Affirmative Action (Update 1)

• Author: Kathleen M. Sullivan
• Pages: 55-57

Page 55

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...