Equal Protection Clause - Affirmative Action

Affirmative Action

Affirmative action is the consideration of race, gender, and other factors in employment decisions or other application processes, historically often with the intent of correcting past injustices. In that application of affirmative action, individuals who belong to the group under consideration, are preferred over those who do not belong to the group. In hypothetical examples the preference often takes the form of preferring the targeted group to others if the applicants are otherwise comparable. In the U.S. the form of the preferential scheme is usually achieved through quotas, such as how federal contracts are allocated, or by setting different standards for different racial groups, as is done at many universities.

Although there were forms of what is now called affirmative action during the Reconstruction (most of which were implemented by the same persons who framed the Fourteenth Amendment) the modern history of affirmative action began with the Kennedy administration and started to flourish during the Johnson administration, with the Civil Rights Act of 1964 and two executive orders. These policies directed agencies of the federal government to employ a proportionate number of minorities whenever possible.

Several important affirmative action cases to reach the Supreme Court have concerned government contractors—for instance, Adarand Constructors v. Peña (1995) and City of Richmond v. J.A. Croson Co. (1989). But the most famous cases have dealt with affirmative action as practiced by public universities: Regents of the University of California v. Bakke (1978), and two companion cases decided by the Supreme Court in 2003, Grutter v. Bollinger and Gratz v. Bollinger.

In Bakke, the Court held that racial quotas are unconstitutional, but that educational institutions could legally use race as one of many factors to consider in their admissions process. In Grutter and Gratz, the Court upheld both Bakke as a precedent and the admissions policy of the University of Michigan Law School. In dicta, however, Justice O'Connor, writing for the Court, said she expected that in 25 years, racial preferences would no longer be necessary. In Gratz, the Court invalidated Michigan's undergraduate admissions policy, on the grounds that unlike the law school's policy, which treated race as one of many factors in an admissions process that looked to the individual applicant, the undergraduate policy used a point system that was excessively mechanistic.

In these affirmative action cases, the Supreme Court has employed, or has said it employed, strict scrutiny, since the affirmative action policies challenged by the plaintiffs categorized by race. The policy in Grutter, and a Harvard College admissions policy praised by Justice Powell's opinion in Bakke, passed muster because the Court deemed that they were narrowly tailored to achieve a compelling interest in diversity. On one side, critics have argued—including Justice Clarence Thomas in his dissent to Grutter—that the scrutiny the Court has applied in some cases is much less searching than true strict scrutiny, and that the Court has acted not as a principled legal institution but as a biased political one. On the other side, it is argued that the purpose of the Equal Protection Clause is to prevent the socio-political subordination of some groups by others, not to prevent classification; since this is so, non-invidious classifications, such as those used by affirmative action programs, should not be subjected to heightened scrutiny.