Spring 1998, Volume XIII Number 2
Affirmative Action: A Dialogue on Race, Gender, Equality and Law in America

What Is the Constitutional Status of Affirmative Action?: Reading Tea Leaves

by L. Anita Richardson

Race, broadly defined to include ethnic heritage, continues to be at the eye of America's moral storm over equality before the law. Because legal equality is the essence our cultural credo, there is little debate about actual, here and now discrimination; it is unlawful and, if not remedied voluntarily, can be remedied by court order. Moreover, a court order in a discrimination case can go beyond simply instructing the offender to end its discrimination; the order can direct the offender to take affirmative steps to cure the effects of its discrimination. A court, in other words, can order affirmative action in a case of actual present-time discrimination.

There is much debate, however, about dealing with the lingering, pernicious effects of past racial discrimination; that is, there is much debate about using affirmative action as a remedy for past discrimination. To give context to the debate, here is a brief overview of the current legal status of affirmative action as a solution for past discrimination_what one might call backward-looking affirmative action.

Courts today are skeptical of affirmative action as a remedy for past discrimination. Under both the Constitution's equal protection guarantee and Title VII of the Civil Rights Act of 1964, distinctions based on race are inherently suspect, whether such distinctions are burdensome as in the case of traditional discrimination or "benign" as in the case of affirmative action. Under the Constitution courts must subject affirmative action programs to strict scrutiny. Accordingly, such programs cannot pass constitutional muster unless they serve a compelling interest and are narrowly tailored so that the identified interest is served with the least harm to those who have not suffered discrimination.

A solid majority of the current Supreme Court, but a majority that does not include Justices Scalia and Thomas, would agree that a governmental actor's narrowly tailored affirmative-action program undertaken to remedy the actor's own past discrimination is constitutional [see Adarand Constructors, Inc. v. Pena, 115 U.S. 2097 (1995)], where the Court held that the federal government, like state and local governments, must have a compelling reason for undertaking an affirmative action program]. Similarly, under Title VII, which prohibits both private and public sector workplace discrimination, an affirmative action program is lawful if the program is necessary to remedy a demonstrated racial imbalance in the workplace and does not "unnecessarily trammel the interests of [nonminority] employees" [see United Steel Workers v. Weber, 443 U.S. 193, 208 (1979)].

There is a general consensus that courts apply slightly less stringent scrutiny to affirmative action programs challenged under Title VII than to those challenged on equal protection grounds. But it remains true that judicial scrutiny under Title VII, though not as searching as judicial scrutiny under the Constitution's equal protection guarantee, is demanding nonetheless.

Does all of this sound the death knell for affirmative action as a remedy for past discrimination? Not exactly. Despite the apparent constitutionality of popular referenda prohibiting affirmative action such as California's proposition 209, an affirmative action program undertaken to cure established past or present discrimination is permissible.

The death knell, however, has been sounded for affirmative action programs established solely to promote racial diversity. That is the undeniable message of Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), where the 5th Circuit held that establishing and maintaining a racially diverse student body is not a compelling interest for purposes of the Equal Protection Clause and so cannot justify a state law school's race-based, affirmative-action admissions program, and Taxman v. Board of Education of Piscataway Township, 91 F.3d 1547 (3d Cir. 1996), where the 3rd Circuit held that maintaining a racially diverse faculty is not sufficient under Title VII to justify the race-based layoff of a nonminority public school teacher. Further laying the diversity rationale to rest is an April 1998 decision of the United States Court of Appeals for the District of Columbia. Applying strict scrutiny, the appeals court invalidated the Federal Communication Commission's policy of promoting racial diversity in broadcasting.

The current state of the law suggests that an affirmative action program will survive strict scrutiny if it is tied to the original purpose of such programs: remedying proven, not speculative, past or present discrimination. Conversely, racial diversity, while a laudable goal, will have to be achieved by means other affirmative action.

L. Anita Richardson was Editor of Preview of United States Supreme Court Cases, a publication of the American Bar Association Division for Public Education which previews, before oral argument, every Supreme Court case.

Spring 1998 Issue Home | Why Race Matters
Affirmative Action as Social and Legal Policy
Affirmative Action, Diversity and College Admissions
Gender, Race, and Affirmative Action

Reconceiving Merit | Affirmative Action in the Workplace
Constitutional Status of Affirmative Action
Book Recommendations | Contributors

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