Equal But Separate. Can the Army's Affirmative Action Program Withstand Judicial Scrutiny After Croson?
| Author | by Captain Donovan R. Bigelow |
| Pages | 04 |
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INTRODUCTION
For the first time in the relatwely short history of affirmative ae-tion jurisprudence: the Supreme Court has issued an opinion in which amdorityof asmembenjoined.zInCityofRichmondu
JA.
Croson CO.~
the Court clarified the scope of judicial review in affirmative action cases and provided additional guidance for analyzing the compatibility of those programs with the constitutional require mat4 that all citizens be treated equally under the law.
This article examines the Army's affirmative action program for promotions in light of Cmson. It briefly reviews the flow of case law prior to and since the seminai case of Regats of the University of CalVomia v Bakke, examines the analytical structure endorsed by the Court In Croson, and analyzes the Amy's promotion system in terms of its consistency with the Croson standards.
11. AFFIRMATIVE ACTION:
BAKKE TO CROSON
Obviously, equal protection analysis does not begin with the Bakk case. The law has followed an evolutionary path that began with the
'Judge Advocate General I Carps, United States Army Cumntl) a i m e d ar Seruor Defense Counsel, Fort Carson. Colorado Previously m;s>gned e.! Chief. Cnrninal La%
Branch. Tnal Counsel, and Defense Counsel at Dn
Stewan. Gwrgla. 1885-1889, Fund ed Legal Educatmo Pmmm GfBcer, 1982-1986.and as a Military lnlelllgence Offxer 1879 1882 J D , Cornell Law School. 1985, and LL M , TheJudge Advocate General P School. 1880 This article is b e d upm a research paper submitted in panial satisfac-tion af the requirement^ of the 38th Judge Advacate Officer Graduate Course
'The fmt direct holding on the ~~n~tilu~mnalifyof an affirmative mion progiam
was m Regents of the Lniversily of Califarnia Y Bakke 438 L S 265 11978) lRosenfeld, Decodtny Rzchmond Mltilzrmotwe Actton and the Elmue .Meaning ofCo~tllulional Ewoltly, S i Mlch L Rev 1729 n 2 (June 1989)
'I09 s Cf 706 llS89)'US Const mends V XIV Because of Balling I Sharpe, 347 US 497 11951) the standards of equal protection analy~i~under the founeenth amendment are %irtually ldentlcal to the flflh Bmendmenf Federal legslation IS now subject to the same level of ludieial scrutiny 10 terms of equal pmtectmn ~1 is state action E Corwi The ConJtLtYtlOn and What II
Means lbdav 389-80 (19781 While the Coulr I" Cmso diringuiahes some aspects of the malyss that might apply differently fa con@ slonalaellon, Ihethtof thcCounad~vianpufsawnllarbu~enonbth Lheledersl
and state governments.
MILITARY LAIV REVIEIY [Tbl 131
passage of rhe fourteenth amendments and continued on through Plessy L' F e r g ~ o n . ~
Koremafsu u Lhzled States,? Brawn v Board ofEducation,8 and Title VI1 of the Civil Rights Act of 1964. The stage was set far the Bakk deeamn by the Supreme Court's refusal to grant certiorari m &Funis e Odeyaa~d,~wherein Justice Dougias--m an impassioned dissent reminiscent of Justice Harlan's dissent m Plessg and foreshadowing Croson twenty-five years later-argued that "there is no constitutional right for any race to be preferred.' I"
Between 1978 and 1980, the Supreme Court decided Bakke and three additional cases on the subject of affirmative actionLL
In those
cases, the Court attempted to provide the conceptual frameivark far analyzing affirmative action programs in terms of the equal protection requirements of the fifth and fourteenth amendments" Unfartunately, due to the divisiveness of the issues and the inability af the Court to reach a majority decision, no consistent and readily applicable principles existed to guide lower courts and iegt~laturesl~
Betaeen 1986 and 198i, the Supreme Court issued five additional decisions dealing with various aspects of affirmative a~tion?~
As wlth
the first generanon of decisions. however, unit) was decidedly lack-ing. with the justices dividing generalis along "consen'atil-e ' and "liberal" lines, and swing votes being shared by Justices Powell and O'Connor Deophenng usable guidance from these caes 1s extreme11 problematic @\-en the number of separate opmmans and the frequenq wth which the justices concurred or dissented from vario~~s parts
of the decisions"
19911 AFFIRMATIVE ACTIOK
That was the status of the law when Richmond, Vir@nia, mandated a thirty percent minority set-aside program far cny-sponsored conStrllCtlDn PrOJeCtS.
111. CROSON AND THE NEW AFFIRMATIVE ACTION ANALYSIS
In its disposition of Croson, the Court resolved much of the confusion surrounding affirmative action Although the decision contained three concurrmg opinions, six of the justices supported the basic analytical structure of Justice O'Connar's apmmn. Justice Stevens simply added more reasons in support of it;16 Justice Kennedy argued that the Federal Government should be subject, under virtually all cmumstances, to the same level of scrutiny a5 the states," while Justice Scaha demanded B color-blind constitution.LB These concurring opinions did not provide any support to proponents of affirmative action programs; the opinions ail support the strict scrutiny required by Justice O'Connor. lb the extent that a concurring opinion indicates disagreement, a close reading of the positions of the concurring Justices shows that they either would demand an even higher standard or would erect an almost per se rule against racial classifications.
With its decision in Croson, the Court virtually wept away the last twelve years of affirmative action case law It rejected not only the arguments of both parties and the supporting amici but also found the lower courts' holdings to be insufficient
The parties and their supporting amici fight an mitial battle over the scape of the city's power to adopt legslation designed to address the effects of past discnmmatmn. Relying on our decision in Wysant [476 US. 267 (1986)], appellee argues that the city must limit ang race-based remedial efforts to eradicating the effects of its own prior discrimination. This is essentially the position taken by the Court of Appeals below. Appellant argues that our decision in Fullilove [448 L S 448 (1980)] 1s controlling, and that as a result the city of Richmond enjoy, sweeping legislative power to define and attack the effects of prior discrimination in Its local construction industry We find that neither of these two rather stark alternatives can withstand analysis.le
The Court left no doubt that any race-based classification would be subjected to the strictest judicial "[Tjhe standard of review under the Equal Pmcection Ciause is not dependent on the
.. .
the Supreme
Court held that in equal protection analysis of policies mandated b) specific congrer-simal acts the Coun need not apply the mici scrutiny mandated in the rem* of other governmenfa1 bodies Such can~~ionalli-mandatedpolicies and p m m r need only ewe an mponant gorernmenral objecriie and be Subsfantiall) related io the achievement of that oblectrve
The maianrr dlsrinqulshed these eases and the different ferl applied 111 then, from
CUIISEIOUS cl%mficatra& adopted by Congreeufo addws racial and ethmC dirnmination are subject to B differenr standard than such classificaIions prescribed b! Itate and local goiernmenrs ' Id at 3000
In analjsing the apphcablht) of the Metro care to the Arm, 5 afflrmarlie aerlon m m ~ m for ~mmofions two conrideratima should control Rnt, in Cmsm the Coun
of ihe Fourteenth Amendmeni Cmson 108 S Cf at 710 ' [Olther goieinmenfal entitier might have to shoa mare than Congress before undenaking race C O ~ S C ~ O U O
meewrei'' Id
The clear irnpli~~fionm both the Cmson and the .Metro tabes 13
xi11 be accorded rheleiaersrandard ofrevlei\ inequalprotecflanaonh cn the exrent that Congresi ipecificalli approiei ~Brt~cuIarrace eonmous remedial mearurer u 111 the Caun grant deference to 1 coordinate branch I own con ~fiturmn&Imandate me cares cannet be read te infer B bmad federal llcense to engage affirmatire action Language such ~i gowrnmental unit and 'goiernmenral entiti'' zirongly mplies that the \armu federal agencies xi11 be held to Lhe same 3tnc1 standard as locd and sfale agenclea barring specific congreralonal mandares cmer mg a particular federal ageno's aetinn~
Second the balance of the Coun 13 likeli Io shift I" faior of reducing esen further the 'cope of affirmariie action programs With Justice SOY~ZI ieplaclng Justice Bren "an, the Coun d direction IS clear Although no iuiflce I
~oiltionin a parrlcu1.r LBEP
c m be predicted xith cenamty a strong Lndlcalmn of Justice Bouterr porlflon onaffirmatire action ias rebesled 10 a speech he gave m lBib When he U ~ S the hew
Hampihrre Aftorne) General. Sourer attacked afflrmame aetlan aJ afflrmaflie dircriminafmn ' L'3A Todav Jul, 26 1980 dl 6a
. "
The narroz language of the lietro decmon prm~dei no comfort far rhe propunenti af affirmatlie ~efinn Only to the extent thar specific con&.eeraonal language can be found to SUI)DO~ a ~artl~ularoramam zlll the lesser Lest be aoulhed Gnen the or"-bable direc;ibn of ;he Loun .&& rhal narrow erceprlnn ma\be phort liied150
funds for that purpoie
In afire to faurdecinon. i~fhJuiticeStevenspro~~dmgfhesuinguore,
19911 AFFIRMATIVE ACTlON
race of those burdened or benefited by a particular classification."21 This approach is attributable directly to the justices' belief that the rights at issue were individual nghts and that the concept of ''soup" rights E mmmical to a just society.z2 Consequently, the Court has changed the focus of its analysis in these caes from broad consideration of social or class issues to an emphasis on the individual. Citing Justice Powell in Bakke, the Court expressed support for the proposition that "the guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color."z3
Given this strict scrutiny standard of review,24 two questions remain. First, what governmental interests, If any, are compelling enough to justify...
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