Affirmative Action Cases

Affirmative Action Cases in the United States

Affirmative Action Cases in the Supreme Court

The scope and limitations of affirmative action policy have been defined through a series of legislative initiatives and decisions by the Supreme Court of the United States. In Griggs v. Duke Power (1971) the Court held that Title VII bans “not only overt discrimination but also practices that are fair in form but discriminatory in operation.” In order to avoid discrimination lawsuits under Title VII, public and private employers began to adopt hiring policies designed to recruit more minorities. The Equal Opportunity Act of 1972 expanded Title VII protections to educational institutions, leading to the extension of affirmative action to colleges and universities.

In later cases the Supreme Court upheld the constitutionality of affirmative action, but placed some restrictions on its implementation. The Court’s ruling in Regents of the University of California v. Bakke (1978) declared that it was unconstitutional for the medical school of the University of California at Davis to establish a rigid quota system by reserving a certain number of places in each class for minorities. However, the ruling upheld the right of schools to consider a variety of factors when evaluating applicants, including race, ethnicity, gender, and economic status. In United Steelworkers v. Weber (1979) the Court ruled that a short-term voluntary training program that gave preference to minorities was constitutional. The Court reasoned that a temporary program designed to remedy specific past discriminatory practices did not unduly restrict the advancement of whites. In Fullilove v. Klutznick (1980) the Court upheld a provision of the Public Works Employment Act of 1977, which provided a 10 percent “set-aside” for hiring minority contractors on federally funded public works projects. The majority of the justices believed that the Congress of the United States has special powers to remedy past and ongoing discrimination in the awarding of federal contracts.

Conservative justices appointed to the Supreme Court by Republican presidents in the 1980s and 1990s have attempted to limit the scope of affirmative action. Although sharply divided on the issue, the Court has struck down a number of affirmative action programs as unfair or too broad in their application. In Wygant v. Jackson Board of Education (1986) the Court struck down a plan to protect minority teachers from layoffs at the expense of white teachers with greater seniority. In Richmond v. J. A. Croson Co. (1989) the Court rejected a local set-aside program for minority contractors, ruling that local governments do not have the same power as Congress to enact such programs. The Court’s ruling in Ward’s Cove Packing Company v. Antonio (1989) revised the standards established by the 1971 Griggs decision. The Ward’s Cove decision required that employees filing discrimination lawsuits demonstrate that specific hiring practices had led to racial disparities in the workplace. Even if this could be shown, these hiring practices would still be legal if they served “legitimate employment goals of the employer.”

These rulings did not signal the end of affirmative action. In Metro Broadcasting v. Federal Communications Commission (1990) the Court upheld federal laws designed to increase the number of minority-owned radio and television stations. Meanwhile, Congress passed the Civil Rights Act of 1991, which strengthened antidiscrimination laws and largely reversed the Ward’s Cove decision.

Affirmative Action Case: Fisher v. University of Texas at Austin

The Fisher case implicated the continued use of race in a university setting to achieve diversity. In the end, however, the outcome fit the ho-hum pattern for the Court’s term. The University of Texas argued that it merited deference on its conscious use of race as one of many factors to fill out its entering class. The University of Michigan had been given this deference by Justice Sandra Day O’Connor’s ruling in Grutter v. Bollinger (539 U.S. 306 (2003)), which kept the door open for race-based admissions designed to assure a critical mass of diverse students. Beyond the retirement of Justice O’Connor, nothing much has changed since 2003. Despite predictions that the Fisher case would indeed move the needle, the case was remanded to the Fifth Circuit with a reminder that all nonracial efforts to achieve diversity must be exhausted first, and even then, any reliance on race must be narrowly tailored.

Affirmative Action After Fisher and Affirmatively Furthering Equal Protection

On June 23, 2016, the Supreme Court held (4-3) that the University’s admission system
satisfied the three “controlling principles” laid out by the court in its 2013 Fisher
opinion:

  • any race-conscious admissions process must withstand strict scrutiny;
  • “the decision to pursue ‘the educational benefits that flow from student body
    diversity’ … is, in substantial measure, an academic judgment to which some, but
    not complete, judicial deference is proper[;]” and
  • the use of race must be “narrowly tailored” to achieve the university’s goals, and the university bears the burden of proving that “available” and “workable” race-neutral alternatives are insufficient.

The majority concluded that the University of Texas had satisfied these principles. The admissions plan at issue was a “holistic review” of applicants not admitted through the state’s Top Ten Percent Plan, which filled roughly 75% of the seats of forthcoming freshman by guaranteeing admission to the top ten percent of high school students in the State. Thus, the plan at issue only pertained to filling the remaining 25% of seats. Fisher, the plaintiff, did not graduate in the requisite top of her class and thus only challenged her rejection through the holistic review process. In finding that strict scrutiny was satisfied, the Court emphasized, among other things, the “reasoned, principled explanation[s]” given by the University, and the fact that “the University conducted months of study and deliberation, including retreats, interviews, and review of data’” before concluding that the Top Ten Percent Plan actually had not met the institution’s goals for a diverse student body. Justice Thomas and Justice Alito both wrote dissenting opinions.


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