Laying affirmative action to rest.

AuthorErler, Edward J.
PositionLaw & Justice

AN IMPORTANT case was heard by the Supreme Court in August 2012 involving a race-conscious affirmative action program at the University of Texas. This case, Fisher v. University of Texas, will decide whether racial classifications intended to promote student diversity are consistent with the Equal Protection Clause of the Fourteenth Amendment. This question already had been answered in Grutter v. Bollinger (2003), when the Court approved a race-conscious admissions plan at the University of Michigan Law School, but the situation at the University of Texas is somewhat different and may provoke the Court to reconsider its previous decision.

Another case that the Supreme Court will have to take up in the near future involves what appears to be an unresolvable conflict in the Civil Rights Act of 1964. As originally passed, the Civil Rights Act prohibited employment discrimination against any individual on the basis of race, ethnicity, or sex. A later amendment, the Civil Rights Act of 1991, added a "disparate impact provision," which allows a claim of discrimination to be established on the basis of disproportionate racial results. The impossible situation here is that to avoid a disparate impact violation, employers might feel themselves obligated to engage in racial discrimination in order to achieve acceptable results.

In Ricci v. DeStefano (2009), the Supreme Court ruled that a municipality could not discriminate against individuals on the basis of race in order to insulate itself against a claim of disparate impact. The city of New Haven, Conn., held competitive examinations for promotions within its fire department. Even though the test had been designed professionally to eliminate racial and ethnic bias, all who scored high enough for promotion were white or Hispanic. In order to avoid a disparate impact charge that surely would be brought by black firefighters, the city discarded the exam results and did not promote any of the candidates. This disappointed those firefighters who had passed the exam, and they claimed disparate treatment under the Civil Rights Act. The Court in the Ricci decision attempted to avoid the intractable contradiction in the law by arguing that New Haven had no "strong basis in evidence" that it would have lost a disparate impact challenge and therefore its discrimination against the individuals who passed the exam violated the prohibition against racial treatment. The Court, however, gave no credence to the argument that the equal protection guarantees of the Civil Rights Act are at war with its disparate impact provisions.

The idea behind the disparate impact provision is that equal opportunity can be measured only by equal results. Whenever a policy does not produce equal results, there is a presumption of racial discrimination. In fact, Pres. Lyndon Johnson had set the stage for this understanding of civil rights in a speech he gave at Howard University in 1965: "Freedom is not enough. The next and the more profound stage of the battle for civil rights" is "not just equality as a right and a theory but equality as a fact and equality as a result. To this end, equal opportunity is essential, but not enough." The sweep of Johnson's pronouncement was almost breathtaking. There is no doubt that the principle of distributive justice embodied in the Civil Rights Act of 1964 was equal opportunity but, if equal opportunity is not enough, then some form of unequal opportunity will be necessary to achieve equality of result. Thus, restrictions on the freedom of some would be the necessary condition for the advancement of others--those who came to be known in affirmative action par lance as "specially protected classes" or "preferred classes."

It was precisely in this sense that the Supreme Court ruled in 1980 that, in Federal affirmative action programs using racial quotas "as a remedy to cure the effects of prior discrimination ... a 'sharing of the burden' by innocent parties is not impermissible." Eventually, however, the Court began to backtrack on the idea that equal protection rights were conditioned by racial class considerations and, in 1995, it overruled its 1980 decision. A majority of the Court now seems to accept the idea that equal protection rights belong to individuals and not to groups---that equal protection rights are not conditioned by racial or ethnic class considerations. Yet, Justice Antonin Scalia, in his concurring opinion in Ricci, rightly lamented the fact that the majority opinion did not reach the constitutional question, but rather rested its holding exclusively on statutory grounds. Justice Anthony Kennedy, writing for the majority in Ricci, failed to resolve the massive contradiction that remains at the heart of the Civil Rights Act.

James Madison frequently remarked that "all just and flee government derives from social compact." Indeed, this is the basis of government in the Declaration of Independence, which specifies that the "just powers" of government derive from the "consent...

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