Foreword: Equality Divided

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2. How Discriminatory Purpose and Affirmative Action Cases Diverge.--Understanding that modern discriminatory purpose and strict scrutiny law were forged in the desegregation and affirmative action debates of the late twentieth century helps explain not only why, but also how these two bodies of law diverge. Judges who began to apply strict scrutiny to affirmative action acted in response to citizen objections that the programs were unfair. The body of strict scrutiny doctrine that emerged is, unlike discriminatory purpose doctrine, deeply attuned to the citizen's experience of state action.

The justifications for strict scrutiny in affirmative action cases no longer emphasize the importance of protecting innocent victims of affirmative action, yet they remain intently focused on the beliefs about race that citizens internalize in their interactions with the state. (220) Attention to citizens' experience of government action not only figures centrally in the justifications for strict scrutiny, but also shapes the body of law the Court has developed to govern affirmative action. (221) In this area of equal protection law, it does not suffice for government to demonstrate that it acts from benign, or even compelling, purposes; as the Court recognized compelling reasons for state consideration of race, it has transformed strict scrutiny into a constraint on the means by which the government pursues those ends. (222)

In the process the Court has devised a new body of strict scrutiny law designed to constrain the means by which government promotes diversity or pursues remedial ends that is focused on protecting expectations of fair dealing that citizens have in interacting with the government. These concerns shape not only the quantitative limits the decisions impose on affirmative action, (223) but also the requirements the decisions impose on affirmative action's form. Thus, after Justice Powell recognized diversity as a compelling government interest in Bakke, he allowed universities to consider the race of applicants as a "plus," but not to separate the admissions process by race. (224) Even if there was a constitutional reason to allow government to consider race, the Constitution constrained the form in which government could do so. Citizens would view separate admissions as unfair, Justice Powell reasoned, and, under the Constitution, "appearance"--that is, how citizens perceive government action--matters:

   Petitioner's program will be viewed as inherently unfair by the
   public generally as well as by applicants for admission to state
   universities. Fairness in individual competition for opportunities,
   especially those provided by the State, is a widely cherished
   American ethic. Indeed, in a broader sense, an underlying
   assumption of the rule of law is the worthiness of a system of
   justice based on fairness to the individual. As Mr. Justice
   Frankfurter declared in another connection, "[j]ustice must satisfy
   the appearance of justice." (225)

In Grutter, Justice O'Connor affirmed and elaborated upon Justice Powell's requirement of individualized consideration. She began her discussion of the individualized consideration requirement by describing narrow tailoring as probing for suspect motives, (226) but concluded her discussion by explaining the function of narrow tailoring on completely different grounds, as protecting citizens who might be adversely affected by the government's pursuit of legitimate ends. Narrow tailoring was no longer about smoking out government's bad motives but served a very different function: protecting "innocent persons" from harm ("members of any racial group," but especially those "individuals who are not members of the favored racial and ethnic groups" (227)) when government is pursuing important public ends. In Grutter, Justice Kennedy also emphasized that safeguarding the confidence of prospective students in the fairness of the application process was a crucial reason for "[c]onstant and rigorous judicial review" of the means by which schools promote diversity (228): "Prospective students, the courts, and the public can demand that the State and its law schools prove their process is fair and constitutional in every phase of implementation. …

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