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.
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
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
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
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
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
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 firstname.lastname@example.org.