 590 (Md. 1936). "305 U.S. 377. 59 S. Ct. 356, 83 L. Ed. 208 (1938). '"332 U.S. 631, 68 S. Ct. 299, 92 L. Ed. 247 (1948), "339 U.S. 637. 70 S. Ct. 851, 94 L. Ed. 1 149 (1950). See also McKissick v. Carmichael, 187 F 2d 949 (4"^ Cir. 1951). '^339 U.S. 629. 70 S. Ct. 848, 94 L. Ed. 1114 (1950). '^See Wrighten v. University of South Carolina. 72 F. Supp. 948 (E.D.S.C. 1947). See also, Michael A. Olivas. The Lom' and Higher Education: Cases and Materials on Colleges in Court (2"'^ ed Durham N C • Carolina Press, 1997), 981-83.

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113 '"^See generally. Kenneth W. Starr. First Among Equals: The Supreme Court in American Life (New York: Warner Books. 2002), 146. ^' 163 U.S. 537, 16 S. Ct. 1138 (1896), -^See. Melvin I. Urofskv'. The Warren Court: Justice, Rulings, and Legacy (Santa Barbara, Calif.: ABC-CLIO. 2001), 191. -^See Brown v. Bd. of Educ. 347 U.S. 483. 499 (1954). ^"349 U.S. 294, 75 S. Ct. 753, 94 L. Ed. 1083 (1955). ^'See, Girardeau A. Spann, The Lom' of Affirmative Action: Twenty-Five Years of Supreme Court Decisions on Race and Remedies (New York: New York University Press, 2000), 10-1 1. ^^See Brown V. Bd. of Educ. 349 U.S. 294, 301 (1955). -'^See, e.g.. United States v. MontgomervCount>' Bd. of Educ. 395 U.S. 225, 235-36 (1969): Green v. County School Bd., 391 U.S. 430, 439 (1968); Grif&n v. School Bd.. 377 U.S. 218, 233-34 (1964). -^402 U.S. 1, 91 S. Ct. 1267, 28 L. Ed. 2d 554 (1971). ^^402 U.S. at 27-28. at 16-18. 22-25. 'U02 U.S. 43. 91 S. Ct. 1284. 28 L. Ed. 2d 586 (1971). ^-402 U.S. at 45-46. ^^See, Spann. The Law of Affirmative Action. 11. ''413 U.S. 189, 93 S. Ct. 2686, 37 L. Ed. 2d 548 (1973). ^^413 U.S. at 198-205. 208-09. '*418 U.S. 717, 94 S. Ct. 3112, 41 L. Ed. 2d 1069 (1974). ^^418 U.S. at 722-36. 744-47. ^^See. Girardeau A. Spann. Race Against the Court: The Supreme Court and Minorities in Contemporary America (New York: New York University Press. 1993). 79. ^'ibid.. 78-79. According to the author, in the 1970s, racial \iolence accompanied efforts to desegregate the Boston public schools. Richard Nixon, who had been elected president in 1968 on a party platform that included opposition to busing, was reelected in 1972. And, Congress not only passed antibusing legislation in 1972 and 1974. ^^See Cit5' of Richmond v. J. A. Croson Co.. 488 U.S. 469, 109 S. Q. 706, 102 L. Ed. 2d 854 (1989). "'416 U.S. 312, 99 S. Ct. 1704, 40 L. Ed. 2d 164 (1974). '''See. Urofsl^-. The Warren Court, 198-99. ''^416 U.S. at 348. '"Id. at 348-50. '-Id. at 333-34. '^Id. at 340-41. See also. Spann, The Lom' of Affirmative Action. 13. '^430 U.S. 144, 97 S. Ct. 996, 51 L. Ed. 2d 229 (1977). "^42 U.S.C. §§ 1973-1973gg(10) (2000), *430 U.S. at 147-55. -'V at 155-62. -'Id. at 165-68, ^^^Id. at 179-80. "id. at 180-87. See also. Spann, The Lm^' of Affirmative Action. 13-14. -''DeFunis V. Odegaard. 416 U.S, 312. 319-20 (1974). -''430 U.S. at 155-62. 165-68, 179-80; cf id. at 180-87. *^416U.S. at 340-41. "430 U.S. at 171-79. ^^d. at 165. ^Id. at 180-87. at 155-62, *'See. Peter Irons, A People 's History! of the Supreme Court (New York; Viking, J 999), 45 J . See also, Joel Drejluss and Charles LawTence III. The Bakke Case: The PoUtics of Inequality (New York: Harcourt Brace Jovanovich, 1979). 3-30. for background of the case. *%id.. 451-52. ^^Ibid., 452. ^''DeFunisv. Odegaard, 416 U.S. 312, 94 S. Ct. 1704, 40 L. Ed. 2d 164 (1974).

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114 "-416 U.S. at 350. ^ Bakke V. Regents of the Univ. of Cal., Superior Court of Yolo Coum>', No. 31287 (1976), F. Leslie Manker. Judge. *'42 U.S.C. §§ 2000d-2000d-7 ^2000). ^^Bakkev. Regents of the Univ. of Cal.. 533 P.2d 1152 (Cal. 1976). ^-Jd cert, granted, 429 U.S. 1090. 97 S. Ct. 1098. 51 L. Ed. 2d 535 (1977). "Tlegents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed 2d 750 (1978). ''438 U.S. at 267-68. "Id. '^^Id. at 269-72. ' ""See. Herman Belz. Equality Transformed: A Quarter-Century of Affirmative Action (New Brunswick, N.J.: Transaction Publishers. 1991). 149. ''See, e.g.. United Jewish Organizations v. Carey, 430 U.S. 144, 97 S. Ct. 996, 51 L. Ed. 2d 229 (1977). wherein the Court, in upholding the Voting Rights Act of 1965. said the use of race in districting and reapportionment was permissible, and was not confined to eliminating the effects of past discriminator) actions. ^^See. Belz, Equalit\: Transformed. 149. ''But see Washington v. Davis. 426 U.S. 229. 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976). where the Court held that Title VII does not embodj^ the constitutional standard of discrimination. This discrepancv in the relationship between two similar pro\'isions of the Civil Rights .Act and the Constitution was not addressed bv Justice Powell. '^438 U.S. at 288, 294. 298. ''M at 301-2. 307. at 311, 318. ^'See. Belz, Equalit\> Transformed, 150-51. ^'438 U.S. at 325, 337. ^hd. at 337-39. ^'M at 340. "-M at 337, 339-40. 348. at 358-359. ^'Id. at 357, 359, 362. ^*ld. at 387. 400-01. 407. at 421. See also. Belz. Equalitx' Transformed. 152-53. 9Clc See, Belz, Equalitv Transformed. 153. ^'438 U.S. at 325. ' '^'See Nathan Glazer..-^ Viable Compromise on Minority Admissions. 1979 Wash. U. L.Q. 93. 96-104; Richard A. Posner. The Bakke Case and the Future of Affirmative Action. 67 C.4L. L. Rev. 171,172 (1979). '^^See Robert M. O'Neil, Bakke in Balance: Some Preliminary Thoughts. 67 Cal. L. Rev. 143. 147 (1979). See also. Belz, Equality Transformed, 153, ^'^See Antonin Scalia, The Disease as Cure: In Order to Get Beyond Racism, We Must First Take Account of Race. 1979 W.^SH. U. L.Q. 147.148. ^'See Harry R. Edwards. Preferential Remedies and Affirmative Action in Employment in the Wake of Bakke, 1979 W.ASH. U. L.Q. 113. 117. The Brennan group approved racial preference as a remedy' for social discrimination. Although Justice Powell would require a governmental or judicial lindjng of discrimination before awarding a race-conscious remedy under Title VI or Title VII, under his diversity rationale race could be a legitimate factor without a showing of unlawtul discrimination. ^Id. See also. Terry Eastland and William J. Bennett, Counting by Race: Equality/ from the Founding Fathers to Bakke and Weber (New York; Basic Books. 1979). 172-77. ''Posner, supra note 91. at 172. '*See. Belz. Equality Transfon?ied, 154-55. '^See, Kermit L. Hall, Freedom and Equality: Discrimination and the Supreme Court (New York: Gariand Publishing, 2000), 23. '""443 U.S. 193, 99 S. Ct. 2721. 61 L. Ed. 2d 480 (1979) (the 5-2 decision was the greatest degree of consensus of any case in which affirmative action was at issue). '°'See, Hall, Freedom and Equality, 24.

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115 °'443 U.S. at 201. "^Id. at 203. ^'"Id. at 204. "^Id at 205. ^A/. at 206-07. "''Id at 204. "^7fl". at 208. ""Jd. ^°See George RutheT^sn, After Affirmative Action: Conditions and Consequences of Ending Preferences, 1992 U. ILL. L. Rev. 339, 357. '"M at 358. '467 U.S. 561. 104 S. Ct. 2576. 81 L. Ed, 2d 483 (1984). "^467 U.S. at 565. '"W. at 567. " 'M at 583. See also, Hall, Freedom and Equality, 26. *^467U.S. at 583. "Mat 574. 'V at 579. "M. at 579-83. °Jd. at 579. -'478 U.S. 421, 106 S. Ct. 3019. 92 L. Ed. 2d 344 (1986). '"478 U.S. at 482-83. 'V^/. at 483. -'Id at 453. -^/d. at 475. '*M. at 474-75. -Id -^478 U.S. 501. 106 S. Ct. 3063. 92 L. Ed. 2d 405 (1986). -^478 U.S. at 515-18. at 519-21. "480 U.S. 149. 107 S. Ct. 1053. 94 L. Ed. 2d 203 (1987). ^-Id. at 163. "M at 162-63. ^"Id. at 165. ''Id '^See Neal Devins. Affirmative Action After Reagan, 68 Tex. L. Rev. 353. 353 (1989) (The Justice Department under President Reapn was well known for its lax enforcement of equal opportunity laws, and it was the intent of the department limit race-conscious affirmative action). See also, Hall, Freedom and Equality. 29-30. "'480 U.S. at 166. ''Id '^Id. at 171. *"ld at 170-71. "Vcf. at 180. See. Hall, Freedom and Equalitv. 3 1 . '476 U.S. 267. 106 S. Ct. 1842. 90 L. Ed. 2d 260 (1986). ''476 U.S. at 270. "'See. Hall. Freedom and Equalit\:. 32. "^476 U.S. at 274. 279-84. "V//. at 274. ''Id '^Id. at 275-76. '°480 U.S. 616, 107 S. Ct. 1442, 94 L. Ed. 2d 615 (1987).

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116 '"The petitioners in both Wygant v. Jackson Bd. of Educ, 476 U S 267, 106 S. Ct. 1842. 90 L.Ed. 2d 260 (1988), and Cit>' of Richmond v. J. A. Croson Co , 488 U.S. 469. 109 S. Ct. 706, 102 L.Ed.2d 854 (1989), based their claims on a Fourteenth Amendment equal protection violation. '-'-480 U.S. at 629. See also, Belz, Equality Transformed, 221 '"480 US. at 631. '^^Id. at 632. at 632-33. '"M at 637. '-*M at 638. at639. ""488 U.S. 469, 109 S. Ct. 706, 102 L. Ed. 2d 854 (1989). '*^488 U.S. at 498-506. "^'M at 499-500. '"^Id. at 498-99. '^-'M at 497-98. See also. Hall. Freedom and Equality, 34-35. '^488 U.S. at 551-52. ^^'id. at 535-36. "^^5ee Fullilove V. Klutznick. 448 U.S. 448, 519 (1980). '*^515 U.S. 200, 115 S. Ct. 2097. 132 L. Ed. 2d 158 (1995). '™448 U.S. 448, 100 S. Ct. 2758. 65 L. Ed. 2d 902 (1980). '"42 U.S.C. §§ 6705(e)-6707(j) (2000). "'448 U.S. at 492. ' '^U.S, CoKST. amend. V. Because the Equal Protection Clause of the Fourteenth Amendment does noi apply to the federal government, there was some initial conftision as to whether Congress must respect equal protection principles. This issue was clarified in Boiling v. Sharpe. 347 U.S. 497 (1954). where the Supreme Court held that the Due Process Clause of the Fifth Amendment encompasses the principle of equal protection of the laws, and that federal legislation could thereb\' be challenged as unconstitutional on equal protection groiuids. See also. Hall, Freedom and Equalitv. 35-36. "'448 U.S. at 473. ' ''U.S. Const, art. I, § 8. '^448 U.S. at 475-80. See U.S. Const, amend. XIV. § 5. '''448 U.S. at 484. "V at 473. '"497 U.S. 547. 110 S, Ct. 2997. Ill L. Ed. 2d 445 (1990). '^''47 U.S.C. §§ 151-757 (2000). '^'497 U.S. at 600. 'Id. at 565. 3 184 '^'M at 582-83. See. Hall, Freedom and Equalitv. 37-38. '^^515 U.S. 200, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995). "^T5 U.S.C. § 637(d)(3)(c) (2000). '^'Pub. L. No. 200-17. 101 Stat. 132 (1994). "'M at § 106(c)(1). '*l515U.S. at 209-10. ""'See. Hall. Freedom and Equalitw 38-39. '*^515 U.S. at 212-13. '' According to the Court, the Fourteenth Amendment applied only to state action, thus no protection was provided for discriminatoty federal action because the Fifth Amendment only referred to the nglit to receive due process of the law. "^515 U.S. at 217. ''V (citing Buckley v. Valeo. 424 U.S. 1 (1976); Weinberger v. Wiesenfeld, 420 U.S. 636 (1975). ' "See. Hall. Freedom and Equality.-. 39. "^438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978).

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117 '^'448 U.S. 448, 100 S. Ct. 2758. 65 L. Ed. 2d 902 (1980). '^^476 U.S. 267. 106 S. Ct. 1842, 90 L. Ed. 2d 260 (1986). "'515 U.S. at 219-21. '•^488 U.S. 469. 109 S. Ct. 706, 102 L. Ed.2d 859 (1989). -•^"515 U.S at 221-22. at 235-37. -°^497U.S. 547, 110 S. Ct. 2997, ill L. Ed. 2d 445 (1991), '°'515 U.S. at 227-28. ^''^Id at 225-27. ""'Id at 227-28. '"'Id U.S. 149, 107 S. Ct. 1053. 94 L. Ed. 2d 203 (1978). ^"^515 U.S. at 235-37. "^"See, Hall, Freedom and Equality. 42. '''Neal Devins, Adarand Contractors, Inc. v. Pena and the Continuing Irrelevance of Supreme Court Affirmative Action Decisions. 37 W.M. & MaryL. Rev. 673 (1996).

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CHAPTER 5 SUPREME COURT RU1,ES ON AFFIRN4AT1VE ACTION IN HIGHE.R EDUCATION STUDENT ADMISSION PROGRAMS. .ANANYSIS, IMPLICATIONS, AND RECOMMENDATIONS Introduction On December 2 2002 the Supreme Court granted certiorari in the Sixth Circuit cases of Grutter v. Bollinger 'and Gratz v. Bollinger^ Both cases involved challenges to the University of Michigan's use of affirmative action in student admission policies. In Gruttei\ the Court of Appeals overturned a lower court's ruling that the admissions policy utilized by the law school illegally discriminated against white applicants In Gratz, the Court of Appeals' decision, after review of a lower court's ruling that the admissions policy used by the college of literature, science, and the arts violated the equal protection clause of the 14* Amendment, was never rendered. Previously, various federal circuits had ruled differently in regard to the use of affirmative action in admissions policies. In 1996 the Fifth Circuit, in the case of HopM'ood V. Texas^ found that the University of Texas School of Law's admission policy to be unconstitutional, after rejecting the Supreme Court's 1978 opinion in Regents of the University of California v. Bakke as precedent. Likewise, in 2001 the Elesenth Circuit, in the case of Johnson v. Board of Regents of the University of Georgia,^ stnick down the University of Georgia's undergraduate admissions policy in regard to use of affirmative action. Contrary to these decisions, in 2000 the Ninth Circuit, in the case oi Smith v. 118

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119 University of Washington Law School f found the law school's admissions policy not to be unconstitutional, and in doing so endorsed the Bakke decision. The defendants in Hopwood were denied certiorari by the Supreme Court twice.'' The plaintiffs in Smith were also denied certiorari.* In the case oi' Johnson, the University of Georgia chose not to appeal to the Supreme Court, after concluding that the University of Michigan cases presented a much stronger case for the use of affirmative action ^ The Supreme Court rendered decisions in Grutter and Gratz on June 23 2003. la Grutter, the Court upheld the university's admissions policy at its law school. '° In Gratz, the Court determined that the university's undergraduate admissions policy was constitutionally invalid.'^ Given the different results in Gratz and Grutter, college and uriiversity administrators may be confused as to how to develop a constitutional, race-conscious admission program. The two decisions, however, provide a blueprint for colleges and universities that choose to consider race in admissions. The difference between a permissible plan and an impermissible plan is in the details and is a matter of tailoring. This chapter discussed the Supreme Court's recent Gratz and Grutter decisions and considered the implications. Specifically, this chapter examined how universities should consider race in admission programs in light of Gratz and Grutter. And, the study's research question of under what circumstances, if any, are affirmative action programs in higher education valid under provisions of the Constitution and the U.S. Code is answered.

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The Equal Protection Clause One of the most conimon arguments against race-conscious admission programs is that they violate the Equal Protection Clause of the Fourteenth Amendment. The clause states "no State shall . . . deny to any person witliin its jurisdiction the equal protection of the laws.'^ The Equal Protection Clause has been interpreted to mean that "similar individuals ... be deah with in a similar manner by the government."''' Race-conscious admission programs have typically been challenged by white plaintiffs who claim that such admission programs violate the Equal Protection Clause analysis because applicants, similar individuals, are given a preference based upon racial minority status, dissimilar treatment.''* When a court considers the constitutionality of a government action, it will apply one of three standards. The easiest standard to satisfy is the rationality standard. When the court applies this standard, it will uphold the government action if the government were pursuing a legitimate govenmiental objective and if there were a rational relation between the means chosen by the government and the state objecti\'e. The next level of review is known as middle level review or intermediate scrutiny. Under this standard, the governmental objective has to be important and the program adopted needs to be substantially related to the important government objective. Strict scrutiny is the highest standard of review used by the courts. Courts have reviewed racial classification cases, including, race-conscious admission programs under strict scrutiny analysis. Under strict scrutiny, the state must first show that its discretion to treat individuals differently is justified by a compelling state interest. In higher education affirmative action cases, the Supreme Court first examined whether promoting diversity in higher education is a

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compelling governmental interest. Second, the Court explored if the race-conscious admission programs were nairowly tailored. To be constitutional, a racial classification must satisfy both parts/" Hopwood V. Texas In recent years, the United States Supreme Court has required lower courts to view government use of racial classifications with great skepticism. In response to this direction, the Fifth Circuit in Hopwood v. Texas i-uled that the University of Texas School of Law's admissions system improperly discriminated on the basis of race. The court also held that the law school's use of racial preferences to achieve diversity in the student bbdy was unconstitutional.'^ In 1992 four white applicants were denied admission to the University of Texas School of Law under a system in which the regular admissions committee considered applications of non-minority students, while a subcommittee reviewed those of Africanx^merican and MexicanAmerican students. Both committees used applicants' Texas Index scores to place each application into one of three categories; presumptive admit, presumptive deny, or discretionary. The scores required for each category varied depending on race.'^ The four rejected applicants filed suit in federal district court, alleging that this system violated Fourteenth Amendment and federal civil rights statutes.'^ In applying a strict scrutiny standard of review, the district court concluded that the law school had violated the plaintiffs' rights under the Equal Protection Clause. However, the court declined to preclude the law school fi-om using race in its consideration of future applicants.^" The Fifth Circuit reversed and remanded.^' The court first noted that the

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Supreme Court had recently declared, in the case o^Adarand Comtructors, Inc. v. Pena,^^ that strict scrutiny applies to all government racial classifications, and the set forth two questions to be answered: does the racial classification serve a compelling government interest, and is it narrowly tailored to the achievement of that goal? In answering these questions, the court began by examining the district court's conclusion that obtaining a racially diverse student body remains a sufficiently compelling interest to support the use of racial classifications. In fi-aming the issue, the court considered the Supreme Court's decision in Bakke, focusing on Justice Powell's plurality opinion.^'* Justice Powell had supported the use of race as a plus factor to attain diversity in the educational context. But, because Justice Powell's argument in Bakke garnered only his own vote, the court determined that it never represented the view of a majority of the Court in Bakke or any other case, and had been implicitly rejected by the four Justices who would have upheld what appeared to be a quota system, the Fifth Circuit declined to regard Justice Powell's view as binding precedent. Instead, it concluded that the Supreme Court had finally recognized that only the remedial use of race is a compelling government interest. And, the court held that the use of race to achieve a diverse student body cannot be a state interest compelling enough to meet the steep standard of strict scrutiny. The court then considered whether the admissions program served a remedial purpose and thus a compelling govemm.ent goal.^^ The court found that the purpose was not remedial, because the law school had failed to show any present effects of past discrimination by the law school itself The court concluded by severely limiting the law

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school's ability to use race in admissions programs.^^ The Fifth Circuit denied rehearing en banc.^^ and the Supreme Court denied certiorari twdce.^'' Smith V. University of Washington Law School The Ninth Circuit's decision in the case of Smith v. University of Washington Law School^^ differed greatly from the Fifth Circuit's decision in Hofnvood v. Texas^^ primarily on the issue of diversity as a legal justification for the usage of race as a classification in student admissions programs. In Smith, three white applicants brought suit in federal court, claiming that they had been denied admission to the University of Washington Law School because of racially discriminatory admissions policies From 1994 to 1998 the law school utilized race as a criterion in its admissions process to assure the enrollment of a diverse student body.^^ Applicants to the law school were admitted based on their undergraduate grades and LSAT scores (index score), and a personal statement, in which they were invited to describe how their life experiences would contribute to the diversity of the law school A three-step process of review was conducted to apportion one hundred sixty-five seats. Both minority and non-minority applications were reviewed in conceit and ranked on a scale from three to fifteen. Offers were made based on the applicant's index score. The plaintiffs offered statistics they contended raised questions about the role of race m the university's admissions policies. The plaintiffs noted that in 1994, for exam.ple, nearly 79 percent of those admitted with index scores below 193 were racial minorities In the same year, 100 percent of Afiican-American applicants with CPAs between 2.5 and 3 24, and with LSAT scores in the 155-159 range, were admitted while none of the 131 applicants

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124 identified as white or other ethnicity with comparative grades and LSAT scores were admitted." While Smith was pending, voters in Washington passed Initiative Measure 200 (1200), which provided that the state shall not discriminate against, or grant preferential treatment to, any individual or group based on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.^'* Upon the passage of 1-200, the law school eliminated the use of race as a criterion in its admissions process. The new admissions policy, however, did retain a diversity clause, which provided that important academic objectives are furthered by admitting students from diverse backgrounds. Race, color, and national origin were excluded from the list of diversity factors. The district court dismissed the suit, declaring the plaintiffs' claims moot due to the passage of 1-200. However, the court did hold that race could be used as a factor in acliieving educational diversity even where it is not done for remedial purposes.^' On appeal, the Ninth Circuit reviewed two key issues, whether educational diversity is a compelling governmental interest under strict scrutiny under the Fourteenth Amendment, and whether race may be considered in the admissions process only for remedial purposes. The Court of Appeals affirmed the district court and held that educational diversity is a compelling state interest that meets the demands for strict scrutiny, and that the Fourteenth Amendment permits university admissions programs to consider race for reasons other than remedial purposes The court examined the fractured ruling ofBakke to determine whether Justice PowelPs plurality opinion was truly the

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controlling opinion. The court found that it was."''' Later, the Supreme Court denied certiorari.^^ Johnson v. Board of Regents of the University of Georgia In Adarand Constrnclors, Inc. v. Pena^"^ the United States Supreme Court declared that in order to survive strict scrutiny under the Equal Protection Clause, an affirmative action policy must serve a compelling go\'emn:iental interest and must be narrowly tailored. In the higher education context, the Fifth and the Ninth Circuits split on what constitutes a compelling interest In Johnson v. Board of Regents of the University of Georgia,^ the Eleventh Circuit assumed that student body diversity is a compelling governmental interest, thus becoming the first federal court of appeals to evaluate a university's affirmative action policy on narrow tailoring grounds In 1995 the University of Georgia (UGA) divided its admissions process into three stages. The majority of the freshman class was chosen at the initial stage, during which admissions officers looked at individual academic scores and grades without regard to the applicant's race. Applicants who were not automatically admitted or rejected during the initial stage were placed in a pool for further evaluation, and an individual Total Student Index (TSI) was calculated. The TSI was based on a combination of academic, extracurricular, and demographic factors, including race. Applicants whose TSI scores did not qualify them for automatic admittance or rejection were passed along to a third stage, called the edge read (ER), in which admissions officers evaluated the students on an individual basis, without taking race into account.'*^ In ] 999 three white female students applied for ad;nission to UGA. Not admitted automatically in the initial stage, they proceeded to the TSI stage. Each received a TSI

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score that was too low either for automatic admission or for advancement to the ER stage, and each was, therefore, denied admission. The three applicants filed suit against UGA in federal court, alleging that the intentional use of race in the TSI violated the Equal Protection Clause of the Fourteenth Amendment."^ The district court found that UGA's consideration of race violated Title VI of the Civil Rights Act of 1964. The court reasoned that Justice Powell's opinion Bakke was not binding precedent and that therefore the court was not required to assume that student body diversity was a compelling interest. The court found UGA's asserted interest in diversity too amorphous to support its race-conscious policy. Consequently, the court ruled that UGA lacked a compelling interest in racial diversity and did not reach the question whether UGA's admissions policy was narrowly tailored to achieve that 44 mterest. The Eleventh Circuit affirmed on other grounds. The court elected not to resolve M'hether student body diversity could ever be a compelling interest supporting a university's consideration of race in its admissions process. It did conclude, however, that Justice Powell's opinion in Bakke was not binding precedent and that whether student body diversity is a compelling interest in university admissions remains an open question.'*' In considering the narrow tailoring requirement, the court noted that the Supreme Court had not defined the contours of the narrow tailoring inquiry in a case involving a university's race-conscious admissions policy. Therefore, the court created its own fourpart test for evaluating an admissions program designed to achieve student body diversity. The factors included whether the policy uses race in a rigid or mathematical

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way that does not take sufficient account of tlie different contributions to diversity that individual candidates may offer, whether the policy fiilly and fairly takes account of raceneutral factors which may contribute to a diverse student body; whether the policy gives an arbitrary or disproportionate benefit to members of the favored racial groups; and whether the school has genuinely considered, and rejected as inadequate, race-neutral alternatives for creating student body diversity."^ In evaluating UGA's policy under this test, the court analyzed the first two factors concurrently. First, the court took issue with the lack of flexibility in UGA's policy and how it mechanically awarded an arbitrary diversity bonus to each and every non-white applicant, regardless of whether a white applicant with a far more diverse background received a corresponding bonus for the attributes he or she may offer. The court then found the policy's treatment of race-neutral factors to be inadequate. There were only seven factors corresponding to student body diversity, with no flexibility at the TSI stage to consider additional factors for any individual applicant The court found the almost total inability of the TSI formula to take account of the potential contributions to diversity from applicants with characteristics less easily and mechanically tabulated than race to be inconsistent with narrow tailoring.'*^ Looking to the third factor, the court concluded that if a university cannot even articulate a basis for the amount of the numerical bonus it awards to non-white applicants, it has no right to award such a bonus Z*^ The court then took up the fourth factor and discussed UGA's failure to show that it had meaningfully considered any raceneutral alternatives. The court mentioned several race-neutral measures that could potentially advance the goal of student body diversity."^ The court concluded that UGA's

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admission policy was not narrowly tailored under the factors appropriate for evaluating a race-conscious university admission policy, UGA chose not to appeal to the Supreme Court, after concluding that the University of Micliigan cases of Gratz v. Bollwger and Grutter v. Bollinger presented a much stronger case for the use of afifinnative action. The Sixth Circuit Rules in Grutter v. Bollinger In the area of race-conscious affirmative action programs, Hopwoocl v. Texas marked the begimiing of a new era of litigation in regard to student admissions programs Hopwood and subsequent federal circuit court cases were decided primarily over whether diversity is a governmental interest sufficiently compelling to survive strict scrutiny and, if it were, what a narrowly tailored admissions policy should look like. While acknowledging the great national importance of these questions, stated in the memorandum denying certiorari in the case of Hopwood,'^ the Supreme Court for many years declined to intervene. Recently, the Sixth Circuit considered these issues in the case of Grutter v. Bollinger.^'* The court upheld the constitutionality of the University of Michigan's contested affirmative action program,'" increasing the divide among the federal circuits, whose conflicting decisions have done little more to resolve this debate than did the disparate opinions in Regents of the University of California v. Bakke^^ The Sixth Circuit's inability to articulate a workable definition of diversity under Bakke underscores the difficulty of the task faced by the Supreme Court when it attempted to clarify this concept in Grutter. In 1996 Barbara Grutter applied to the University of Michigan Law School The law school maintained an admission policy with a commitment to racial and ethnic diversity. The policy stated that race was a single though important element considered as

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129 part of a broad array of qualifications and characteristics. The policy also sought to enroll a critical mass of minority students." The law school wait listed and ultimately rejected Gmtter, a forty-three year old white Michigan resident Avith a 161 LSAT score and a 3.8 undergraduate grade point average. In 1997 she brought a class action suit in federal district court. Grutter claimed that the law school's afiirmative action policy constituted illegal discrimination under the Equal Protection Clause of the Fourteenth Amendment and a violation of Title VI of the Civil Rights Act of 1964.^** The district court struck down the admissions policy. First, the court held that Bakke was not controlling because it did not produce a majority opinion. The court declined to apply the test established in Marks v. United States for distilling a holding from a fragmented Court with no single rationale explaining the result, claiming that the majority opinions of Bakke were too divergent to consider its application. Next, applying strict scrutiny, the district court, citing Adarand Contractors, Inc. v. Pena "'and City of Richmond v. J. A. Croson Co.,^^ found that recent Supreme Court cases made clear that diversity is not a compelling governmental interest. The court then held that, even if diversity were a compelling governmental interest, the law school's policy was not narrowly tailored to meet it.^'* The Sixth Circuit reversed.*'' The court held that Justice Powell's opinion in Bakke was controlling.^^ Applying the test from Marks that the district court had determined to be inapplicable, the court found that Justice Powell's diversity rationale survived the narrowest grounds analysis part of the test The court detennined that, although recent Supreme Court decisions may implicitly undermine the reasoning in Bakke, it is left to the Supreme Court to ovemile its own decisions^^ Thus, diversity

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130 qualified as a compelling governmental interest.^^ The court then found that the law school had narrowly tailored its admission policy, noting that the law school's admissions policy was virtually indistinguishable from the Harvard plan Justice Powell approved of in Bakke. Accepting the law school's argument that race-neutral alternatives would fail to produce a critical mass of minority students and satisfied that the critical mass concept was not a quota system, the coun concluded that the law school's admissions policy • * 70 survived stnct scrutmy. The District Court's Decision in Gratz v. Bollinger Two white students applied for admission to the College of Literature, Science, and the Arts at the University of Michigan (LSA), one in 1995 and the other in 1997. Both applications were at first wait-listed, meaning that they were not initially rejected and further action would be taken later when the admissions process could better compare them with more students that applied for admission. Ai^er several months on the waitlist, however, both students were notified that their appHcations had been rejected.^' In 1997 the students filed a class action suit against the university, alleging that its use of race in admissions policies from 1995 to the present violated Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment /^^ The plaintiffs and the defendant university stipulated to the facts involving the workings of the college's admissions policies from 1995 to the present. The university would first use high school GPA and standardized test scores, admitting the several highest ranking students based on that criterion alone. The majority of applicants, however, was reviewed by counselors. From 1995 to 1997 these counselors used grids with a vertical axis of modified GPA scores called GPA 2, as well as a horizontal axis of

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131 standardized test scores. The university, however, used separate grids to factor in other criteria. With this system, counselors would have a two-dimensional ranking of all students, but students were first classified into separate grids: non-minority Micliigan residents, minority Michigan residents, non-minority out-of-state residents, and minority out-of-state residents. Non-minority students faced automatic rejection subject to their ranking on their grid, whereas minority students could never be automatically rejected on their grid. The university removed the separate grids for minorities in 1996 and moved to a system that only used the resident and non-resident grids, but they listed minority codes on each grid that acted in a similar fashion to the prior separate grids. In 1997 the university also used its GPA 2 scoring system to add .5 points to each minority applicant's score. In 1998 the old system was dispensed of and all criteria were included in one calculation to comprise a single index score for each student Since then, counselors examine applications based upon a ranked index, of up to 1 50 points, where a certain level of points are given to each student based upon background criteria, such as high school GPA, strength of curriculum, and geographic origin. Twenty points are automatically given to underrepresented minority applicants on this index based on their race. In 1999 the college added a system to permit certain applications, with additional qualities it found desirable, to be flagged in order to keep them in applicant selection pool. Minority students with preferential status would be included in that system.^' In its application of strict scrutiny, the district court focused the issues of the case on the two prong test put forth by the Supreme Court in Adarand to analyze racial classifications: whether the university had asserted a compelling governmental interest to support its use of race and whether the university's admissions program was narrowly

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132 tailored to support that interest. The court began its review by considering the university's first argument for the diversity rationale. The university cited Smith v. University of Washington Law School '^to assert that since Justice Powell's opinion was the narrowest grounds upon which the court made its decision, the diversity rationale was part of the Bakke decision.'^ The court disagreed, finding it clear that no five Justices in Bakke expressly held that diversity was a compelling governmental interest under the Equal Protection Clause. The court concluded that the diversity rationale was not part of the Bakke decision because it was not included in the narrowest grounds of the case. While the court disagreed with the university's first premise, it stated that the diversity rationale still could be viable on the basis that neither the Supreme Court nor the Sixth Circuit had ever explicitly ruled the rationale unconstitutional.^^ Following this reasoning, the court found another premise that would support the university's defense of the diversity rationale. Wliile no Justices gave explicit approval of Justice Powell's diversity rationale, the opinion of Justice Brennan and three other Justices could be read as implicit approval of Powell's opinion.'^ The court reasoned that Justice Brennan, writing the majority opinion in Metro Broadcasting, Inc. v. FCC,^^ recognized Bakke as standing for the principal that the goal of a diverse student body was a constitutional rationale for university administrators to use race as a factor in admissions. Therefore, Justice Brennan must have intended his concurring opinion in Bakke to also concur with Justice Powell on the diversity rationale.^' The court also noted that hs opinion on the diversity rationale differed from HopM'ood v. Texas, asserting that the court there incorrectly interpreted City of Richmond v. Crosoti as a total repudiation of the diversity rationale.

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133 After finding that the diversity rationale was constitutional, the district court next took up the issue of whether the university had proven the benefits that would result fi-om a diverse student body. The court concluded that the university had provided strong evidence that the school enjoyed benefits fi-om racial and ethnic diversity, including better learning experiences and the breaking of racial segregation. Given the benefits fi-om such diversity, the court concluded that diversity was a compelling governmental 83 mterest. The district court next sought to determine whether the LSA's admission policy was narrowly tailored to address the compelling governmental interest. The court noted with approval Justice Powell's opinion in Bakke that race could be seen as a plus factor so long as it did not insulate minority applicants from comparison with all other applicants.'*'* The court concluded that the university's current admissions policy was appropriate because the ranked selection index was neither a quota system nor did it insulate minority students and predetermine a certain level of minority applicants to be admitted. " The court found the university's recent flagging system constitutionally legitimate on the grounds that allowing applicants to remain in the review process after failing the first review would only act as a plus factor. The flagging system did not only apply to students with preferred minority status but also included students with unique backgrounds, impressive high school rankings, as well as other talents and capabilities. The court granted the university's motion for summary judgment regarding its current admission program, finding that the current program was constitutionally valid. The district court next considered the constitutionality of the college's prior admissions programs. The court made reference to documents from the university that

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detailed how certain seats were reserved for particular groups of applicants, including minorities, under the prior system.*^ The court detemiined that this system protected certain applicants from competition with other applicants by keeping seats reserved while the greatest competition occurred between other students for admission. The court found this system, where analysis grids were explicitly or implicitly made based upon a student's race, no different than the one deemed unconstitutional in Bakke.^^ Therefore, the court declared the university's undergraduate admissions programs from 1995 to 1998 unconstitutional.^^ The district court's decision was appealed to the Sixth Circuit. It is not known why the Sixth Circuit never rendered an opinion in the case, especially considering that it did so Grvtter v. BolUnger^^ which was a case that involved a challenge to the admissions policies at the same university's law school. The Supreme Court granted certiorari on December 2 2002.^' The Supreme Court Decides Gratz v. Bollinger The petitioners, Gratz and Hamacher, white Michigan residents, applied for admission to the University of Michigan College of Literature, Science, and the Arts (LSA). The petitioners applied for positions in the freshman class in 1995 and 1997 respectively. Both were denied entrance to the university.^^ The university utilized written admission guidelines during the period in question. The guidelines were changed a number of times. Admission decisions took into account issues such as high school grades, standardized test scores, high school quality, curriculum strength, geography, alumni relationships, leadership, and race. During this period of time, the university considered AfricanAmericans, Hispanics, and Native

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135 Americans to be underrepresented minorities. It was undisputed that the university admitted virtually every qualified applicant from these identified groups. The current guidelines utilized a selection procedure that gave every rmnority applicant twenty points of the 100 points needed for admission to the university. The petitioners argued in their class action case that this procedure of racial preferences in undergraduate admissions violated the Equal Protection Clause of the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964, and 42 U.S.C. § 1981. They sought compensatory and punitive damages and declaratory relief finding the respondents violated their rights to nondiscriminatory treatment and injunction prohibiting the respondents from continuing this practice. The federal district court granted class action status. On cross motions for summary judgment, both parties relied upon Justice Powell's principal opinion in Regents of the University of California v. Bakke^^ which stated that consideration of race as a factor in admission decisions is some instances serves as a compelling government interest. The university stated that its admission plan achieved that purpose given the educational benefits of achieving a diverse student body The university fiarther argued that the plan was narrowly tailored to serve that specific interest. The district court agreed with the respondents and granted them summarj' judgment. However, the district court also ruled that the university's admission guidelines from 1995 to 1998 operated as a functional equivalent of a quota system and, thus, was in conflict with Jusfice Powell's opinion in Bakke. Therefore, the court issued summary judgment for the petitioners with respect to respondents' admission program. With interiocutory appeals pending in the Sixth Circuit, the Supreme Court previously

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had issued a decision in the companion case of Grutter v. Bollinger upholding the admission program utilized by the university's law school. The Court granted certiorari in both Gratz v. Bollinger and Grutter v. Bollinger, even though the Sixth Circuit had not rendered an opinion in Gratz. In Gratz, the Supreme Court held that because the university's use of race was not narrowly tailored to achieve the university's interest in diversity, the policy violated the Equal Protection Clause. The Court rejected the petitioners' argument that diversity could not constitute a compelling state interest. Yet, the Court found that the then current policy of awarding points essentially guaranteed admission to every single underrepresented minority applicant solely because of race, and, thus, was not narrowly tailored to achieve educational diversity. The Court relied heavily on Justice Powell's reasoning in Bakke that it was permissible for a university to employ an admission program in which race or ethnic background may be deemed a plus in a paiticular applicant's file. However, Justice Powell emphasized the importance of considering each individual applicant as an individual, assessing all of the qualities that an individual might possess, and, thereby, evaluating that individual's ability to contribute to the unique setting of higher education. The Court noted that the plan that Justice Powell envisioned did not accept any single characteristic that automatically ensured a specific and identifiable contribution for a university's diversity. The Court ruled that the university's procedure did not provide the individual consideration Justice Powell contemplated. To the contrary, the university's plan had the effect of making the factor of race decisive for virtually every minimally qualified underrepresented minority appHcant.^^

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137 The Supreme Court clearly rejected the university's contention that the volume of applications and the presentation of applicant information made it impractical for the university to use the admission system upheld by the Sixth Circuit in Grutter. The university contended that the volumes of applications and the presentation of applicant information make it impractical for LSA to use the admission system upheld by the Court in Grutter. In reply to this contention, the Court stated that the fact that the implementation of a program capable of providing individualized consideration might present administrative challenges does not render constitutional an otherwise problematic system. Thus, the argument of administrative convenience was again clearly rejected by the Court. In conclusion, the Court stated that because the university's use of race in its current freshman admission policy is not narrowly tailored to achieve its asserted compelling interest in diversity, the admission policy violates the Equal Protection Clause of the Fourteenth Amendment. The Court ftirther found that the admission policy also violates Title VI and 42 U.S.C. § 1981. Accordingly, the Court reversed that portion of the district court's decision granting respondents' summary judgment with respect to liability and remanded the case for proceedings consistent with the opinion. The Supreme Court Rules in Grutter v. Bollinger In Grutter v. Bollinger,^^^ a white female applicant was denied admission to the prestigious University of Michigan, despite her attainment of a 3 .8 undergraduate GPA and a LSAT score of 161. She argued on behalf of herself and all similarly situated nonminority applicants, which the trial court certified as a class, that she was denied admission in preference to less qualified minority applicants. The plaintiflf alleged that

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138 this amounted to discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. She also argued that the admission policy at the law school sought to create a quota in violation of the Bakke precedent. The law school countered that it had a compelling interest in creating a diverse student body. To accomplish this the law school sought what it termed a critical mass of underrepresented minority students. The law school contended that this critical mass was achieved by a holistic and individual review of each applicant's file. It noted that race, while sometimes determinative, was only one of many factors considered in seeking a diverse student body. The law school also noted that under this policy the percentage of minority students admitted each year varied considerably and that, under its policy of seeking a diverse body of students, many non-minority applicants had been admitted in preference to minority applicants possessing superior academic qualification in terms of test scores and GPA.'"^ Justice O'Connor delivered the 5-4 opinion of the Court in a ruling that included six separate concurring or dissenting opinions. The Court upheld its previous precedent in Bakke declaring that the law school had established a "compelling state interest that can justify the use of race in university admissions."'"'* In this, the Court's ruling was fully consistent with its decision in Gratz. In Grutter, this conclusion was buttressed by the law school's contention that the modem practice of law required lawyers to be able to function in an extremely racially and culturally diverse society of litigants, witnesses, practitioners, judges, and juries. Furthermore, recognizing the wide application this case could have beyond the practice of law, the Court also considered the unprecedented

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139 number of amicus briefs filed in support of the law school by a wide variety of educational and non-educational groups including General Motors, 3M, an ad hoc committee of former military flag officers, various organizations representing public and • * 105 private universities, and the American Educational Research Association. Having accepted that the law school had presented, under strict scrutiny, a compelling interest that justified seeking a diverse student body, the Court directed its scrutiny to the means utilized to accomplish that goal. Unlike the University of Michigan College of Literature, Science, and the Arts (LSA), the law school applied an individualized and holistic review to every application received. And, unlike the LSA, candidates were not given a specific quantitative advantage based upon minority status and no numeric admissions index or grid was utilized. Instead, the Court found that, in addition to hard factors, such as the LSAT and GPA, numerous soft variables were also considered, like admission essays, enthusiasm of recommenders, difficulty of undergraduate programs, undergraduate course selection, and race. In pursuing its goal of a diverse student body, the Court noted that the law school asked each applicant to write a statement of how they would add to the diversity of the student body. As recommended in Bakke, the law school demonstrated that race was only one of many factors it considered in achieving a diverse student body.^''^ The Court concurred with the Sixth Circuit that the law school's diversity policy considered a variety of unique backgrounds and experiences, not merely race, in pursuing its policy."'' As such, it had fi-equently admitted non-minority applicants with lower hard credentials in preference to academically superior candidates who belonged to its identified underrepresented minority groups of African-Americans, Hispanics, and Native

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Americans. In reference to the same, the Court stated, "[t]his shows that the Law School seriously weighs many other diversity factors besides race that can make a real difference for non-minority candidates as well."'°^ As such, the Court concluded that the law school's admission policy, unlike the quantitative approach used by LSA, was narrowly tailored to achieve the compelling interest/''^ Still, the Grutter decision by the Supreme Court does not amount to an unqualified endorsement of affirmative action programs that follow a less quantitative approach. Although it asserted that narrow tailoring does not require exhaustion of every conceivable race-neutral alternative, the Court did find that universities were required to give serious consideration to workable and lawfiil race-neutral alternatives to achieve its goals as stated in previous rulings, such as Wygant v. Jackson Board of Education .^^'^ While the Court concluded that the law school in Grutter had met this burden, this reminder would appear to be an instruction to other universities and courts that strict scrutiny requires an ongoing effort to replace race-conscious admission programs as soon as viable race-neutral alternatives are found. This impression is fijrther reinforced in Grutter by two other aspects of the ruling. The majority opinion concluded that a critical factor in the strict scrutiny analysis of the law school's admission's program is the evidence that not only did the law school seriously consider a variety of race-neutral approaches, but that it also acknowledged its desire and intent to terminate its present policy as soon as practicable. ^ ' ' Additionally, in what may be the most significant and controversial aspect of this ruling, the Court further ratified its preference for race-neutral policies by concluding that race-conscious admission programs, no matter how compelling the goals may be, must

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141 have reasonable durational limits. This conclusion was conceded to by the law school in its brief. The Court went on to state that in the context of higher education, the durational requirement can be met by sunset provisions in race-conscious admission policies and periodic reviews to determine whether racial preferences are still necessary to achieve student body diversity. The Court also restated its judgment in Richmond v. J.A. Croson CoJ^'^ that the requirement that all race-conscious admission programs have a termination point assures all citizens that the deviation from the norm of equal treatment of all racial and ethnic groups is a temporary matter, a measure taken in the service of greater goal of equity itself"^ As such, the Supreme Court in Grutter upheld the law school's affirmative action program, and, thereby, denied relief to the plaintiff, while acknowledging, as it did in Croson, the underlying legitimacy of her Fourteenth Amendment and Title VI complaint. The conclusion is further underscored by the majority's declaration of its expectation "that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved of today The Implications of Gratz and Grutter The Gratz and Grutter decisions will have implications for university admission programs. The Grutter decision is not a license for universities to implement any type of race-conscious plan they choose. An analysis of the Court's reasoning in Gratz and Grutter, provides guidance for universities that choose to implement a race-conscious admission program. Diversity is a Compelling State Interest in Education In Gratz and Grutter, the Supreme Court finally clarified that having a diverse student body is a compelling government interest The Court dismissed the argument that

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142 diversity in education liad been foreclosed, either expressly or implicitly, by its affirmative action decisions since Bakke.^^^ Although the Grutter Court reasoned that some language of the non-education opinions might have been read to suggest that remedying past discrimination was the only permissible justification for race-based considerations, this was not the case.''^ This holding was important to the many supporters of affirmative action programs who agreed that diversity is a compelling interest. In preparation for this case, many groups filed amici briefs urging that diversity in education was a compelling state interest. Most of the supporters contended that diversity is essential for the interaction of ideas in a nation that is becoming increasingly diverse."^ In addition, the supporters briefs argued that informal learning results from institutions that recruit students from different races, religions, gender, and backgrounds."^ The line of reasoning from the briefs explains why most selective graduate schools and colleges consider race in admitting students,"^ The educational benefits that depend upon opportunities that resuh from student interaction in a racially diverse classroom cannot be achieved with few minorities enrolled. Without diverse experiences and viewpoints within the classroom, students would be missing out on an important aspect of their education. Even before the Gratz and Grutter decisions, the Supreme Court had acknowledged the importance of student body diversity. This recognized importance was evident in the pre-Brown'^' era in the case of Sweatt v. Painter, which held that the "... law school, the proving ground for legal learning and practice, cannot be effective in isolation from the individuals and institutions with which the law interacts."'^^ The Sweatt Court reasoned that students in racially homogenous classrooms are ill prepared

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for productive lives in a diverse society.'^"' Likewise in 1954, in Brown v. Board of Education, the Court held that the separate but equal rule had no place in the field of education.'^'* And, in Washington v. Seattle School District No. /, the Court determined that it should be equally clear that white as well Negro children benefit fi-om exposure to ethnic and racial diversity in the classroom. Finally, as recently stated by the district court in Gratz, "diversity in higher education also sei"ves to break patterns of racial segregation and separation historically rooted in our national life.'*^ Most recently, in Gratz and Grutter, the Supreme Court discussed the overriding importance of preparing students for work and citizenship.'" The Court relied on its previous holdings in both Plyler v. Doe^^^ and Brown v. Board of Education^^'^ to point out the importance of this concept. Accordingly, the court held that the "diffusion of knowledge and opportunity through public institutions of higher education must be accessible to all individuals regardless of race or ethnicity."'^" Now that diversity has been found to be a compelling interest, universities may consider race in admission programs.'^' Universities May Now Consider Race as One of Many Factors in Admissions The Grutter Court noted Justice Powell's approval of having race tip the balance when an institution is reviewing "the large middle group of applicants who are admissible and deemed capable of doing good work in their courses. . . ."'^^ Like the University of Michigan Law School, universities should make clear that there are many possible bases for diversity admissions. The Supreme Court in Grutter noted that the law school's policy required admission officers to consider soft variables, or other criteria beyond grades and 133 test scores. These soft variables may include the following: the recommender's

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comments; the quality of the undergraduate institution, the applicant's essay; and the difficuhy of the undergraduate courses taken. Some other bases for diversity may include an applicant who lived or traveled widely abroad, one who is fluent in several languages, or one who has an exceptional record of community service. '^^ Considering these areas, institutions will be able to seek a "diverse and academically outstanding" class. '^^ The most important consideration is that the law school gave substantial weight to diversity factors besides race.'^' Therefore, universities should take into account a wide variety of characteristics besides race and ethnicity that contribute to a diverse student body.'^^ Universities Must Know the Difference Between a Quota and a Critical Mass Just as the Supreme Court said that race could be considered, it was equally clear that university admission programs may not rely on a quota. The difference between what will be permissible and what will not be permissible lies in what constitutes such programs. In the Court's view, a quota exists when programs "impose a fixed number or percentage which must be attained, or which cannot be exceeded. For example, Bakke illustrated what the use of a quota entailed when the law school implemented a rigid sixteen-seat quota. The sixteen-seat quota is quite a contrast to the flexible Haivard-type plan that the University of Michigan Law School followed. The law school had not set aside a fixed number of seats for underrepresented minority students, as did the medical school in Bakke. The distinction as to what may or may not be permissible is based on the difference between the fixed point system used for undergraduates in Gratz and the qualitative approach used by the law school in Grutter. The Court held that institutions need to consider all applicants individually ^'^^

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145 The University of Michigan strived for meanmgfial numbers, because the Harvard plan recognized that low numbers of minority students tended to create a sense of isolation among the minority students themselves '''^ The Supreme Court in Grutter noted that diminishing the force of stereotypes cannot be accomphshed with only token numbers of minority students.''*^ The Grutter Court deferred to the law school's expertise in finding that a critical mass of underrepresented minorities was necessary to further an educational benefit.'''^ On its face, a point system like the one used in Gratz would be an easy way to consider race when there are many applications. Michigan argued that the elite public institutions would find it difficult to be holistic considering the number of applicants. Based on Grutter, schools will now need to weigh each applicant fairly, if a raceconscious admission program is implemented. Under this approach, universities will most likely need to hire additional admissions officers. If institutions were unable to accept this financial burden, minority enrollment may be lower under the holistic approach to admissions, which is now required.''*'' Universities Must Use Good Faith in Implementing Race-Conscious Admission Programs ^^^lile universities must narrowly tailor race-conscious admission programs, it is important to note that universities will receive the benefit of doubt when creating a policy. When holding that the law school had a compelling interest in a diverse student body, the Grutter Court noted that the university's good faith is preserved absent a showing to the contrary.'''^ The Court followed the reasoning set forth in Gratz, that the courts are ill equipped to tinker with the specifics of an admission program."*^

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J 46 Universities should be given the freedom to determine the composition of student bodies. As long as a university follows something similar to the Harvard Plan, the policy should be considered constitutional. Not Every Race Neutral Plan Needs to be Exhausted The Supreme Court in Gnttter realized that to achieve an ethnically and racially diverse student body, race could be a consideration. The plaintiffs in Gruiter argued that the law school's admission plan was not narrowly tailored because not every race-neutral plan was tried. In response, the court held that narrow tailoring does not require exhaustion of every conceivable race-neutral alternative.^'** The Grutter Court did, however, point out that an institution should sufficiently consider workable race-neutral alternatives.''*' The Court found that the University of Michigan Law School considered other race-neutral alternatives. The Court also remarked that race-neutral programs would not work for graduate schools.'^" Recommendations and Conclusion Although only time and, in all likelihood, fijture litigation, will establish the full effect of the Supreme Court's rulings in Gratz and Grutter, these concurrent decisions do, offer some clear implications for educational practice. The rejection of the quantitative driven preferences in Gratz, along with the simultaneous, if only temporary, acceptance of the more qualitative approach in Gnmer has served to clarify Justice Powell's ruling in Bakke. Justice O'Conner's ruling, supported by a clearer 5-4 majority than the concurrence in Bakke, indicates that when race is considered as a significant, but not exclusive or guaranteed factor, in admission decisions based on an individualistic and holistic review of an application, such a policy may be acceptable. However, basing

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such a policy on Grutter, would appear to require universities to meet the following criteria. Such policies must clearly seek to create a diverse student body within a broad definition of "diversity" as established xnBakke. As such, diversity cannot merely serve as a proxy for racial inclusion but must apply to a wider definition of attributes and experiences similar to those identified xnBakke and Grutter. Achievement of this diverse student body must, therefore, be based on the individual qualities of applicants, as determined is essays, interviews, and recommendations, and not simply by quantifiable data. Furthermore, as Gratz makes clear, the application of specific preferences for race, such as adding a large numeric bonus to an admissions index or establishing separate admissions grids for applicants of different racial backgrounds will not be upheld.'" Although it is beyond the scope of the Court's ruling to consider every possible quantitative admissions program in which race might be a factor, the Court's rejection of no fewer than three separate procedures utilized by the undergraduate program at the University of Michigan, along with its steadfast rejection of quotas since BakkeJ'^ would seem to indicate that there is no viable method by which a university can combine its goal of a racially diverse student body with a purely, or even predominately, quantitative admission process. The rejection of the quanfitatively driven preferences in Graiz, along with the simultaneous, if temporary, acceptance of the more qualitative approach in Grutter has served to clarify Justice Powell's ruling in quantitative admissions process. The Supreme Court's ruling in Gratz is unambiguous that such an individualistic admissions process is a necessary component of a race-conscious

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admissions policy, regardless of the volume of applications received in certain programs, such as the undergraduate programs at large public universities/^'* As the Court stated in Gratz, in dismissing the University of Michigan's contention that such qualitative admissions programs are impractical in undergraduate programs at large universities, "the fact that the implementation of a program capable of providing individualized consideration might present administrative challenges does not render constitutional an otherwise problematic system."^^^ Any policy which does meet this strict scrutiny standard to utilize race as one of many factors to achieve a diverse student body must also be adopted only as a last resort, after serious and extensive consideration of practical and legal race-neutral ahematives.'^^ Universities applying racial considerations in admissions would be well advised to not only give serious inirial consideration to these options, but to continuously evaluate and review both established and emerging race-neutral alternatives to raceconscious affirmative action. Serious consideration must also be given to the Supreme Court's cleaipreference not only for race-neutral programs but also for temporally limiting race-conscious programs. As such, the Court's ruling in Grutter should be properly viewed by proponents of affirmative action not as a victory, but merely as a reprieve. Whether Justice O'Connor's expectation that the need for affirmative action will expire within twenty-five years is upheld as precedent, as Justice Thomas assumes in his dissent, '^^ or is merely aspirational dicta, as indicated in the concurrence of Justice Ginsburg,'^^ is a matter that may not be fully determined until 2028. However, the Cruller ruling makes clear that universities, and by inference other institutions and businesses, should consider

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even those aflRrmative action programs that sur\ave strict judicial scrutiny to be temporary in nature.'* More than any previous precedent, Grutter has enunciated the Court's uneasiness in juggling the principles of equal protection, especially those of the Fourteenth Amendment, with the ongoing need to remedy continuing racial disparities in American society. As such, race-based affirmative action programs should, barring a major change in the Court's rulings, be viev^ed as temporary programs, designed to achieve specific goals within a finite period of time, rather than permanent or long-term institutional policies. The Court's ominous references to "durational limits," "sunset provisions," and "periodic reviews"'^' should serve as warnings that universities should seek to maximize the effectiveness of these programs in the short-term while actively seeking race-neutral alternatives for the long-term. Even if Justice O'Connor's twentyfive year limit were not strictly applied, the overwhelming implication of the Gnitter ruling is that even programs narrowly tailored to serve the under-represented minority applicants of today, may not survive to serve their children, and almost certainly will not survive to serve their grandchildren. It can only be hoped that by then either universities will have developed successfiil race-neutral alternatives or, as Justice O'Connor hopes and predicts, the need for such alternatives will no longer exist. At a bare minimum, the recent decisions of the Supreme Court regarding the University of Michigan will require most competitive public colleges and universities to review both policies and specific admissions procedures. In all likelihood, those institutions with a strong commitment to racial diversity, in addition to other forms of diversity, will need to adopt policies that emphasize the individual qualities of specific applicants, rather than granting broad preferences based upon membership in an under-

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represented minority group. In graduate programs and smaller undergraduate colleges this may be relatively easy As established in Gnitter, the admissions policy in question had been in use since 1 992 and no doubt many selective programs have used such personalized approaches for decades and, perhaps, centuries. However, for larger programs, especially the undergraduate components of the nation's largest public universities, the challenge may be far greater. In such instances the choice may come down to choosing between creating even larger and more complex admissions procedures, necessitating a considerable increase in admissions staff, or the adoption of imperfect, but constitutional, race-neutral ahernatives such as guaranteeing admission to all in-state high school graduates who achieve a specific class-rank or granting numeric preferences for proxy criteria such as first generation college applicants or family socioeconomic status Finally, and in a broader sense, it is vital to address in a timely mamier the root causes that have necessitated race-based affirmative action in college admissions and other areas of society. It must be recognized and reiterated that the reprieve recently given to race-based admissions is both partial and temporary. Even as they celebrate the recent decisions, at least partially, supporters of affirmative action must acknowledge the legal reality that not only is the duration of such programs not infinite, but these programs may now be time limited to no more than the next quarter century. While the Supreme Court has, in the recent Grutter ruling, indicated its reluctant willingness to temporarily subordinate the literal requirements of equal treatment under the Fourteenth Amendment and the Civil Rights Act, to pursue the compelling needs of racial equality, it has also

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151 made clear that this must be viewed as temporary, and, perhaps, specifically time-limited concession. In summary, the Gratz and Gruiter decisions finally announced that race may be constitutionally considered in higher education admissions. From these cases, it is certain that the Supreme Court recognized the benefits of di versity in student bodies. If universities choose to implement a race-conscious admission program, these recent decisions will provide guidance. The combination of the Gratz and GruUer decisions provide a detailed plan of action for colleges and universities that choose to consider race in admissions. Grutler informs that a highly individualized, holistic review of each applicant's file while considering race is permissible, whereas race used in a mechanical way, as in Gratz, is not acceptable. The constitutional validity of any race-conscious admission program in higher education vAW depend on how it meets these standards. Notes ' 123 S. Ct. 2325. 156 L. Ed. 2d 304 (2003). '123 S. Ct. 2411, 156 L, Ed. 2d 257 (2003). ^78 F.3d 932 (5* Cir. 1996). '438 U.S. 265, 98 S. Ct. 2733. 57 L. Ed. 2d 750 (1978). '263 F.3dl234 (ll* Cir. 2001). "233 F.3d 1188 (9* Cir. 2000). '533 U.S. 929. 121 S. Ct. 2550. 150 L. Ed. 2d 717 (2001); 518 U.S. 1033, 116 S. Ct. 2581, 135 L. Ed. 2d 1095 (1996). ^532 U.S. 1051. 121 S. Ct. 2192. 149 L. Ed. 2d 1024 (2001) 'See. Peter Schmidt, "Ne.xt Stop, Supreme Court?"; The Chromck of Higher Education, 24 Mav 2002. A25. "'123 S. Cf. 2325. 2347. "W. at 2430-31. ';U.S. Const, amend. XIV. § 1. '^See. John E. Nowak. et al.. Constitutional Lov (2''"' ed.. St. Paul. Miiui . West Publishing Co J 983). 586. ''See. Suzanne E. Eckes. "Race-conscious Admissions Programs: Where Do Universities Go from and Gnitler'?'. Journal of Law and Education 33, (1): 22 (2004). '-'See. Kathleen M. Sullivan, and Gerald Gunter. Constitutional Lom' (J 4* ed.. Westbury. N. Y.: Foundation Press. 2001). 605-55. '"78 F.3d 932. 962, "W. at 938.

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861 F. Supp. 551, 553 (W.D. Tex. 1994). '^M at 579. 583-84. ''Id at 581. *'78F.3d 932, 962. "515 U.S. 200. 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995). ^^78 F.3d 932, 962-63. -"/t/. at 941-44. -^Id at 944-45. '"^M at 948. 'Id at 949. 954-55. ^^84 F.3d 720 (5* Cir. 1996). '^533 U.S. 929. 121 S. Ct. 2550. 150 L. Ed. 2d 717 (2001); 518 U.S. 1033, 1 16 S. Ct. 2581 (1996) '-233 F.3d 1188 (9"' Cir. 2000). J2 '78F.3d932 (5"'Cir. 1996). "2 F. Supp.2d 1324, 1328 (W.D. Wash. 1998). at 1330 3-t 35 W.-^K. Rev. Code § 49.60.400 (1). 233 F.3d 1188, 1196. Vcf. at 1193. ^'Id at 1200-01. •''532 U.S. 1057. 121 S. Ct. 2192. 149 L. Ed. 2d 1024 (2001). '^515 U.S. 200. 115 S. Ct. 2097. 132 L. Ed. 2d 158 (1995) "''263 F.3d 1234 (ll*Cir. 2001). at 1250-51. "^A/. at 1240-41. '^^Id. at 1241-42. "106 F. Supp.2d 1362, 1370-75 (S.D. Ga. 2000). '-'263 F.3d 1234. 1250. '^Id at 1252-54. ''Id at 1254. at 1257-58. *M at 1259. -V. at 1264. "See, Peter Schmidt. "Next Stop. Supreme Court?". The Chronicle of Higher Education 24 May 2002. A25. "78F.3d932 (5'^^ Cir. 1996). -'518 U.S. 1033. 1 16 S. Ct. 2581. 135 L. Ed 2d 1095 (1996). '•'288 F.3d 732 (6* Cir. 2002). ''Id at 752. '*483 U.S. 265. 98 S. Ct. 2733. 57 L. Ed.2d 750 (1978). "137 F. Supp.2d 821. 825-29 (E.D. Mich. 2001). '^Id at 823-24. 59 Id at 872. *430 U.S. m. 97 S. Ct. 990. 51 L. Ed. 2d 260 (1977). •^'515 U.S. 200. 115 S. Ct. 2097. 132 L. Ed. 2d 158 (1995). *-488 U.S. 469, 109 S. Ct. 706, 102 L. Ed. 2d 854 (1989) 137 F. Supp.2d 821.847-48. Id at 850. '''288 F.3d 732. 752. at 743 ^'Id at 740-42. at 743-44. at 742. ]°Id at 746-49. "122 F. Supp.2d811, 814-15 (E.D. Mich, 2000).

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-Id. at 815. '^Id at 827-33. ''M at 816. "233 F.3d 1188 (9* Cir. 2000). '*122 F. SuK5.2d8Il,819. "Jd '^Id at 818. ''Id at 819. *'497 U.S. 547, 110 S. Ct. 2997, 111 L. Ed. 2d 445 (1990). ^'122 F. Supp.2d 81 1.820. at 821. ^^Id at 822-23. at 824-25. at 825. ^""Jd at 829-30. ^'/c/. at 831. ''Id '^Jd at 832-33. 90. 91 260 '288 F.3d 732 (6"^ Cir, 2002). 537 U.S. 1044. 123 S. Ct. 602, 154 L. Ed. 2d 515 (2002). ^'123 S. Ct. 2411, 2417. 93 Id at 2418-20. ^'Id at 2418. ^-'438 U.S. 265. 98 S. Ct. 2733. 57 L. Ed. 2d 750 (1978). ^^123 S. Ct. 2411, 2420-2422. ''537 U.S. 1044. 123 S. Ct. 602. 617. 154 L. Ed. 2d 514 (2002). '*'123 S, Ct. 2411. 2427-30. ^'M at 2430. ^Id at 2430-31. 123 S. Ct. 2325. 156 L. Ed. 2d 304 (2003). "123 S. Ct. 2325. 2332-2333. °'Id at 2333-35. ""Id at 2337. '"W. at 2344. at 2343-44. °'ld at 2345. 08 Id at 2344. ' -M at 2345. See Wvgant v. Jackson Bd. of Educ. 476 U.S. 267. 106 S. Ct. 1842. 90 L. Ed 2d (1986). "123 S. Ct, 2325. 2346. ''488 U.S. 469. 109 S. Ct. 706. 102 L. Ed. 2d 854 (1989). '-123 S. Ct. 2325. 2347. 15, Grutterv. Bollinger, 123 S. Ct, 2325. 2338 (2003). 17 1 See Brief from Amici Curiae, 3M et al,, Gratz v, Bollinger (6*^' Cir, 2001). at 5, See Regents of Univ, of Cal, v, Bakke, 438 U.S. 265, 312 n. 48 (1978) (Powell. J.). Vd '"Bro^vn v Bd. of Educ, 347 U.S. 483, 493-95 n. 1 1 (1954). ^'Brown v. Bd, of Educ, 347 U,S, 483, 74 S, Ct, 686. 98 L Ed, 873 (1954), J-339 U,S, 629. 634 (1950) (desegregating the University of Texas Law School), ''Id '"Brown, 347 U,S, 483. 495, '^458 U.S. 457, 472 (1982),

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154 '^Gratz V. Bollinger. 122 F. Supp.2d 811. 822 (E.D. Mich. 2000). -'Grutter v. Bollinger, 123 S. Ct. 2325. 2340 (2003). ^^457 U.S. 202. 221 (1982). ^'347 U.S. 483, 74 S. Ct. 686. 98 L. Ed. 873 (1954). -"Grutter, 123 S. Ct. 2325, 2340. "See. Suzanne Eckes. "Race-Conscious Admissions Prograjns." Journal of Law and Education -54 (2004). ^-123 S. Ct. 2325, 2344 (quoting Regents of Univ. of Cal, v. Bakke, 438 U.S. 265, 316 (1978). ^^123 S. Ct. 2325. 2332. ''id. ^'id at 2344. '^Id at 2332. ''id at 2344. ''Id '''See Local 28 v. Equal EmplovTuent Opportiuiit\Comm.. 478 U.S. 421. 495 (1986). '"^See. Eckes. ' Race-Conscious Admissions Pi'ograms. ' 53. ^'Regents of the Univ. of Cal. v. Bakke. 438 U.S. 265, 323 (1978). "-Grutter V. Bollinger. 123 S. Ct. 2325, 2341 (2003). ''Id at 2339. ''"See. Eckes. "Race-Conscious Admissions Programs." 54. "'123 S. Ct. 2325. 2339. "*GraU. 123 S. Ct. 2411. ''"Grutter. 123 S. Ct. 2325. 2344-45. Ct. 2325, 2342-47. Ct. 2411. 2428-31. "'M at 2344. "^M at 2345. ''Id "123 S. -''123 S. -'id at 2428-30. '"M at 2428, 2420. '-Id at 2420. '123 S. Ct. 2325. 2344-45. -'Id at 2346. at 2350-51. '^d at 2347-48. *M at 2346. ''Id

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156 Carter, Stephen L., Reflections of an Affirmative Action Baby (New York: Basic Books, 1991). Chavez, Linda, Out of the Barrio: Toward a New Politics of Hispanic Assimilation (New York: Basic Books, 1991). Cohen, Carl, Naked Racial Preferences: ITte Case Against Affirmative Action (Lanham, Md.: Madison Books, 1995). Colker, Ruth, Anti-Subordination Above All: Sex, Race atid Equal Protection, 61 N.Y.U. L. Rev. 1003 (1986). Davies, Gareth, From Opportunity to Entitlement: ITie Transformation and Decline of Great Society Liberalism (Lawrence: University Press of Kansas, 1996). Davis, Timothy, Kevin R. Johnson, and George A. Marinez, eds., A Reader on Race, Civil Rights, and American Law: A Multicultural Approach (Durham, N. C: Carolina Academic Press, 2001) Devins, 'Neal, Adarand Contractors, Inc. v. Pena and the Continuing Irrelevance of Supreme Court Affirmative Action Decisioyis, 37 Wm. & MaryL. Rev. 673 (1996). Devins, ^^tdX, Affirmative Action After Reagan, 68 TEX. L. REV. 353 (1989). Du Bois, W. E. B., Black Reconstruction in America, 1860-18S0 (Cleveland: Meridian, 1968). Duffy, Elizabeth A., and Idana Goldberg, Crafting a Class: College Admissions and Financial Aid, 7955-/99-/ (Princeton: Princeton University Press, 1998). Duncan, Myri, The Future of Affirmative Action: A Jurispimdential/Legal Critique, 17 R^RV. C.R.-C.L.L. Rev. 503 (1982). Eastland, Terry, Ending Affirmative Action: A Case for Color Blind Justice (New York: Basic Books, 1996). Eastland, Terry, and William J. Bennett, Counting by Race: Equality from the Founding Fathers to Bakke and Weber (New York: Basic Books, 1979). Eckes, Suzanne, "Race-Conscious Admissions Programs," Journal of Law' and Education 33 (1) (2004). Edwards, Harry R., Preferential Remedies and Affirmative Action in Employment in the Wake of Bakke, 1979 Wash U. L.Q. 1 13.

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157 Eisaguirre, Lynne, Affirmative Action: A Reference Handbook (Santa Barbara, Calif.: ABC-CLIO, 1999). Ely, John Hart, Democracy and Distrust: A Iheoiy of Judicial Review (Cambridge: Harvard University Press, 1980) Fiss, Owen, "Groups and the Equal Protection Clause," Journal of Philosophy and Public Affairs 5 {\91 6). Foner, Eric, Reconstruction: America 's Unfinished Revolution, 1863-1877 (New York: Perennial Classics, 2002). Geertz, Clifford, "The Thick Description: Toward an Interpretive Theory of Culture," in Tlw Interpretation of Cultures: Selected Essays (New York: Basic Books, 1973). Glazer, Nathan, Affirmative Discrimination: Inequality and Public Policy (New York: Basic Books, 1975). Glazer, Nathan, A liable Compromise on Minority Admissions, 1979 Wash. U. L.Q. 93. Graglia, Lino A., Disaster by Decree: The Supreme Court Decisions on Race and the Schools (Ithaca: Cornell University Press, 1976). Graham, Hugh Davis, The Civil Rights Era: Origins and Development of National Policy, 1960-1972 (New York: Oxford University Press, 1990). Graham, Hugh Davis, Collision Course: The Strange Convergence of Affirmative Action and Immigration Policy in America (New York: Oxford University Press, 2002). Hacker, Andrew, ed ., U'S: A Statistical Portrait of the American People (New York Viking, 1983). Hall, Kermit L., Freedom and Equality: Discrimination and the Supreme Court (New York: Garland Publishing, 2000). Hall, Kermit L., ed.,The Oxford Companion to the Supreme Court of the United States (New York; Oxford University Press, 1992). Harvard Law Review Association, The Bluebook: A Uniform System of Citation (16* ed , Cambridge, Mass : Harvard Law Review Association, 1996). Higginbotham, A Leon, In the Matter of Color: Race and the American Legal Process (New York: Oxford University Press, 1978).

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158 Higginbotham, F. Michael, Race Lcm;Cases, Commeutaries, and Questions (Durham, N. C; Carolina Academic Press, 2001). Howard, John R., "Affirmative Action in Historical Perspective," m Affirmative Action 's Testament of Hope: Strategies for a NeM> Era in Higher Education, ed. Mildred Garcia (Albany: State University of New York Press, 1997). Irons, Peter, A People 's History of the Supreme Court (New York: Viking, 1999). Jaynes, Gerald D., and Robin M. Williams Jr., eds , A Common Destiny: Blacks and American Society (Washington, D.C.: National Academy Press, 1989). Jones, James E., The Genesis and Present Status of Affirmative Action in Employment: Economic, Legal and PoUtical Realities, 70 IowaL. Ri-:v. 4, 903 (1982). Jones, James E., "The Rise and Fall of Affirmative Action," in Race in America: Tlie Struggle for Equality, eds. Herbert Hill and James E. Jones (Madison: University of Wisconsin Press, 1993), 345-69 Karen, Da\id, "The Politics of Class, Race, and Gender: Access to Higher Education in the United States, 1960-1986," American Journal of Education 99 (2) (1991) Kendrick, S. A., "The Coming Segregation of Our Selective Colleges," College Board Review 66 (winter 1967). Kotlowski, Dean J., Nixon 's Civil Rights: Politics, Principle, and Policy (Cambridge: Harvard University Press, 2001). Lawrence, Charles R., The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317 (1987). Lawrence, Charles R., and Mari J. Matsuda, We Won 't Go Back: Making a Case for Affirmative Action (Boston: Houghton Mifflin, 1997), 27. Lawson, Steven F., ed., "Affirmative Action Commitment Under Executive Orders 1 0925 and 1 1 1 14," in Civil Rights During the Johnson Administration. 19631 969: A Collection from the Holdings of the Lyndon Baines Johnson Library (Lyndon Baines Johnson Library, Austin; Frederick, Md.: University Publications of America, 1984), microfilm. University of Florida Libraries, part II, reel 3, frame 809. Lindsay, Beverly, and Manuel J. Justiz, "The Landscape for Conceptual and Policy Issues," in The Quest for Equity in Higher Education: Toward NeM' Paradigms in Evolving Affirmative Action Era, eds. Beverly Lindsay and Manuel J. Justiz (Albany: State University of New York Press, 2001).

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Massey, Douglas, and Nancy A Denton, American Apartheid: Segiegation and the Making of the Underclass (Cambridge: Harvard Press, 1993). McWhirter, Darien A., The End of Affirmative Action: Where Do We Go from Here? (New York: Carol Publishing Group, 1996) Moreno, Paul D., "Racial Classifications and Reconstruction Legislation," Journal of Southern History 61 (2): 271-304 (1995). Morrell, Audrey J., et al., "Racism and Resistance to Affirmative Action. Perceptions of Justice Are Not Necessarily Color Blind," Basic and Applied Social Psychology 15 (1-2): 71-86 (1994). Nettles, Michael T., and Laura W. Pema, The African American Education Data Book: Higher and Adult Education (Fairfax, Va.: Frederick D. Patterson Research Institute of the College Fund/LTvICE, 1997). Nickens, Herbert W., Timothy P. Ready, and Robert G. Petersdorf, Project 3000 by 2000: Racial and Ethnic Diversity in U.S. Medical Schools," New England Journal of Medicine 331 (7) (1994). Note, Civil Rights-Minnesota Fair Employment Practice Act-Super\>ision as Affirmative Action, 42 MiNN. L. REV. 1 163 (1958). Nowak, John E., et al., Constitutional Law (2"'' ed., St. Paul, Minn.: West Publishing Co 1983). Olivas, Michael A., The Law and Higher Education: Cases cmd Materials on Colleges in Court (2"^ ed., Durham, N. C: Carolina Academic Press, 1997). O Neil, Robert M., Bakke in Balance: Some Preliminary Thoughts, 67 Cal L Rev 143 (1979). O'Neil, Robert M., Preferential Admissions: Equalizing Access to Legal Education, 1979 U. TOL. L. Rev. 300. Oppenheimer, David B . , Distinguishing Five Models of Affirmative A ction, 4 BERKELEY Women's L. J. 42 (1988-1989). Parmet, Herbert S., Richard Nixon 's America (New York: Little, Brovm, 1990). Pauley, Garth E,, The Modem Presidency and Civil Rights: Rhetoric on Race from Rooseveh to Nixon (College Station; Texas A&M University Press, 2001). Posner, Richard A., The Bakke Case and the Future of Affirmative Action 67 Cal L Rev. 171 (1979).

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160 Rainwater, Lee, and William L. Yancey, 77?^ Moynihan Report and the Politics of Controversy (Cambridge: MIT Press, 1967) Raza, M. Ali, A. Janell Anderson, and Harry Glyim Cuslred Jr , The Ups and DoM'ns of Affirmative Action Preferences {Wcstpoit: Conn.: Praeger, 1999). Robinson, Jo Ann Ooiman, ed.. Affirmative Action: A Documentary History (Westport, Conn.: Greenwood Press, 2001). Rubio, Philip F., A History of Affirmative Action, 1619-2000 (Jackson: University Press of Mississippi, 2001). Rutherglen, George, After Affirmative Action: Conditions and Consequences of Ending Preferences, 1992 U. ILL. L. REV. 339. Scalia, Antonin, The Disease as Cure: In Order to Get Beyond Racism, We Must First Take Account of Race, 1 979 WASH. U. L.Q. 1 47. Schnapper, Eric, Affirmative Action and the Legislative History of the Fourteenth Amendment, 71 Va. L. Rev. 753 (1985). Schwartz, Bernard, ed.. Statuary History of the United States: Civil Rights Part 1 (NewYork: Chelsea House, 1970). Skrentny, John D., The Ironies of Affirmative Action: Politics, Culture, and Justice in America (Chicago: University of Chicago Press, 1996). Skrentny, John D., ed., in introduction to Color Lines: Affirmative Action, Immigration, and Civil Rights Options for America (Chicago: University of Chicago Press 2001), 4. Smith, Edward C, ed, 77?e Constitution of the United States with Case Summaries (11* ed.. New York: Barnes and Noble, 1979). Spann, Girardeau A., Color-Coded Standing, 80 Cornell L, Rev. 1422 (1995). Spann, Girardeau A., The Lcm' of Affirmative Action: Twenty-Five Years of Supreme Court Decisions on Race and Remedies (New York: New York University Press 2000). Spann, Girardeau A., Proposition 209, 47 DuKE L. J. 187 (1997). Spann, Girardeau A., Race Against the Court: The Supreme Court and Minorities in Contemporary America (New York: New York University Press, 1993).

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161 Starr, Kenneth W., First Among Equals: The Supreme Court in American Life (New York: Warner Books, 2002. Stone, Geoffrey R , et al. Constitutional Ixiw (Gaithersburg, Md. . Aspen Law and Business, 2001). Sugrue, Thomas, "Breaking Through: The Troubled Origins of Affirmative Action in the Workplace," in Color Lines: Affirmative Action, Immigration, and Civil Rights Options for America, ed. John D. Skrentny (Chicago: University' of Chicago Press, 2001). Sullivan, Kathleen M., Comment: Sins of Discrimination: Last Term 's Affirmative Action Cases, 100 Harv. L. Rev. 78 (1986). Sullivan, Kathleen M., and Gerald Gunter, Constitutional Lom' (\ 4^ ed., Westbury, N. Y.: Foundation Press, 2001). Taylor, Bryon R., Affirmative Action at Work: Law, Politics and Ethics (Pittsburgh: University of Pittsburgh Press, 1991). Taylor, Ronald A., 'Tighting Back: Affirmative Action Professionals on the Front Line," Black Issues in Higher Education 13 (2) (1996). Themstrom, Abigail M., Whose Votes Count? Affirmative Action and Minority Rights (Cambridge: Harvard University Press, 1987) Tomasson, Richard F., Faye J. Crosby, and Sharon D. Herzberger, Affirmative Action: The Pros and Cons ofPohcy and Practice (Washington, DC: University Press of America, 1996). Turner, Marlene E , and Anthony R. Pratkanis, "Affirmative Action as Help: A Review of Recipient Actions of Preferential Selection and Affirmative Action," Basic and Applied Social Psychology 15 (1-2): 43-69 (1994a). Turner, Marlene E., and Anthony R. Pratkanis, "Affirmative Action: Insights from Social Psychology and Organizational Research," Basic and Applied Social Psychology 15 (1-2): 1-11 (1994b). University of Chicago, Ihe Chicago Manual of Style ilA"^ ed., Chicago: University of Chicago Press, 1993). Urofsky, Melvin I., The Warren Court: Justice, Rulings, and Legacy (Santa Barbara Calif: ABC-CLIO, 2001). U.S. Department of Education, Digest of Educational Statistics (Washington D C GPO 1997), 17.

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TABLE OF CASES Adarai^d Contractors, Inc. v. Pern, 513 U.S 1012, 115 S. Ct. 569, 130 L. Ed. 2d 486 (1995). Bakke v. Regents of the University of California, Superior Court of Yolo County, No. 31287(1976). Bakke v. Regents of the University ofCaUfornia, 533 P.2d 1 1 52 (Cal. 1976) Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954). Brown v. Board of Education, 349 U.S. 294, 75 S. Ct. 753, 94 L. Ed. 1083 (1955) Buchanan v. Warley, 245 U.S. 60, 38 S. Ct. 16, 62 L. Ed. 149 (1917). City of Richmond V. J. A. Croson Co., 488 U.S. 469, 109 S. Ct. 706, 102 L. Ed 2d 854 (1989). Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9^' Cir. 1997). Contractors Ass 'nv. Secretary of Labor, 311 F. Supp. 1002 (ED. Pa. 1970). DeFunis v. Odegaard, 416 U.S. 312, 99 S. Ct. 1704, 40 L. Ed. 2d 164 (1974). Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 104 S. Ct. 2576, 81 L Ed 2d 483 (1984). Ihe Five Civil Rights Cases, 109 U.S. 3, 3 S. Ct. 18, 27 L. Ed. 835 (1883). Fullilove V. Klutznick, 448 U.S. 448, 100 S. Ct. 2758, 65 L Ed. 2d 902 (1980). Gratz V. Bollinger, 122 F. Supp.2d 811 (E.D. Mich. 2000). Gratz V. Bollinger, 123 S. Ct. 241 1, 156 L. Ed. 2d 257 (2003) Green v. County School Board, 391 U.S. 430, 88 S, Ct. 1689, 20 L. Ed. 2d 716 (1968). Grifftn v. County School Board, 377 U.S. 218, 84 S. Ct. 1226, 12 L. Ed. 2d 256 (1964). Griggs V. Duke Power Co., 401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971). 163

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164 Grutter v. Bollinger, 137 F. Supp 2d 821 (E D Mich. 2001). Grutter v. Bollinger, 288 F.3d 732 (6^ Cir. 2002). Grutter v. Bollinger, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (2003). HopH'oodv. Texas, 861 F. Supp. 551 (W.D. Tex. 1994). Hojywoodv. Texas, 78 F 3d 932 (5* Cir. 1996). International Ass 'n of Firefighters v. City of Cleveland, 478 U.S. 501, 106 S. Ct. 3063, 92 L.Ed. 2d 483 (1984). Johnson v. Board of Regents of the University of Georgia, 106 F. Supp.2d 1362 (S.D. Ga. 2000) . Johnson v. Board of Regents of the University of Georgia, 263 F.3d 1234 (1 1**" Cir. 2001) . Johnson v. Transportation Department, Santa Clara County, 480 U.S. 616, 107 S. Ct. 1442, 94 L. Ed. 2d 615 (1987). Kaiser Aluminum and Chemical Corporation v. Weber, 443 U.S. 193, 99 S. Ct. 2721. 61 L. Ed. 2d 480 (1979). Keysv. School District No 1, Denver, Colorado, 413 U.S. 189, 93 S. Ct. 2686, 37 L. Ed 2d 548 (1973). Local 28 V. Equal Employment Opportunity Commission, 478 U.S. 421, 106 S. Ct. 3019, 92 L. Ed. 2d 344(1986). Marks v. United States, 430 U.S. 188, 97 S. Ct. 990, 51 L. Ed. 2d 260 (1977). McKissickv. Carmichael, 187 F.2d 949 (4^^ Cir. 1951). McLuarin v. Oklahoma State Regents, 339 U.S. 637, 70 S. Ct. 851, 94 L. Ed 1 149 (1950). Metro Broadcasting V. Federal Communications Commission, 497 U.S. 547, 110 S Ct 2997, 111 L. Ed. 2d 445 (1990). Middleton v. City of Flint, 92 F.3d 396 (6* Cir. 1996). Milliken v. Bradley, 418 U.S. 717, 94 S. Ct. 3112, 41 L. Ed. 2d 1069 (1974).

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165 Missouri ex rel. Gaines v. Canada, 305 U S. 337, 59 S. Ct. 232, 83 L. Ed. 208 (1938). North Carolina State Board of Education v. SMann, 402 U.S. 43, 91 S. Ct. 1284, 28 L. Ed. 2d 586(1971). Pearson v, Murray, 182 A. 590 (Md. 1936). Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 99 S. Ct. 2282, 60 L. Ed. 2d 870 (1979). Plessy V. Ferguson, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896). Plyler v. Doe, 457 U.S. 202, 102 S. Ct. 2382, 72 L. Ed. 2d 786 (1982). Podberesky v. Kirwan, 38 F.3d 147 (4*^ Cir. 1994). Regents of the University of California v. Bakke, 438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978). San Antonio Independent School District V. Rodriguez, 411 U.S. 1, 93 S. Ct. 1278, 36 L. Ed. 2d 16 (1973). Scott V. Sandford, 60 U.S. 393, 15 L. Ed. 691 (1857). Sheet Metal Workers ' International Ass 'n v. Equal Employment Opportunity! Commission, 478 U.S. 421, 106 S. Ct. 3019, 92 L. Ed. 2d 344 (1986). Shelly V. Kraemer, 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1 161 (1948). Sipuel V. Board of Regents, 332 U.S. 631, 68 S. Ct. 299, 92 L. Ed. 247 (1948). Slaughter-House Cases, 83 U.S. 36, 21 L. Ed. 394 (1873). Smith v. University of Washington Law School, 2 F. Supp.2d 1329 (W.D. Wash 1998). Smith V. University of Washington Law School, 233 F.3d 1 188 (9"^ Cir. 2000). Stotts V. Memphis Fire Department, 679 F.2d 541 (6'*' Cir. 1982). Swami V. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 93 S. Ct. 1267, 2S L. Ed. 2d 554(1971). Sweatt V. Painter, 339 U.S. 629, 70 S. Ct. 848, 94 L. Ed. 1 1 14 (1950). United JcM'ish Organizations v. Carey, 430 U.S. 144, 97 S, Ct. 996 51 L Ed 2d 229 (1977).

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166 United States v. Carolem Products Co., 304 U.S. 144, 58 S. Ct. 778, 82 L Ed 1234 (1938). United States v. Cruikshank, 92 U.S. 542, 23 L. Ed. 588 (1875). United States v. Harris, 106 U.S. 629, 1 S. Ct. 601, 27 L. Ed. 290 (1882) United States v. Montgomery Coimty Board of Education, 395 U.S. 225. 89 S. Ct. 1670, 23 L. Ed. 2d 263 (1969). United States v. Paradise, 480 U.S. 149, 107 S. Ct. 1053, 94 L. Ed. 2d 203 (1987). United Steehvorkers v. Weber, 443 U.S. 193, 99 S. Ct. 2721, 61 L. Ed. 2d 480 (1979). Washington v. Da\>is, 426 U.S. 229, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976). Washington v. Seattle School District No. 1, 458 U S 457, 102 S. Ct. 3187, 73 L. Ed. 2d 896(1982). Wrighten v. University of South CaroUna, 72 F. Supp. 948 (E.D.S.C. 1947). Wygant v. Jackson Board of Education, 476 U.S. 267, 106 S. Ct. 1842, 90 L. Ed. 2d 260 (1986).

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BIOGRAPfflCAL SKETCH Alvin J. Schilling was bom in Newberry, Michigan; and graduated from Lutheran High School East, in Harper Woods, Michigan. He received a Bachelor of Arts degree in history from Concordia Senior College and a Master of Arts degree in American history from Florida Atlantic University. He also received a Juris Doctor degree from George Mason University School of Law. He practiced law in Virginia as a county attorney and as a private practitioner. He also served as a Commissioner in Chancery for the Circuit Court of Prince William County, Virginia. He is a member of the Virginia State Bar, the Education Law Association, and the American Educational Finance Association. 167

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I certify that I have read this study and that in my opinion it conforms to acceptable standards of scholarly presentation and is fully adequate, in scope and quality, as a dissertation for the degree of Doctor of Philosophy. R. Craig Wood, Chair Professor of Educational Leadership, Policy and Foundations I certify that I have read this study and that in my opinion it conforms to acceptable standards of scholarly presentation and is fully adequate, in scope and quality, as a dissertation for the degree of Doctor of Philosophy. David S. Honej^an, Jpr^ ^ Professor of Educational Leadership, Policy and Foundations I certify that I have read this study and that in my opinion it conforms to acceptable standards of scholarly presentation and is fully adequate, in scope and quality, as a dissertation for the degree of Doctor of Philosophy. Lawrence W. Tyree Professor of Educational Leadership, Policy and Foundations I certify that I have read this study and that in my opinion it conforms to acceptable standards of scholarly presentation and is folly adequate, in scope and quality, as a dissertation for the degree of Doctor of Philosophy. )n(fgomqry Charles H. Mor Associate Professor of History

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This dissertation was submitted to the Graduate Faculty of the College of Education and the Graduate School and was accepted as partial fulfillment of the requirements for the degree of Doctor of Philosophy. December 2004 Dean, Graduate School