Rough Terrain Ahead: a New Course for Racial Preference Programs - Jeremy Moeser

• Jurisdiction: United States,Federal
• Publication year: 1998
• Citation: Vol. 49 No. 3

Rough Terrain Ahead: A New Course for Racial Preference Programs

I. Introduction

Debate over affirmative action has dominated recent legislative and court agendas. In November 1996, for example, fifty-four percent of California voters approved a referendum, Proposition 209, which eliminated preference programs in state and local government for minorities and women.¹ Similarly, in 1995 the Board of Regents of the University of California system ended affirmative action in California's public universities.² This phenomenon, however, has not limited itself to California. The Court of Appeals for the Fifth Circuit, in Hopwood v. Texas,³ held that the University of Texas School of Law's admissions program, which gave preference to African-Americans and Mexican-Americans, violated the Fourteenth Amendment's Equal Protection Clause.⁴ A year later, the Houston city council also placed a referendum on the ballot to abolish affirmative action in city contracting.⁵ Although the voters narrowly defeated this measure, similar proposals have been made in roughly half the states.⁶ This increasing presence of affirmative action on the political agenda suggests a growing public skepticism towards it.⁷

Bans on preference programs such as these have potentially widespread ramifications. Studies have demonstrated that employers treat whites differently from blacks with identical education levels and employment histories.⁸ These studies indicate that employers tend to hire whites over blacks, pay whites higher salaries, and fire whites less frequently than blacks.⁹ In effect, affirmative action programs have countered this trend and resulted in greater representation of minorities. When California first implemented its affirmative action program under then-Governor Ronald Reagan, the composition of higher salary public work force jobs fell from more than ninety percent white in 1974 to less than seventy percent white in 1993. Representation of minorities in all state jobs climbed from 22.7% to 41.8%. By June 1992 California had achieved parity (the representation proportionate to representation in the labor market) for African-Americans in sixteen of nineteen job categories, for Hispanics in seven of nineteen categories, and for Asians in eleven of nineteen categories.¹⁰ In the category of state contracting, less than one percent of California's contracts with private businesses were minority-owned in fiscal year 1989-90. By fiscal year 1992-93, after the state established a set-aside program, contracts to minority-owned businesses dramatically increased to 10.1%.¹¹ With the passage of Proposition 209, however, a good chance exists that these advances will cease and that minorities will be under-represented.

Over the last twenty years, the Supreme Court has struggled to define the constitutional constraints on affirmative action and preference programs, and case law in this area is still relatively muddled. During 1997, it appeared that the Court would have the chance to clarify the picture by addressing two cases involving affirmative action. The Supreme Court had granted certiorari in Taxman v. Board of Education of the Township of Piscataway,¹² a case that involved the discriminatory layoff of a white teacher and retention of an equally qualified black teacher as part of an attempt to achieve racial diversity. But before oral arguments in January 1998, the parties settled, mooting the legal issue.¹³ Similarly, the Court passed an opportunity to test authoritatively the constitutionality of California's Proposition 209 in Coalition

For Economic Equity v. Wilson¹⁴ after the Court of Appeals for the Ninth Circuit upheld the California initiative in light of an equal protection challenge.¹⁵ Consequently, the Ninth Circuit decision is binding law in nearly twenty percent of the states: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.

This Comment examines racial preference programs in four different areas and addresses how the lower federal courts have applied the Supreme Court standards. Specifically, Part II illustrates the evolution of the Court's position in equal protection race cases and its current approach to the use of racial preferences. Part III addresses preference programs in the realm of state and local construction contracting. Part IV looks at affirmative action in the public employment sector in terms of both Title VII and equal protection analyses. Part V addresses preferential treatment programs in school admissions. Part VI examines the Court's approach to race-based legislative districting and distinguishes this from the other preference areas. Finally, Part VII suggests a course the current Supreme Court could take should it choose to hear a case involving preference programs. This Comment's thesis is that the courts are taking an increasingly conservative approach to minority preference programs across the board. It establishes that the standards the Court has promulgated are exceedingly difficult to satisfy.

II. The Court's Approach to Racial Preference Programs

The Supreme Court's analysis of racial preference programs really began with Regents of the University of California v. Bakke¹⁶ when the Court first addressed the constitutionality of minority preference admissions policies in higher education.¹⁷ The facts of Bakke involved an affirmative action program at the University of California at Davis Medical School. Under the program the school denied admission to Allan Bakke, a white applicant with grades and Medical College Admissions Test scores higher than most admitted minority applicants.¹⁸ Without a majority opinion on any litigated issue, a divided Court partially upheld Bakke's claim that the medical school's affirmative action program violated the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964.¹⁹ Justice Powell's decisive opinion held that universities could take into account an applicant's race in certain circumstances.²⁰ Because Bakke represented merely a plurality opinion, it left open the appropriate scrutiny level for analysis of preferential admissions programs.²¹

Justice Powell's swing opinion concluded that the Fourteenth Amendment applies to all races equally, protecting no one racial group more than another.²² He refused to interpret the Constitution as providing more protection to African-Americans and Mexican-Americans than to whites. Accordingly, he wrote that any type of racial or ethnic distinction was inherently suspect and required strict scrutiny.²³ Under his strict scrutiny analysis, Justice Powell discounted several goals as failing to be compelling interests. The goals of reducing the deficit of minorities in medical school,²⁴ combating the effects of societal discrimination,²⁵ and increasing the number of doctors who will practice in under-served communities²⁶ were all insufficient. Justice Powell concluded, however, that one rationale, the promotion of educational diversity, represented a compelling governmental interest that satisfied the Constitution.²⁷ In recognizing diversity as a compelling interest, he stated, "The atmosphere of'speculation, experiment and creation'—so essential to the quality of higher education—is widely believed to be promoted by a diverse student body."²⁸

Despite his recognition of diversity as a compelling interest, Justice Powell qualified its use as a rationale. From his perspective, the diversity rationale could not be concerned solely with an applicant's race. For diversity to suffice as a compelling state interest, it would have to encompass a number of different characteristics of which race was but a single element.²⁹ As a result, colleges and universities could view race only as a "plus" in the admissions process.³⁰ Because of the

Court's divisions, however, the Bakke decision did not clarify the picture surrounding minority preference programs.

The jurisprudential trail moved along two years later in Fullilove v. Klutznick³¹ when the Court addressed affirmative action in public contracting programs, but once again the Court failed to garner a majority. Fullilove addressed the constitutionality of the Public Works Employment Act of 1977,³² which required at least ten percent of federal funds awarded for local public works projects to be set aside to obtain services from minority businesses.³³ Although the Court held the federal program to be facially consistent with the Fifth Amendment's Equal Protection Clause, it did not resolve the scrutiny level question left open in Bakke.³⁴ Justice Burger justified the program on the ground that it remedied the present effects of past discrimination.³⁵ Although Justice Powell's opinion in Bakke rejected preference programs based on accounting for past societal discrimination, the Fullilove decision upheld the program because Congress (as opposed to a state political subdivision in Bakke) had intended that the Act halt the denial of public contracting opportunities to minority businesses.³⁶

In 1986 the Court in Wygant v. Jackson Board of Education³⁷ continued on the trail when it again confronted the issue of affirmative action in employment. This time, however, a majority of the court held that a termination plan preferring minority teachers over white teachers with greater seniority violated the Fourteenth Amendment.³⁸ The majority agreed only on the result. In line with the prior affirmative action cases, the Court failed to establish a majority on the appropriate scrutiny level. Justice Powell's plurality opinion applied strict scrutiny and required the employer to justify its classification with a compelling interest and to tailor the plan narrowly to achieve that interest.³⁹ The plurality opinion reiterated that remedying societal discrimination did not constitute a compelling interest.⁴⁰ Justice Powell hinted, however, that remedying the present effects of prior discrimination might be a compelling interest if the employer has a...