The Early Cases
The Supreme Court adopted its present law of affirmative action after an extended period of experimentation. In a series of plurality decisions, various justices and coalitions of justices toyed with a variety of legal standards to govern the use of racial classifications for the benefit of racial minorities. In the course of the deliberations that occurred among the justices, a number of legal issues emerged as having potential constitutional significance. Finally, after a series of Reagan and Bush appointments, the Supreme Court was able to speak through majority opinions in issuing its formula for constitutionally acceptable affirmative action. Under current law, most forms of race-conscious affirmative action now appear to be unconstitutional.
The Court's constitutional decisions are directly applicable only to governmental use of affirmative action programs because the state-action requirement of the Fourteenth Amendment—the legal provision on which the Court's decisions are based—does not apply to purely private action. Private affirmative action programs, however, must comply with the congressional statutes that govern the private use of racial classifications, such as the Civil Rights Act of 1964, which prohibits, inter alia, discrimination in education, employment, and public accommodations. It is unclear whether the Supreme Court will ultimately adopt the same standards for statutory and constitutional analysis of affirmative action.1
The problems posed by affirmative action are directly traceable to Brown v. Board of Education.2 In Brown I, the Supreme Court invalidated the separate-but-equal doctrine of Plessy v. Ferguson,3 and held that, under the equal protection clause of the Fourteenth Amendment, governmental use of racial classifications was constitutionally suspect.4 Then, in Brown II and its progeny, the Court not only held that the Constitution required a remedy for the continuing effects of past discrimination but stressed that the use of racial classifications was constitutionally compelled where necessary to provide an effective remedy for the prior constitutional violation. As a result,