HIST 4061 Lecture Notes - Lecture 23: Affirmative Action, Strict Scrutiny, Intermediate Scrutiny

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13 Aug 2016
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DiLiberto, “Setting Aside Set Asides”
Affirmative action is typically defined as an effort to expand opportunities for minority groups
that have been the subject of discrimination. Today, affirmative action programs are deeply
rooted in society and are an integral part of American public policy. Over the past thirty years,
federal, state and local governments have enacted affirmative action programs in the public
works arena to increase participation of minority businesses in public construction projects in an
effort to counteract the effects of racial discrimination. Although these programs fall under the
general definition of "affirmative action," they are specifically referred to as "preferences" or,
more commonly, "set aside" programs. Set aside programs attempt to eradicate discriminatory
practices within a jurisdiction's construction industry by setting a numerical goal for minority
participation in government construction contracts and by attempting to meet that goal through a
variety of procedures. Today, however, because of an organized movement against set aside
programs within the construction industry, criticism of these programs has risen sharply. There
have been many reasons propounded by nonminority owned contractors for abolishing set aside
programs. These contractors argue that set asides violate the principle of equal protection of the
laws by discriminating, in a reverse fashion, against nonminority contractors. Furthermore, they
argue that discrimination in public contracting can be effectively remedied by existing civil
rights law. These nonminority owned contractors also cite program abuses as a reason to discard
such programs. Although the executive branch adamantly opposes program cutbacks, the
movement to limit or eliminate set aside programs on the federal level is drawing popular
support from the U.S. Congress. Bills have been introduced by members of Congress to
dismantle affirmative action in favor of promoting a "colorblind" society." To fill the void left
by these programs, alternatives to racial preferences are offered that focus on economic status
rather than skin color. Conversely, the executive branch has announced a continued commitment
to federal affirmative action programs, especially in the area of public works projects. State and
local governments are reaffirming their commitment to continue these programs, although public
opinion is set against their continued existence.
Heightened political scrutiny of this controversial issue recently prompted a closer judicial
examination into the constitutionality of these programs. As a result, the Supreme Court of the
United States has held that federal, state and local affirmative action programs, once subject to
an intermediate level of scrutiny, are now strictly scrutinized.
Recent Supreme Court decisions that apply strict scrutiny to affirmative action programs
granting preferential treatment to minority contractors have had a profoundly detrimental effect
on those programs. Collectively, these decisions have affected minority businesses, the
executive branch of the federal government (especially administrative agencies),Congress, state
legislatures and lower federal and state courts. Application of strict scrutiny in this arena has
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forced federal and state governments to suspend, reformulate or terminate existing programs in
large numbers in response to the new constitutional test being applied to these programs.
Programs surviving the legislative chopping block have been the subject of litigation, and many
of these programs have been judicially invalidated. This trend is likely to continue, in light of
the fact that most of these programs were originally enacted to conform with the lesser standard
of intermediate scrutiny, not the higher level of scrutiny imposed by Croson and Adarand.
Inevitably, most affirmative action programs in their current state will fail to pass constitutional
Adarand and Croson appear to have a similarly detrimental impact on both racial and gender
based affirmative action programs existing outside the realm of government construction
contracts. Courts and legislatures are currently questioning racial preferences in civil
employment and layoffs, higher education admissions, housing and the military. Additionally,
gender based preferences are not immune from attack, as some commentators advocate
abolishing the intermediate scrutiny standard under such preferences are currently judged, in
favor of the more stringent strict scrutiny standard now applied to racial preferences.
Nieli Reading:
-First half of 20th century, Asians and Jews did well in education system and with financial
oSuccessful groups and non-successful groups faced same level of discrimination
-Group disparities cannot be attributed to the last effects of oppression
oAnd policies cannot fix these disparities
-Nieli summarizes “Thomas Espenshade and Alexandria Walston Radford's new study,
No Longer Separate, Not Yet Equal: Race and Class in Elite College Admission and
Campus Life”
oThey argue economic and educational inequality with social injustice
oThey believe public policy should eliminate academic performance gaps in racial
-Nieli thinks they should review the subject of differential performance by ethnic groups
and class-cultural barriers that impact the academic performance of those from lower-
class cultures, and genetic characteristics that limit education in white working class
-American ideal is for new generations to build on success of those previous—“American
-High economic status parents are more likely to move to neighborhoods with better
schools or enroll kids in private schools
oOrdinary Americans don’t see this as unjust, even though it will lead to class-
based inequalities
-In Nieli’s view, the authors are on the right track when they refocus attention away from
the affirmative action’s debate to the racial achievement gap in learning, however, he has
3 uncertainties about this.
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o1: it is untrue that we currently lack knowledge of the kinds of programs and
schools that work well with black and Hispanic students (small, church related
schools work better than public schools)
o2: He objects to the grandness of their proposal which would raise expectations
beyond capacity of any government action or policy
o3: He recaps Glazer’s warning about the inevitable persistence of ethno-racial
group differences and the need to adopt a system of expectations and values that
accepts unequal group outcomes among a free people.
-Nieli proposes the goal of opportunity enhancement for the least advantaged individuals
of whatever race or ethnicity, combined with a value system closers to classical liberal
Grutter v. Bollinger:
(notes from internet)
-Grutter v. Bollinger, was a landmark case in which the United States Supreme
Court upheld the affirmative action admissions policy of the University of Michigan Law
-The Justices (O’Connor, Stevens, Souter, Ginsburg, and Breyer) ruled that the UofM Law
School had a compelling interest in promoting class diversity
-The court held that a race-conscious admissions process that may favor
"underrepresented minority groups," but that also took into account many other factors
evaluated on an individual basis for every applicant, did not amount to a quota
system that would have been unconstitutional under Bakke
-Justices Ginsburg and Breyer concurred in judgment, but stated that they did not
subscribe to the Court's belief that the affirmative measures in question would be
unnecessary in 25 years.
-Chief Justice Rehnquist, joined by Justices Kennedy, Scalia, and Thomas, dissented,
arguing that the University's "plus" system was, in fact, a thinly veiled and
unconstitutional quota system. Chief Justice Rehnquist cited the fact that the percentage
of African American applicants closely mirrored the percentage of African American
applicants that were accepted.
-Justice Kennedy also dissented separately, arguing that the Court failed to apply, in
fact, strict scrutiny as required by Justice Powell's opinion in Bakke. Both Justice Scalia
and Justice Thomas also dissented separately.
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