Adarand Constructors filed a lawsuit against the Department of Transportation. Adarand claimed that, as the lowest bidder, it should have gotten the guardrail contract. The Department of Transportation argued that it was furthering the goals of its affirmative action program to award more public works projects to companies owned by disadvantaged persons. The program defined such persons as women and members of racial minorities.
Does affirmative action violate the 14th Amendment's requirement of equal protection? Yes, say those who argue that affirmative action unfairly discriminates by race or sex. No, say those who argue that affirmative action is a remedy for racial minorities and women who have been systematically excluded and discriminated against for many years.
How Did Affirmative Action Begin?
The United States was a highly segregated society until the 1950s. In the South, blacks and whites attended separate schools, ate in separate restaurants, and even drank from separate drinking fountains. Across the nation, blacks and whites lived in separate neighborhoods. Minorities held few elected offices or management positions in private industry. They seldom worked at the best-paying skilled and blue-collar jobs. Many of these good jobs were controlled by unions, which often excluded minorities.
The drive for equality took hold in the 1950s. Civil rights activists marched and held sit-ins throughout the South. The U.S. Supreme Court outlawed segregated schools. Congress passed the first civil rights act since Reconstruction. A massive civil rights movement developed.
By the 1960s, the civil rights movement was pressing Congress to do something about racial discrimination in employment. At this time, the black unemployment rate was double that of white workers. Moreover, African-American workers were concentrated in the lowest-paying jobs. When it came to awarding public-works projects like the vast interstate highway system, few minority-owned companies got the work.
Shortly after the assassination of President Kennedy, Congress passed the Civil Rights Act of 1964. It included a provision prohibiting discrimination in employment (Title VII). Title VII made it illegal to deny employment opportunities because of a person's race, color, national origin, religion, or sex. It did not, however, include any requirement that a percentage of jobs be set aside for minorities or women. In fact, the law specifically banned such quotas.
Despite Title VII, equal opportunity in employment for African Americans did not improve. Then, in 1967, a series of major riots exploded in black communities across the nation. A commission appointed by President Johnson to find the causes of these disturbances reached this troubling conclusion: "Our nation is moving toward two societies, one black, one white—separate and unequal."
By 1969, some lawmakers were arguing that anti-discrimination laws like Title VII were not enough to end the inequality in American society. Three years later, a Democratic-controlled Congress passed—and a Republican president, Richard Nixon, signed—the Equal Employment Opportunity Act. This law strengthened the power of the federal government to sue employers, unions, and state and local governments for discriminating in employment.
Using the threat of anti-discrimination lawsuits, the Nixon Administration began to apply pressure on large employers to make a "good faith effort" to hire more racial minorities. While specific quotas remained illegal, the federal government pushed employers to develop programs with "goals and timetables." Typically, these programs were designed to seek out, hire, and promote qualified minority workers. They were called affirmative action programs.
The programs initially focused on bringing more black Americans into the mainstream economy. Gradually, federal regulations expanded the programs to include other racial minorities and women. Affirmative action was also adopted, voluntarily or by court order, in areas other than employment, such as college admissions and government contracting.
The Debate Over Affirmative Action
Affirmative action programs have often drawn criticism. Critics have argued that the best way to build an equal society is to treat everyone equally. According to them, affirmative action programs are simply reverse discrimination. No one, they say, should get ahead on account of race. "When you deny someone who has earned it and give to someone else who has not earned it . . . you create anger and resentment," argues California State Assemblyman Bernie Richter. "You stir the flames of racial hatred." Further, critics say, the programs reinforce racist stereotypes that minorities are inferior and cannot make it on their own.
Supporters of affirmative action counter that minorities are not the ones complaining about affirmative action. They argue that the problems of discrimination against blacks and other minorities are deeply rooted in our society. They say we cannot rely on "race neutral" laws to overcome them.
In recent years, the political movement against affirmative action has grown. In California, Proposition 209, which banned all state programs with racial preferences, was passed in 1996. The lower courts upheld this prohibition of affirmative action, and the Supreme Court refused to hear a 1997 appeal. In opinion polls, Americans favor affirmative action in the abstract, but when asked about racial preferences, they strongly oppose them.
The Role of the Supreme Court
Affirmative action programs have been challenged in the courts. Since the late 1970s, the Supreme Court has decided a series of affirmative action cases. The question in almost all these cases has been: Does this affirmative action program, which gives special treatment to minorities and women, violate the 14th Amendment's guarantee of equal protection under the law?
The court has been deeply divided on this issue and, at times, has reached seemingly contradictory results. In Regents of the University of California v. Bakke (1978), for example, the court struck down a program that reserved 16 spaces in the U.C. Davis Medical School for minority applicants. The court said that race could be considered as a plus factor, but it ruled out fixed quotas.
In Fullilove v. Klutznick (1980), however, the court upheld a federal law that set aside 10 percent of federal construction funds for minority businesses. The court stressed that, unlike the university in the Bakke case, Congress has specific Constitutional power to fight discrimination, and the court said it was deferring to Congress.
These decisions were "plurality decisions." This means that five of the nine justices agreed on the result in each case, but no five justices agreed on the reasons for the decisions.
Until recently, the court has been unable to get five justices to agree on a formula for examining affirmative action cases. Some justices have favored what is known as "strict scrutiny." This is the traditional standard for examining laws that discriminate against minorities. Under strict scrutiny, any law using racial classifications is highly suspect. It can be justified only if the government has a "most compelling reason." Other justices have favored a lesser standard, known as "intermediate scrutiny," for affirmative action programs, because they believe that a distinction should be made between preferences designed to help minorities and those that hurt them.
In City of Richmond v. J.A. Croson Co. (1989), however, a majority of justices ruled that the strict scrutiny standard applied to all state and local affirmative action programs. But it left the question open whether the strict scrutiny standard applied to federal cases.
In Metro Broadcasting, Inc. v. FCC (1990), the court seemed to settle the issue. The court upheld a Federal Communications Commission policy that Congress had approved. The policy counted minority ownership as a plus factor on applications for broadcast licenses. The court majority ruled that the policy did not violate equal protection, because it was substantially related to the achievement of the important governmental objective of broadcast diversity. This is the intermediate scrutiny standard.
Adarand Constructors v. Peña
Five years later, however, the court decided the Adarand case, discussed at the beginning of this article. In a 5-4 ruling on June 12, 1995, the Supreme Court decided that strict scrutiny applies to federal cases. The court overruled the part of the Metro Broadcasting case that set intermediate scrutiny as the standard. Although the court did not overrule Fullilove by name, Adarand's reasoning arguably is at odds with the reasoning in Fullilove as well.
Writing for the court, Justice O'Connor said that whenever racial groups are treated differently by any level of government, as they were by the Department of Transportation's affirmative action program, the government may do so "only for the most compelling reasons." Under this standard, race-based preferences would be unconstitutional unless the government could clearly prove the need for them.
Therefore, the presence of a most "compelling reason" is the new test that all affirmative action programs with racial or ethnic preferences will have to pass. The Supreme Court, however, has not yet defined what a "compelling reason" might be. Two justices, Scalia and Thomas, have indicated that government could never have a compelling reason for making race preferences. As Justice Scalia said in his concurring opinion in Adarand: "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."
But the other justices have not shut the door on affirmative action programs with racial preferences. Justice O'Connor's opinion stated that the government may have a compelling reason to act on the basis of race to overcome the "persistence of both the practice and lingering effects of racial discrimination against minority groups in this country." The justices also suggested that the legislative body most likely to have a compelling reason is Congress, because the 13th and 14th amendments expressly give Congress special power to enact anti-discrimination legislation.
For Discussion and Writing
- What is affirmative action? Why was it introduced by the federal government in the 1970s?
- What is "reverse discrimination"? Should it be unlawful? Is there a difference between reverse discrimination and affirmative action?
- What are some arguments in favor of affirmative action? What are some opposed to it? Which do you agree with? Why?
- What is strict scrutiny? Do you think the court should apply strict scrutiny to affirmative action laws? Why or why not?
- Assuming affirmative action is justifiable, how long should it last?
A C T I V I T Y
"The Most Compelling Reasons"
The Supreme Court has ruled that racial groups may be treated differently by government-sponsored affirmative action programs "only for the most compelling reasons."
Form small groups. In each group:
- Make a list of reasons for each affirmative action program described below.
- Examine these reasons and decide whether they are "compelling" enough to be constitutional.
- Prepare to defend your decision before the rest of the class.
Program #1: The Department of Transportation affirmative action policy in the Adarand case (discussed at the beginning of the article).
Program #2: African Americans make up 35 percent of the population of a Southern city that, in the past, practiced racial discrimination in hiring police officers. Today, 4 percent of the city's police are black. An affirmative action plan, ordered by the courts, requires that half of all new qualified officers hired must be African Americans until 35 percent of the police department is made up of members of that group.
Program #3: A Northern city recently added a large number of minority teachers to its previously almost all-white teacher staff. During a time of budget cutbacks, the school board laid off three white teachers for every minority teacher regardless of seniority. This was done to keep as many minority teachers as possible to provide role models for the growing numbers of minority students in the city's schools.
Program #4: A prestigious public university awards "extra points" in its admissions process to qualified minorities and women. The purpose of this affirmative action policy is to achieve a diverse student body. While white men still make up the majority of admissions, some from this group were turned down even though they had SAT scores slightly higher than some of the women and minorities who were admitted.