Affirmative Action (Update 2)

• Author: Deborah C. Malamud
• Pages: 57-58

Page 57

There is no single definition of "affirmative action," either in American politics or in American constitutional law. The core of the debate over affirmative action concerns the consideration of race, ethnicity, or gender as a factor in selecting among applicants, with the aim of increasing the presence of traditionally disadvantaged groups among those selected. Where opponents of affirmative action see "quotas" or "preferences" or improper efforts to engineer "proportional representation" that result in the selection of "unqualified" applicants, supporters of affirmative action see race and gender as no more than a "plus factor" employed to assure "diversity" among fully qualified applicants. The debate rages in the courts, in electoral politics, and in the policymaking of public bodies.

In ADARAND CONSTRUCTORS, INC. V. PEÑA (1995), the Supreme Court held that all "racial classifications," however benign their intent, are subject to STRICT SCRUTINY by the courts. Post-Adarand affirmative action decisions in the federal courts of appeal have begun to determine which racially conscious programs constitute "racial classifications" and whether they survive strict scrutiny.

In the field of student admissions, the leading pre-Adarand case is REGENTS OF UNIVERSITY OF CALIFORNIA V. BAKKE (1978), in which the separate but governing opinion of Justice LEWIS F. POWELL, JR. , endorsed the use of race as one factor among many to assure diversity in a student body. In HOPWOOD V. TEXAS (1996), the Fifth Circuit Court of Appeals declared that Powell's opinion was not binding PRECEDENT and struck down the University of Texas Law School's use of affirmative action in student admissions. That decision has been subject to much appropriate criticism. Powell's opinion is best understood as having applied strict scrutiny, and thus Adarand provides no basis for questioning Bakke 's authority. Even when Bakke is recognized as controlling authority, however, courts are now taking a hard look at whether affirmative action programs in education are in fact narrowly tailored to address legitimate diversity needs. For example, an affirmative action program at the high school level was rejected on narrow tailoring grounds (among others) by the First Circuit Court of Appeals in Wessman v. Gittens (1998).

In the field of government contracting, where Adarand is the Supreme Court's most recent decision, controversy exists over whether outreach...