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American Academy of Political and Social Science Legal Foundations of Civil Rights and Pluralism in America Author(s): Charles M. Lamb Source: Annals of the American Academy of Political and Social Science, Vol. 454, America as a Multicultural Society (Mar., 1981), pp. 13-25 Published by: Sage Publications, Inc. in association with the American Academy of Political and Social Science Stable URL: http://www.jstor.org/stable/1044242 Accessed: 12/11/2010 10:03 Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at http://www.jstor.org/page/info/about/policies/terms.jsp. JSTOR's Terms and Conditions of Use provides, in part, that unless you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you may use content in the JSTOR archive only for your personal, non-commercial use. Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at http://www.jstor.org/action/showPublisher?publisherCode=sage. Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printed page of such transmission. JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org. Sage Publications, Inc. and American Academy of Political and Social Science are collaborating with JSTOR to digitize, preserve and extend access to Annals of the American Academy of Political and Social Science. http://www.jstor.org

ANNALS, AAPSS, 454, March 1981 Legal Foundations of Civil Rights and Pluralism in America By CHARLESM. LAMB ABSTRACT: Central to the dynamics of American pluralism are legal protections provided for minorities. To a large degree these rights revolve around the concept of equal protection of the laws. Whether reflected in the Fourteenth Amendment or statutes, the principal question is, Under what conditions is it just or reasonable to afford different treatment to persons because of their race? Here this question is addressed in the context of the transformation of the concept of equal protec- tion since Plessy v. Ferguson (1896). Certainly the legal meta- morphosis from the "separate but equal" doctrine to the cur- rent status of minority rights is truly profound. Particularly important in recent years is the issue of affirmative action. After a brief survey of the legal transition from Plessy into the 1970s and of the various levels of scrutiny that the United States Supreme Court has given to equal protection prob- lems, the progression of the equal protection principle is traced herein with emphasis placed on the three most recent affirmative action decisions announced by the Court: Univer- sity of California Regents v. Bakke (1978), United Steel- workers of America v. Weber (1979), and Fullilove v. Klutz- nick (1980). Charles M. Lamb is an assistant professor of political science, State University of New Yorkat Buffalo. The author of several articles on civil rights andjudicial philosophy, he formerly served on the staffs of the United States Commission on Civil Rights and George Washington University. 13

THE ANNALS OF THE AMERICAN ACADEMY ALTHOUGH progress has often been too slow, the political, economic, and social status of most American minorities has improved dramatically since the turn of the twentieth century. The same gener- alization applies to the legal rights of minorities. The legislative and executive branches of the federal government have played a substan- tial role in this legal transforma- tion. For example, Congress must be applauded for passing the Civil Rights acts of 19601 and 1964,2 the Voting Rights Act of 1965,3 and the Fair Housing Act of 1968.4 Similarly, President Kennedy must be com- mended for issuing Executive Order 11063,5 the first major federal re- quirement for equal opportunity in housing, and President Johnson must be given credit for his Executive Order 11246,6 which prohibits em- ployment discrimination by govern- ment contractors. Yet the United States Supreme Court has been at the cutting edge of much civil rights progress, particularly prior to the 1960s. It is therefore appropriate for this article to stress the role of the Court in ensuring equal pro- tection through both its constitu- tional and statutory constructions of the law. THE EVOLUTION OF EQUAL PROTECTION SINCE PLESSY: AN OVERVIEW Any account of legal develop- ments under the concept of equal 1. Public Law (P.L.) No. 86-449, 74 Stat. 86. 2. P.L. No. 88-352, 78 Stat.241. 3. P.L. No. 89-110, 79 Stat.437. 4. P.L. No. 90-284, 82 Stat.81. 5. 3 Code of Federal Regulations 652 (1959-1963 Compilation). 6. 3 Code of Federal Regulations 339 (1964-1965 Compilation). protection must begin at least as far back as the 1896 decision in Plessy v. Ferguson.7 There the Court held that a Louisiana statute requiring "separate but equal" railroad ac- commodations for Blacks and Whites was not a violation of either the Thir- teenth or Fourteenth amendments of the Constitution. Justice Brown, speaking for the Court, stressed that the Thirteenth Amendment ap- plied strictly to slavery and that separate but equal accommodations did not "constitute badges of slavery or servitude," as was contended by the first Justice Harlan's stirring and historic dissent. Moreover, according to the ma- jority, the Fourteenth Amendment required only political-not social -equality. Thus states had the right under their police power to separate Blacks and Whites if the traditions and customs of the states suggested that such a law was not unreason- able. Justice Harlan, on the other hand, took the famous position that "in view of the constitution, in the eye of the law, there is in this country no superior, dominant ruling class of citizens. . . . Our constitution is col- or-blind." State laws that separate races, he explained, would naturally contribute to interracial distrust and would force Blacks into a position of inferiority. Of course, under the "separate but equal" principle, it was rare that separation was ever accompanied by actual equality. But some three dec- ades after Plessy a more liberal Supreme Court gradually began to underscore the fact that the equality component was indeed required by the Equal Protection Clause of the Fourteenth Amendment. In Missouri ex rel. Gaines v. Canada,8 the Court 7. 163 U.S. 537 (1896). 8. 305 U.S. 337 (1938). 14

LEGAL FOUNDATIONS invalidated a Missouri statute that prohibited Blacks from attending the University of Missouri Law School, even though the statute provided tuition payments for Blacks to study law in neighboring states where segregation was not enforced. Equal facilities for Blacks' legal education was required by the Court; Missouri could not abdicate its responsibility for providing equal educational op- portunity through another state. Like- wise, a decade later in Sipuel v. Board of Regents of the University of Oklahoma,9 a black woman was held to have been denied equal pro- tection when refused admission to the Law School of the University of Oklahoma. Two 1950 decisions further under- scored the "equal" component of Plessy, thereby delivering noteworthy blows to its continued existence. McLaurin v. Oklahoma State Re- gents'? ruled that black graduate stu- dents could not be subjected to var- ious segregative practices in class- rooms, libraries, and cafeterias. And Sweatt v. Painter"1 announced that it was difficult, if not impossible, for a state to meet the "separate but equal" requirement where there were disparities in vital intangible factors, such as the reputation and prestige of white as opposed to black law schools. The stage was thus set for a final assault on Plessy via Brown v. Board of Education.12 In a short, unani- mous opinion, the Brown Court overruled the "separate but equal" standard as it was applied in public schools, although physical facilities and other tangible factors might in fact be equal. Basing its decision on 9. 332 U.S. 631 (1948). 10. 339 U.S. 637 (1950). 11. 339 U.S. 629 (1950). 12. 247 U.S. 483 (1954). both constitutional principles and social science findings, the Warren Court noted that "to separate [black children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely to ever be undone." Since feelings of inferiority retard a child's drive to learn, and since education is vital for success in later life, the Court announced that "in the field of pub- lic education the doctrine of 'sepa- rate but equal' has no place. Sepa- rate educational facilities are in- herently unequal." By so ruling, the Court reversed Plessy as it related to public edu- cation, vindicated Justice Harlan's "color-blind" dissent, and implicitly suggested that "separate but equal" would not meet constitutional stand- ards in other areas of segregation as well. The most apparent reasons for this change in legal policy were the directions taken by the cases leading up to the Brown decision, the fact that the Court's members were gen- erally more liberal than they had been in prior decades, and perhaps most crucially, the brilliant leader- ship of Chief Justice Warren, which ably and assertively forged una- nimity in Brown. Nevertheless, from the initiation of the Brown litigation, all the justices of the Warren Court-whether lib- eral or conservative-were fully cognizant of the problems that would be inevitably associated with imple- menting school desegregation. The Court therefore directed the plain- tiffs to come before it again during the 1955 term to argue how imple- mentation should take place. Then, in Brown II,13 the justices relied 13. 349 U.S. 294 (1955). 15

THE ANNALS OF THE AMERICAN ACADEMY on ad hoc gradual relief by calling for "good faith compliance atthe earli- est practicable date" and for school desegregation to proceed "with all deliberate speed."'4 Since the midfifties, the Supreme Court has largely continued to en- sure that the guarantee of equal pro- tection be afforded to this nation's minorities. Especially crucial was the period from 1967 through 1973. For example, in Loving v. Virginia,15 the Court outlawed a state criminal statute proscribing marriage between persons of different races. In Jones v. Alfred H. Mayer Company,16 the Court prohibited racial discrimina- tion in the rental and sale of virtually all private and public property. In Green v. County School Board,'7 the Court ruled that "freedom of choice" plans were inadequate for comply- ing with Brown. In Alexander v. Holmtes County Board of Educa- tion,18 the Court held that every school district in the country had to take immediate steps to eliminate sep- arate schools for Blacks and Whites. In Swann v. Clharlotte-Mecklenberg Board of Education,19 the Court announced that busing was one legitimate tool that could be used to desegregate schools. And in Keyes v. School District No. 1, Denver, Colo- rado,20the Court extended its school desegregation principles to northern states by declaring that segregation not required by law but resulting from the placement of schools and 14. For the implementation problems en- countered in the field of education, see the sources cited in Stephen L. Wasby, The Im- pact of the United States Supreme Court (Homewood, II: Dorsev, 1970), pp. 288-89. 15. 388 U.S. 1 (1967). 16. 392 U.S. 409 (1968). 17. 391 U.S. 430 (1968). 18. 396 U.S. 19 (1969). 19. 402 U.S. 1 (1971). 20. 413 U.S. 189 (1973). the manipulation of school zones was nevertheless dejure discrimina- tion and therefore unconstitutional. Although this list could be con- tinued to the present, including the three affirmative action cases re- ceiving detailed attention in the fol- lowing pages, it is also important to note that in recent years the Court has not been as consistently sym- pathetic toward some of the claims of minorities as it was from Brown through Keyes.21 Nor has it been unanimous as regularly in its civil rights decisions since 1973 as it was in the preceding years. THREE-TIERED SCRUTINY In cases such as those discussed in the preceding paragraphs, the Court has essentially adopted three different approaches over time for determining whether a law comports with the requirements of equal pro- tection. Traditionally, governmental regulatory classification had only to meet the low-level "minimum ra- tionality" or "rational basis" test. As the Court stated in F.S. Royster Guano Company v. Virginia: "The classification must be reasonable, not arbitrary, and must rest on some ground of difference having a fair and substantial relation to the ob- ject of the legislation, so that all persons similarly circumstanced shall be treated alike."22 In order to pass constitutional muster, then, a state classification need only reasonably relate to legis- lative purpose. There is not much 21. See, for example, Village of Arlington Heights v. Metropolitan Housing Develop- 17mentCorporation, 429 U.S. 252 (1977); City of Eastlake v. Forest City Enterprises, In- corporated, 426 U.S. 668 (1976); Washington v. Davis, 426 U.S. 229 (1976); and Milliken v. Bradley, 418 U.S. 717 (1974). 22. 253 U.S. 412 (1920). 16

LEGALFOUNDATIONS emphasis on evaluating the legiti- macy of the purposes, either. The focus is on the means, and that focus is rather cursory. The fit be- tween the means and the ends need not be a very tight one. In Railway Express Agency v. New York, Justice Jackson summarized the minimum rationality test by writing that the command of equal protection was only that government must not im- pose differences in treatment "ex- cept upon some reasonable differen- tiation fairly related to the object of regulation."23 Such a loose test, used primarily in matters of economic regulation, is tantamount to sustain- ing the classification. A much higher level of scrutiny has been applied to certain types of classifications, however. This "strict scrutiny" test has its genesis in Justice Stone's famous footnote 4 in United States v. Carolene Products Company.24 Stone wrote that "preju- dice against discrete and insular minorities may be a special condi- tion, which tends seriously to curtail the operation of those political proc- esses ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more search- ing judicial inquiry." Thus because of a need to protect "discrete and insular minorities," the judiciary has assumed an interventionist role in examining certain types of classi- fications. The strict scrutiny test is triggered by the presence of either a "fundamental interest" or a "sus- pect classification." Some examples of fundamental interests are voting rights, criminal appeals, and the right to travel. Of more relevance to the present inquiry is the triggering mechanism of a suspect classification. What makes a particular classifica- 23. 336 U.S. 106 (1949). 24. 304 U.S. 144 (1938). tion "suspect"? In San Antonio School District v. Rodriguez, the Court articulated some criteria: "an immutable characteristic determined solely by accident of birth, or a class saddled with such disabilities, or subjected to such a history of pur- poseful unequal treatment, or rele- gated to such a political power- fulness as to command extraordinary protection from the majoritarian po- litical processes."25 The prototypical suspect classifi- cation is race, and it was declared so in 1944 in Korematsu v. United States.26 There the Court empha- sized "thatall legal restrictions which curtail civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny." Ironically, the case of Korematsu, which articulated the "suspectness" of race -as a classifi- cation, was only one of the rare times that the classification withstood the scrutiny. Strict scrutiny, unlike minimum rationality, examines both ends and means. The end must not only be legitimate, but must present a "com- pelling state interest." The means must not only be rationally related to the achievement of the end, but must be a necessary means to that compelling end. This rigid scrutiny standard was articulated in Loving v. Virginia. There the Court noted that [t]he Equal Protection Clause demands that racial classifications be subjected to the "most rigid scrutiny,"and if they are ever upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, in- dependent of the racial discrimination 25. 411 U.S. 1 (1973). 26. 323 U.S. 214 (1944). 17

THE ANNALS OF THE AMERICAN ACADEMY which it was the object of the Four- teenth Amendment to eliminate.27 Hence, while the minimum ration- ality test usually results in sustaining the classification, the decision to ap- ply strict scrutiny generally results in a finding of unconstitutionality. The Burger Court has added a third "tier" between these two ex- tremes, namely, the "strict ration- ality" or "intermediate scrutiny" ap- proach. This test has primarily been developed for equal protection claims emanating from sex-based classifi- cations. Its level of scrutiny was first articulated by Chief Justice Burger in Reed v. Reed.28 In order to pass scrutiny the classification "must rest upon some ground of dif- ference having a fair and substantial relation to the object of the legisla- tion." Thus instead of a glancing look at a very loose fit between classifications and ends, the means must be "substantially" related to the objectives. This intermediate approach is discussed further next because one wing of the Court selec- ted it for use in Bakke and Fullilove. It is readily apparent that in most cases the selection of the level of scrutiny is de facto dispositive of the constitutionality of its classification. Many proponents of ameliorative racial preferences therefore argue that strict scrutiny is not appropriate because the "discrimination" is not directed against "insular and dis- crete minorities." The use of suspect classifications is apparently a re- sponse to a need for protection for minorities unable to fend for them- selves in the political process. In the case of"discrimination" against Whites, the political majority, the question is, Does strict scrutiny ap- ply in such instances? It will be 27. 388 U.S. 1(1967). 28. 404 U.S. 71 (1971). shown that one of the fundamental intra-Court battles in Bakke was over the appropriate standard of scrutiny. Does "benign discrimination" still trigger suspectness? If the purpose is amelioration, is that a compelling state interest that would allow such practices to be one of the few in- stances to survive strict scrutiny? What about the intermediate level? These questions will be touched upon as follows in the context of re- cent affirmative action cases. EQUAL PROTECTION AND AFFIRMATIVE ACTION Among the many contentious is- sues currently facing the American legal and political systems, perhaps the most intransigent revolves around the whole matter of affirmative ac- tion. The practices involved have been referred to in a variety of ways: "ameliorative racial preference," "be- nign discrimination," and more pe- joratively, "reverse discrimination." Essentially they involve forms of race-conscious or sex-conscious ac- tivity that provide some degree of preferential treatment to compen- sate for past discrimination. Need- less to say, such practices raise a plethora of legal as well as phil- osophical questions. The following pages examine the post-Brown devel- opment of the equal protection doc- trine by focusing specifically on the three leading affirmative action deci- sions handed down by the Burger Court. What one finds is a Court molding and shaping remedies in or- der to conform with the exigencies of the times. Bakke University of California Regents v. Bakke29 arose when Alan Bakke, 29. 438 U.S. 265 (1978). 18

LEGALFOUNDATIONS a white applicant, was denied ad- mission to the University of Cali- fornia at Davis Medical School. The school's admission procedure in- cluded a set-aside quota that re- served 16 of the 100 entering places for minorities. Bakke alleged that denial of his ability to compete for these seats violated his rights under Title VI of the 1964 Civil Rights Act and denied him equal protection of the laws. The Court was thoroughly divided over the controversy. There was essentially a 4-1-4 split, with Justice Powell assuming the com- manding ground. The "conserva- tive" wing was composed of justices Stevens, Stewart, Rehnquist, and Chief Justice Burger. The "liberal" wing consisted of justices Brennan, Marshall, Blackmun, and White. The most significant question be- fore the Court was whether Davis's quota violated Title VI or the Equal Protection Clause of the Fourteenth Amendment. Justice Stevens, writing for the conservative bloc, settled the matter strictly on statutory grounds. Adopting a "color-blind" interpreta- tion of Title VI, Stevens held the Davis program to be in contraven- tion of the federal law. He specifi- cally pointed out that Title VI was not merely a restatement of the Four- teenth Amendment; their require- ments and proscriptions were not coterminous. Stevens then inter- preted Title VI as being less flexible in what is allowable. This wing of the Court took issue with the other justices' discussion of the legality of race as a criterion generally. Stevens argued that the Court was presented with a specific case and that was all it should decide. In short, Stevens, Burger, Stewart, and Rehn- quist held that the Davis program was an ipso facto violation of Title VI, but they refused to comment on the use of race as a broader cri- terion. Justice Brennan, writing for him- self and justices Marshall, Blackmun, and White, took a position diametri- cally opposed to the Stevens' bloc. The Brennan group interpreted Title VI and the Equal Protection Clause as coterminous. The discrimination prohibited under the statute was also unconstitutional under the Four- teenth Amendment. In addition, whatever remedial use of race was constitutionally permissible under the Equal Protection Clause was also allowable under Title VI. Bren- nan found the Davis program per- missible under both. Title VI, wrote Brennan, was not intended "to bar all race conscious efforts to extend the benefits of federally financed programs to mi- norities who have been historically exluded from the full benefits of American life." Furthermore, the permissibility of racial preferences should not be confined to situ- ations where institutions had en- gaged in demonstrated discrimina- tion or where minorities could be identified as victims of specific dis- crimination. A general historical dis- crimination by society was sufficient to justify such race-conscious reme- dies. As long as the racial classifi- cation served the "benign" purpose of remedying the effects of past societal discrimination, then they were legitimate. The Brennan posi- tion asserted that there need be no "intent"; "effect" alone justified race- conscious remedies. In handling the constitutional ques- tion, Justice Brennan rejected the application of strict scrutiny. He found that no fundamental rights were violated and he found no "sus- pectness" because the discrimina- tion was "benign." Instead, Brennan relied on the middle-level test bor- rowed from the gender discrimina- tion cases and concluded that the racial classification designed to fur- 19

THE ANNALS OF THE AMERICAN ACADEMY ther remedial objectives could be justified if there were an "impor- tant and articulated purpose for its use" and if, in addition, it did not "stigmatize politically powerless seg- ments of our society." Brennan urged that the Davis admissions program passed this level of scrutiny: the articulated purpose of remedying the effects of past societal discrimination is, under our cases, sufficiently impor- tant to justify the use of race-conscious . . . programs where there is a sound basis forconcluding thatminorityunder- representationis substantialand chronic, and that the handicap of past discrimi- nation is impeding access to minorities to the medical school. Thus the Brennan group upheld the program after applying inter- mediate scrutiny. Justice Powell's position was piv- otal. He argued that Title VI pro- scribed only those racial classifi- cations that also violate the Con- stitution. On this point his views were consonant with those of Bren- nan. Yet the thrust of Powell's reasoning was also that while the Fourteenth Amendment requires equality of opportunity, it does not require equality of results. Equal opportunity must be provided to all without regard to race or color. So, on the other hand, Powell rejected Brennan's benign-invidious classi- fication distinction and insisted on strict scrutiny: "Racial and ethnic distinctions of any sort are inher- ently suspect and thus call for the most exacting judicial examination." Powell viewed rights as individual, not collective. With even "benign" classifications suspect, the state must show "that its purpose or intent is both constitutionally permissible and substantial, and that its use of the classification is necessary . . . to the accomplishment of its purpose or the safeguarding of its interests." Thus the purposes of the special admissions program at Davis had to be compelling, and the means-the quota-had to be closely related and necessary to the achievement of those ends. The Medical School ar- ticulated four purposes of the pro- gram, which were each treated by Justice Powell. The first was "re- ducing the historic deficit of tradi- tionally disfavored minorities in med- ical schools and the medical profes- sion." Powell responded that while increasing the representation of historically disfavored minorities through the imposition of a specified percentage was not unsubstantial, it was "facially invalid. Preferring mem- bers of any one group for no reason other than race or ethnic origin is discrimination for its own sake." The second purpose was "counter- ing the effects of societal discrimina- tion." Powell also rejected this as a justification for the Davis program. "We have never approved," wrote Powell, "a classification that aids persons perceived as members of relatively victimized groups at the expense of other innocent individ- uals in the absence of judicial, legis- lative, or administrative findings of constitutional or statutory violations." The third purpose of the Davis program involved "increasing the number of physicians who will prac- tice in communities currently un- derserved." Powell quickly rejected this justification by stating that the university had presented no evi- dence to show that the special ad- missions program was "either needed or geared to promote the goal." The final purpose was "obtaining the educational benefits that flow from an ethnically diverse student body." Powell agreed that this was a "compelling interest," but he ar- gued that a quota for minorities entering higher education was not the only way of achieving that end, 20

LEGAL FOUNDATIONS as was demonstrated by the Harvard College program, which he held up as an acceptable prototype. He in- sisted on less onerous means to that end if they were available. There- fore for Powell, as for the majority of the Court, race could be one factor in admissions policy, but it could not be the decisive factor. Weber In 1979, the Supreme Court handed down a decision involving preferen- tial treatment in employment: United States Steelworkers of America v. Weber.30 An affirmative action program was collectively bargained by the Kaiser Aluminum and Chem- ical Corporation and the Steelwork- ers of America. In this program, 50 percent of the slots for in-plant craft training programs were re- served for black employees until the proportion of black craft workers equalled the proportion of Blacks in the local labor force. Weber, a White denied admission to the training program, claimed that the program violated Title VII of the Civil Rights Act of 1964, which reads that the statute "shall not be interpreted to re- quire any employer ... to grant preferential treatment . . . to any group because of the race of ... such group on account of [a racial imbalance in the work force]." The Court upheld the program by a five to two vote. Two of the most im- portant figures in Bakke, justices Powell and Stevens, did not partici- pate. Also significant is the fact that Justice Stewart switched his Bakke position without any explanation for doing so. Justice Brennan's majority opin- ion argued that Title VII is not color-blind. He asserted that the question in Weber was not what 30. 443 U.S. 193 (1979). Title VII required or with what a court might order to remedy a past proven violation. The only relevant question, according to Brennan, was the narrow statutory issue of whether Title VII forbids private employers and unions from voluntarily agree- ing upon a bona fide affirmative action program that accords racial preferences in the manner and pur- pose of this plan. Although no proven past discrimination by Kaiser was shown, Brennan took judicial notice of the exclusion of Blacks from craft unions generally. He contended that the purpose of Title VII and those of the program were identical: to destroy traditional patterns of racial segregation. He also did not perceive the infringement of Whites' rights as particularly severe. The preferential program does not unnecessarily trammel the interests of white employees. The plan does not require the discharge of white workersandtheirreplacementwith new black hires .... Nor does the plan create an absolute bar to the advance- ment of white employees; half of those trained in the program will be white. Moreover,the plan is a temporarymeas- ure; it is not intended to maintain a racial balance, but simply to eliminate a manifestracialimbalance.Preferential selection ofcrafttraineesatthe Gramercy plant will end as soon as the percent- age of black skilled craftworkersin the Gramercy plant approximates the per- centage of blacks in the local labor force. Brennan concluded by writing: "We hold that Title VII's prohibitions in ??703(a) and (d) against racial dis- crimination does not condemn all private, voluntary, race-conscious af- firmative action plans." Justice Blackmun, concurring, em- ployed the "arguable violations" approach used by Judge Wisdom of the Court of Appeals. Although Kaiser denied prior discrimination, it con- 21

THE ANNALS OF THE AMERICAN ACADEMY ceded that its past hiring practices may have been subject to question. Blackmun, like Wisdom, concluded that employers and unions that had committed "arguable violations" of Title VII should be free to take reasonable responses without fear of liability to Whites, and that the Kaiser program was a reasonable response. Blackmun asserted that the Brennan interpretation that Title VII permitted affirmative action by an employer whenever the job cate- gory in question was "traditionally segregated" was far too broad and sweeping. Therefore he presented his narrower "arguable violations" approach. The dissenters, Rehnquist and Burger, employed a strict, literal reading of ??703(a) and (d) of Title VII, and held that no racial discrimi- nation whatsoever was allowable. This color-blind approach accused the majority of a Houdini-like act of eluding clear "statutory language, 'uncontradicted' legislative history, and uniform precedent in conclud- ing that employers are, after all, permitted to consider race in making employment decisions." Fullilove Fullilove v. Klutznick,31the latest of the affirmative action cases, emerged out of a constitutional challenge to ?103(f)(2) of the Public Works Em- ployment Act of 1977. This section, known as the "minority business enterprise" (MBE) provision, stipu- lated that a minimum of 10 percent of federal monies provided for local public works projects must be uti- lized by the grantee to purchase services or supplied from minority- owned businesses, unless there was an administrative waiver. Before proceeding with the Court's treatment of Fullilove, it is essential to note that the challenged state actor was Congress, whereas the Fourteenth Amendment applies only to the states. Thus the legal question involved the Due Process Clause of the Fifth Amendment. This has been the mechanism since Bolling v. Sharp,32 a companion case to Brown I. In Bolling, the Court held that the Due Process Clause of the Fifth Amendment required the same re- sult as Brown, where the Four- teenth Amendment's Equal Protec- tion Clause was applied. It would be "unthinkable," said the Court, that the Constitution imposed a lesser duty on the federal govern- ment than on the states. Equal pro- tection is a more specific safeguard than due process, and the concepts are not "interchangable." But the liberty protected by the Due Process Clause includes "the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective." Bolling therefore pointed out the equal protection component of the Due Process Clause of the Fifth Amendment, which now pro- vided the basis of the constitutional challenge in Fullilove. In Fullilove, the Court upheld the set-aside MBE program, but its reasoning was quite fragmented. Chief Justice Burger wrote the "opin- ion of the Court," joined by justices White and Powell. Burger's opinion called for close scrutiny, but at the same time was highly deferential to the congressional act: A programthat employs racialor eth- nic criteria, even in a remedial con- text, calls for close examination;yet we are bound to approachour task with ap- 31. 100 S.Ct. 2758 (1980). 22 32. 347U.S.947(1954).

LEGAL FOUNDATIONS propriate deference to the Congress, a co-equal branch charged by the Con- stitution with the power to "provide for the . . . general Welfare of the United States" and "to enforce by appropriate legislation"the equal protectionguaran- tees of the Fourteenth Amendment. Burger pointed out that the program was designed to prevent the per- petuation of the effects of prior discrimination that had impaired or foreclosed access by minority busi- nesses to public contracting op- portunities. Hence past discrimina- tion was crucial. The Chief Justice used a two-step analysis. First he determined whether the objectives of the legislation were within the powers of Congress. He found that they were. Second was the question whether the limited use of racial and ethnic criteria, in the context presented, was a constitu- tionally permissible means for achiev- ing the congressional objectives. Burger noted that ordinarily the remedy must be limited to the wrong- doing. However, Congress has sweep- ing powers: Here we deal . . . not with the limited remedial powers of a federal court, for example, but with the broad remedial powers of Congress. It is fundamentalthat in no organof govern- ment, state orfederal, does there repose a more comprehensive remedial power than in the Congress, expressly charged by the Constitution with competence andauthorityto enforce equal protection guarantees. With the invocations of judicial restraint, Burger therefore argued that Congress has broad power to select the techniques and mecha- nisms to achieve its legitimate ob- jectives. Indeed, upon reading the opinion, one is struck with the im- pression that when Congress is the actor, somehow strict scrutiny is not applicable. All the language and techniques of strict scrutiny were conspiciously absent from the Chief Justice's opinion. Justice Powell's concurrence un- derscored this fact. He believed that his Bakke strict scrutiny approach should have also been applied in Fullilove: "The MBE law employs a racial classification that is con- stitutionally prohibited unless it is a necessary means of advancing a compelling state interest." But after analysis he concluded, "I believe ?103(f)(2) is justified as a remedy that serves the compelling govern- mental interest in eradicating the continuing effects of past discrimina- tion identified by Congress." Hence for Powell, the institution taking the action was critical. He agreed with the Chief Justice that Congress has much broader powers and thus strict scrutiny was more easily survived. In concurrence, too, was Marshall, joined by Brennan and Blackmun, who insisted that their approach in Bakke was also controlling in Fulli- love. Using the intermediate scru- tiny test, they analyzed the situation as follows. First, remedying present effects of past discrimination is a sufficiently important governmental interest to justify the use of racial classifications. And second, the means chosen by Congress to implement the set-aside provision were sub- stantially related to the achievement of its remedial purpose. "The set- aside, enacted by Congress and im- plemented by the Secretary of Com- merce, is avoiding stigmatization and penalizing those least able to protect themselves in the political process." In contrast, the dissenters -justices Stevens and Rehnquist- invoked Harlan's dissent in Plessy and insisted on a color-blind Con- stitution. Raising the specter of Nur- emberg-like racial tests and race laws, they urged that race should 23

THE ANNALS OF THE AMERICAN ACADEMY never be a criterion, and indeed was proscribed by the Constitution. CONCLUDING QUERIES AND PROJECTIONS It seems appropriate in closing that one should raise some questions and offer projections concerning equal protection and affirmative ac- tion in the 1980s. First, since both sides of the affirmative action con- troversy periodically rely upon Brown to bolster their positions, what is the relationship between Bakke, Weber, and Fullilove, on the one hand, and Brown on the other? More specifi- cally, under Brown, are race-con- scious remedies legitimate and nec- essary to compensate for past dis- crimination? In contemplating this question one must note the com- monly accepted view that Brown -embraced Justice Harlan's color- blind dissent in Plessy. If this is true, affirmative action would seem con- trary to the letter of Brown, as the Court's dissenters-primarily con- servatives-contended in Bakke, Weber, and Fullilove. Certainly a careful reading of Brown does not provide any proof that racial quotas were envisioned by the Court in 1954. Yet there is an alternative interpretation in Brown and its re- lationship to ameliorative remedies. For instance, Justice Neill of the Washington State Supreme Court argued as follows in DeFunis v. Odegaard: "Brown did not hold that all racial classifications are per se unconstitutional; rather, it held that invidious racial classifications -i.e., those that stigmatize a racial group with the stamp of inferiority-are unconstitutional."33 Hence if Brown proscribed only color-conscious state activity that is invidious, per- 33. 507 P.2d 1169 (1973). haps the letter of Brown has been violated in affirmative action cases, but it would seem reasonable to argue that the spirit of Brown is still being honored. Other questions will undoubtedly be raised in future litigation, but it is more difficult to answer them with certainty at this time. For example, given the trend established in Bakke, Weber, and Fullilove, will the Court continue to support affirmative ac- tion generally? The answer would seem to be yes at first blush; that is what the case law suggests. How- ever, there is apparently a rising conservative mood in this country, as reflected in the election of Ronald Reagan, a Republican majority in the Senate, and the substantial increase of Republicans in the House. Given a changing political environment, new significant affirmative action questions may well not reach the Court in the next few years be- cause there will presumably be less of an affirmative action push by the federal government. Thus perhaps new affirmative action efforts will have to be initiated largely by pro- gressive states or businesses. But a Supreme Court with one, two, or even three Reagan appointees, com- bined with the Nixon and Ford ap- pointees, is unlikely to extend the legitimacy of affirmative action pro- grams like that at the University of California at Davis or private pro- grams like that of the Kaiser Alumi- num Company. Also, in light of a more conserva- tive political climate and anticipated Reagan appointees, will the Court extend its past affirmative action trends to other minority groups, such as Hispanics, and to women? Here again one's guess might be yes, but how farthe Court will go cannot now be predicted. Clearly there are criti- cal historical differences in this 24

LEGAL FOUNDATIONS country in the plight of other minori- ties and women as contrasted with that of Blacks. But other minorities definitely fall within the provisions of civil rights laws such as Title VII and federal economic legislation such as the MBE program. And one might logically expect the Court to uphold affirmative action programs for women-especially since it was none other than Chief Justice Burger himself who established the inter- mediate scrutiny test in Reed v. Reed.34 However, the Court has yet to address this question, and one must exercise caution in speculating about how the justices will decide even this logical extension of af- firmative action involving sex dis- crimination. Finally, will the Court require af- 34. 404 U.S. 71 (1971). firmative action in the field of equal housing opportunity as it did in edu- cation, employment, and minority contracts? This is the most sensitive of the questions because fair housing seems to constitute the most con- troversial and emotion-laden one in civil rights today. A majority of Whites appear more willing to work with minorities, or to have their children attend schools with mi- norities, than to accept them as neighbors. Therefore perhaps the housing issue will be the last in which the Court will decide that af- firmative action is essential to meet the requirements of the Equal Pro- tection Clause. Yet we cannot be sure when, or if, this will come to fruition during a period of con- servative politics that will probably be reflected in Supreme Court de- cisions. 25

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