The University of Michigan Affirmative Action Cases and Public Personnel Decisions

• DOI: 10.1177/0734371X03261365
• Date: 01 March 2004
• Author: Martin D. Carcieri
• Published date: 01 March 2004
• Subject Matter: Journal Article

LEGAL BRIEF
REVIEW OF PUBLIC PERSONNEL ADMINISTRATION / March 2004
Carcieri / LEGAL BRIEF
OTHER
10.1177/0734371X03261365
The University of Michigan
Affirmative Action Cases and
Public Personnel Decisions
MARTIN D. CARCIERI
University of Tennes ee
In Grutter v. Bollinger (2003), the United States Supreme Court held that the
University of Michigan Law School’s use of race preferences in admis ions did not
violate the Equal Protection Clause of the Fourteenth Amendment. Specifically,
the Court ruled, the law school’s purported goal in using the preferences, namely
the promotion of diversity, is a compelling state interest, and the means by which
the lawschoolusedracearenarrowlytailoredtoadvancediversity.Sincepublicperson-
nel managers have long sought to use race preferences in employment decision-making,
Grutter may appear to provide constitutional permis ion for such practices.
Nonetheles , key differences between the public university admis ions and public
employment contexts counsel against this assumption.
Keywords: affirmative action; equal protection; race preferences; public
employment; Grut er v. Bol inger
Publicpersonnelmanagershavelongsoughttouseraceandethnicityin
employment decisions. As governmental agents, however, their actions
are constrained by U.S. Supreme Court interpretations of the Equal Protec-
tion Clause of the Fourteenth Amendment, which have created limits and
uncertainty in this area.
Governments have urged three rationales on the Court to justify the use
of race in allocating public resources. The first is that of remedying discrim-
ination, to which the Court has been receptive. Under this rationale, orders
by lower courts and governmental agencies that employers and unions
adopt affirmative action programs using express race preferences have been
upheld. Nonetheless, the Court has consistently limited the availability of
the remedial justification to instances in which identified discrimination,
that is, by the specific governmental unit seeking to use race and/or gender
preferences, has been proven. The Court, in other words, has long rejected
such preferences where the asserted goal is to remedy “general societal dis-
Review of Public Personnel Administration, Vol. 24, No. 1 March 2004 70-76
DOI: 10.1177/0734371X03261365
© 2004 Sage Publications
70

---

Carcieri / LEGAL BRIEF
71
crimination” (University of California Regents v. Bakke, 1978, p. 308). As
Justice Powel wrote for the Court in Wygant v. Jackson Board of Education
(1985),
No one doubts that there has been serious racial discrimination in this coun-
try. But as the basis for imposing discriminatory legal remedies that work
against innocent people, societal discrimination is insufficient and over-
expansive. In the absence of particularized findings, a court could uphold
remedies that are ageless in their reach into the past, and timeless in their
ability to affect the future. (p. 276)
A second justification advanced in Wygant, which concerned a collective
bargaining agreement providing for race preferences in public school
teacher layoffs, is the need for minority schoolchildren to have a sufficient
number of minority teachers to serve as role models. The Court likewise
rejected this justification, however, observing that it could in...