Affirmative Action

Affirmative action as a means of redressing past, ongoing, and/or lingering inequities due to race and other factors entered the American legal and educational national lexicon in 1978's Regents of University of California v. Bakke (Bakke), a dispute over the constitutionality of a medical school's race-based admissions policy. Affirmative action stands for the notion that courts and other institutions may take race (and other characteristics such as gender and ethnicity) into consideration as affirmative factors in making decisions with regard to admissions and hiring in education as well as other arenas.

In Bakke, a divided Supreme Court reviewed a challenge to a medical school program filed by a White [Page 37]applicant who was denied admission under an affirmative action program that set aside 16 seats out of 100 openings for specified minority groups. In a plurality, meaning that the Justices failed to reach the requisite five-member majority necessary to make their order binding precedent, the Court opened the door to further controversy. The Court held that even though the admissions program was illegal and the White student should have been admitted, the consideration of race per se was not unconstitutional. Yet no single opinion agreed on this point. Four members of the Court agreed that while the White applicant was unlawfully excluded, the constitutional question need not and should not have been reached. Justice Powell, who cast the fifth vote in favor of the applicant, wrote that there was a constitutional problem with the plan because the specified minorities could compete for all 100 of the seats but Whites could apply for only 84 seats. Powell explained that the Constitution did not prohibit a consideration of race or ethnicity as an admissions factor since a university's quest for a diverse student body can be considered of paramount importance in fulfilling its mission; four other Justices joined Powell in agreeing that the plan was constitutional.

Over the next 25 years, the Court reached mixed results in cases involving affirmative action in various settings. For example, in the 1980 Fullilove v. Klutznik, another plurality upheld a statute authorizing federal public works projects that gave preferences to businesses owned by members of racial minorities. Conversely, in Richmond v. J. A. Croson, Co., in 1989, the Court struck down a federal law that would have increased the number of minority-owned businesses that were awarded construction contracts. A year later, the Court upheld a preference policy with regard to minority ownership of new radio or television stations in Metro Broadcasting v. Federal Communications Commission (1990), since it believed that it had a substantial relationship to an important Congressional interest. Five years later, the Court overruled this judgment in Adarand Constructors Inc. v. Pena (1995), reasoning that a program that would have given preferences to minority contractors in building projects could not be upheld unless it could pass the so-called strict scrutiny test.

The Court's only previous judgment on the merits in a dispute involving education, Wygant v. Jackson Board of Education (1989), concerned a school board's attempt to maintain a racially integrated faculty during a reduction in force (RIF). The Court decided that a layoff of nonminority teachers based solely on race violated the Equal Protection Clause of the Fourteenth Amendment. Another case involving school employment, Taxman v. Board of Education of the Township of Piscataway (Taxman) in 1996 and 1997 was days from oral argument before the Court when the parties reached a settlement. Taxman involved a dispute wherein a school board, erroneously thinking that its affirmative action plan required it to terminate the contract of a White, rather than an African American, female teacher based solely on race, dismissed the White woman even though the two had virtually identical credentials. The Third Circuit affirmed that since the board's RIF plan, which was adopted for the purpose of promoting racial diversity rather than remedying discrimination or the effects of past discrimination, violated the rights of nonminorities, it was unconstitutional.

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