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Supreme Court Redefines Affirmative Action

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 Wyant v. Jackson Board of Education, 476 U.S. 267 (1985), and City of Richmond v. Croson, 488 U.S. 469 (1989), where the high court established very clear tests as to when a racially based affirmative action plan would be considered as legitimate under federal law.

This trend of very strict scrutiny and review of affirmative action plans dealing with a variety of public and private sector issues was reconfirmed in Adarand Constructors v. Pena, 115 S. Ct. 2097 (1995), and Shaw v. Reno, 113 S. Ct. 2816 (1993) among other cases that critically reviewed for rational basis and legitimate purposes instances related to public contracts and the allocation of public funding for various projects.

These latter cases received much support from the enactment of the broadly sweeping Civil Rights Act of 1991 which, among other things, made illegal “race norming” and similar preferences and provided for jury trials in Title VII cases among other legal amendments deemed constrained to affirmative action programs.

Most notably of later federal court decisions were Hopwood v. Texas, 78 F.3d 392 (CA5: 1996), a Fifth Circuit case that the United States Supreme Court declined to review, which held that racial diversity was not a compelling state interest to use as an admissions criteria, and the 2000 decision by the Supreme Court in Rice v. Cayetano in which it was held that race was not a legal factor or consideration in the exclusion of voters in statewide elections.

In the Rice v. Cayetano, supra, case race was used as a criteria and qualification to exclude non-Hawaiians from voting in the statewide election for Office of Hawaiian Affairs. The 7-2 decision of the Supreme Court appeared to send a clear message as to its position on racially based preferences until its decisions during the 2002-2003 term.

In the two University of Michigan cases, the Supreme Court gave its rationale for upholding one clearly intended racially based affirmative action plan for admissions while providing its guidelines for future equally clear racially based affirmative action plans that would in all probability fall to conform with constitutionally acceptable criteria.

In Grutter v. Bollinger, supra, by a narrow five-four decision, the Supreme Court upheld the University of Michigan’s law school admissions racially based affirmative action plan in which race was permitted to be one of the factors used in the admissions selection process.

In the other case, Gratz v. Bollinger, supra, the Supreme Court by a six-three margin declared impermissible that university’s undergraduate admissions program which made race a final and critically decisive factor and used a point system in which the race of an undergraduate applicant was factored into the final score upon which final admission was predicated.

Although sensitive to the legitimacy of an affirmative action plan that promoted and encouraged student body diversity, the majority of the Court in Gratz v. Bollinger, supra, made it clear in voiding the undergraduate admissions policy that a showing of a legitimate rational basis for using race as some criteria is critical, and that race as an exclusive basis for any preference was still in violation of federal law.

A demonstration of any of these factors with a significant measure of supportive evidence may well have resulted in the undergraduate admissions policy meeting the same, successful result as that of the one achieved by the University of Michigan’s Law School program. Both cases require further discussion to assist law enforcement executives in reviewing their policies for entry level admission standards and criteria, promotions and other human resource issues.

Stated very briefly, the Supreme Court’s two decisions in upholding the University of Michigan’s Law School admissions program and overturning the University of Michigan’s undergraduate affirmative action plan for admissions seem to both indicate that race can still be a permissible factor in any selection process.

Quotas are still to be viewed as legally improper, but race, especially at upper level career programs and positions can be viewed as a legitimate factor for the promotion and furtherance of racial diversity.

In plain, less legalistic language, race can still be a factor in the adoption and the implementation of affirmative action plans in the workplace and other areas of public life, but it (race) cannot be the exclusive and overriding factor upon which final decisions are made in these areas.

The primary legal distinction between the upholding of the law school’s admission program and the overturning of the state university’s undergraduate affirmative action plan appears to be the weighted emphasis on race as an admissions standard. The law school affirmative action plan was upheld it appears because the issue of the race of an applicant was not given any assigned weight or value toward final acceptance into law school.

The undergraduate affirmative action plan was declared unlawful because race was given a clearly definable weight and was of a great deal of significance in the admissions selection process.

As the significance of race in these selections-admissions processes grew less in importance, the review and reading of these most recent Supreme Court decisions indicates that the more likelihood of surviving any future legal and constitutional challenges exists.

If there is something to be learned from the success of the law school affirmative action plan, it is that after all other admissions criteria was considered and reviewed, such as class ranking, LSAT scores, etc., race was not assigned a specific weight that would provide any advantage on that basis alone.

Accordingly, it did not violate any constitutional provisions related to due process and equal protection requirements. Narrowly tailored as it was drafted and implemented, the law school affirmative action plan passed constitutional safeguards and requirements while the more broadly drafted and applied undergraduate affirmative action admissions plan failed to meet those tests.

In deciding these cases and the often complicated issues that were related by them, the Supreme Court has in some instances clarified earlier decisions, reversed long-standing legal precedent, and raised questions as to how future cases related to these Constitutional questions are likely to be resolved by this panel of High Court jurists.

This past Supreme Court term has answered some questions, clarified certain legal issues, and while raising other questions, has given an indication as to its apparent change in judicial philosophy and direction. What appears, beyond any perceived confusion or uncertainty, is that future decisions will have a profound impact on the manner in which law enforcement executives will manage the internal, human resources and public safety aspects of their agencies, as well as how line personnel will implement training, policies and procedures for their respective law enforcement agencies.


Joseph E. Scuro, Jr., Attorney at Law, Dallas, TX, has represented public entities, law enforcement agencies, police officer associations, and individual law enforcement officers nationally almost exclusively since 1975. He may be reached at


Published in Law and Order, Feb 2004

Rating : Not Yet Rated

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