Affirmative Action

The most controversial contemporary aspect of civil rights law has been affirmative action programs aimed at overcoming past discrimination based on race and sex. "Our Constitution is color-blind," John Marshall Harlan had written in Plessy v. Ferguson ( 1896), "and neither knows nor tolerates classes among citizens."⁴¹ By the 1960s, these ringing words had taken on new meaning with legally imposed racial segregation overturned. Yet past discrimination had created injuries to generations of Americans, or so President Johnson had argued. In a sense, the generation of the era after World War II had been the victim of previous discrimination, and that new generation had, according to Johnson, some basis to demand compensation for the injuries done to their mothers and fathers. Affirmative action meant that mere equality of opportunity was no longer sufficient; that is, it was not enough to do away with prior racial barriers. Under affirmative action programs, the purpose was not to strike neutrality but to use racial and sexual classifications as a basis on which to secure increased employment opportunities, job promotions, and admissions to colleges and universities for racial minorities and women.

Affirmative action policies took two forms beginning in the 1970s. The first involved efforts to accelerate aggressive recruiting and remedial training. The idea behind such programs was to bring people into a position where they could compete equally for positions. These programs drew little resistance, and they seemed wholly justified as means of compensating for wrongs done in the past without disturbing the rights of nonminorities.

Much more controversial, however, were affirmative action programs involving quotas that set aside certain benefits to be given to identifiable racial groups and women. These programs became controversial because they took opportunities away from one group of people and gave them to another, and they did so on the basis of race and gender. The equal-protection clause of the Fourteenth Amendment had held that all people were to be treated equally before the law, but affirmative action, which came to be derisively termed "reverse discrimination," took race and sex into consideration. One person's affirmative action was another's reverse discrimination. The matter was especially troubling for the Supreme Court, which had essayed the revolution in civil rights, because it had to pass on rulings by lower-court judges, legislators, and private employers seeking to apply remedies that would promote social equality. Furthermore, in deciding cases involving affirmative action, the Court has been placed in the ironic position of interpreting the Civil Rights Act of 1964 in light of suits brought by white males charging racial or gender discrimination. The rights consciousness of the era cut in several directions.

The Court has accepted affirmative action programs, but it has struggled in doing so. The justices first decided the merits of an affirmative action program in Regents ofthe University of California v. Bakke

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the University of California v. Bakke ( 1978). The medical school of the University of California at Davis had set aside sixteen of its one hundred openings each year for minority students, who could be admitted even if they had grades and test scores lower than rejected white applicants. Allan Bakke, a white male, had a score just below the cutoff point for majority applicants and higher than the scores of several of the minority admittees. If he had been black, he would have had a place in the class. Bakke sued, claiming that the quota system denied him the equal protection of the law.

The Supreme Court found for Bakke. Though sharply divided, the justices concluded that the use of a rigid quota based on race violated the equal-protection clause of the Fourteenth Amendment and the Civil Rights Act of 1964. The justice also held, however, that race could be used as one of many factors (the Court called it a "plus" factor) in making decisions about admissions. For example, a university could reasonably want a diverse student body as one of its goals, and it was free to pursue that goal so long as it did not establish quotas.

Since then the Court has taken a somewhat tortured path forward. It has approved private affirmative action programs, as in United Steelworkers v. Weber ( 1979), even though they appear to violate the Civil Rights Act of 1964. The justices have also given approval to set-aside programs created in the Public Works Employment Act of 1977, which required at least 10 percent of federal funds for public-works projects to be spent on services or supplies from minority business enterprises. In Fullilove v. Klutznick ( 1980), the Court sustained the law by a vote of six to three. Justice John Paul Stevens ( 1975- ) entered a powerful dissent, suggesting sarcastically that the government would soon be in the position of having to devise a version of the Nazi laws that defined who was a Jew, musing that "our statute books will once again have to contain laws that reflect the odious practice of delineating the qualities that make one person a Negro and make another white."⁴²

Affirmative action has become the law of the land. The justices, most recently, have upheld affirmative action programs for both blacks and women. They found in United States v. Paradise ( 1987) that a program of promoting one black for every white officer promoted in the Alabama Department of Highway Safety did not violate the Civil Rights Act of 1964 or the equal-protection clause of the Fourteenth Amendment. The justices have also held in Johnson v. Santa Clara County ( 1987) that in making promotions within job categories in which women have been historically underrepresented, a public employer may give a preference to women over better- qualified men.

These decisions reveal once again that recompense for past harms, rights consciousness, substantive liberalism, and judicial power have converged to reshape American legal culture. These decisions were among the most controversial aspects of the qualitative side of the contemporary law explosion, and they underscore in dramatic terms the breadth of federal judicial authority in the era after World War II.

The Imperial Judiciary and Social Change

The idea of the imperial judiciary was a variation on the theme of the law explosion. The proof of the greater role of law in American life was the intervention by the high- court justices into areas that were historically the sole province of the state legislatures

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and Congress. Moreover, the justices, in sketching out a revolution in due process and equal protection under the laws contributed directly to increased litigation. That the Court's power has expanded dramatically and that its role in the American legal system is far more crucial than two centuries ago, seems beyond dispute. What is unclear and subject to constant reevaluation, is whether the justices' actions have moved U.S. law toward ideals for which the nation stood in 1787 and for which its citizens would want to stand today. The answer to that question is perhaps unknowable, but that Americans keep asking it is itself a sign of the health of the constitutional order and of the continuing connection between social and legal change.

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Date: 2015-01-29; view: 808