- Historical Background
- Affirmative Action in Employment
- Title VII
- The Equal Protection Clause
- Affirmative Action in Higher Education
- Regents of the University of California v. Bakke
- Gratz v. Bollinger and Grutter v. Bollinger
- Affirmative Action in K–12 Education
- Lower Court Student Assignment Plan Cases
- The Supreme Court, Diversity, and Student Assignment Plans
Affirmative action began as a broad set of activities brought forth by the civil rights movement beginning in the 1930s. As such, the term affirmative action initially represented a composite of deliberate activities designed to create or restore the rights of African Americans in American society. The term has come to have both positive and negative connotations. In more recent decades, it has come to be viewed, on the one hand, as a set of programs or policies to level the playing field so as to counter discrimination against persons of color and women in employment and in education. On the other, detractors of affirmative action view such programs as preferential treatment of individuals on the basis of their membership in a minority group. This entry reviews the history of affirmative action and its applications in different arenas.
The concept that is now referred to as affirmative action originated in the Labor Management Relations Act or the Wagner Act signed into law by President Franklin D. Roosevelt in 1935. The U.S. Congress promulgated the original legislation to protect the rights of workers in the private sector so as to organize labor unions and to participate in collective bargaining (29 U.S.C. §§ 141 et seq., 2004). Contemporary affirmative action as we have come to know it, that is, fostering positive steps to increase the representation of underrepresented groups in areas where they have historically been excluded, was not given real life until the passage of the Civil Rights Act of 1964 (42 U.S.C. §§ 1971, 1975a-1975d, 2000a-2000h-6, 1994).
The effort was further strengthened in 1965 with executive orders from President Lyndon Johnson in the area of employment; specifically Executive Order 11246 required the Office for Civil Rights to take “affirmative action” to ensure that federal contractors were not discriminating against minorities. The employment sector was likewise encouraged to reduce racial and gender discrimination with the passage of additional titles under the Civil Rights Act, notably Title VI (42 U.S.C. § 2000d (2004)) and Title VII (42 U.S.C. § 2000e (2004)), both of which forbid public and private entities, including state and local boards of education, from engaging in discriminatory activity. Armed with these legislative and executive tools, the courts and government administrative offices set forth criteria for compliance with the law or created remedies requiring compliance for those who did not or would not develop adequate affirmative action responses.
Affirmative Action in Employment
Affirmative action requirements have at least part of their impetus in Title VII, a far-reaching federal statute under which government agencies or courts address actual intent by employers to discriminate. This federal statute has been the primary vehicle for congressional action concerning discrimination in employment. Title VII’s prohibition reads as follows:
It shall be an unlawful employment practice for an employer: (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify . . . employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect [that person’s] status as an employee, because of such individual’s race, color, religion, sex or national origin. (42 U.S.C. § 2000e-2(a)(1–2)
Title VII’s prohibitions inform school officials that they retain the authority to hire, terminate, or promote personnel, as long as such decisions are not predicated upon discrimination as to race, gender, religion, or national origin. This, however, does not mean that employers are not permitted to use gender, religion, national origin, but not race, as preferences in employment decisions.
Judicial involvement in Title VII and affirmative action at the level of the United States Supreme Court began in 1971 in Griggs v. Duke Power Company (1971). In Griggs, the Court struck down an employment screening device, because it excluded a disproportionate number of Black applicants. The company had required both a high school diploma and a certain score on an intelligence test if an employee desired a transfer or a promotion. The African American employees in the company all occupied low-level jobs and filed a class action complaint alleging racial discrimination. The Court ruled the company policy invalid, indicating that the criteria used for making employment decisions were unrelated to job performance.
The significance of Griggs is the Supreme Court’s reliance on rules that have a disparate impact as opposed to a discriminatory intent. While the Duke policy, for example, was facially neutral, because it disproportionately affected Blacks who desired promotion or transfers, the Court found that the discriminatory result was the same. To this end, by applying Griggs, courts struck down facially neutral rules that had the effect of discrimination regardless of purpose or aim. This was an important platform for affirmative action; the legal message to employers, including school districts, was that employment practices had to be monitored for those that were exclusionary in effect as well as intent. Put another way, the courts sent the unmistakeable message that failure to eliminate either could result in a determination of employment discrimination.
A more recent Supreme Court case was based on the statute of limitations period surrounding Title VII as applied to a complaint of intentional discriminatory disparities. In Ledbetter v. Goodyear Tire and Rubber Company (2007), the Court had the occasion to remark upon the period of time to bring a complaint. In a case of alleged gender discrimination, a female employee claimed, after she had retired, that her male supervisors had in the past given her poor evaluations because of her gender and not her work performance, that these decisions affected her pay throughout a significant portion of her employment, and that as a result of these intentionally discriminatory decisions, she had been paid unfairly compared to all of her male counterparts. The plaintiff filed a formal charge of discrimination with the Equal Employment Opportunity Commission (EEOC) in March of 1998; upon her retirement in November, 1998, she filed suit under Title VII of the Civil Rights Act (42 U.S.C. § 2000e-2(a)(1)).
The plaintiff in Ledbetter contended that the paychecks she received during the period of employment each violated Title VII and triggered a new EEOC charging period. On appeal, the Supreme Court ruled that the plaintiff’s claim was untimely under Title VII standards, because the effects of past discrimination do not restart the clock for filing a charge with the EEOC. According to the Court, an individual wishing to bring a Title VII lawsuit must first file an EEOC charge within 180 days (relevant to this case) after the alleged unlawful employment practice occurred and was communicated. In Ledbetter, the plaintiff did not assert that intentionally discriminatory conduct happened during the claimed period or that discriminatory decisions that occurred before that period were not communicated to her. Instead, based on the Court analysis, the plaintiff argued that current discrimination kept alive the discrimination she had suffered previously.
The Court further reasoned that a new violation does not occur, and a new charging period does not commence, on the occurrence of subsequent nondiscriminatory acts that entail adverse effects resulting from the same past discrimination. The Court asserted that a plaintiff’s allegations could only move forward if an employer engaged in a series of separately actionable intentionally discriminatory acts. Ledbetter establishes, under Title VII, that complaints alleging employment discrimination resulting from the same discriminatory activity, no matter how many, must be filed in a timely manner consistent with the actual wording of the statute.
The Equal Protection Clause
The Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution also prohibits discrimination based on race, national origin, and gender. State and local boards of education are subject to the dictates of this law as well as by virtue of being public entities. However, within an affirmative action claim, the complaint must be that the discrimination suffered is intentional, not the additional concept of discriminatory effect or impact prohibited under Title VII. This distinction was clarified in a case involving the hiring of police officers, Washington v. Davis (1976).
Not unlike the applicants of Griggs, applicants in Davis claimed disparate impact predicated upon the use of a minimum test score required for entry into the Washington, D.C., police academy. The applicants claimed an abridgement of their constitutional rights against employment discrimination; statistical evidence was brought demonstrating that an overwhelming number of African American applicants had failed the exam and an even greater number of Whites had passed it. Corollary claims were that as a result, the percentage of Blacks in the city population was not commensurate with the number of Black officers on the police force, and the test itself had never been validated as a predictor of performance.
In ruling against the applicants in Davis, the Supreme Court addressed the question of the standards of intent and impact under Title VII and the Fourteenth Amendment. Specifically, the Court held that the standards for the federal statute and for the U.S. Constitution are not identical:
The central purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention of official conduct discriminating on the basis of race. . . . But our cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially discriminatory impact. (426 U.S. at 238–239)
Following Davis, federal courts have had occasion to address the question of the standard of judicial review in conflicts involving racial classifications under the Equal Protection Clause. Over time, three levels of judicial scrutiny have been applied to such challenges, and this was demonstrated in Cleburne v. Cleburne Living Center (1985). Specifically, the Supreme Court wrote as follows:
When the alleged discrimination is based on race, color, or national origin, strict scrutiny is required, and, to be constitutional, the law or classification in question must be narrowly tailored to serve a compelling government interest. In cases of gender discrimination or illegitimacy the challenged practice must pass an intermediate level of review; the government action must be substantially related to an important government interest. In cases . . . where there is no issue of classification based on race, gender, or other protected-class persons, governmental action need only be rationally related to a legitimate governmental interest.
The direct result of Davis is that plaintiffs who claim constitutional protection must exhibit facts that they are the victims of prior discrimination by the governmental unit. Based on Cleburne, courts will also apply strict scrutiny, emphasizing that only a compelling governmental interest could justify a racial classification and that the means selected to achieve that interest must be narrowly tailored. These positions, which represent a retreat from the affirmative action programs held constitutional in Griggs, was denoted by the Court in Wygant v. Jackson Board of Education (1989).
Wygant arose after a school board in Michigan, responding to prior desegregation litigation, entered into an agreement with the local collective bargaining unit whereby African American teachers were to receive greater protection from layoffs than their White counterparts. An area of contention on the part of the White plaintiffs in the case was that the percentage of Black personnel subject to layoff would not exceed their percentage in the work force; the White teachers brought suit under Title VII and the Equal Protection Clause.
A plurality opinion of the Supreme Court in Wygant ruled that societal discrimination was an insufficient predicate to justify the racial classification employed for layoffs. The Court asserted that racial classifications for remedial purposes could be approved only on some demonstration of prior discrimination against those to be protected. Hence, the layoff policy favoring persons of color was unconstitutional, unless the school district could prove it had a strong basis in evidence that the action was necessary to remedy some past discrimination in the school district against the identified Black school personnel.
City of Richmond v. J. A. Croson Company (1989) solidifies the foundation and articulates the considerations to be used in determining whether a state or local governmental entity has established an affirmative action program narrowly tailored to meet a compelling interest. Richmond, Virginia, argued for judicial approval of a race-based set-aside program for subcontractors involved in city projects. The plan required those awarded city contracts to subcontract at least 30% of the work to businesses owned or coowned by persons of color. White contractors brought a complaint under the Equal Protection Clause claiming there was no proof of discrimination against those who the city sought to protect.
On appeal in Croson, the Supreme Court found that there was no showing of past discrimination in the construction industry, because there was no evidence of past discrimination by the city itself. Applying the doctrine of strong basis in evidence used in the Wygant decision, the Court was of the opinion that societal discrimination that had occurred in the state or the nation was an inadequate reason to demonstrate bias in the city. The Court determined, instead, that local government had to articulate evidence of its own past discrimination and consideration of more narrowly tailored means to accomplish the same ends.
Croson serves as the foundation for affirmative action cases in education employment, to wit, to promote affirmative action programs, state or local education agencies must have engaged in some past racial discrimination that affects current employees. In addition, under Croson, remedial policies must satisfy a compelling government interest that is narrowly tailored and does not create in Whites the status of innocent victims.
Affirmative Action in Higher Education
Regents of the University of California v. Bakke
Affirmative action had its first application in education at the Supreme Court level in Regents of the University of California v. Bakke (1978). Bakke was rendered within a climate of academic reflection on both public and private college campuses, which itself was fueled by a notable absence of non-White students, staff, and faculty. New initiatives were established so as to increase the presence of students of color based on special admissions programs.
The medical school at the University of California at Davis was one of the many institutions that created a dual-track special admissions program whereby 16 of its 100 slots available for admission were reserved for minority students. AWhite male student applicant, who was refused admission for two consecutive years, claimed that he was discriminated against on the basis of race, because the entrance procedures in place included an exclusive quota and because he was more qualified than the students of color who were admitted into the program. The disappointed applicant brought a complaint against the university claiming that its admissions program violated Title VI of the Civil Rights Act of 1964 and that he was denied equal protection under the Fourteenth Amendment of the United States Constitution. In other words, the plaintiff alleged a reverse discrimination claim and requested that the courts compel university officials to use a color-blind, race-neutral admissions policy.
In Bakke, four justices concluded that the admissions program violated Title VI, and they never reached the constitutional issue. A majority of justices agreed that there was a clear overlap between the dictates of Title VI and the Fourteenth Amendment, in that equal protection was the overriding factor. There was disagreement within this group, however, on the level of judicial scrutiny. Four justices embraced the standard of intermediate review and would have held that the special admissions program was an appropriate use of racial classifications to achieve important government objectives.
Justice Powell’s now famous concurring opinion disagreed, explaining that any classification on the basis of race must be decided on strict scrutiny requiring a compelling government interest carried out on the narrowest of grounds. Justice Powell sided with four justices holding that the program was invalid, but he agreed with the other four that race could be taken into account as “a” factor as opposed to “the” factor in the admissions process. He agreed that the university had a compelling interest in fostering diversity so as to provide an educational atmosphere “conducive to speculation, experiment and creation”; in essence, the compelling reason of student diversity is legitimated by the university’s protection under the doctrine of academic freedom.
As Justice Powell declared, “diversity is a compelling interest,” in part because “universities must be accorded the right to select those students who will contribute the most to the robust exchange of ideas.” Writing for the plurality, he stated that one of the reasons for which the goal of obtaining a diverse student body in higher education is permissible is to promote academic freedom. Quoting the president of Princeton University, Justice Powell reasoned that, because a great deal of learning in the higher education setting occurs when students are exposed to people of different races, sexes, religions, backgrounds, and interests, affirmative action at the higher education level is constitutional under the First Amendment following a theory of higher education institutional academic freedom.
Bakke established that diversity, supported by academic freedom, could be a compelling reason for academic decisions based on race. However, the Supreme Court overturned the program, because it was not narrowly tailored to affect the university’s stated interest. Further, Bakke established for federal courts that affirmative action using race as a criterion falls under the doctrine of strict judicial scrutiny. While the employment cases cited above all found that a compelling government interest could only be based on past discrimination directed at those who sought a governmental remedy, Justice Powell announced that a compelling reason in education could also be found in diversity and could be held constitutional as long as the race of persons not directly benefited do not suffer reverse discrimination as a consequence of the governmentally sponsored policy.
The Bakke interpretation, which had existed for over a generation, began to be challenged in the mid- 1990s. Federal courts of appeal in the Fourth, Fifth, and Eleventh circuits all found voluntary affirmative action programs troublesome with regard to admissions or scholarship support. In particular, the Fifth Circuit ruled that the University of Texas could not justify its minority admissions program. The court brought into question the use of diversity as a compelling reason to pursue racial classifications and in the process flatly rejected the Powell rationale: “Justice Powell’s argument in Bakke garnered only his own vote and has never represented the view of the majority of the Court in Bakke or any other case” (Hopwood v. Texas, 1996, p. 944).
The federal circuits were in conflict. In Smith v. University of Washington Law School (2000), the Ninth Circuit ruled that race could be used as a factor in admissions and, in deliberate opposition to the Fifth and Eleventh Circuits, allowed that diversity is a compelling interest in university admissions decisions. This opinion was followed a year later in a case decided in the Sixth Circuit endorsing Justice Powell’s position and announcing that institutions of higher education have a compelling interest in achieving a diverse student body (Grutter v. Bollinger, 2002).
To assuage the disharmony at the lower federal levels, the Supreme Court granted certiorari in two aligned cases. Gratz v. Bollinger (2003) and Grutter v. Bollinger (2003) considered the use of race in the University of Michigan’s undergraduate admissions process and law school admissions process, respectively. In deciding both cases, the Court affirmed Justice Powell’s view in Bakke that use of race in college admissions decisions is constitutional, so long as it is viewed as a “plus factor” and does not constitute a quota.
In Gratz, the Supreme Court found that the University of Michigan’s undergraduate admissions policy, which awarded underrepresented minority applicants an additional 20 points and made race the deciding factor for nearly every borderline underrepresented minority applicant, was not narrowly tailored to meet the compelling interest of diversity. The Court’s analysis focused on the dearth of individualization inhering in a policy of assigning a constant number of points to an applicant based solely upon his or her racial classification. Gratz was a decision based on stare decisis inasmuch as similar admissions practices had been declared unconstitutional in Bakke. Therefore, the Court concluded that the program was unconstitutional under the equal protection clause.
In Grutter, the Court held that the University of Michigan law school’s admissions program, which considered the race of underrepresented minority applicants as a “plus factor” to be considered among other factors, was narrowly tailored to meet the compelling interest of diversity. The opinion goes on to say that “narrow tailoring does not require exhaustion of every conceivable race-neutral alternative” (p. 339), though it does require “that a race-conscious admissions program not unduly harm members of any racial group” (p. 341). The Court laid out the following 5-factor test for narrow tailoring in Grutter: prohibition of quotas; flexible, individualized consideration; good faith consideration of workable race-neutral alternatives; not unduly burdensome to nonminority group members; and limited in time.
Justice Sandra Day O’Connor, in writing the opinion of the Court, examined Justice Powell’s academic freedom rationale found in Bakke. After noting that lower courts had questioned the application of such reasoning to affirmative action cases (and hence, Justice Powell’s reasoning), O’Connor concluded that it was no longer necessary to debate this, as “for the reasons set out below, today we endorse Justice Powell’s view that student body diversity is a compelling state interest that can justify the use of race in university admissions.” The opinion, in fact, advanced the theory of diversity as a targeted activity whereby substantial weight could be placed on “one particular type of diversity,” to wit, “racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against.”
Affirmative Action in K–12 Education
Affirmative action has become an important issue for primary and secondary schools adopting voluntary race-conscious student assignment plans as a remedial measure to achieve the goal of a diverse student body. A“student assignment plan” is what K–12 school systems with more than one school at each level use to decide which students are to attend which school. Student assignment plans incorporate a variety of factors, including distance between a student’s home and school, where a student’s siblings attend school, and, in the case of two districts currently before the Court, how a particular student’s enrollment would affect a school’s racial balance.
Aquestion remains as to whether school boards are constitutionally permitted to consider how student admissions impact a school’s racial balance as part of a student assignment plan. If so, courts are likely to apply the same criteria as were used by the Supreme Court in the higher education cases of Gratz and Grutter, namely whether racial diversity is a compelling interest under the equal protection clause, and if so, whether the student assignment plans of these schools are narrowly tailored to meet this compelling interest. Such questions have been addressed by lower courts, and more recently, the Supreme Court.
Lower Court Student Assignment Plan Cases
In recent years, four circuit courts (the First, Fifth, Sixth, and Ninth) have decided cases regarding the constitutionality of student assignment plans. In Cavalier v. Caddo Parish School Board (2005), the Fifth Circuit decided that a race-based student assignment was unconstitutional. In Cavalier, a White applicant was denied admission to a magnet middle school when his achievement test score would have been high enough to garner admission had he been Black. When the magnet school’s applicant pool contained more qualified applicants than spaces available, preference was given to qualified students with siblings in attendance and to qualified Black students who would otherwise attend a school with greater than 90% Black enrollment. After this, preference was given to other students based on a combination of their test scores and the desired racial balance of 50% White and 50% Black, + 15 percentage points.
The school board argued that this admissions policy was constitutional under the equal protection clause, declaring that it met strict scrutiny with a compelling interest of remedying past discrimination, an interest found in the district’s 1981 consent decree. The court disagreed, noting that this admissions policy was “essentially a racial balancing quota” and that it met neither the compelling interest nor the narrow tailoring prong of the strict scrutiny test. Furthermore, the court stated in dicta that “While student body diversity has been held a compelling state interest in the context of a law school [in Grutter] . . . it is by no means clear that it could be such at or below the high school level (Cavalier, p. 259).”
In Comfort v. Lynn School Committee (2005), the First Circuit maintained that a school committee, as school boards are known in Massachusetts, had a compelling interest in achieving the benefits of racial diversity and that the student assignment plan it enacted was narrowly tailored to meet this interest. In Comfort, the student assignment plan was used with students who did not wish to attend their neighborhood school and applied to transfer to another school in the district. Under the plan, schools were classified as racially balanced (reflecting a variance from the district’s student population of no more than 10% to 15%), racially isolated (more White students than there should be), or racially imbalanced (more non- White students than there should be). Students were permitted to transfer from a racially balanced school to another racially balanced school or make a “desegregative” transfer, but they could not make a “segregative” transfer (defined as one that would exacerbate the racial imbalance of either the sending or receiving school or both).
Noting that the Supreme Court had not decided a K–12 student assignment plan case, the circuit court judges reasoned that Gutter and Gratz provided some guidance for a narrow tailoring inquiry into the use of race to obtain the educational benefits of diversity. The judges believed these cases still applied even though a comparison of different age and education levels was at stake and that the decided cases involved competitive admissions. Under Grutter, the plan would not be narrowly tailored if the compelling interest could be resolved through race-neutral means. In keeping with the Grutter reasoning, the First Circuit found that the goal of actual diversity to promote tolerance and encourage cross-cultural relationships could only be accomplished if race was used as one of the qualities for the placement of students.
In McFarland v. Jefferson County Public Schools (2005), the Sixth Circuit affirmed an order of a federal trial court in Kentucky that held that the student assignment plan of the Jefferson County Schools met a compelling governmental interest and was narrowly tailored in most respects, as “its broad racial guidelines do not constitute a quota . . . the Board avoids the use of race in predominant and unnecessary ways that unduly harm members of a particular racial group . . . [and] the Board also uses other raceneutral means, such as geographic boundaries, special programs and student choice, to achieve racial integration” (p. 514). In addition to the compelling interest of diversity similar to that discussed in Grutter, the court was satisfied that the school board had described other compelling interests and benefits of integrated schools, such as improved student education and better community support for public schools, that were not relevant in the law school context but are relevant to public elementary and secondary schools.
The student assignment plan at issue in McFarland was enacted with a purpose of maintaining a system of fully integrated countywide schools. The assignment plan stated that in order for the schools to accomplish their objectives of providing substantially uniform resources to all students and teaching basic and critical thinking skills in a racially integrated environment, each school should seek a Black student enrollment of between 15% and 50%.
In Parents Involved in Community Schools v. Seattle School District No. 1 (2005), the Ninth Circuit held that diversity was a compelling state interest and that the district’s student assignment plan was narrowly tailored to meet the interest. In 1977 Seattle became the first major city to adopt a voluntary desegregation plan to combat the de facto segregation caused by housing patterns within the district. Under the version of the plan challenged in the case at hand, students were admitted to oversubscribed high schools based on a series of tiebreakers: first whether the student had a sibling at the school and second by considering the child’s race in the case of a racially imbalanced school (defined as a school with a racial makeup varying from that of the district as a whole by more than 15%). The school board articulated two compelling interests for promoting diversity: the affirmative educational and social benefits that flow from diversity and the avoidance of harm resulting from racially concentrated or isolated schools.
The Supreme Court, Diversity, and Student Assignment Plans
Based on the important issue at hand, the Supreme Court agreed to hear a consolidated appeal in both Parents (2005) and McFarland, appealed as Meredith.
In Parents (2005), the Court highlighted the facts that the City of Seattle had never established a legally segregated school system and that a consent decree ordering desegregation in the Jefferson County, Kentucky, schools had been dissolved in the year 2000 after a finding that the district had eliminated, to the greatest extent possible, the vestiges of prior segregation. The Court reasoned that, as such, neither school district could use previous intentional discrimination as a compelling interest under the strict scrutiny doctrine. However, the record reflected that both school districts had decided to promote voluntary race-conscious student assignment plans characterized as a promotion of a diverse student body. According to the Court, Seattle classified students as White or non-White and used racial classifications as a tiebreaker. Jefferson County continued some of the plans it developed during the desegregation decree and classified students as Black or other for its elementary school assignment plans and school transfers.
In overturning both decisions at the circuit court level, the justices, in a plurality decision, ruled that the school boards had not demonstrated a compelling interest or a sufficiently narrowly tailored approach in their student assignment plans. The Supreme Court first announced that Grutter did not apply for two reasons. First, the Court pointed out that Grutter was a higher education case in which diversity was promoted as a compelling state interest within the confines of academic freedom. The Court stated that academic freedom was not a constitutional protection bestowed equally at the K–12 level. Moreover, the Grutter Court ruled that only race-neutral means were found to be constitutional. Specifically, the Court indicated that compelling interest was not focused on race but encompassed an infinite number of factors, including having “overcome personal adversity and family hardship.” In other words, the Court was of the view that if race could be used at all, it must be seen, on the one hand, as a substantially diluted construct, or, on the other, as a proxy for socioeconomic status. The use of race-conscious programs was thus reviewed, not as an important element, but as the element or approach that was declared unconstitutional in both Bakke and Gratz
Second, the plurality of justices announced that the school boards did not use the narrowest means possible to effect their objectives. Based on its interpretation of past case law, the Supreme Court declared that any use of race is extreme. The majority observed that this had greater application in the instant cases, because each school district testified that its voluntary integration plans had minimal impact on all student classifications. The Court determined that even the minimal impact of the classifications used in Seattle and Jefferson County could not be supported, because no evidence was presented that other means of classification were considered absent the use of race.
In a concurring opinion, Justice Anthony Kennedy agreed that the student assignment plans were not narrowly tailored to achieve the compelling goal of diversity, but he stated also that the plurality opinion was too dismissive of the school district’s legitimate interest of providing an equal educational opportunity; according to Kennedy, one important aspect of encouraging student diversity could be attention to racial composition. Kennedy allowed that if school officials are concerned that their schools’ racial compositions interfere with equal educational opportunity, they may devise race-conscious measures that address the problem in a general way. Such measures may include strategic site selection for new schools; drawing attendance zones with general recognition of neighborhood demographics; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performances, and other statistics by race.
The courts have proclaimed that the appropriate level of judicial review for voluntary affirmative action programs is strict scrutiny: demonstrating a compelling government interest with activity that is narrowly tailored to meet that interest. Employment plans based on hiring, promotion, or retention must be carefully analyzed to ensure that race or national origin purposes are narrowly tailored so as not to unnecessarily trammel the rights of White employees.
While the use of race-conscious means for distributing students among schools has been ruled in the past to be an appropriate compelling government interest, this doctrine has been brought into question by the most recent decision in Parents Involved in Community Schools v. Seattle School District No. 1 (2007). A plurality opinion determined that a compelling interest may be found in a race-neutral policy, although there remains much uncertainty about programs that are race-conscious. The concurring opinion in Parents (2007) counters such a position with the provision that the use of race may still survive constitutional consideration. The difference of opinion awaits further judicial outcome.
Yet, in the meantime, educational leaders and lawyers in schools and districts with voluntary affirmative action policies should examine them under the stricter demands as outlined in this essay. In any case existing affirmative action plans should be considered as provisional and declared no longer necessary once a school board has achieved its stated objective.
Philip T. K. Daniel
See also Brown v. Board of Education of Topeka; Brown v. Board of Education of Topeka and Equal Educational Opportunities; Equal Protection Analysis; Parents Involved in Community Schools v. Seattle School District No. 1; Title VII
Daniel, P. T. K. (2003). Diversity in university admissions decisions: The continued support of Bakke. Journal of Law and Education 32, 69–78.
Daniel, P. T. K., & Timken, K. E. (1999). The rumors of my death have been exaggerated: Hopwood’s error in “discarding” Bakke. Journal of Law & Education, 28, 391–418.
Holmes, L. (2004). Comment, After Grutter: Ensuring diversity in K–12 schools. UCLA Law Review, 52, 563, 575–585.
Sperry, D., & Daniel, P. T. K (1998). Education law and the public schools: A compendium. Norwood, MA: Christopher-Gordon.
Cavalier v. Caddo Parish School Board, 403 F.3d 246 (5th Cir. 2005).
City of Richmond v. J. A. Croson Company, 488 U.S. 469 (1989).
Civil Rights Act of 1964, 42 U.S.C. §§ 1971, 1975A-1975d, 2000a-2000h-6 (1994).
Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985).
Comfort v. Lynn School Committee, 418 F.3d 1 (1st Cir. 2005).
Gratz v. Bollinger, 539 U.S. 244 (2003).
Griggs v. Duke Power Company, 401 U.S. 424 (1971).
Grutter v. Bollinger, 288 F.3d 732 (2002), 539 U.S. 306 (2003).
Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996).
Labor Management Relations Act, 29 U.S.C. §§ 141 et seq.
Ledbetter v. Goodyear Tire and Rubber Company, 127 S. Ct. 2162 (2007).
McFarland v. Jefferson County Public Schools, 416 F.3d 513 (6th Cir. 2005).
Parents Involved in Community Schools v. Seattle School District No. 1, 426 F.3d 1162 (9th Cir. 2005), 127 S. Ct. 2738 (2007).
Regents of the University of California v. Bakke, 438 U.S. 265 (1978).
Smith v. University of Washington Law School, 233 F.3d 1188 (9th Cir. 2000).
Title VI of the Civil Rights Act, 42 U.S.C. § 2000d.
Title VII of the Civil Rights Act, 42 U.S.C. § 2000e.
Washington v. Davis, 426 U.S. 229 (1976).
Wygant v. Jackson Board of Education, 476 U.S. 267 (1986).