Transcript Modern Applications of Equal Protection: Affirmative Action Bill of Rights Institute University of New Mexico Albuquerque, NM September 15, 2009 Artemus Ward Dept.

Modern Applications of Equal Protection:
Affirmative Action
Bill of Rights Institute
University of New Mexico
Albuquerque, NM
September 15, 2009
Artemus Ward
Dept. of Political Science
Northern Illinois University
http://polisci.niu.edu/polisci/faculty/ward/
[email protected]
Affirmative Action
• It is plain that today older white Americans continue to be the
most powerful demographic in American society:
– They vote in greater numbers than any other demographic
slice of America.
– They contribute more money to organized interests and
political campaigns.
– They also comprise the largest demographic group of
government officials, including Presidents, Senators,
Congressmen, and Supreme Court Justices.
• Does this history of deliberate governmental racial discrimination
justify positive governmental actions in order to realize equality?
• The federal government began affirmative action in the 1940s
and by the 1960s Lyndon Johnson’s administration was ordering
the Labor Department to ensure that government contracting was
nondiscriminatory. State governments and even private
businesses followed suit and minority recruiting and numerical
targets were established.
• Are racial quotas, or set-aside programs, constitutional?
Regents of the University of California v.
Bakke (1978)
•UC Davis Medical School set aside 16 places out of 100 spots in their
incoming class for members of minority groups. The average GPA of this
group was 2.6 and average MCAT score was in the 30th percentile.
•Allen Bakke, a white male, was denied admission despite his 3.5 GPA and
MCAT score in the 90th percentile. He sued under Title VI of the 1964 Civil
Rights Act which states: “No person in the United States shall, on the
ground of race, color, or national origin, be excluded from participation in,
be denied the benefits of, or be subjected to discrimination under any
program or activity receiving federal financial assistance.”
Justice Lewis Powell
Announced the Judgment of the Court
•
•
•
•
The Court was divided 4-4 with Justice Lewis
Powell providing the deciding vote to strike
down the program and order Bakke admitted.
Powell said that all racial classification
(regardless of whether blacks or whites are
burdened) are subject to “strict scrutiny” which
requires a compelling state interests and the
law to be the least restrictive means of
achieving that interest.
Powell said that while racial quotas are
unconstitutional, diversity is a valid goal for
universities. Hence race can be deemed a
“plus” in admissions when a range of factors
are considered.
“An otherwise qualified medical student with a
particular background—whether it be ethnic,
geographic, culturally advantaged or
disadvantaged—may bring to a professional
school of medicine experiences, outlooks, and
ideas that enrich the training of its student
body and better equip its graduates to render
with understanding their vital service to
humanity.”
Bakke’s Aftermath
• Though the quota program in Bakke was struck down, the Court
continued to allow racial quotas but only in narrow circumstances
such as when a specific history of racial discrimination demanded
a strong remedy.
• For example, in United States v. Paradise (1987) the Court ruled
5-4 that temporary quotas in hiring Alabama state troopers were
constitutional.
• The Court was also more deferential to federal programs because
of specific constitutional provisions granting congressional
authority. Hence, a less exacting test than the strict scrutiny
standard was applied.
• For example, in Fullilove v. Klutznick (1980) the justices upheld a
1977 spending bill that required 10% of all federal funds going for
public works projects to go to minority-owned companies. A
plurality cited the Spending Power and Commerce Clause as
authority.
• Also, in Metro Broadcasting v. FCC (1990) the Court upheld (5-4)
a federal program to set-aside broadcast licenses for minority
groups in order to promote future diversity in programming.
City of Richmond v. Croson (1989)
• Writing for a 6-3 majority,
Justice Sandra Day O’Connor
struck down a Richmond,
Virginia plan requiring prime
contractors to subcontract at
least 30% of the dollar amount
of the contract to minority
business enterprises.
• O’Connor applied strict scrutiny
and found no compelling state
interest: the city had not
demonstrated past
discrimination in the
construction industry, which is
what the Constitution requires
in race discrimination cases.
City of Richmond v. Croson (1989):
Justice Thurgood Marshall Dissenting
•
•
•
“It is a welcome symbol of racial progress when
the former capital of the Confederacy acts
forthrightly to confront the effects of racial
discrimination in its midst.”
“I find deep irony in second-guessing
Richmond’s judgment [about past
discrimination]. As much as any municipality in
the United States, Richmond knows what racial
discrimination is; a century of decisions by this
and other federal courts has richly documented
the city’s disgraceful history of public and private
racial discrimination.”
“Today’s decision marks a deliberate and giant
step backward in this Court’s affirmative action
jurisprudence….The new and restrictive tests
[the majority] applies scuttle one city’s effort to
surmount its discriminatory past…I, however,
profoundly disagree with the cramped vision of
the Equal Protection Clause which the majority
offers today and with its application of that vision
to Richmond’s laudable set-aside plan. The
battle against pernicious racial discrimination or
its effects is nowhere near won. I must dissent.”
Adarand Constructors v. Pena (1995)
• Adarand submitted the low bid on the guardrail
portion of a federal highway project but was
not awarded the subcontract because of a
federal subcontractor compensation clause
designed to provide the prime contractor with
a financial incentive to hire “socially and
economically disadvantaged” business
enterprises. Gonzales Construction Co. won
the subcontract and the prime contractor
received a $10,000 bonus.
• Justice O’Connor struck down the program for
a 5-4 majority. She applied strict scrutiny and
said that Congress did not show evidence of
past discrimination in federal contracting.
• She also explained that strict scrutiny applies
to all cases—state and national—and, to the
extent it is inconsistent with Adarand,
overturned Metro Broadcasting v. FCC (1990).
Adarand Constructors v. Pena (1995):
Justice Antonin Scalia Concurring
• “In my view, government can
never have a ‘compelling
interest’ in discriminating on the
basis of race in order to make
up for past racial discrimination
in the opposite direction.”
• “To pursue the concept of racial
entitlement—even for the most
benign of purposes—is to
reinforce and preserve for
future mischief the way of
thinking that produced race
slavery, race privilege and race
hatred. In the eyes of
government, we are just one
race here. It is American.”
Adarand Constructors v. Pena (1995):
Justice Clarence Thomas Concurring
• “The government may not make distinctions
on the basis of race.”
• “So-called ‘benign’ discrimination teaches
many that because of chronic and
apparently immutable handicaps, minorities
cannot compete with them without their
patronizing indulgence. Inevitably, such
programs engender attitudes of superiority
or, alternatively, provoke resentment among
those who believe that they have been
wronged by the government’s use of race.
These programs stamp minorities with a
badge of inferiority and may cause them to
develop dependencies or to adopt an
attitude that they are ‘entitled’ to
preferences.”
• “In my mind, government-sponsored racial
discrimination based on benign prejudice is
just as noxious as discrimination inspired by
malicious prejudice. In each instance, it is
racial discrimination, plain and simple.”
Adarand Constructors v. Pena (1995):
Justice John Paul Stevens Dissenting
• “There is no moral or constitutional
equivalence between a policy that is
designed to perpetuate a caste system and
one that seeks to eradicate racial
subordination. Invidious discrimination is
an engine of oppression, subjugating a
disfavored group to enhance or maintain
the power of the majority. Remedial racebased preferences reflect the opposite
impulse: a desire to foster equality in
society.”
• “The Court’s concept of ‘congruence’
assumes that there is no significant
difference between a decision by the
Congress of the United States to adopt an
affirmative-action program and such a
decision by a State or municipality. In my
opinion that assumption is untenable. It
ignores important practical and legal
differences between federal and state or
local decisionmakers.”
The Michigan Affirmative Action Cases (2003)
•In Gratz v. Bollinger (2003) the Court ruled 6-3 that the
University of Michigan’s undergraduate admissions policy, in
which 100 points were needed for admission, violated the
Equal Protection Clause. The majority applied strict scrutiny
and said that automatically allotting 20 points to minority
applicants was not narrowly tailored to achieve the goal of
educational diversity. They said the system lacked the
individualized treatment of each applicant mentioned by
Justice Powell in Bakke.
•The same day, the Court ruled 5-4 in Grutter v. Bollinger
(2003) that Michigan Law School’s admissions program,
which sought a “critical mass” of minorities but was
individualized was constitutional. The justices cited briefs
filed by businesses and the military that worker/soldiers with
experience and training in a diverse environment were
beneficial—particularly for leadership positions.
•Justice O’Connor wrote for the majority that “race-conscious
admissions policies must be limited in time…. It has been 25
years since Justice Powell first approved the use of race to
further an interest in student body diversity in the context of
public higher education. Since that time, the number of
minority applicants with high grades and test scores has
increased. We expect that 25 years from now, the use of
racial preferences will no longer be necessary to further the
interest approved today.”
Grutter v. Bollinger (2003)
Justice Clarence Thomas Dissenting
•
•
“I agree with the Court’s holding that racial
discrimination in higher education admissions will
be illegal in 25 years. I respectfully dissent from
the remainder of the Court’s opinion and
judgment, however, because I believe that the
Law School’s current use of race violates the
Equal Protection Clause and that the
Constitution means the same thing today as it
will in 300 months.”
“The majority of black admitted to the Law
School because of discrimination, and because
of this policy al are tarred as undeserving. This
problem of stigma does not depend on
determinacy as to whether those stigmatized are
actually the ‘beneficiaries’ of racial discrimination.
When blacks take positions in the highest places
of government, industry, or academia, it is an
open question today whether their skin color
played a part in their advancement. The question
itself is the stigma—because either racial
discrimination did play a role, in which case the
person may be deemed ‘otherwise unqualified,’
or it did not, in which case asking the question
itself unfairly marks those blacks who would
succeed without discrimination.”
Parents Involved v. Seattle (2007)
Chief Justice John Roberts Delivered the Majority Opinion
•
•
•
The school district never operated legally segregated schools
and was never subject to court-ordered desegregation. Yet
they voluntarily adopted a policy of assigning students to
schools in order to overcome the effects of the city's
segregated housing patterns on it's high schools. Specifically,
they classified children as white or nonwhite, and used racial
classifications as a “tiebreaker” to allocate slots in particular
high schools.
By a vote of 5-4 Chief Justice John Roberts wrote the
majority opinion striking down the plan under strict scrutiny.
Five justices said that the plan was not narrowly tailored.
Roberts also said that local school districts do not have a
compelling interest in racial diversity at the K-12 level. Yet
only three other justices agreed with this position (Scalia,
Thomas, and Alito).
Roberts concluded: “Before Brown, schoolchildren were told
where they could and could not go to school based on the
color of their skin. The school districts in these cases have
not carried the heavy burden of demonstrating that we should
allow this once again—even for very different reasons. For
schools that never segregated on the basis of race, such as
Seattle, or that have removed the vestiges of past
segregation…the way to ‘achieve a system of determining
admission to the public schools on a nonracial basis’ is to
stop assigning students on a racial basis. The way to stop
discrimination on the basis of race is to stop discriminating on
the basis of race.”
Parents Involved v. Seattle (2007)
Justice Anthony Kennedy Concurring
•
•
“The plurality opinion is at least open to the
interpretation that the Constitution requires school
districts to ignore the problem of de facto
resegregation in schooling. I cannot endorse that
conclusion. To the extent the plurality opinion
suggests the Constitution mandates that state and
local school authorities must accept the status quo
of racial isolation in schools, it is, in my view,
profoundly mistaken.”
“This Nation has a moral and ethical obligation to
fulfill its historic commitment to creating an
integrated society that ensures equal opportunity
for all of its children. A compelling interest exists in
avoiding racial isolation, an interest that a school
district, in its discretion and expertise, may choose
to pursue. Likewise, a district may consider it a
compelling interest to achieve a diverse student
population. Race may be one component of that
diversity, but other demographic factors, plus
special talents and needs, should also be
considered. What the government is not permitted
to do, absent a showing of necessity not made
here, is to classify every student on the basis of
race and to assign each of them to schools based
on that classification.”
Kennedy speaks at Harvard Law School,
March 2008.
The event marked his 20th year on the Court.
Parents Involved v. Seattle (2007)
Justice John Paul Stevens, Dissenting
•
•
“There is a cruel irony in the Chief Justice’s
reliance on Brown. The first sentence of his
concluding paragraph states: ‘Before Brown,
schoolchildren were told where they could and
could not got to school based on the color of
their skin.’ This sentence reminds me of
Anatole France’s observation: ‘The majestic
equality of the law, forbids rich and poor alike
to sleep under bridges, to beg in the streets,
and to steal their bread.’ The Chief Justice fails
to note that it was only black schoolchildren
who were so ordered; indeed, the history
books do not tell stories of white children
struggling to attend black schools. In this and
other ways, the Chief Justice rewrites the
history of one of this Court’s most important
decisions.”
“The Court has changed significantly
since…1968. It was then more faithful to
Brown and more respectful of our precedent
than it is today. It is my firm conviction that no
Member of the Court that I joined in 1975
would have agreed with today's decision.”
Parents Involved v. Seattle (2007)
Justice Stephen Breyer, Dissenting
June 28, 2007. Justice Breyer (Left) reads his dissent from the bench. Next to him, Justice Kennedy leans back
In his chair, while Justice Stevens sits upright and watches his colleague critique the majority opinion.
•
•
•
Breyer alluded to the Court’s personnel changes by noting that the addition of Chief Justice
Roberts and Justice Alito had made the difference in the case.
“Rarely in the history of the law have so few undone so much so quickly.”
Breyer explained that school districts should be allowed to pursue integration policies: “They have
asked us not to take from their hands the instruments they have used to rid their schools of racial
segregation, instruments that they believe are needed to overcome the problems of cities divided
by race and poverty. The plurality would decline their modest request. The plurality is wrong to do
so. The last half-century has witnessed great strides toward racial equality, but we have not yet
realized the promise of Brown. To invalidate the plans under review is to threaten the promise of
Brown. The plurality’s position, I fear, would break that promise. This is a decision the Court and the
Nation will come to regret. I must dissent.”
Parents Involved v. Seattle (2007)
Justice Clarence Thomas, Concurring
•
•
•
“Racial imbalance is not segregation…. In the context
of public schooling, segregation is the deliberate
operation of a school system to ‘carry out a
governmental policy to separate pupils in schools
solely on the basis of race…. Racial imbalance is the
failure of a school district’s individual schools to match
or approximate the demographic makeup of the
student population at large…. Racial imbalance can
result from any number of innocent private decisions,
including voluntary housing choices. Because racial
imbalance is not inevitably linked to unconstitutional
segregation, it is not unconstitutional in and of itself.”
Thomas pointed out that there is much debate about
whether or not learning is enhanced through
integration and that there are studies that show racial
minorities doing well in schools which are majority
minority: “If our history has taught us anything it has
taught us to beware of elites bearing racial theories.”
In a footnote he commented, “Justice Breyer's good
intentions, which I do not doubt, have the shelf life of
Justice Breyer's tenure. Unlike the dissenters, I am
unwilling to delegate my constitutional responsibilities
to local school boards and allow them to experiment
with race-based decisionmaking on the assumption
that their intentions will forever remain as good as
Justice Breyer's.”
“Don’t Mourn Brown v. Board of Education”
•
By Juan Williams, New York Times, June 29, 2007.
•
“In 1990, after months of interviews with Justice Thurgood Marshall, who had been the
lead lawyer for the N.A.A.C.P. Legal Defense Fund on the Brown case, I sat in his
Supreme Court chambers with a final question. Almost 40 years later, was he satisfied with
the outcome of the decision? Outside the courthouse, the failing Washington school
system was hypersegregated, with more than 90 percent of its students black and Latino.
Schools in the surrounding suburbs, meanwhile, were mostly white and producing some of
the top students in the nation. Had Mr. Marshall, the lawyer, made a mistake by insisting
on racial integration instead of improvement in the quality of schools for black children?
His response was that seating black children next to white children in school had never
been the point. It had been necessary only because all-white school boards were
generously financing schools for white children while leaving black students in
overcrowded, decrepit buildings with hand-me-down books and underpaid teachers. He
had wanted black children to have the right to attend white schools as a point of leverage
over the biased spending patterns of the segregationists who ran schools — both in the 17
states where racially separate schools were required by law and in other states where they
were a matter of culture.
If black children had the right to be in schools with white children, Justice Marshall
reasoned, then school board officials would have no choice but to equalize spending to
protect the interests of their white children.”
In the end, Williams related this anecdote to argue that what is needed is not integration
for integration’s sake. But instead, what is needed are simply better schools. But how will
that be realized?
•
•
•
Historically Black Colleges v.
“The Big Three”: Endowments
For fiscal year 2005:
School
Harvard University
Yale University
Stanford University
Endowment
$28.62 billion
$17.95 billion
$14.08 billion
Howard University
Spelman College
Hampton University
Morehouse College
Fisk University
Bowie State University
$423.9 million
$291.6 million
$217.5 million
$121.0 million
$7.5 million
$4.0 million
______________________________________________________________________
Note: An Endowment is simply the amount of money a school has "in the bank" or invested so that they can earn
interest to pay for operating costs and roll over back into the endowment fund. Schools never touch their
endowments and earn roughly 10% interest--though some earn more or less and that varies from year to year.
The health and size of a college's endowment is an important indicator of the financial stability and long-term focus
of an institution.
Source: Council for Aid to Education. Chicago Tribune, April 25, 2007.
Conclusion
• Whether it is called “resegregation” or “racial
imbalance” it is plain that society is becoming
more segregated.
• The trend of the Court’s decisions in recent
years is unmistakable: government policies that
seek to consider race in any way are becoming
increasingly problematic.
• Will history consign Brown and its progeny as
little more than a failed liberal experiment at
social engineering?