Affirmative Action (Update 1)

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AFFIRMATIVE ACTION (Update 1)

Do constitutional guarantees of equal protection command that government must be "color-blind" or only that government may not subordinate any group on the basis of race? The Supreme Court's equal protection decisions have long straddled these two different principles. The color-blindness approach deems race morally irrelevant to governmental decision making under all circumstances. The antisubordination approach, by contrast, sees racial distinctions as illegitimate only when used by government as a deliberate basis for disadvantage. The two approaches divide sharply on the permissibility of affirmative action: advocates of color blindness condemn the use of racial distinctions even to benefit previously disadvantaged racial groups, whereas those who view equal protection solely as a ban on racial subordination see affirmative action as constitutionally benign.

Since 1985, the Supreme Court has continued to steer between these two approaches rather than unequivocally embrace either one. In earlier decisions, the Court had upheld a variety of racial preferences, including the use of race as a factor in university admissions (as long as rigid racial quotas were not employed) in regents of university of california v. bakke (1978), the set-aside of places for blacks in an industrial skills-training program in united steelworkers of america v. weber (1979), and the set-aside of public works construction projects for minority business enterprises in fullilove v. klutznick (1980). These cases made clear that affirmative action would not be struck down as readily as laws harming racial minorities, but neither would it be lightly tolerated. Governments could successfully defend affirmative action programs, but only with an especially strong justification.

The affirmative action cases since 1985 have bitterly divided the Court, and their outcomes have signaled a partial retrenchment for affirmative action. With the appointments of Justices sandra day o'connor, antonin scalia, and anthony m. kennedy, the Court veered off its middle course and more sharply toward the color-blindness pole. Although the Court readily upheld affirmative action as a court-imposed remedy for racial discrimination against minorities, as in Local 28, Sheet Metal Workers International Association v. EEOC (1986), the Court struck down two municipalities' efforts to impose affirmative action on themselves. In wygant v. jackson board of education (1986) the Court invalidated a school district's plan to protect minority teachers against layoffs ahead of more senior white teachers. And in richmond (city of) v. j. a. croson co. (1989), the Court struck down a city's reservation of a percentage of public works construction for minority business enterprises—a set-aside modeled on the congressional program upheld in Fullilove. But metro broadcasting v. fcc (1990), which upheld federal policies preferring minority broadcasters in the allocation of broadcast licenses, confounded those who thought Croson had sounded the death knell for affirmative action.

The central conflict in these cases was over what justification for affirmative action would suffice. Up until Metro, the Court accepted only narrowly remedial justifications. Affirmative action was upheld only as penance for particularized past sins of discrimination—not as atonement for "societal discrimination" as a whole. The Court treated affirmative action as a matter of corrective rather than distributive justice; minorities might be preferred for jobs, admissions, or contracts not to build a racially integrated future, but only to cure a racially discriminatory past.

The Court's account of affirmative action as a permissible remedy for past discrimination, however, left both sides unsatisfied. Opponents charged that affirmative action was a poor version of corrective justice because (1) unlike standard compensatory justice, affirmative action extends benefits beyond the specific victims of past discrimination; and (2) unlike standard retributive justice, affirmative action demands current sacrifice of persons who were not the actual perpetrators of past discrimination—persons the Court sometimes labels "innocent" whites. In the opponents' view, if affirmative action were truly remedial, neither would nonvictims benefit nor non-sinners pay. In contrast, advocates of affirmative action found the Court's requirements for proving remedial justification far too stringent. Governments are reluctant to confess to past sins of discrimination, advocates argued, and should be permitted to adopt affirmative action plans without official mea culpa s.

Metro Broadcasting departed from the sin-based approach by accepting a nonremedial justification for the Federal Communications Commission's (FCC) minority-ownership preference policies: increased minority ownership would help diversify broadcast program content. A majority of the Court had never endorsed such a justification before, although Justice lewis f. powell's crucial Bakke opinion had defended racial preferences in university admissions as producing diversity in the classroom and Justice john paul stevens had persistently advocated similar diversity-based justifications for affirmative action, for example, in his Wygant dissent. Such justifications implicitly adopt the antisubordination rather than the color-blindness approach: using racial distinctions to increase diversity is not a constitutional evil because it does not use race to impose disadvantage. As Justice Stevens wrote in his Metro concurrence, "[n]either the favored nor the dis-favored class is stigmatized in any way."

When Wygant, Croson, and Metro are considered together, it appears that the Court's affirmative action decisions continue to steer between the color-blindness and antisubordination poles. Wygant and Croson should not be overstated as victories for color blindness because those decisions left open the possibility that other governments might do better than the Jackson school board or the Richmond city council at tailoring affirmative action narrowly to remedy demonstrable discrimination in their past. After Wygant and Croson, state and local affirmative action plans face a high but not insurmountable hurdle: the clearer the paper trail of past discrimination, the more flexible or waivable the target, the shorter the plan's duration, and the less entrenched the reliance interests of the displaced whites, the more likely such a plan will be upheld. However, Metro should not be overstated as a victory for the antisubordination view because this decision turned heavily on the Court's deference to its coequal branches (Congress and the FCC) and low valuation of broadcasters' rights—two factors especially appealing to Justice byron r. white, who cast the decisive vote despite his earlier negative votes on affirmative action.

The dissenting opinions in Metro Broadcasting may well be more portentous for the future of affirmative action than Justice william j. brennan's majority opinion—the last opinion he wrote before retiring from the Court. The dissenters made thinly veiled reference to the backlash against affirmative action evident in national politics since the 1980 elections. Justice O'Connor's dissent, joined by Chief Justice william h. rehnquist and Justices Scalia and Kennedy, spoke of affirmative action as "contributing to an escalation of racial hostility and conflict," and Justice Kennedy's dissent, joined by Justice Scalia, compared the FCC's policies with those of South Africa and suggested that affirmative action makes whites feel wrongfully stigmatized. Justice Scalia wrote similarly in his Croson concurrence that "[w]hen we depart from" pure meritocracy, "we play with fire, and much more than an occasional DeFunis, Johnson, or Croson burns." To the Metro majority, these objections appeared wildly overstated, and affirmative action readily distinguishable from the evils of apartheid or Jim Crow. Which view will prevail in the wake of Justice Brennan's departure from the Court remains to be seen.

Kathleen M. Sullivan
(1992)