Supreme Court Redefines Affirmative Action

By Scuro, Joseph E., Jr. | Law & Order, February 2004 | Go to article overview

Supreme Court Redefines Affirmative Action


Scuro, Joseph E., Jr., Law & Order


One of the most controversial issues addressed by the United States Supreme Court for more than two decades arises from the use of racially based criteria in the early, initial applicant selection process, future promotions and other personnel issues ranging from transfers, assignments and specialized training.

The implementation and employment of racially based affirmative action plans (AAPs) to correct historically past discrimination in the public and private sectors based on race has long been the subject of litigation and challenges that have risen through the federal court system and ultimately in resolution of cases by the United States Supreme Court.

First addressed by the Supreme Court when rendering decisions that dealt with racial segregation in the public school system, these early opinions by inertia gave genesis to remedial efforts and problems that required a delicate, although often caustic, balance between the protection of the rights and interests of racial minority groups as well as similar rights and interests of white males and females who would be denied opportunities when efforts to meet affirmative action plan goals would be contrary to their rights and interests.

The crucial center to this delicate interest-rights balancing act was the fine line delineation and definition between legal, legitimate affirmative action plan goals and clearly mandatory racially based quotas.

During the 2002-2003 term, the United States Supreme Court issued landmark decisions in two cases dealing with standards for admission to the University of Michigan's undergraduate program and law school. Both cases decided by the United States Supreme Court during the recently concluded term reviewed clearly race-conscious and racially based criteria to this nationally respected state university's undergraduate and professional academic programs.

In each of these narrowly decided cases, the Supreme Court gave a clearly defined set of criteria and guidelines as to when a racially based selection process would pass constitutional tests and when such a selection admissions practice would be deemed in violation of federal law.

In order to have a better understanding of the impact of these two recently decided cases, it is necessary to review earlier decisions by the United States Supreme Court. In numerous prior decisions, the United States Supreme Court has held that mandatory quotas established to meet an affirmative action plan's racially motivated goals are unlawful and thereby unconstitutional under federal law.

This legal principle has often been referred to as the Supreme Court's prohibition against reverse discrimination, that is, a discrimination against females and males based exclusively on their membership in the white race. This reverse discrimination principle has been considered, examined and legally defined in affirmative action plan cases dealing with initial admissions selection, employment practices, promotions and career advancement, public contract bidding and minority based preferences, and other advantages.

In Griggs v. Duke Power Company, 401 U.S. 424 (1971), the Supreme Court clearly decided that racially based quotas were in violation of federal law. This decision was followed by several other high court decisions that placed a high level of scrutiny on affirmative action plans where racial or other based preferences appeared to be arbitrary with no rational or other legitimate basis save that of race.

In California Regents v Bakke, 438 U.S. 265 (1978), United States Steelworkers of America v. Weber, 443 U.S. 193 (1979), Fullilove v. Klutznick, 448 U.S. 448 (1980), and Mississippi University of Women v. Hogan, 458 U.S. 718 (1982), the Supreme Court requested on numerous occasions its requirement that any race-preferential affirmative action plans be reviewed with the most careful of scrutiny.

This constrained, conservative legal trend and philosophy of the Supreme Court continued with its two companion decisions in Wyantv. …

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Supreme Court Redefines Affirmative Action
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