Of critical importance in equal protection litigation is the degree to which government is permitted to take race or another suspect classification into account in order to formulate and implement a remedy to overcome the effects of past discrimination against the class. Often the issue is framed in terms of ''reverse discrimination,'' inasmuch as the governmental action deliberately favors members of the class and may simultaneously impact adversely upon nonmembers of the class. 127 While the Court in prior cases had accepted both the use of race and other suspect criteria as valid factors in formulating remedies to overcome discrmination 128 and the according of preferences to class members when the class had previously been the object of discrimination, 129 it had never until recently given plenary review to programs that expressly used race as the prime consideration in the awarding of some public benefit. 130
In United Jewish Organizations v. Carey 131 the State, in order to comply with the Voting Rights Act and to obtain the United States Attorney General's approval for a redistricting law, had drawn a plan which consciously used racial criteria to create a certain number of districts with nonwhite populations large enough to permit the election of nonwhite candidates in spite of the lower voting turnout of nonwhites. In the process a Hasidic Jewish community previously located entirely within one senate and one assembly district was divided between two senate and two assembly districts, and members of that community sued, alleging that the value of their votes had been diluted solely for the purpose of achieving a racial quota. The Supreme Court approved the districting, although the fragmented majority of seven concurred in no majority opinion.
Justice White, delivering the judgment of the Court, based the result on alternative grounds. First, because the redistricting took place pursuant to the administration of the Voting Rights Act, the Justice argued that compliance with the Act necessarily required States to be race conscious in the drawing of lines so as not to dilute minority voting strength, that this requirement was not dependent upon a showing of past discrimination, and that the States retained discretion to determine just what strength minority voters needed in electoral districts in order to assure their proportional representation. Moreover, the creation of the certain number of districts in which minorities were in the majority was reasonable under the circumstances. 132
Second, Justice White wrote that, irrespective of what the Voting Rights Act may have required, what the State had done did not violate either the Fourteenth or the Fifteenth Amendment. This was so because the plan, even though it used race in a purposeful manner, represented no racial slur or stigma with respect to whites or any other race; the plan did not operate to minimize or unfairly cancel out white voting strength because as a class whites would be represented in the legislature in accordance with their proportion of the population in the jurisdiction. 133
With the Court so divided, light on the constitutionality of affirmative action was anticipated in Regents of the University of California v. Bakke, 134 but again the Court fragmented. The Davis campus medical school each year admitted 100 students; the school set aside 16 of those seats for disadvantaged minority students, who were qualified but not necessarily as qualified as those winning admission to the other 84 places. Twice denied admission, Bakke sued, arguing that had not the 16 positions been set aside he could have been admitted. The state court ordered him admitted and ordered the school not to consider race in admissions. By two 5-to-4 votes, the Supreme Court affirmed the order admitting Bakke but set aside the order forbidding the consideration of race in admissions.
Four Justices did not reach the constitutional question. In their view, Title VI of the Civil Rights Act of 1964 135 outlawed the college's program and made unnecessary any consideration of the Constitution. They thus would admit Bakke and bar use of race in admissions. 136 The remaining five Justices agreed among themselves that Title VI, on its face and in light of its legislative history, proscribed only what the equal protection clause proscribed. 137 They thus reached the constitutional issue but resolved it differently. Four Justices, in an opinion by Justice Brennan, argued that racial classifications designed to further remedial purposes were not foreclosed by the Constitution under appropriate circumstances. Even ostensibly benign racial classifications could be misused and produce stigmatizing effects; therefore, they must be searchingly scrutinized by courts to ferret out these instances. But benign racial preferences, unlike invidious discriminations, need not be subjected to strict scrutiny; instead, an intermediate scrutiny would do. As applied, then, this review would enable the Court to strike down any remedial racial classification that stigmatized any group, that singled out those least well represented in the political process to bear the brunt of the program, or that was not justified by an important and articulated purpose. 138
Justice Powell argued that all racial classifications are suspect and require strict scrutiny. Since none of the justifications asserted by the college met this high standard of review, he would have invalidated the program. But he did perceive justifications for a less rigid consideration of race as one factor among many in an admissions program; diversity of student body was an important and protected interest of an academy and would justify an admissions set of standards that made affirmative use of race. Ameliorating the effects of past discrimination would justify the remedial use of race, the Justice thought, when the entity itself had been found by appropriate authority to have discriminated, but the college could not inflict harm upon other groups in order to remedy past societal discrimination. 139 Justice Powell thus joined the first group in agree ing that Bakke should be admitted, but he joined the second group in permitting the college to consider race to some degree in its admissions. 140
Finally, in Fullilove v. Klutznick, 141 the Court resolved most of the outstanding constitutional question regarding the validity of race-conscious affirmative action programs. Although again there was no majority opinion of the Court, the series of opinions by the six Justices voting to uphold a congressional provision requiring that at least ten percent of public works funds be set aside for minority business enterprises all recognized that alleviation and remediation of past societal discrimination was a legitimate goal and that race was a permissible classification to use in remedying the present effects of past discrimination. Judgment of the Court was issued by Chief Justice Burger, who emphasized Congress' preeminent role under the Commerce clause and under the Fourteenth Amendment to find as a fact the existence of past discrimination and its continuing effects and to implement remedies which were race conscious in order to cure those effects. 142 The principal concurring opinion by Justice Marshall applied the Brennan analysis in Bakke, utilizing middle-tier scrutiny to hold that the race conscious set-aside was ''substantially related to the achievement of the important and congressionally articulated goal of remedying the present effects of past discrimination.'' 143
Taken together, the opinions recognize that at least in Congress there resides the clear power to make the findings that will form the basis for a judgment of the necessity to use racial classifications in an affirmative way; these findings need not be extensive or express and may be collected in many ways. Whether federal agencies or state legislatures and state agencies have the same breadth and leeway to make findings and formulate remedies was left unsettled but that they have some such power seems evident. 144 Further, while the opinions emphasized the limited duration and magnitude of the set-aside program, they appeared to at tach no constitutional significance to these limitations, thus leaving the way open for programs of a scope sufficient to remedy all the identified effects of past discrimination. 145 But the most important part of these opinions rests in the clear sustaining of race classifications as permissible in remedies and in the approving of some forms of racial quotas. Rejected were the arguments that a stigma attaches to those minority beneficiaries of such programs, that burdens are placed on innocent third parties, and that the program is overinclusive, benefitting some minority members who had suffered no discrimination. 146
The Court remains divided in ruling on constitutional challenges 147 to affirmative action plans. As a general matter, authority to apply racial classifications is at its greatest when Congress is acting pursuant to section 5 of the Fourteenth Amendment or other of its powers, or when a court is acting to remedy proven discrimination. But impact on disadvantaged non-minorities can also be important. Two recent cases illustrate the latter point. In Wygant v. Jackson Board of Education, 148 the Court invalidated a provision of a collective bargaining agreement giving minority teachers a preferential protection from layoffs; in United States v. Paradise, 149 the Court upheld as a remedy for past discrimination a court-ordered racial quota in promotions. Justice White, concurring in Wygant, emphasized the harsh, direct effect of layoffs on affected non-minority employees. 150 By contrast, a plurality of Justices in Paradise viewed the remedy in that case as affecting non-minorities less harshly than did the layoffs in Wygant, since the promotion quota would merely delay promotions of those affected, rather than cause the loss of their jobs. 151
A clear distinction has been drawn between federal and state power to apply racial classifications. In City of Richmond v. J.A. Croson Co., 152 the Court invalidated a minority set-aside requirement that holders of construction contracts with the city subcontract at least 30% of the dollar amount to minority business enterprises. Applying strict scrutiny, the Court found Richmond's program to be deficient because it was not tied to evidence of past discrimination in the city's construction industry. By contrast, the Court in Metro Broadcasting, Inc. v. FCC 153 applied a more lenient standard of review in upholding two racial preference policies used by the FCC in the award of radio and television broadcast licenses. The FCC policies, the Court explained, are ''benign, race-conscious measures'' that are ''substantially related'' to the achievement of an ''important'' governmental objective of broadcast diversity. 154
In Croson, the Court ruled that the city had failed to establish a ''compelling'' interest in the racial quota system because it failed to identify past discrimination in its construction industry. Mere recitation of a ''benign'' or remedial purpose will not suffice, the Court concluded, nor will reliance on the disparity between the number of contracts awarded to minority firms and the minority population of the city. ''[W]here special qualifications are necessary, the relevant statistical pool for purposes of demonstrating exclusion must be the number of minorities qualified to undertake the particular task.'' 155 The overinclusive definition of minorities, including U.S. citizens who are ''Blacks, Spanish-speaking, Orientals, Indians, Eskimos, or Aleuts,'' also ''impugn[ed] the city's claim of remedial motivation,'' there having been ''no evidence'' of any past discrimination against non-Blacks in the Richmond construction industry. 156
It followed that Richmond's set-aside program also was not ''narrowly tailored'' to remedy the effects of past discrimination in the city: an individualized waiver procedure made the quota approach unnecessary, and a minority entrepreneur ''from anywhere in the country'' could obtain an absolute racial preference. 157
At issue in Metro Broadcasting were two minority preference policies of the FCC, one recognizing an ''enhancement'' for minority ownership and participation in management when the FCC considers competing license applications, and the other authorizing a ''distress sale'' transfer of a broadcast license to a minority enterprise. These racial preferences--unlike the set-asides at issue in Fullilove-- originated as administrative policies rather than statutory mandates. Because Congress later endorsed these policies, however, the Court was able to conclude that they bore ''the imprimatur of longstanding congressional support and direction.'' 158
Metro Broadcasting is noteworthy for several other reasons as well. The Court rejected the dissent's argument--seemingly accepted by a Croson majority--that Congress's more extensive authority to adopt racial classifications must trace to section 5 of the Fourteenth Amendment, and instead ruled that Congress also may rely on race- conscious measures in exercise of its commerce and spending powers. 159 This meant that the governmental interest furthered by a race-conscious policy need not be remedial, but could be a less focused interest such as broadcast diversity. Secondly, as noted above, the Court eschewed strict scrutiny analysis: the governmental interest need only be ''important'' rather than ''compelling,'' and the means adopted need only be ''substantially related'' rather than ''narrowly tailored'' to furthering the interest. The distinction between federal and state power to apply racial classifications proved ephemeral. The Court ruled in Adarand Constructors, Inc. v. Pena Supp.5 that racial classifications imposed by federal law must be analyzed by the same strict scrutiny standard that is applied to evaluate state and local classifications based on race. The Court overruled Metro Broadcasting and, to the extent that it applied a review standard less stringent than strict scrutiny, Fullilove v. Klutznick. Strict scrutiny is to be applied regardless of the race of those burdened or benefited by the particular classification; there is no intermediate standard applicable to ''benign'' racial classifications. The underlying principle, the Courtexplained, is that the Fifth and Fourteenth Amendments protect persons, not groups. It follows, therefore, that classifications based on the group characteristic of race ''should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection . . . has not been infringed.'' Supp.6
[Footnote 127] While the emphasis is upon governmental action, private affirmative actions may implicate statutory bars to uses of race. E.g., McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273 (1976), held, not in the context of an affirmative action program, that whites were as entitled as any group to protection of federal laws banning racial discrimination in employment. The Court emphasized that it was not passing at all on the permissibility of affirmative action programs. Id. at 280 n.8. In United Steelworkers v. Weber, 443 U.S. 193 (1979), the Court held that title VII did not prevent employers from instituting voluntary, race-conscious affirmative action plans. Accord, Johnson v. Transportation Agency, 480 U.S. 616 (1987). Nor does title VII prohibit a court from approving a consent decree providing broader relief than the court would be permitted to award. Local 93, Int'l Ass'n of Firefighters v. City of Cleveland, 478 U.S. 501 (1986). And, court- ordered relief pursuant to title VII may benefit persons not themselves the victims of discrimination. Local 28 of the Sheet Metal Workers' Int'l Ass'n v. EEOC, 478 U.S. 421 (1986).
[Footnote 129] Programs to overcome past societal discriminations against women have been approved, Kahn v. Shevin, 416 U.S. 351 (1974); Schlesinger v. Ballard, 419 U.S. 498 (1975); Califano v. Webster, 430 U.S. 313 (1977), but gender classifications are not as suspect as racial ones. Preferential treatment for American Indians was approved, Morton v. Mancari, 417 U.S. 535 (1974), but on the basis that the classification was political rather than racial.
[Footnote 130] The constitutionality of a law school admissions program in which minority applicants were preferred for a number of positions was before the Court in DeFunis v. Odegaard, 416 U.S. 312 (1974), but the merits were not reached.
[Footnote 132] Id. at 155-65. Joining this part of the opinion were Justices Brennan, Blackmun, and Stevens.
[Footnote 133] Id. at 165-68. Joining this part of the opinion were Justices Stevens and Rehnquist. In a separate opinion, Justice Brennan noted that preferential race policies were subject to several substantial arguments: (1) they may disguise a policy that perpetuates disadvantageous treatment; (2) they may serve to stimulate society's latent race consciousness; (3) they may stigmatize recipient groups as much as overtly discriminatory practices against them do; (4) they may be perceived by many as unjust. The presence of the Voting Rights Act and the Attorney General's supervision made the difference to him in this case. Id. at 168. Justices Stewart and Powell concurred, agreeing with Justice White that there was no showing of a purpose on the legislature's part to discriminate against white voters and that the effect of the plan was insufficient to invalidate it. Id. at 179.
[Footnote 135] 78 Stat. 252, 42 U.S.C. Sec. 2000d to 2000d-7. The Act bars discrimination on the ground of race, color, or national origin by any recipient of federal financial assistance.
[Footnote 137] Id. at 284-87 (Justice Powell), 328-55 (Justices Brennan, White, Marshall, and Blackmun).
[Footnote 138] Id. at 355-79 (Justices Brennan, White, Marshall, and Blackmun). The intermediate standard of review adopted by the four Justices is that formulated for gender cases. ''Racial classifications designed to further remedial purposes 'must serve important governmental objectives and must be substantially related to achievement of those objectives.''' Id. at 359.
[Footnote 139] Id. at 287-320.
[Footnote 140] See id., 319-320 (Justice Powell).
[Footnote 142] Id. at 456-92. Justices White and Powell joined this opinion. Justice Powell also concurred in a separate opinion, id. at 495, which qualified to some extent his agreement with the Chief Justice.
[Footnote 143] Id. at 517.
[Footnote 144] Id. at 473-480. The program was an exercise of Congress' spending power, but the constitutional objections raised had not been previously resolved in that context. The plurality therefore turned to Congress' regulatory powers, which in this case undergirded the spending power, and found the power to repose in the commerce clause with respect to private contractors and in Sec. 5 of the Fourteenth Amendment with respect to state agencies. The Marshall plurality appeared to attach no significance in this regard to the fact that Congress was the acting party.
[Footnote 145] Id. at 484-85, 489 (Chief Justice Burger), 513-15 (Justice Powell).
[Footnote 146] Id. at 484-489 (Chief Justice Burger), 514-515 (Justice Powell), 520-521 (Justice Marshall).
[Footnote 147] Guidance on constitutional issues is not necessarily afforded by cases arising under Title VII of the Civil Rights Act, the Court having asserted that ''the statutory prohibition with which the employer must contend was not intended to extend as far as that of the Constitution,'' and that ''voluntary employer action can play a crucial role in furthering Title VII's purpose of eliminating the effects of discrimination in the workplace.'' Johnson v. Transportation Agency, 480 U.S. 616, 628 n.6, 630 (1987) (upholding a local governmental agency's voluntary affirmative action plan predicated upon underrepresentation of women rather than upon past discriminatory practices by that agency) (emphasis original). The constitutionality of the agency's plan was not challenged. See id. at 620 n.2.
[Footnote 150] 476 U.S. at 294 . A plurality of Justices in Wygant thought that past societal discrimination alone is insufficient to justify racial classifications; they would require some convincing evidence of past discrimination by the governmental unit involved. 476 U.S. at 274 - 76 (opinion of Justice Powell, joined by Chief Justice Burger and by Justices Rehnquist and O'Connor).
[Footnote 151] 480 U.S. at 182 -83 (opinion of Justice Brennan, joined by Justices Marshall, Blackmun, and Powell). A majority of Justices emphasized that the egregious nature of the past discrimination by the governmental unit justified the ordered relief. 480 U.S. at 153 (opinion of Justice Brennan), id. at 189 (Justice Stevens).
[Footnote 152] 488 U.S. 469 (1989). Croson was decided by a 6-3 vote. The portions of Justice O'Connor's opinion adopted as the opinion of the Court were joined by Chief Justice Rehnquist and by Justices White, Stevens, and Kennedy. The latter two Justices joined only part of Justice O'Connor's opinion; each added a separate concurring opinion. Justice Scalia concurred separately; Justices Marshall, Brennan, and Blackmun dissented.
[Footnote 153] 497 U.S. 547 (1990). This was a 5-4 decision, Justice Brennan's opinion of the Court being joined by Justices White, Marshall, Blackmun, and Stevens. Justice O'Connor wrote a dissenting opinion joined by the Chief Justice and by Justices Scalia and Kennedy, and Justice Kennedy added a separate dissenting opinion joined by Justice Scalia.
[Footnote 156] Id. at 506.
[Footnote 157] Id. at 508.
[Footnote 158] 497 U.S. at 600 . Justice O'Connor's dissenting opinion contended that the case ''does not present 'a considered decision of the Congress and the President.''' Id. at 607 (quoting Fullilove, 448 U.S. at 473 ).
[Footnote 5 (1996 Supplement)] 115 S. Ct. 2097 (1995). This was a 5-4 decision. Justice O'Connor's opinion of Court was joined by Chief Justice Rehnquist, and by Justices Kennedy, Thomas, and–to the extent not inconsistent with his own concurring opinion–Scalia. Justices Stevens, Souter, Ginsburg and Breyer dissented.
[Footnote 6 (1996 Supplement)] 115 S. Ct. at 2113 (emphasis original).
[Footnote 160] Deleted in 1996 Supplement.