Affirmative Action and the EPC
Still use the regular EPC framework:
(1) What is the classification? And where does the classification appear?
- Classification is race.
(2) What level of scrutiny applies to the classification/
- Strict scrutiny applies to race classifications.
(3) What is the compelling government interest?
With affirmative action it will either be: (i) Remedial, or (ii) Diversity
Remedial Interest 1
Where a person or entity HAS ITSELF discriminated on the basis of race IN THE PAST and now must provide a benefit TO SOMEONE WHO HAS HIMSELF SUFFERED PAST DISCRIMINATION.
a. i.e. an employer denies an employee a job b/c of race and the employer is ordered to employ that person by the gov.
b. THIS IS A COMPELLING STATE INTEREST.
c. Note how this applies to the very person being discriminated against.
Remedial Interest 2
Where a person or entity HAS ITSELF DISCRIMINATED on the basis of race and must now provide a remedy TO A CLASS OF PERSONS SUBJECTED TO THAT PAST DISCRIMINATION.
a. i.e. an employer has discriminated in the past against a race of people and the government tells them that they have to hire more (black) people.
b. THIS IS A COMPELLING STATE INTEREST.
c. NOTE. This applies to the CLASS of person being discriminated against.
Remedial Interest 3
Where a field or industry has BEEN KNOWN to discriminate and provides a remedy BUT THERE IS NO EVIDENCE THAT A PARTICULAR ENTITY WITHIN THAT INDUSTRY discriminated on the basis of race AND THE BENEFICIARY did not personally suffer discrimination.
a. i.e. there is a long history of discrimination in the construction industry, but there is no evidence that company X ever discriminated.
b. THIS WOULD NOT be a compelling state interest.
Remedial Interest 4
Where affirmative action is being used to remedy GENERAL SOCIETAL discrimination based on the LEGACY OF RACISM in America, but it is not connected to any specific remedial efforts.
a. Affirmative action used in this way IS NOT a compelling state interest.
Regents of U.C.L.A v. Bakke (1978)
Justice Powell: Diversity IS a compelling state interest but courts will examine whether the law is narrowly tailored to achieving the interest of diversity. Race is allowed if one factor among many.
Gratz v. Bollinger
Racial quotas/preferences ARE NOT narrowly tailored means of achieving diversity.
Reasons for no quotes:
- Gov't money goes towards public school and so if gov't supports interest groups then school will cater to interest groups.
- Spoils system: reward politically powerful interest group because more gov't funding.
- political danger bc schools are dependent on gov't funding
Grutter v. Bollinger (2003) RoL & Critical Mass
"Holistic" assessments in which race figures as one factor of UNQUANTIFIABLE weight among many others IS narrowly tailored to achieving diversity.
Critical Mass: An unquantifiable standard that may guide the use of race as a factor in an otherwise holistic admissions process.
Ct claims applying strict scrutiny but gives deference to university. Maybe this kind of discrimination is benign.
Types of Diversity a University Might Want (acc to Deeg)
1. Ideological diversity (political, philosophical)
2. Experiential diversity (rich poor)
3. Diversity of talents (athletes & cello players)
4. Demographic diversity (race, ethnicity, foreigners)
Grutter (2003) Cross racial understanding
1. Promotes mutual understanding between the students of other races,
2. Fosters diffusion of knowledge and opportunity,
3. Enhances the legitimacy of societies leaders, and
4. Prepares students for entry into a diverse workplace.
Grutter v. Bollinger (2003) Sunset Provision
The interest approved was diversity, why would you put a time limit on a constitutional right?
How do you determine whether racial preferences are still needed?
Deeg = Court claims to be talking about diversity but was actually talking about the remedial interest.
Fischer v. Texas (2016) Baby bear test
Holistic assessment where race is including among other things. Goals are vague and could be supported by a variety of policies. Note the deference that is given to the university in this case. What happened to strict scrutiny.
Alito dissented = Laudable goals but aren't stated explicitly enough. ISSUE, how can the means be narrowly tailored if they are not explicitly stated. How can you know if goals are being met.
Baby bear test
- If a university fails to quantify its critical mass goals IT CANNOT satisfy strict scrutiny,
- HOWEVER, the more precise the university becomes, the more it begins to look like a quota.
Can't target minorities by using demographics of state because it would be rewarding groups based on political capital. Alito points out how Asian-Americans have been discriminated against and they're not benefitting from the plan.
Grutter v. Bollinger (2003) Thomas' Dissent
Michigan can't produce elite lawyers as compelling interest because they leave the state upon graduation.
Michigan is really concerned with elite status and aesthetics, a facade of merit to preserve legitimacy of elite univeristy.
The Diversity Interest - Gov't Contracts
Long been the practice to select companies for gov't contracts based on minority status.
Richmond v. JA Croson Co. (1989): 30% of gov't contracts were to go to minority-owned businesses but there was a history only for discrimination against blacks for gov't contracts so law struck down.
Adarand Constructors v. Pena (1995): Construction company gave a lower bid but contract went to a minority owned business. Struck down by Ct.
Strict in theory; fatal in fact.