The diversity rationale for affirmative action in employment after Grutter: the case for containment.

• Author: Mellott, Jared M.

TABLE OF CONTENTS INTRODUCTION I. NARROW RANGE OF INTERESTS THAT JUSTIFIED AFFIRMATIVE ACTION UNDER EQUAL PROTECTION BEFORE GRUTTER A. National Security B. Diversity of Viewpoints in Public Higher Education C. Remediation of Identifiable Past Discrimination II. EXCLUSIVE NARROW REMEDIAL EXCEPTION TO TITLE VII BEFORE GRUTTER A. Narrow Remedial Exception to Title VII B. Other Possible Title VII Exceptions 1. Concurring Opinions in Johnson 2. Taxman v. Board of Education III. GRUTTER'S EXPANDED DIVERSITY RATIONALE FOR AFFIRMATIVE ACTION A. The Opinion B. Resulting Opening for Expanded Affirmative Action After Grutter IV. UNITED STATES COURTS OF APPEALS CASES EVALUATING DIVERSITY JUSTIFICATIONS IN EMPLOYMENT A. United States Courts of Appeals Cases Anticipating the Grutter Rationale 1. Wittmer v. Peters: Employment Diversity Interest in Boot Camp Penal Institutions 2. Reynolds v. City of Chicago: Recognition of Work force Diversity and Operational Effectiveness as Compelling Interests in Police Forces B. The Seventh Circuit's Application of Grutter to the Diversity Rationale in Police Forces V. UNCONSTITUTIONALITY OF EXPANDING THE DIVERSITY RATIONALE TO PUBLIC EMPLOYMENT UNDER EQUAL PROTECTION A. Summary of the Case for Workforce Diversity B. Absence of Independent Countervailing Constitutional Interests Supporting Work force Diversity 1. Lack of First Amendment Connection to General Diversity Interest in Public Employment 2. Inapplicability of Security Interests to Public Workforce Diversity C. Inherent Tendency of Affirmative Action in Public Employment To Fail Narrow Tailoring Requirement of Strict Scrutiny 1. Severe General Burdens of Affirmative Action 2. Exacerbated Injuries of Affirmative Action in Employment 3. Ability To Achieve Workforce Diversity Without Affirmative Action VI. ILLEGALITY OF A DIVERSITY RATIONALE IN PRIVATE SECTOR EMPLOYMENT UNDER TITLE VII A. Categorical Wording of Title VII's Text B. Congressional Intent for a Broad Antidiscrimination Principle in Title VII C. Inadequacy of Equitable Considerations To Justify a Diversity Exception to Title VII 1. Relatively Insubstantial Nature of Benefits of Diversity in Private Business 2. Relatively More Severe Nature of Some Injuries from Private Sector Affirmative Action CONCLUSION INTRODUCTION

In recent years, American employers expanded racially preferential "affirmative action" (1) policies geared toward hiring, retaining, and promoting racial minorities for positions that they might otherwise not gain in a more color-blind society. (2) The less sweeping affirmative action policies of an earlier era were based on remedial justifications. (3) But as past acts of invidious discrimination collectively became a more distant memory, (4) employers began justifying the expansion of affirmative action in terms of a very different rationale: diversity. (5) Colleges and universities used a similar rationale for affirmative action for decades before employers embraced the diversity rationale. A series of court battles has defined the permissible bounds for the use of such policies in the university context. (6) But judicial guidance on the new type of diversity-based affirmative action in employment has been almost nonexistent.

This new type of diversity-based affirmative action in employment initially seems suspect as a matter of law. The Equal Protection Clause renders all racial discrimination in the public sector presumptively invalid, including discrimination in favor of minorities. (7) Similarly, Title VII of the Civil Rights Act of 1964 protects individuals of all races from racial discrimination in the private sector, apparently subject only to narrow remedial exceptions. (8) Yet, in the absence of judicial guidance, affirmative action programs aimed toward achieving diversity in employment have endured and expanded.

Recent judicial guidance on affirmative action in a nonemployment setting, however, may have profound consequences for the legal status of affirmative action in employment. Grutter v. Bollinger, the landmark 2003 Supreme Court case on affirmative action in higher education, altered the equal protection framework for assessing the legality of affirmative action. (9) Though seemingly confined to the educational mission of universities, the Court's reasoning in Grutter did not center on the claimed First Amendment value of ensuring a diversity of perspectives in the student body, as it had in Regents of the University of California v. Bakke. (10) Instead, the Court in Grutter recognized an expanded version of the diversity rationale that suggested that nonremedial affirmative action to achieve diversity may also be valid in the employment context. (11) Grutter suggested that a series of generic postgraduate educational benefits of diversity were themselves sufficient to justify affirmative action apart from any uniquely educational benefits. (12) The Court in Grutter, however, did not expressly address the applicability of that rationale to employment. (13) Furthermore, lower courts have not yet squarely addressed the general applicability of Grutter to employment. A momentous unanswered question thus remains: does either equal protection or Title VII restrict the modern tendency of employers to use affirmative action to achieve workforce diversity?

As the Supreme Court has defined the validity of affirmative action, the academic literature generally has not addressed this momentous question. Though affirmative action generally has been a popular subject of academic debate, many authors have advanced broad arguments for remedial affirmative action in all areas of society rather than in employment specifically. (14) In view of the Supreme Court's preference for narrowly framed reasoning on affirmative action, (15) this scholarly omission is noteworthy. Many authors have addressed the diversity rationale, but this scholarship tends to focus only on the educational context. (16) A small number of articles have focused on the diversity rationale for affirmative action in employment. (17) Like the academic literature on affirmative action generally, (18) these authors' analyses tend to be uniformly favorable to an expanded diversity rationale, (19) despite the Court's announced principle of "skepticism" toward any race-based classifications. (20) These authors argue that because the Grutter rationale is rooted in a series of nonconstitutional policy interests rather than First Amendment academic freedom, it should justify an expanded use of affirmative action beyond the educational context. (21) Many of these articles focus on Grutter's ramifications for equal protection interpretation. (22) Some articles also address the possible implications of Grutter for Title VII jurisprudence and the validity of affirmative action predicated on private workforce diversity, but they tend to downplay the equal protection and Title VII questions. (23) These articles also do not thoroughly analyze the limited though instructive equal protection case law from the United States Courts of Appeals that either anticipates or applied Grutter's reasoning in employment. (24)

This Note argues that a proper construction of equal protection and Title VII demands that, even within the new Grutter framework, the Supreme Court declare many of these diversity-based affirmative action programs unlawful outside the university context. It adds to the legal scholarship on affirmative action in several ways. First, it thoroughly analyzes the limited, though important and often overlooked, affirmative action case law that uses the Grutter rationale in the employment setting. Second, this Note analyzes the legality of the expansion of affirmative action in employment in both the public and private sectors. This analysis takes into account the differences in equal protection and Title VII jurisprudence that many writers overlook or downplay. (25) Third, the analysis of this Note, though not challenging the outcome in Grutter, applies an exacting scrutiny to affirmative action in employment. This exacting scrutiny challenges the majority academic position that is deferential toward affirmative action. (26) Because the Supreme Court has stated that the principle of "skepticism" should apply to all affirmative action, (27) apart from the actual result of applying this principle, this Note's skeptical analysis of this momentous unresolved issue is more consistent with prevailing case law than the challenged prevailing academic view.

This Note proceeds as follows. Part I of this Note summarizes the Supreme Court's affirmative action jurisprudence under equal protection before Grutter. Part II summarizes the affirmative action jurisprudence under Title VII before Grutter. Part III reviews the significant equal protection developments of Grutter itself. Part IV reviews the few lower court decisions on affirmative action programs in employment based on a diversity rationale, both in anticipation of the reasoning in Grutter and following that case. Part V analyzes the constitutionality of expanding the Grutter diversity rationale to employment in public sector positions subject to equal protection. Part VI analyzes the legality of a diversity rationale in private sector employment subject to Title VII. The Conclusion summarizes the jurisprudential choice the Court must make regarding affirmative action and recommends that the Court confine Grutter to the educational context.

1. NARROW RANGE OF INTERESTS THAT JUSTIFIED AFFIRMATIVE ACTION UNDER EQUAL PROTECTION BEFORE GRUTTER

   Before Grutter, the Supreme Court recognized only a narrowly confined range of policies that could withstand the two-pronged strict scrutiny test that it uses to evaluate all governmental burdens imposed on the basis of race. (28) First, to withstand this strict scrutiny test, a racially discriminatory policy must serve governmental interests that are sufficiently "compelling." (29) Second, the means...