Balancing Competing Priorities: Affirmative Action in the United States and Canadá

Author:Roozbeh (Rudy) B. Baker
Position:Adjunct Professor of Law, Pepperdine University

Adjunct Professor of Law, Pepperdine University. B.A., University of California at San Diego; J.D., University of Illinois; Ph.D. Candidate (Politics and International Relations), University of Southern California. Correspondence: University of Southern California, Department of Political Science, 3518 Trousdale Parkway, VKC-327, Los Angeles, CA 90089-0044. E-Mail:

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I Introduction

This Article presents a detailed analysis of equality rights in the United States and Canada and their relationship to race-based government affirmative action programs1 as practiced in those two countries. At the outset, the term "equality rights" requires a definition, for although the term appears extensively in Canadian legal scholarship, that precise term is used less frequently, if at all, in the United States.2 At its most basic level, the term "equality rights" expresses the idea that a government must not discriminate against its citizens by treating some of them differently from others.3 Given this general definition of equality rights, the question becomes how to reconcile this concept with that of race-based affirmative action programs. After all, the goal of race-based affirmative action programs is to ameliorate the past effects of discrimination on formerly disenfranchised minority groups by affirmatively assisting those groups in competing with the majority for opportunities within society.

This Article demonstrates, via a survey of the radically opposed American and Canadian national approaches, that the promotion of equality rights is inconsistent with using ameliorative race-based government affirmative action programs to support formerly disenfranchised minority groups. The American and Canadian approaches to equality rights exist at opposite ends of the spectrum. The American definition of equality rights has become highly formalistic and requires that the government not discriminate against select citizens, by-save for the most narrow of circumstances-attempting to treat all equally under the law. In taking the equal treatment for all citizens as its point of departure, U.S. equality-rights jurisprudence has resulted in a piecemeal approach to affirmative action programs.

In contrast, the Canadian approach starts with the idea of ameliorating past discrimination rather than subscribing to a formalistic definition of equality rights as equal treatment under the law. This results in a much more favorable judicially constructed framework for government affirmative Page 529 action programs. The Canadian approach refines the definition of equality rights to a highly substantive one, holding that the government must not discriminate against select citizens through redefining the very meaning of what discrimination entails. Unequal treatment at the hands of the law alone does not constitute discrimination; rather, discrimination is a violation of "human dignity" by excluding a group solely for the purpose of exclusion. Under this definition, exclusion of majority groups for the sake of ameliorating past discrimination-as opposed to excluding just for the sake of excluding-is no longer discrimination. Just as with the American approach, however, there is a tradeoff: the Canadian approach is much less inclined to take seriously dissenting arguments that such programs force the state, in looking to assist formerly disenfranchised minorities, to treat its citizens unequally.

Part II of this Article will present and explain the American approach toward equality rights. Part III of this Article will present and explain the Canadian approach toward equality rights. Part IV of this Article will explore the divergence of views and convergence of methods between the two national approaches.

II The American Approach: Equal Treatment over Diversity
A Introduction

Both the Fifth Ámendment4 and Fourteenth Ámendment5 to the U.S. Constitution guarantee equality rights in the United States. The guarantees enshrined in the two Ámendments are known collectively as the equal protection guarantee. 6 By its language, the equal protection guarantee of the Fourteenth Ámendment applies only to the state governments. Judicial interpretation of the Fifth Ámendment Due Process Clause has extended this guarantee to the federal government.7

The equal protection guarantee defines equality as constituting equal protection before the law. The standards of review used to determine whether the government has violated the equal protection guarantee are the same for both federal and state laws.8 Unlike in Canada, the debate over the effect of Page 530 equality rights in the United States does not rest upon the question of how the equal protection guarantee defines equality; rather, the debate has centered upon the proper judicial standard of review required to give effect to these rights.

B Standards Of Review

U.S. courts utilize three different standards of review in determining whether the equal protection guarantee has been violated. Which standard of review applies depends on what the legislation seeks to regulate.

1. Rational Relationship Test

The majority of legislation that treats people differently, including most economic legislation,9 is generally reviewed under the rational relationship test.10 Under this test, the court asks only whether the challenged law bears a rational relationship to a legitimate, i.e., constitutional, government interest. 11 The legislative history of the challenged law does not have to articulate a legitimate government interest. As long as there is some conceivable government purpose in the enactment of the legislation, the court considers it "irrelevant whether . . . [such] reasoning in fact underlay the legislative decision."12 If a court finds a rational relationship, which it nearly always does, it upholds the classification in the challenged law as valid and not violative of the equal protection guarantee. Clearly, when employing the rational relationship test, American courts are extremely deferential to the actions of the legislative branch.

2. The Intermediate Scrutiny Test

Courts review legislation that classifies people on the basis of gender or illegitimacy for the purposes of treating them differently under the intermediate scrutiny test. 13 Under the intermediate scrutiny test, the government must show that the challenged law has a substantial relationship to an important government interest.14 Intermediate scrutiny Page 531 review can be thought of as a middle ground15 between the extreme deference of rational basis review and the extreme rigor of strict scrutiny review.16

3. Strict Scrutiny Test

Courts generally review legislation that classifies people on the basis of race or national origin17 under the strict scrutiny test.18 It does not matter if enactment of the legislation was for a remedial or "benign" purpose, as in affirmative action programs; regardless of the purported purpose, American courts will apply the strict scrutiny test. 19 Under the strict scrutiny test, the government must establish clearly a compelling state interest that justifies and necessitates the challenged law. 20 The government can establish a compelling state interest only if that interest overrides the interests of the individuals against whom the law discriminates.21 Even if the government proves that a compelling state interest exists, the court will not uphold the challenged law unless it independently determines that the classification(s) employed by the law are narrowly tailored to promote the compelling government interest. 22

Regarding race-based government affirmative action programs, the U.S. Supreme Court has held that the only government interests suitably compelling to justify the use of racial classifications are programs designed to remedy specific instances of past discrimination23 or encourage racial diversity in higher education.24 American courts employing the strict scrutiny test generally remain very wary of the stated government motivations behind Page 532 the challenged law, and generally strike down legislation reviewed under this standard.25

C Can Affirmative Action Programs Survive Strict Scrutiny Review?
1. Adarand Constructors, Inc v. Pena

In the landmark decision of Adarand Constructors, Inc. v. Pena,26 the U.S. Supreme Court ruled on two issues important to the discussion of race-based affirmative action programs. First, it overturned a ruling it had made only five years earlier27 and held that the standards of review used to determine whether a law violated the equal protection guarantee were the same under both federal law, through the Fifth Amendment Due Process Clause, and state law, through the Fourteenth Amendment Equal Protection Clause.28...

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