Modern Applications of Equal Protection: Affirmative Action

1. 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/ aeward@niu.edu

2. 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?

3. 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.”

4. 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.”

5. 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.

6. 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.

7. 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.”

8. 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).

9. 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.”

10. 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.”

11. 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 race-based 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.”

12. 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.”

13. 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.”

14. 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.”

15. 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.

16. 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.”

17. Parents Involved v. Seattle (2007) Justice Stephen Breyer, Dissenting • 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.” 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.

18. 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.”

19. “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?

20. Historically Black Colleges v. “The Big Three”: Endowments For fiscal year 2005: SchoolEndowment Harvard University $28.62 billion Yale University $17.95 billion Stanford University $14.08 billion Howard University $423.9 million Spelman College $291.6 million Hampton University $217.5 million Morehouse College $121.0 million Fisk University $7.5 million Bowie State University $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.

21. 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?