Lecture 41 Discrimination V Affirmative Action I

This Lecture Pages 648-660 Affirmative Action I Regents of the University of California v. Bakke (1978) What level of scrutiny will apply?

Origins of Affirmative Action Historically, has been to right past discrimination Bring in more minorities to the process Create a diverse learning environment Today, this is meant Admission to certain undergraduate, graduate, medical, law schools Some applicants have thought that they have been denied admission to those less qualified but admitted based on race Still does not factor in legacies, donors, those asking special favors http://www.thecrimson.com/article/2006/10/4/harvard-to-the-highest- bidder-how/ Trump son-in-law Jared Kushner gets accepted to Harvard after a $2.5 million dollar donation from his father despite mediocre grades

More on Affirmative Action Two approaches Preferences Set asides for programs which can take on the nature of quotas Is it a zero sum game? What level of scrutiny to apply? Supporters rational basis They say limit strict scrutiny for classifications that burden minorities Opponents strict scrutiny They say who benefits is irrelevant equal protection means equal treatment As we have seen it is hard to overcome strict scrutiny analysis, but fairly easy on rational basis Should apply to only discrete and insular minorities

Regents of the University of California v. Bakke (1978) Background UC Davis had a poor history of admitting minority applicants from 1968 opening So they created a two tiered admission system Regular admissions these are the traditional things we think of (GPA, test scores, letters, etc.) Special admissions for minorities and they competed only against each other No whites considered, only minorities in this even if they did come from poverty Bakke was an applicant to UC Davis Medical School He was rejected twice However, his grades and MCAT scores were significantly higher than the average of the special applicants each year Bakke said the two tiered system violated the Equal Protection Clause State courts agreed with him and ordered him admitted (but stayed pending appeal)

Regents of the University of California v. Bakke- II Arguments For California Regents Past discrimination has led to few minority doctors Other less aggressive programs have proven inadequate to remedy past discrimination Strict scrutiny should not apply to programs benefiting historically discriminated against This would survive any level of scrutiny For Bakke This a quota system to which Bakke could not compete for seats Quotas represent group rights rather than individual rights as the 14th Amendment guarantees This is not a traditional affirmative action program, but a strict quota This must be subject to strict scrutiny

Regents of the University of California v. Bakke- III Powell, J. announces the judgment of the Court This does not have precedential value since it did not garner a majority Powell goes through his constitutional interpretation of these programs Whether a quota or goal, it judges based on race/ethnicity Equal Protection rights are personal rights and cannot mean different things to different classes of people and should be subject to the most exacting scrutiny (strict) He also looks to the purposes of the special admissions program However, giving one group a preference over another is facially invalid But the State has an interest in disabling the effects of past and current discrimination No compelling interest in inflicting harm on one group to help another

Regents of the University of California v. Bakke- IV More from Powell, J. judgment of the Court He thinks the UC Davis program goes too far They have not met their burden of why one group should be preferred over another However, ethnic diversity in the student body is an important goal He thinks it can be a factor in admissions, but not as a pure quota or preference He rejects having race as playing no role But this special admissions program specifically excludes whites This violates the 14th Amendment The result is Bakke as admitted, and later graduates He chooses not to be a public figure

Regents of the University of California v. Bakke- V Brennan, J. joined by White, Marshall, and Blackmun, JJ. Concurring in judgment in part and dissenting in part He would not apply strict scrutiny as he sees no fundamental rights or suspect classifications involved This should not apply to whites not discrete or insular minority group Any discrimination is benign The record of not having minority medical students justifies the use of race here They find this plan constitutionally permissible White, J. dissented also that there is no private cause of action under Title VI

Regents of the University of California v. Bakke- VI This case was primarily decided in Title VI of the Civil Rights Act Stevens, J., joined by Burger, C.J., Stewart and Rehnquist, JJ. They said to only decide the case based on the statutory issues and would not have delved into the Equal Protection issue So there was no precedent on the level of scrutiny to apply to these claims But it did leave a blueprint for future claims Especially when the more liberal justices retire from the Court

Further Cases- Uphold Fullilove v. Klutznick (1980) Court upholds a minority contractor (10%) law Burger, C.J., Powell, and White JJ. Find it narrowly tailored to remedy past discrimination United States v. Paradise (1987) Challenge to a minority promotion law for the Alabama DPS Upheld under strict scrutiny because of Alabama’s really bad record on promotions Stevens agrees under Swann of this as a remedial order Metro Broadcasting v. FCC (1990) Provision to give minorities a preference in broadcast licenses Upheld under intermediate scrutiny (5-4) federal government gets lower scrutiny level Served a purpose in promoting diversity

Strike Down or Remand City of Richmond v. J.A. Croson Co. (1989) Richmond law required 30% of subcontractor work by minority Court strikes down because of no compelling rational for the 30% number Stevens says not narrowly tailored to remedy past discrimination Scalia says apply strict scrutiny to all racial classifications Adarand Constructors, Inc. v. Pena (1995) A federal provision to give bonuses to contractors if they do business with minority owned and operated businesses 5-4 to remand to consider under strict scrutiny Scalia and Thomas seem to have wanted to strike down there and then Strict scrutiny will be the test from now on both state and federal

Next Lecture Pages 660-669 Affirmative Action II Grutter v. Bollinger (2003) Fisher v. Texas (2016) Read syllabus of case Application of Strict Scrutiny as a rule