Recent battles over affirmative action policies in state and district courts have brought the issue back to center stage from relative slumber since the summer of 1995. Indeed, cases in Texas, California and New Jersey have reinvigorated public debate on the issue. In 1991 in Piscataway, New Jersey, Sharon Taxman, a white public high school teacher, was laid off, while another teacher, Debra Williams, who is black and was hired on the same day Ms. Taxman, was not retained. The reason: The school district uses race as well as seniority in faculty employment determinations. Ms. Taxman filed suit, and the Supreme Court will hear her case this term. In California, the 9th Circuit District Court of Appeals upheld the state’s Proposition 209, which effectively bans any racial preference programs in the state’s hiring policies or its university admissions. In Texas, a year after minority preferences were dropped as part of the formula for admission into its law school, minority enrollment has dropped, and suits are anticipated. Considering the resurgence of this issue in these and other cases, it is particularly valuable now to examine the manner in which the Court has approached affirmative action policies in light of the most relevant constitutional clauses: The Equal Protection Clause of the Fourteenth Amendment and the Due Process Clause of the Fifth Amendment.

Before any discussion of Court’s history and legal precedents can begin, it is important to outline how the Court has approached the Equal Protection Clause of the Fourteenth Amendment. In response to the Civil War and the end of slavery, Congress and ultimately the states ratified three amendments to the Constitution designed to integrate newly freed slaves into society. The Fourteenth Amendment has, in terms of Constitutional adjudication, become the most far-reaching amendment in its power as well as the most controversial. The amendment contains the Equal Protection Clause, which declares that no State shall "deny any person within its jurisdiction the equal protection of the laws."

The obvious challenge for justices in light of the clause was to determine what qualifies as equal protection. Indeed, it seems that the primary effect of law is to treat people unequally: Those who murder others go to jail, while those who do not remain free; those who earn a larger income pay a larger percentage of their salaries in taxes than those who earn less. The Court responded relatively quickly to this problem, permitting government policies to treat citizens unequally if they are deemed reasonable by the Court. As Justice Brown argued in Plessy v. Ferguson (1896), the infamous case upholding de jure segregation, the Equal Protection question "reduces itself to the question of whether the statute… is a reasonable regulation. In determining the question of its reasonableness it is at liberty to act with reference to the established usages, customs and traditions of the people… and the preservation of the public peace and good order." In short, the Court created a very lenient standard when reviewing state legislation: If a statute promotes order or can be characterized as a tradition or custom — two very broad categories — the statute meets the requirements of the clause.

The reasonableness test remained dicta for over forty years until Justice Stone wrote what was to become the most influential footnote in the history of the Court in U.S. v. Carolene Products (1938). In Footnote 4 of the decision, Stone argues for a new approach to Equal Protection questions: When a state statute appears to discriminate against religious groups or other "discrete and insular minorities", the Court ought to approach the statute with a "more searching judicial inquiry." With this decision, Stone demanded a tougher standard for states to meet when faced with the question of Equal Protection for minority groups.

The Court was quick to adopt the footnote. In Skinner v. Oklahoma (1942), the Court invalidated on equal protection grounds an Oklahoma law mandating the sterilization of certain repeat offenders. Although the case did not directly address the question of race, Justice Douglas propagated the new standard the Court would use when laws appeared to offend the Equal Protection clause through race discrimination; he labeled the new doctrine "strict scrutiny." The approach was fully articulated nearly twenty years later in Shelton v. Tucker (1960). Dismissing the reasonableness test as inapplicable when the law appears to make racial classifications, the Court argued that race-based classifications require the strict scrutiny test. The Court went on to outline three conditions the law must meet before it can be considered constitutional: First, there must be a "compelling governmental interest" in enacting the law; second, the law must be "narrowly tailored" to achievement of the interest; third, there must exist no "less drastic means" for achieving the interest than by classifying based on race.

Several years after the Court had articulated two standards or "tiers" when faced with questions of equal protection, the Court created yet a third standard in Craig v. Boren (1976). Commonly called "intermediate scrutiny", the new tier was initially created to deal with gender-based classifications: "To withstand constitutional challenge, previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to those objectives." In the majority of subsequent cases, the dissenting opinion adopts some form of intermediate scrutiny when reviewing affirmative action policies, with the exception of Metro Broadcasting v. FCC (1990), in which the majority adopted the intermediate scrutiny test.

Thus, in 1978, when the Court faced its first challenge to an affirmative action policy based on equal protection grounds in Regents of the University of California at Davis v. Bakke, it had three doctrinal standards at its disposal: reasonableness (which had remained as the appropriate standard for economic and social legislation), intermediate scrutiny (for gender), and strict scrutiny (for race). The facts of the case are as follows: The medical school of U.C. Davis established an affirmative action program that reserved 16 of its 100 spaces for minority applicants. In 1973 and 1974, Allan Bakke was denied admission. Though meeting the standards of admission for minority applicants, the decision was based solely on the fact that Bakke was a white male. His Grade Point Average was nearly a point higher on a four-point scale than the average GPA of the minority applicants and his Medical College Admissions Test scores were well above the minority average. The Regents freely admitted that, had Allan Bakke been a minority, he most certainly would have gained admission to the Medical School. When Bakke filed suit, the state court held that program unconstitutional given its classification based on race.

The Regents appealed and the California Supreme Court held that the program offended the Equal Protection Clause of the Fourteenth Amendment and Title VI, Section 601 of the Civil Rights of Act of 1964. The section states that "no person in the United State shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." Given that U.C. Davis received Federal financial assistance, the California Supreme Court ordered that Bakke be admitted. The Regents appealed to the Supreme Court, arguing that its goal of a diverse student body met any standard of scrutiny the Court might apply.

Justice Powell announced the judgment of the Court, which split 5-4 in favor of Bakke. The decision had three parts: First, it ruled that Section 601 invalidates only those racial classifications used by State or Federal agencies. Further, any institution receiving Federal financial assistance may not classify individuals based on race. Second, racial classifications of any kind are inherently suspect. Thus, in order for the Court to be consistent with Carolene Products, these classifications call for the most exacting judicial scrutiny (strict scrutiny): "Racial and ethnic classifications, however, are subject to stringent examination without regard to additional characteristics." For U.C. Davis to meet the requirements of strict scrutiny, it had to prove that its program increased diversity and thus the level of education to such a degree, i.e. a compelling governmental interest, as to overwhelm Bakke’s claim.

U.C. Davis failed to meet this requirement. Its quota program focused solely on race and ethnicity as deciding factors, which in the end actually decrease diversity. By looking only at one characteristic, the Medical School failed to diversify its student body based on "exceptional personal talents, unique work experience, leadership potential, maturity... ability to communicate with the poor or other qualities deemed important." An institution simply cannot diversify to a great enough degree to overcome an equal protection claim, if its only method of diversification is race-based. Race can be used as one factor among others when considering admission but not as the primary factor. Therefore, the Court ruled, the U.C. Davis program violated the Equal Protection Clause and is invalid. Given that U.C. Davis failed to meet the compelling governmental interest test, the Court ordered Bakke admitted.

Bakke however, did not end the question of affirmative action policies and the Equal Protection Clause. Indeed, Bakke signaled the beginning of a flood of cases in which the Court was asked to evaluate the constitutionality of affirmative action in a number of areas, ranging from public schools to local construction contracts.

The next challenge came in 1980 in Fullilove v. Klutznick. In 1977, Congress passed the Public Works Employment Act, which mandated that, at a minimum, 10% of funds used for federal and local public works projects go toward the employment of minority business enterprises (MBEs) in completing the project. A minority business enterprise was defined as any business in which African Americans, Hispanics, Asians or American Indians held at least a 51% share of the business. Waivers for the requirement, based on a lack of availability or other factors, were to be handled on a case-by-case basis. The petitioners, contractors who worked largely on heating and ventilation, argued that the financial burden placed on them by the MBE provision violated the equal protection component of the Fifth Amendment.

Chief Justice Burger announced the judgment of the Court and found the MBE provision constitutional for a number of reasons. First, Congress is well within its legitimate powers to remedy past discrimination in public works contracts by placing restrictions on how federal money can be spent. It gains this power from Article 1, Section 8, Clause 1 of the Constitution, which grants that Congress can use federal funds to promote the "general welfare" of the nation. Additionally, the commerce power granted by Clause 3, and defined by subsequent cases, as well as the power to remedy equal protection violation granted by Katzenbach v. Morgan (1966) authorize Congress to make the MBE provision. Second, the Court found that the provision does not violate the equal protection component of the Due Process Clause of the Fifth Amendment.

An aside is necessary here. The text of the clause reads that the Federal government shall not deprive any citizen of his or her "life, liberty or property without due process of law." The amendment contains no clause that states that the Federal government shall not deprive any citizen "equal protection under the law." However, since Bowling v. Sharpe (1954), the Court has read at least some of the content of the Fourteenth Amendment’s Equal Protection Clause, that applies to state actions, into the Fifth Amendment, which applies to federal actions. The Court, in order to desegregate federally-run public schools in Washington, DC, at least partially incorporated the Equal Protection Clause, as it had previously been applied to the states in Brown v. Board of Education (1954), into the Fifth Amendment’s Due Process Clause. Therefore, the petitioners in Fullilove claimed a denial of equal protection as granted by the Fifth Amendment, because the program is federal in nature.

Therefore, as Justice Burger argued, the Federal government is bound by equal protection constraints. However, there exists no constitutional requirement that Congress’ policies be completely "color-blind". Additionally, in order to be consistent with Franks v. Bowman Transportation Co. (1976), Congress may inconvenience other non-minority businesses in the pursuit of remedial action for past discrimination, if the policy is properly tailored. Justice Burger finds that Congress’ MBE provision meets that requirement. Finally, Congress may embark on programs that have a remedial purpose if the programs are narrowly tailored and the courts are sufficiently assured that the remedial purpose will not have unconstitutional effects. It is important to recognize here that congressionally mandated race-based classifications do not necessarily come under strict scrutiny. For these reasons the Court found the MBE provision constitutional and upheld the Public Works Employment Act.

This issue arose again in 1986 with Wygant v. Jackson Board of Education. As part of a collective bargaining agreement with its personnel, the Board of Education for the Jackson School District enacted a policy that, should layoffs become a necessity, those teachers with the greatest seniority would remain. However, the policy stipulated that at no point could the percentage of minority personnel laid off exceed the percentage of minority personnel employed at the time of the layoff. The effect of the policy was that many non-minority teachers holding seniority lost their jobs during cutbacks. A group of these teachers brought suit, claiming the policy offended the Equal Protection Clause of the Fourteenth Amendment.

Justice Powell wrote the opinion of a deeply divided Court. Drawing upon his own decision in Bakke, he argues that the policy violates the Equal Protection Clause and thus, is invalid. First, affirmative action policies, whether applied to university admissions or public works contracts, classify individuals based on race, and as such, fall under strict scrutiny. Justice Powell reaffirms the state’s burden of proving a compelling interest and that the policy is narrowly tailored to that interest. In addition, to justify the policy on remedial grounds, the state must show specific and definite prior discrimination by the organ of government affected by the policy. A claim of general societal discrimination is too vague and broad to use as a motivation for such a policy. The Jackson Board of Education failed to show any such specific prior discrimination. Additionally, its claim that minority teachers are role models for minority students undercuts its assertion that its purposes are remedial. Finally, given that the Board can produce no evidence of prior discrimination, there exists no compelling interest to overcome the equal protection claim of the petitioner.

Three years later, the Court faced yet another challenge to an affirmative action program in City of Richmond v. J.A. Croson Co. (1989). The background is as follows: In 1983, the City Council of Richmond, Virginia discovered that less than one percent of the construction contracts awarded by the city went to companies owned by racial minorities, even though the city’s population was half African-American. In response, the council enacted the Minority Business Utilization Plan (MBUP), which ordered city contractors to subcontract at least 30 percent of the total dollar amount to at least one minority-owned business (MBE). Near the end of 1983, the J.A. Croson Company, a white-owned firm, won a contract for construction from the city. After several attempts to subcontract MBEs, the only MBE to meet requirements was 30 days late on its bid and sold its supplies at a price far higher than the market price. Croson, upset with the MBE, asked the city to grant an exemption under the MBUP. The city refused and ended its contract with Croson. Croson took the case all the way up to the Court of Appeals, which applied the strict scrutiny test and invalidated the MBUP. The city of Richmond appealed to the Supreme Court.

Justice O’Connor announced the judgment of the Court, which again was highly divided, with the majority asserting that the policy is unconstitutional. The decision was based on several factors. Given that the city’s policy made a racial classification, Justice O’Connor argues that the policy falls under strict scrutiny. The city, the Justice asserts, did not demonstrate a compelling governmental interest since the evidence it used to establish past discrimination in the construction industry contains many flaws and therefore cannot be used to justify a race-based remedial program. The flaws are as follows: First, the city used a generalized assertion that discrimination has existed in the city as a whole and not the construction industry in particular. Additionally, low numbers of minorities within the construction industry does not necessarily mean that discrimination pervades the industry. Without evidence that the low numbers are a result of discrimination, the city cannot adopt the remedial policy. Furthermore, since the policy contains preferences for Hispanics, Asians and other minorities, the city undermines its own claim that the intent of the plan is to remedy past discrimination against African Americans. Second, as the policy includes other minority groups and maintains a rigid 30% quota, it fails to meet the "narrowly tailored" component of strict scrutiny. Third, unlike the city council, only Congress has a wide power to enforce infractions of the Equal Protection Clause as granted by Section 5 of the Fourteenth Amendment and affirmed by Katzenbach v. Morgan (1966): "What appellant ignores is that Congress, unlike any State or political subdivision, has a specific constitutional mandate to enforce the dictates of the Fourteenth Amendment. The power to ‘enforce’ may at times also include the power to define situations which Congress determines threaten principles of equality and to adopt prophylactic rules to deal with those situations." Fourth, to be consistent with the type of strict scrutiny set out in Wygant, the city must show exceedingly compelling evidence of past discrimination, in order to justify race-based exclusion of white-owned business from 30% of the subcontract market. Since the city produces no such evidence, the Court must fear the worst: That the policy, as enacted by a city council with a majority of African American members, does not serve a compelling governmental interest, nor is it completely benign. Fifth, the variety of race-neutral options open to the city to increase minority participation in the construction industry is great enough to strike down the policy for failing to meet the "less drastic means" test. For all these reasons, the Court found Richmond’s policy unconstitutional.

In 1990, the battlefield shifted from contracting to broadcasting in the case of Metro Broadcasting v. FCC. In an attempt to increase the diversity of broadcast radio and television, a goal deemed it beneficial to the public, as well as in order to meet the failures of past attempts to diversify, the Federal Communications Commission enacted two policies. First, when considering applications for a license to operate a radio or television station, the FCC made it policy to use minority status as a plus-factor in its decision. Second, in the event that a current license of a broadcaster comes into question, the broadcaster may sell the station and preclude an FCC query into alleged improprieties, but only if the sale is made to a minority-owned enterprise. Metro Broadcasting, Inc. brought suit claiming the policy violated the equal protection component of the Fifth Amendment.

Justice Brennan wrote for the 5-4 majority, arguing that the policy did not violate the Fifth Amendment. Using the intermediate scrutiny test he coined in Craig, he argues that broadcast diversity is an important governmental objective and the policy in question is substantially related to the achievement of that objective. In order to be consistent with Fullilove’s deference to Congress, it is not always necessary to apply strict scrutiny to congressionally enacted race-based classifications. Additionally, given the deeply divided Court in Croson, in which some justices favored intermediate scrutiny, it is not illegitimate to use Fullilove’s invitation to use a lesser form of scrutiny when reviewing benign racial classifications. Further, the FCC policies meet the requirements of intermediate scrutiny: It serves the important governmental objective of increasing broadcast diversity, an objective that the Court has long recognized as important to public welfare as well as to protecting First Amendment values. The policy of increasing minority ownership is substantially related to that objective. The FCC and Congress produced evidence showing that station ownership is a controlling factor in the content of the broadcast programming. Furthermore, the Court must show deference to informed experts in areas outside of its normal functions. Finally, the policy does not excessively burden non-minorities. The quick-sell policy provides for no quota or set-aside that precludes non-minority ownership, nor does the minority plus-factor policy contravene any rights of non-minorities, because there exists no absolute right to a broadcast license.

Justice O’Connor, having had her application of strict scrutiny in Croson dismissed by Justice Brennan in Metro Broadcasting, was faced with writing the decision for the Court in Adarand Constructors v. Peña (1995). The facts are as follows: Most federal agencies contain a provision giving financial incentives to private contractors who work for the agency to hire minority subcontractors, as defined by the Small Business Association (SBA). In a federally funded highway repair project, Adarand Constructors, a non-minority owned business, submitted the low bid on a subcontract for the project but was denied due to the federal provision. Adarand Constructors filed suit, claiming a violation of the equal protection component of the Fifth Amendment.

Justice O’Connor announced the judgment of the Court, which split 5-4 and made a frontal assault on any test other than strict scrutiny in race-based classifications. The Court had established three propositions in regard to racial classifications. First, "any preference based on racial or ethnic criteria must necessarily receive a most searching examination." Second, "the standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefited by a particular classification." The level of scrutiny does not differ if the discrimination is "benign" or "invidious". Third, "equal protection analysis in the Fifth Amendment area is the same as under the Fourteenth Amendment." Justice O’Connor argues that these three propositions necessitate that all governmental race-based classifications must fall under strict scrutiny review, whether made by state or federal agencies. Any attempt to deviate from these propositions may lead the Court to apply a less demanding standard of review for all racial classifications, regardless of intent.

The Court ruled that the respondent did meet the strict scrutiny requirements. No evidence provided by the respondent or the Court of Appeals indicated a compelling governmental interest or demonstrated that the federal policy is narrowly tailored to any end.

To conclude, what we have seen is a deeply divided Court that has failed to adhere to any standard for affirmative action policies for anything more than a couple of years. Although Adarand did produce a majority that claimed strict scrutiny to be the proper standard of review, it is possible that future Courts will approach cases with less scrutiny. Particularly vulnerable are claims for equal protection for federally mandated policies. There exists no Equal Protection Clause that applies to the federal government; its incorporation into the Due Process Clause of the Fifth Amendment is somewhat suspect. The government might argue in the future that a strict reading of the Constitution grants Congress a greater degree of freedom than the states when issues of equal protection arise. Additionally, if discrimination continues to persist in our country, the Court might find the strict scrutiny standard to be too tough a standard for clearly beneficial governmental initiatives to meet and may discard it for some lesser form of scrutiny. In the end, all one can really predict, given the conflicting and varied case history, is that precedent is bound to change, and the Court is unlikely to succeed in permanently resolving this issue.