The Diversity Rationale for Affirmative Action in Employment after Grutter: The Case for Containment

Article excerpt

TABLE OF CONTENTS

INTRODUCTION
I. NARROW RANGE OF INTERESTS THAT JUSTIFIED
   AFFIRMATIVE ACTION UNDER EQUAL PROTECTION
   BEFORE GRUTTER
   A. National Security
   B. Diversity of Viewpoints in Public Higher Education
   C. Remediation of Identifiable Past Discrimination
II. EXCLUSIVE NARROW REMEDIAL EXCEPTION TO  TITLE VII BEFORE GRUTTER
   A. Narrow Remedial Exception to Title VII
   B. Other Possible Title VII Exceptions
      1. Concurring Opinions in Johnson
      2. Taxman v. Board of Education
III. GRUTTER'S EXPANDED DIVERSITY RATIONALE FOR
   AFFIRMATIVE ACTION
   A. The Opinion
   B. Resulting Opening for Expanded Affirmative
      Action After Grutter
IV. UNITED STATES COURTS OF APPEALS CASES
   EVALUATING DIVERSITY JUSTIFICATIONS IN EMPLOYMENT
   A. United States Courts of Appeals Cases
      Anticipating the Grutter Rationale
      1. Wittmer v. Peters: Employment Diversity Interest in
         Boot Camp Penal Institutions
      2. Reynolds v. City of Chicago: Recognition of
         Work force Diversity and Operational
         Effectiveness as Compelling Interests in
         Police Forces
   B. The Seventh Circuit's Application of Grutter to the
      Diversity Rationale in Police Forces
V. UNCONSTITUTIONALITY OF EXPANDING THE
   DIVERSITY RATIONALE TO PUBLIC EMPLOYMENT
   UNDER EQUAL PROTECTION
   A. Summary of the Case for Workforce Diversity
   B. Absence of Independent Countervailing Constitutional
      Interests Supporting Work force Diversity
      1. Lack of First Amendment Connection to General
         Diversity Interest in Public Employment
      2. Inapplicability of Security Interests to
           Public Workforce Diversity
      C. Inherent Tendency of Affirmative Action in Public
         Employment To Fail Narrow Tailoring
         Requirement of Strict Scrutiny
      1. Severe General Burdens of Affirmative Action
      2. Exacerbated Injuries of Affirmative Action in
         Employment
      3. Ability To Achieve Workforce Diversity Without
         Affirmative Action
VI. ILLEGALITY OF A DIVERSITY RATIONALE IN
    PRIVATE SECTOR EMPLOYMENT UNDER TITLE VII
    A. Categorical Wording of Title VII's Text
    B. Congressional Intent for a Broad
       Antidiscrimination Principle in
       Title VII
    C. Inadequacy of Equitable Considerations To Justify a
       Diversity Exception to Title VII
       1. Relatively Insubstantial Nature of Benefits of
          Diversity in Private Business
       2. Relatively More Severe Nature of Some Injuries from
          Private Sector Affirmative Action
CONCLUSION

INTRODUCTION

In recent years, American employers expanded racially preferential "affirmative action" (1) policies geared toward hiring, retaining, and promoting racial minorities for positions that they might otherwise not gain in a more color-blind society. (2) The less sweeping affirmative action policies of an earlier era were based on remedial justifications. (3) But as past acts of invidious discrimination collectively became a more distant memory, (4) employers began justifying the expansion of affirmative action in terms of a very different rationale: diversity. (5) Colleges and universities used a similar rationale for affirmative action for decades before employers embraced the diversity rationale. A series of court battles has defined the permissible bounds for the use of such policies in the university context. (6) But judicial guidance on the new type of diversity-based affirmative action in employment has been almost nonexistent.

This new type of diversity-based affirmative action in employment initially seems suspect as a matter of law. The Equal Protection Clause renders all racial discrimination in the public sector presumptively invalid, including discrimination in favor of minorities. (7) Similarly, Title VII of the Civil Rights Act of 1964 protects individuals of all races from racial discrimination in the private sector, apparently subject only to narrow remedial exceptions. …

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