Preferential Treatment on the Job Background: From Plessy to Brown Background: From Plessy to Brown United Steelworkers v. Weber United Steelworkers v. Weber Other relevant cases Other relevant cases

Plessy v. Ferguson (1895) Laws requiring “separate but equal” facilities for blacks and whites do not violate the “equal protection” clause. Laws requiring “separate but equal” facilities for blacks and whites do not violate the “equal protection” clause. J. Harlan’s dissent: the Constitution is “colorblind.” The 14th amendment does not permit the Government to recognize racial differences. J. Harlan’s dissent: the Constitution is “colorblind.” The 14th amendment does not permit the Government to recognize racial differences.

Brown v. Board of Education (1954) Did not reverse Plessy in principle, Did not reverse Plessy in principle, Did not accept the colorblind standard proposed by NAACP. Did not accept the colorblind standard proposed by NAACP. Used psychological data to argue that separation education is in fact harmful to black children, and so "inherently unequal". Used psychological data to argue that separation education is in fact harmful to black children, and so "inherently unequal".

United Steelworkers v. Weber et al. (1979) Voluntary preferential treatment plan in employment (craft training) Voluntary preferential treatment plan in employment (craft training) Not defended as a remedy for past discrimination by Kaiser. Not defended as a remedy for past discrimination by Kaiser. Seeking to equalize the representation of whites and blacks, despite past societal discrimination. Seeking to equalize the representation of whites and blacks, despite past societal discrimination.

Rehnquist's dissent Compares the majority opinion to Newspeak in Orwell's Compares the majority opinion to Newspeak in Orwell's Appeal to the language of Title VII of the Civil Rights Act (1964). Appeal to the language of Title VII of the Civil Rights Act (1964). Appeal to the legislative history of the Act (especially the lengthy Senate debate). Appeal to the legislative history of the Act (especially the lengthy Senate debate).

Title VII of the 1964 Civil Rights Act It is] unlawful for an employer to classify his employees in any way which would deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex or national origin. The Act includes no exceptions to this ban or racial discrimination. The Act includes no exceptions to this ban or racial discrimination.

The Legislative History of Title VII Senator Humphrey (majority whip, co- manager of the bill in the Senate): Title VII does not permit the use of racial quotas. It is a "bugaboo" to insist that it could be used to require racial balance. "The very opposite is true. Title VII prohibits discrimination." Senator Humphrey (majority whip, co- manager of the bill in the Senate): Title VII does not permit the use of racial quotas. It is a "bugaboo" to insist that it could be used to require racial balance. "The very opposite is true. Title VII prohibits discrimination." Sen. Kuchel (minority whip, co- manager): "The statute is colorblind." Sen. Kuchel (minority whip, co- manager): "The statute is colorblind."

Brennan's opinion for the Court No state action -- 14th amendment does not apply. No state action -- 14th amendment does not apply. Rely on underlying purpose, not literal interpretation of the Act. Rely on underlying purpose, not literal interpretation of the Act. Argument from silence -- paragraph j. Argument from silence -- paragraph j. Legislative history -- a second look. Legislative history -- a second look.

Kaiser plan is not state action The plan was undertaken voluntarily by Kaiser and the unions. (Pressure from Labor Dept.?) The plan was undertaken voluntarily by Kaiser and the unions. (Pressure from Labor Dept.?) The 14th amendment’s equal protection clause applies only to state action. The 14th amendment’s equal protection clause applies only to state action.

Interpret by purpose, not literally The historical context that provided the impetus for the Act was the worsening position of black Americans in the work force (rising black unemployment rate). The historical context that provided the impetus for the Act was the worsening position of black Americans in the work force (rising black unemployment rate). There was no concern about discrimination against whites. There was no concern about discrimination against whites.

Appeal to section 703 (j) Nothing contained in this title shall be interpreted to require any employer, etc., to grant preferential treatment to any individual, or to any group because of race, color, religion, sex or national origin of such individual or group on account of an imbalance which may exist. [emphasis Brennan's]

Argument from silence Brennan points out that the paragraph does not say "require or permit". Brennan points out that the paragraph does not say "require or permit". Since the framers ommitted the phrase "or permit", Brennan infers that they intended that the Act should permit employers to grant preferential treatment. Since the framers ommitted the phrase "or permit", Brennan infers that they intended that the Act should permit employers to grant preferential treatment.

Rehnquist’s rebuttal Paragraph (j) is addressed to the courts, not to employers, so it's not surprising that it does not there discuss what is permitted of employers. Paragraph (j) is addressed to the courts, not to employers, so it's not surprising that it does not there discuss what is permitted of employers. Paragraphs (a) and (d) explicitly forbid "preferential treatment to any individual" on account of "race, color, etc." It would be redundant for paragraph (j) to state again that this is not permitted. Paragraphs (a) and (d) explicitly forbid "preferential treatment to any individual" on account of "race, color, etc." It would be redundant for paragraph (j) to state again that this is not permitted.

Legislative history Sen. Humphrey stated that Title VII would not allow establishment of systems "to maintain racial balance in employment" (emphasis Brennan's). Sen. Humphrey stated that Title VII would not allow establishment of systems "to maintain racial balance in employment" (emphasis Brennan's). The Kaiser plan seeks to create, and not to maintain, such racial balance. The Kaiser plan seeks to create, and not to maintain, such racial balance.

Blackmun’s Concurring Opinion Blackmun shares Rehnquist's concerns about the meaning and legislative history of Title VII. Blackmun shares Rehnquist's concerns about the meaning and legislative history of Title VII. Nonetheless: "I believe that additional considerations, practical and equitable, only partially perceived, if perceived at all, by the 88th Congress, support the conclusion reached.." Nonetheless: "I believe that additional considerations, practical and equitable, only partially perceived, if perceived at all, by the 88th Congress, support the conclusion reached.."

A Twofold Argument To concerns of public policy and utility ("practical considerations"). Consequentialist. To concerns of public policy and utility ("practical considerations"). Consequentialist. To matters of natural justice ("equitable considerations"). Deontological. To matters of natural justice ("equitable considerations"). Deontological. These can override both the literal meaning and the legislative intent. These can override both the literal meaning and the legislative intent.

The argument Rehnquist didn't make If we interpret Title VII as Brennan et al. insist, then Title VII makes an invidious distinction between whites and blacks (forbidding discrimination against blacks, but not against whites). If we interpret Title VII as Brennan et al. insist, then Title VII makes an invidious distinction between whites and blacks (forbidding discrimination against blacks, but not against whites). So interpreted, Title VII would involve a violation of the equal protection clause of the 14th amendment. (The Kaiser plan may not be a state action, but the Civil Rights Act certainly is.) So interpreted, Title VII would involve a violation of the equal protection clause of the 14th amendment. (The Kaiser plan may not be a state action, but the Civil Rights Act certainly is.)

Strict scrutiny of preferential treatment By permitting preferential treatment only of non-whites, Title VII (as interpreted by Brennan) employs the suspect category of race. By permitting preferential treatment only of non-whites, Title VII (as interpreted by Brennan) employs the suspect category of race. This triggers “strict scrutiny”. This triggers “strict scrutiny”. Preferences must be necessary and narrowly tailored to a “compelling state interest.” Preferences must be necessary and narrowly tailored to a “compelling state interest.”

Other Relevant Cases Griggs v. Duke Power Co. (1971) Employers are liable, not only for overt racial discrimination, but for any business practice have a disparate impact along racial lines, unless the practice can be proved to be a "business necessity." Griggs v. Duke Power Co. (1971) Employers are liable, not only for overt racial discrimination, but for any business practice have a disparate impact along racial lines, unless the practice can be proved to be a "business necessity."

City of Richmond v. J. R. Croson Co. O'Connor writes majority opinion. O'Connor writes majority opinion. Racial classifications must be a "narrowly tailored remedy", "strictly reserved for a remedial setting." Racial classifications must be a "narrowly tailored remedy", "strictly reserved for a remedial setting."

Wards Cove v. Atonio (1989) Griggs "disparate impact" standard is rejected. Unequal results are not enough to prove discrimination: we must also look at the composition of the pool of qualified candidates. Griggs "disparate impact" standard is rejected. Unequal results are not enough to prove discrimination: we must also look at the composition of the pool of qualified candidates. Shifted the burden of proof concerning whether the practice is a "business necessity" from the employer to the plaintiff. Shifted the burden of proof concerning whether the practice is a "business necessity" from the employer to the plaintiff.

Metro Broadcasting v. FCC (1990) 5 member majority accepted Congressionally mandated set-asides for minority ownership of broadcast licenses. 5 member majority accepted Congressionally mandated set-asides for minority ownership of broadcast licenses. O'Connor writes dissenting opinion. O'Connor writes dissenting opinion.

Adarand Constructors v. Pena (1995) Federally mandated affirmative action programs must be held to the standard of "strict scrutiny". Federally mandated affirmative action programs must be held to the standard of "strict scrutiny". O'Connor writes majority opinion. O'Connor writes majority opinion.

Preferential Treatment in Higher Education Bakke decision. Bakke decision. Triggers strict scrutiny? Triggers strict scrutiny? Is diversity a compelling state interest? Is diversity a compelling state interest? Practical problems with Bakke (Hopwood). Practical problems with Bakke (Hopwood).

Regents of the University of California v. Bakke (1978) Decided 5-4. Decided 5-4. Brennan bloc (concurring). Brennan bloc (concurring). Stevens bloc (dissenting). Stevens bloc (dissenting). Powell’s decision for the Court. Powell’s decision for the Court.