Race, Affirmative Action, and the Law

by Randall Kennedy

  President Jimmy Carter made a concerted effort to elevate blacks to high positions. He placed thirty-seven blacks on the federal bench—more than all of the previous presidents combined—and selected the first black woman, Patricia Harris, for a post in the cabinet.65 The Carter administration, moreover, defended affirmative action in litigation.

  Although Ronald Reagan as a candidate and president was largely hostile to affirmative action, during his 1980 campaign he, too, reflected and reinforced affirmative action consciousness by pledging that, if elected, “one of the first Supreme Court vacancies in [his] administration [would] be filled by the most qualified woman [he could] find”66—a promise he kept by nominating Sandra Day O’Connor. Reagan also took care to have at least one black in his cabinet and to appoint conservative blacks to important posts, actions also taken by his successor, George H. W. Bush.

  President Bill Clinton was conspicuously friendly to affirmative action, insisting upon a cabinet that “looked like America.” He was the first president to devote an entire speech to justifying affirmative action. Addressing the subject in 1995, he maintained that “affirmative action remains a useful tool for widening economic and educational opportunity.” Clinton assured the public that he would not abide “unjustified preference,” “numerical quotas,” or selections “solely on the basis of race or gender regardless of merit.” But he declared that he supported affirmative action that is flexible, fair, efficient, and transitional. “Affirmative action should not go on forever,” he said, but “the job of ending discrimination in this country is not over.…We should reaffirm the principle of affirmative action and fix the practice. We should have a simple slogan: Mend it, but don’t end it.”67

  Despite considerable support for affirmative action, opposition has curtailed it, driven it underground, limited the justifications on which its opponents can openly rely, and put it on the defensive politically, legally, psychologically, and morally. Since 1976 the Republican Party has expressly condemned “quotas” and “preferential treatment” in its party platforms.p In his first press conference as president, Ronald Reagan complained that “some affirmative action programs [are] becoming quota systems.”68 He chose a fervent opponent of affirmative action, William Bradford Reynolds, to head the Civil Rights Division of the Department of Justice. He chose another foe, Clarence Thomas, to head the Equal Employment Opportunity Commission. He elevated yet another committed adversary, Antonin Scalia, to the Supreme Court, the branch of the federal government that has become the main brake to affirmative action’s momentum.

  Prior to Reagan’s ascension, the Supreme Court had evinced a grudging toleration for affirmative action. After the appointment of the Reagan, Bush I, and Bush II justices, however, the Court became increasingly hostile. Illustrative are three rulings: Wygant v. Jackson [Michigan] Board of Education (1986), City of Richmond v. J. A. Croson Co. (1989), and Adarand Constructors v. Peña (1995).

  Wygant involved a challenge to a collective bargaining agreement forged in 1972 by the Board of Education of Jackson, Michigan, and a local teachers’ union that provided special protection against layoffs to teachers “who are Black, American Indian, Oriental, or of Spanish descendency.”69 The provision in question stated:

  In the event that it becomes necessary to reduce the number of teachers through layoff from employment by the Board, teachers with the most seniority in the district shall be retained, except that at no time will there be a greater percentage of minority personnel laid off than the current percentage of minority personnel employed at the time of the layoff.70

  Concern with the consequences of allowing conventional “last hired, first fired” seniority rules to proceed uninhibitedly stemmed from a history of racial tension in Jackson. Authorities there did not hire a black teacher until 1954. Fifteen years later, a local branch of the NAACP filed a complaint with the Michigan Civil Rights Commission alleging racial discrimination against black applicants for teaching positions. The commission concluded that evidence substantiated the allegations. A result was a settlement under which the Board of Education promised to take “affirmative steps to recruit, hire, and promote minority teachers.” It was because of the recent vintage of minority hires that the specter of contraction loomed large, since layoffs would foreseeably exact a disproportionate racial burden when the next economic downturn hit. The special layoff provision was crafted with that prospect in mind.

  When layoffs became necessary in 1974, the board reneged; it was simply unwilling to lay off senior tenured nonminority teachers while retaining junior probationary minority teachers. The union and two minority teachers sued. Subsequently, after litigation in federal and state courts, the board decided to adhere to the collectively bargained layoff provision. During the 1976–77 and 1981–82 school years, nonminority teachers were laid off while minority teachers with less seniority were retained. This time, several laid-off nonminority teachers sued, charging that they were the victims of unconstitutional racial discrimination. Lower courts ruled against them, determining that minority teachers were substantially and chronically underrepresented in the school district and that the layoff provision met a “reasonableness” standard for addressing the school board’s interests in uprooting entrenched exclusion, promoting racial harmony, and providing role models for minority students.

  The Supreme Court reversed, in an opinion written by Justice Lewis F. Powell that stressed the insufficiency of general claims of societal discrimination as a justification for remedial racial selectivity and the requirement that any governmental racial classification be subjected to “strict scrutiny.” Powell also advanced two arguments new to the Court’s affirmative action jurisprudence, one having to do with “role models” and another having to do with the status of layoffs. A justification for the preferential-layoff provision embraced by the lower courts was that something had to be done to protect at least a minimum number of minority teachers against layoffs to preserve minority role models in the schools. Powell scoffed at that claim, remarking that, “carried to its logical extreme, the idea that black students are better off with black teachers could lead to the very system the Court rejected in Brown v. Board of Education.”q 71

  Second, Powell maintained, on behalf of a majority of the justices, that the particular type of racial selectivity at issue in Wygant—racially selective layoffs—was too burdensome to permit. “Layoffs disrupt … settled expectations,” he wrote, “in a way that general hiring goals do not. Layoffs impose the entire burden of achieving racial equality on particular individuals, often resulting in serious disruptions of their lives. That burden is too intrusive.”72

  In City of Richmond v. J. A. Croson, the Court faced a controversy drenched in ironic historical symbolism. It involved the constitutionality of a program enacted in 1983 in Richmond, Virginia, the former capital of the Confederacy. The Richmond City Council established a Minority Business Utilization Plan under which nonminority prime contractors awarded construction contracts with the city were required, in the absence of a waiver, to subcontract at least 30 percent of the dollar amount of the contracts to minority business enterprises (MBE). The plan described itself as “remedial” and enacted “for the purpose of promoting wider participation by minority business enterprise in the construction of public projects.”73 Proponents of the plan relied upon a study that indicated that while the general population of Richmond was about 50 percent black, only 0.67 percent of the city’s prime construction contracts between 1978 and 1983 had been awarded to minority businesses. In the hearings and deliberations preceding enactment of the plan, observers differed on the reasons behind the paucity of black business participation. City Councilman Henry Marsh declared:

  I have been practicing law in this community since 1961, and I am familiar with the practices in the construction industry in this area, the State, and around the nation. And I can say without equivocation, that the general conduct of the construction industry … is one in which race discrimin
ation and exclusion on the basis of race is widespread.74

  Others perceived the situation differently, with one councilman observing that, in his view, the witnesses had “indicated that the minority contractors were just not available. There wasn’t a one that gave any indication that a minority contractor would not have had an opportunity, if he were available.”r 75

  J. A. Croson had bid on a project to provide and install toilets at the city jail. He won the bid—he was the only participant—but lost the business when he ran afoul of the plan’s MBE set-aside. Croson sought an MBE subcontractor but failed to find one he considered to be suitable. He then sought a waiver from the plan’s MBE requirement. Croson’s petition was rejected. The city then decided to rebid the project. At that point Croson sued.

  A United States district court upheld the plan and was initially affirmed by the United States Court of Appeals for the Fourth Circuit. When the Supreme Court instructed the Court of Appeals to reconsider its judgment in light of Wygant, however, the Court of Appeals changed its mind, striking down the Richmond plan. The Supreme Court reviewed that judgment, agreed with it, and issued an opinion written by Justice O’Connor. The majority constituted what could be called the Reagan Court. It included four Reagan appointees: Justices Rehnquist, Scalia, Kennedy, and O’Connor.s

  The Court majority asserted three points. First, the Court held that, pursuant to Section 5 of the Fourteenth Amendment, the federal government has more leeway than states and municipalities to redress the effects of racial discrimination.t Second, the Court expressly declared that all governmental racial selectivity should be subjected to judicial “strict scrutiny.” The standard of review under the Equal Protection Clause, Justice O’Connor declared, “is not to be dependent on the race of those burdened or benefited by a particular classification.”76 Third, the Court found fault with the factual predicate relied upon to justify the affirmative action plan. O’Connor complained that Richmond’s allegations of past discrimination were too conclusory and general. She objected to Richmond’s inference of discrimination from the disparity between the number of prime contracts awarded to minority firms and the minority population of the city. This comparison, she said, was erroneous. The proper comparison, she maintained, was between the number of prime contracts awarded to minority firms and the number of qualified minority firms in the Richmond area.

  O’Connor also disapproved of Richmond’s reliance on congressional findings of nationwide discrimination. That evidence, she believed, has “extremely limited” probative value about the situation in Richmond. Noting that the Richmond program included as beneficiaries a list of groups other than African Americans, she remarked that “there is absolutely no evidence of past discrimination against Spanish speaking, Oriental, Indian, Eskimo, or Aleut persons in any aspect of the Richmond construction industry.…It may well be that Richmond has never had an Aleut or Eskimo citizen.”77 In the Court’s view, because “none of the evidence presented by the city point[ed] to any identifiable discrimination in the Richmond construction industry,” the city had failed “to demonstrate a compelling interest in apportioning public contracting opportunities on the basis of race.”78

  Reaching a crescendo of alarm and disapproval, O’Connor declared that for the Court “to accept Richmond’s claim that past societal discrimination alone can serve as a basis for rigid racial preferences would be to open the door to competing claims for ‘remedial relief’ for every disadvantaged group.” If that were to happen, she remarked, “the dream of a nation of equal citizens in a society where race is irrelevant to personal opportunity and achievement would be lost in a mosaic of shifting preferences based on inherently unmeasurable claims of past wrongs.”79

  Justices Marshall, Brennan, and Blackmun dissented. Far from condemning the Richmond Plan, they lauded it as “a welcome symbol of racial progress.”80 “I never thought I would live to see the day,” Blackmun wrote, when “the cradle of the Old Confederacy, sought on its own … to lessen the stark impact of persistent discrimination. But Richmond, to its great credit, acted.”81 The dissenters believed that the notoriety of racial discrimination in Richmond, the congressional findings supporting federal set-asides, the stated experience of municipal officials, and the paucity of minority contracting—no matter how that paucity was calculated—provided a suitable basis for the plan. According to Justice Marshall, the Court’s ruling sounded “a full-scale retreat” from the Court’s previous solicitude for “race-conscious remedial efforts directed toward deliverance of the century-old promise of equality of economic opportunity.”82

  The “full-scale retreat” to which Marshall alluded was by no means uniform. A year after Croson, in Metro Broadcasting, Inc. v. Federal Communications Commission, the Court upheld minority preferences in awarding radio and television broadcast licenses primarily for the purpose of promoting programming diversity. Citing deference to Congress, the Court stated that it did not need to apply strict scrutiny to the racially selective program at issue. It decided that benign race-conscious measures mandated by Congress are constitutionally permissible to the extent that they serve “important” (as opposed to “compelling”) governmental objectives and are substantially related to the achievement of those objectives.

  Metro Broadcasting was decided only 5–4, however, and featured impassioned dissents by O’Connor and Kennedy. In light of subsequent events, it is noteworthy that O’Connor maintained that the government’s interest in increasing the diversity of broadcast viewpoints “is clearly not a compelling interest. It is simply too amorphous, too insubstantial, and too unrelated to any legitimate basis for employing racial classifications.”83 According to O’Connor, “the interest in diversity of viewpoints provides no legitimate, much less important, reason to employ racial classifications apart from generalizations impermissibly equating race with thoughts and behavior.”84

  Justice Kennedy was similarly upset with the Court’s toleration for what seemed to him an unjustified resort to racial selectivity. Pointing to segregation in the Jim Crow South and apartheid in South Africa, Kennedy expressed doubt regarding the Court’s capacity to distinguish suitably between malign and benign racial discrimination. This very case displayed the difficulty, Kennedy maintained, since the preference in question stemmed from what he saw as the stereotypical assumptions that the race of broadcast owners is linked to broadcast content—assumptions that, he said, the government should be forbidden to make.

  Metro Broadcasting raised a variety of issues that would recur in the ongoing struggle over affirmative action, particularly the relationship between racial status and individuals’ perspectives—i.e., “diversity.” But for the purposes of understanding the evolution of the Supreme Court’s affirmative action jurisprudence, the most important thing to know about Metro Broadcasting is that the Court soon rejected much of its reasoning. After five years the Court effectively buried Metro Broadcasting with a new ruling, Adarand Constructors v. Peña.85

  Adarand involved a challenge to legislation that used racially selective presumptions to identify “socially and economically disadvantaged individuals” that firms were nudged to hire by financial incentives authorized by Congress. Lower courts upheld this program, in reliance on Fullilove and Metro Broadcasting. In an opinion written by Justice O’Connor, however, a majority of the justices largely repudiated those precedents on two grounds. First, the Court ruled that, contrary to prior pronouncements, Congress ought to be held to the same standards as the states in terms of justifying racial selectivity. Second, the Court determined that all governmental racial distinctions, federal as well as state, must be subjected to strict scrutiny.u Given its change in course in terms of evaluating racial affirmative action, the Court remanded the dispute to the Court of Appeals to allow the lower court a chance to reassess the dispute in light of the Court’s new doctrine.

  A significant feature of Adarand was a concurring opinion authored by the lone black on the Supreme Court, Thurgood Marshall
’s successor, Justice Clarence Thomas. Whereas Marshall had been a defender of affirmative action, Thomas was (and remains) an enemy.

  That racial affirmative action programs “may have been motivated, in part, by good intentions,” Thomas declared, “cannot provide refuge from the principle that under our Constitution, the government may not make distinctions on the basis of race.”86 According to him, “it is irrelevant whether a government’s racial classifications are drawn by those who wish to oppress a race or by those who have a sincere desire to help those thought to be disadvantaged.” Eager to confront those who accused him of drawing an equivalence between negative and positive discrimination, Thomas asserted unapologetically that, yes, he did “believe that there is a ‘moral [and] constitutional equivalence’ … between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality.” To him, “government-sponsored racial discrimination based on benign prejudice is just as noxious as discrimination inspired by malicious prejudice. In each instance, it is racial discrimination, plain and simple.”

  Despite wide-ranging attacks against affirmative action, it has, remarkably, continued to survive. One might have thought during the Reagan administration that its days were few, given the commitment of highly placed opponents. Key officials, most notably Attorney General Edwin Meese, urged President Reagan to rescind or revise the executive orders stemming from the Nixon era that require businesses under contract with the federal government to make good-faith efforts to utilize minorities in proportions consistent with their percentage of relevant workforces. Under these protocols, if a company does not make a good-faith effort, it could lose its federal business (though this threat has been carried out only sparsely).v Opponents of affirmative action denounce these arrangements as a threat that wrongly prods businesses to engage in “quota hiring” to avoid expensive wrangling with the government. Meese drafted an executive order for President Reagan that would have prohibited the Office of Federal Contract Compliance Programs (OFCC) from continuing its use of statistical underutilization formulae to police businesses. But Reagan, to the sharp disappointment of some conservatives, decided to forgo taking that step. He calculated that siding with Meese would be too politically costly. The liberal civil rights establishment vigorously resisted the threatened revision. But its opposition was not the key factor that dissuaded Reagan; after all, the people in that camp were going to be political foes regardless of what he did on this issue. Rather, he wanted to avoid alienating moderate Republicans who supported various soft forms of affirmative action and simultaneously played important roles in the Reagan coalition. This camp included such important politicians as William Brock, Reagan’s secretary of labor, and Bob Dole, then the leader of the Republicans in the Senate. Ultimately, it was out of deference to their sensibilities that Reagan declined to authorize the action for which Meese had forcefully lobbied. To avoid exacerbating a painful division among Republicans, Reagan stayed his hand.87