FOR YEARS, the Supreme Court has grappled with the question of whether the government's race-based actions, designed to help minorities that have suffered discrimination, should undergo the same legal scrutiny as actions that burden those minorities.
The harshest test is called "strict scrutiny," which in affirmative action cases means that a particular program or policy must be "narrowly tailored" and serve a "compelling interest." That "compelling interest" usually means a remedy for specific instances of past discrimination. That makes the "strict scrutiny" test a tough one to meet.
The most famous recent case was in 1978, when the court considered Allan Bakke's challenge to the University of California's quotas for minority admissions to its medical school. The court ruled that quotas were unconstitutional but that race could be used as a factor in admissions. It split on when "strict scrutiny" should be applied to such programs.
Two years later, in a case called Fullilove vs. Klutznick, the court upheld a 10 percent set-aside for minority-owned businesses in a federal public-works law. The decision said only that such set-asides were constitutional if their goals were within the power of Congress and if the use of race was a constitutionally permissible means for reaching that goal. …