* Legal Counsel, Office of the Illinois Senate Minority Leader, Chicago, Illinois; B.A. Howard University, J.D. University of Oregon.
1. The Civil Rights Cases, 109 U.S. 3, 26 (1883) (Harlan, J., dissenting).
2. Adarand Constr. v. Pena, 115 S. Ct. 2097 (1995).
3. Id. at 2114. In explaining the newfound principle of consistency, Justice O'Connor explained that, "whenever the government treats any person unequally because of his or her race, that person suffers an injury that falls squarely within the language and spirit of the Constitution's guarantee of equal protection." Id.
4. 42 U.S.C. §2000d (1994) and 42 U.S.C. §2000e (1994) respectively.
5. See Miller v. Johnson, 115 S. Ct. 2475, 2497 (1995) (O'Connor, J., concurring) ("[T]he driving force behind the adoption of the Fourteenth Amendment was the desire to end legal discrimination against blacks."); Ex parte Virginia, 100 U.S. 339 (1879); Strauder v. West Virginia, 100 U.S. 303, 310 (1879) ("Its [the Fourteenth Amendment's] aim was against discrimination because of race or color."); Slaughter-House Cases, 83 U.S. (16 Wall) (1873) (while not involving civil right issues, the Court expressly acknowledged the Fourteenth Amendment's intention to end discrimination against African-Americans). See also C. MILLER, THE SUPREME COURT AND THE USES OF HISTORY 135-38 (1969); Robert M. Cover, The Origins of Judicial Activism in the Protection of Minorities, 91 YALE L.J. 1287, 1295 (1982); Michael J. Gerhardt, The Ripple Effects of Slaughter-House: A Critique of a Negative Rights View of the Constitution, 43 VAND. L. REV. 409, 416-420 (1990).
6. See, e.g., Equal Employment Opportunity Commission, BRIEFING BOOK ON THE STATUS OF EQUAL EMPLOYMENT OPPORTUNITY IN THE AMERICAN WORKFORCE (March 24, 1995) (providing the differing statistical balance as between minorities, women, and white males). "Affirmative action is lawful only when it is designed to respond to a demonstrated and serious imbalance in the work force, is flexible, time-limited, applies only to qualified workers, and respects the rights of non-minorities and men." Id. [emphasis added].
7. Eric Schnapper, Affirmative Action and the Legislative History of the Fourteenth Amendment, 71 VA. L. REV. 753 (1985). This argument was advanced in the Amicus Curiae Brief for the NAACP Legal Defense Fund in Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978), as it pertains to the Fourteenth Amendment. Schnapper meticulously reviews the arguments advanced for and against the earliest forms of reparations for African-Americans during the Reconstruction Era. See also, John P. Frank & Robert F. Munro, The Original Understanding of "Equal Protection of the Law," WASH. U. L.Q. 421 (1972) (discussing the political realities of the time and explaining how the Fourteenth Amendment was intended to satisfy the abolitionist faction of the Republican party); James E. Jones, Jr., The Origins of Affirmative Action, 21 U.C. DAVIS L. REV. 383 (1988) (discussing the history of affirmative action and examining the expansion of these remedial programs). Therefore, the most accurate reflection of the intent of the Fourteenth Amendment must be analyzed in relation to the era of Reconstruction. See also Alexander M. Bickel, The Original Understanding and the Segregation Decision, 69 HARV. L. REV. 1 (1955) (providing a point by point discussion by the legislators enacting the Fourteenth Amendment and their intention to end discrimination against the freedmen); U.S. COMMISSION ON CIVIL RIGHTS, FEDERAL CIVIL RIGHTS ENFORCEMENT EFFORT; A REPORT (1970). The report by the Commission explains that the meaning behind the Equal Protection Clause of the Fourteenth Amendment, the Executive Orders of the previous Presidents, the Civil Rights Act of 1964, and the many other civil rights laws, were intended to combat the denial of the right to full equality in the nation. The general tenor of the Commission also shows an understanding of the real discrimination visited against minorities.
8. Michael Klarman, An Interpretive History of Modern Equal Protection, 90 MICH. L. REV. 213, 309-316 (1991) (explaining the inconsistency in the arguments made by those members of the Supreme Court who are opposed to the constitutionality of affirmative action programs because these are also the same Justices who claim to demand conformity with the original intent of the Framers). Also, as will be discussed later, the Court previously applied an intermediate level of scrutiny when analyzing cases involving affirmative action programs.
9. The Civil Rights Acts of 1866, 1875, 1964, 1965, 1991, and The Freedmen's Bureau Acts of 1864 and 1866.
10. Adarand Constr. v. Pena, 115 S. Ct. 2097 (1995).
11. U.S. CONST. amend. XIII, § 1, provides: "[n]either slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." Section 2 granted Congress the power to enforce Section 1. See G. Sidney Buchanan, The Quest For Freedom: A Legal History of the Thirteenth Amendment, 12 HOUS. L. REV. 1, 7-8 (1974) (providing an excellent background understanding of the implementation of the Thirteenth Amendment and its purpose).
12. See Irving Dillard, The Emancipation Proclamation in the Perspective of Time, 23 LAW IN TRANSITION 95, 95-100 (1963) (examining the pre-emancipation proclamation mind set of President Lincoln, as well as his many attempts and strategies to bring the nation together without actually freeing the slaves). Dillard provides that the Emancipation Proclamation liberated slaves only in Confederacy controlled areas. Id. See also Jones, supra note 7, at 388.
13. The Freedmen's Bureau Bill of 1864 was introduced by Representative Eliot on January 19, 1863. It did not become law until March 3, 1865. Act of March 3, 1865, ch. 90, 13 Stat. 507, 508. See PAUL PIERCE, THE FREEDMEN'S BUREAU: A CHAPTER IN THE HISTORY OF RECONSTRUCTION (1904). See also W.E. BURGHARDT DU BOIS, BLACK RECONSTRUCTION (1935) (providing the most extensive review of the Reconstruction Era); KENNETH M. STAMPP, THE ERA OF RECONSTRUCTION 1865-1877 122-128 (1966).
14. IRA BERLIN ET AL., FREEDOM, A DOCUMENTARY HISTORY OF EMANCIPATION 1861-1867 (1985).
15. CONG. GLOBE, 38th Cong., 1st Sess. 2800 (1864). See also LOUIS HENRY BRONSON, FREEDMEN'S BUREAU A PUBLIC POLICY ANALYSIS (1971) (providing an excellent review of the Freedmen's Bureau debates with a disclosure of the underlying rationales of the proponents and opponents). For the contemporary argument, see Herbert O. Reid, Sr., Assault on Affirmative Action: The Delusion of a Color-Blind America, 23 HOW. L.J. 381, 427 (explaining that race conscious programs are necessary in order to eliminate discrimination and its effects).
16. H.R. REP. NO. 2, 38th Cong., 1st Sess. 572-573 (1864). Rep. Eliot stated "[This bill] will enable the Government to help into active, educated, and useful life a nation of freedmen who otherwise would grope their way to usefulness through neglect and suffering to themselves, and with heavy and needless loss to us." Id. See also VICTORIA MARCUS OLDS, THE FREEDMEN'S BUREAU AS A SOCIAL AGENCY (1967); BRONSON, supra note 15, at 87.
17. H.R. REP. NO. 2, 38th Cong., 1st Sess. 2-4 (1864) ("Why the freedmen of African descent should become these marked objects of special legislation, to the detriment of the unfortunate whites, your committee fails to comprehend."). See BRONSON, supra note 15 (expounding on the deep-seated racial animus imbued in such rationales). See also Morris B. Abram, Affirmative Action: Fair Shakers and Social Engineers, 99 HARV. L. REV. 1312, 1320 (1986) (making the contemporary argument that race conscious programs are tantamount to a racial spoils system).
18. H.R. REP. NO. 2, 38th Cong., 1st Sess. 566 (1864) (Rep. Schenck argued that indigent whites should be included because they shared many of the problems confronting freedmen.). See also William B. Reynolds, Individualism vs. Group Rights: The Legacy of Brown, 93 YALE L.J. 995, 1000 (1984) (making the contemporary argument that any type of racial classification is improper).
19. John E. Morrison, Colorblindness, Individuality, and Merit: An Analysis of the Rhetoric Against Affirmative Action, 79 IOWA L. REV. 313 (1994) (addressing the use of the primary terms employed in the debate over affirmative action). Morrison states that the term "colorblindness" is used as a red herring to impede efforts to deal with race inequity. It is also deemed a symptom of white guilt.
20. Freedmen's Bureau Act of March 3rd, 1865, 38th Cong., 2d Sess., Ch. 90, 13 Stat. 507 (1865).
21. Robert Benham, Affirmative Action from a State Perspective: Old Myths and New Realities, 21 GA. L. REV. 1095, 1100 (1987) (explaining that the Freedmen's Bureau extended benefits to non African-Americans only to provide "essential human needs," (food and clothing), for destitute citizens).
22. Civil Rights Act of 1866 § 1 (current version at 42 U.S.C. § 1981 and §1982 (1994)). See BERNARD SCHWARTZ, STATUTORY HISTORY OF THE UNITED STATES, CIVIL RIGHTS PART 1 99-101 (1970). The Civil Rights Act of 1866 was intended to prohibit discrimination, by having jurisdiction over both federal and state law. More importantly though, the Act did not attempt to supersede or abolish any of the race conscious programs present in the Freedmen's Bureau. See also Schnapper, supra note 7, at 788.
23. Eugene Gressman, The Unhappy History of Civil Rights Legislation, 50 MICH. L. REV. 1323, 1329-30 (discussing how the hearings by the Joint Committee on Reconstruction displayed the many abuses which African-Americans suffered from because of their race. The hearings provided support for those Congressmen wishing to provide strong reform through legislation).
24. 39th Cong., 1st Sess., ch. 200, 14 stat. 173 (1866).
25. HARRY J. CARMEN ET AL., A HISTORY OF THE AMERICAN PEOPLE, SINCE 1865 29-31 (1961). The Amendment and bill were being debated simultaneously in different chambers while the Fourteenth Amendment was being debated in the House, the Freedmen's Bureau Act was being debated in the Senate; every single senator that voted for the Amendment also voted for the Freedmen's Bureau Act.
26. J. G. RANDALL & DAVID DONAL, THE CIVIL WAR AND RECONSTRUCTION (1961). See also Benham, supra note 21.
27. Joel William Friedman, The Burger Court and the Prima Facie Case in Employment Discrimination Litigation: A Critique, 65 CORNELL L. REV. 1, 34 (1979).
28. K.G. Jan Pillai, Affirmative Action: In Search of a National Policy, 2 TEMP. POL. & CIV. REG. L. REV. 1, 27-28 (1992); Douglas D. Sherer, Affirmative Action Doctrine and the Conflicting Messages of Croson, 38 KAN. L. REV. 281, 285-88 (1990); Schwartz, supra note 20, at 219-21 (explaining that for the majority in Congress, section 1 of the Fourteenth Amendment was intended to elevate the provisions of the 1866 civil rights statute to constitutional standing, thereby maintaining the capacity of the Freedmen's Bureau to execute its mandate). Lori Jayne Hoffman, Note, Fatal in Fact: An Analysis of the Application of the Compelling Governmental Interest Legislation of Strict Scrutiny in City of Richmond v. J.A. Croson Co., 70 B. U. L. R EV. 889, 893-94 (1990).
29. See Schnapper, supra note 7, at 769 (citing President Johnson's veto speech).
30. Aviam Soifer, Status, Contract, and Promises Unkept, 96 YALE L.J. 1916, 1945 (1987) ("President Andrew Johnson's Controversial February 1866 veto message concerning the Freedmen's Burreau Bill illustrated a new emphasis on avoiding paternalism at almost all costs, and certainly at the cost of protecting the freedmen." Johnson claimed that the bill would discriminate against millions of the white race, who are honestly toiling from day to day for their subsistence.).
31. Terry Eastland, The Case Against Affirmative Action, 34 WM. & MARY L. REV. 33, 35 (1992) (arguing that whites should not be required to atone for their descendants by being disadvantaged by affirmative action).
32. See Christopher Mellevoid, Patterson v. McLean Credit Union: Denying the Equality of Effect in the Right to Contract, 11 PACE L. REV. 411, 420-21 (1991).
33. Schnapper, supra note 7, at 772-774 (discussing four new race-conscious measures included in the second version of the bill).
34. The Senate voted 33 to 12 and the House voted 104 to 33 to override Johnson's veto. CONG. GLOBE, 39th Cong., 1st Sess. 3842, 3850 (1866). See also Donald H. Zeigler, A Reassessment of the Younger Doctrine in Light of the Legislative History of Reconstruction, 1983 DUKE L.J. 987, 998 (1983).
35. Schnapper, supra note 7, at 785 (explaining that the Fourteenth Amendment was introduced into the House in an attempt to improve the situation of African-Americans); Robert C. Power, Affirmative Action and Judicial Incoherence, 55 OHIO ST. L.J. 79, 159 (1994); Scherer, supra note 28, at 288.
36. Ch. 114, 18 stat. 335 (1875) (codified as amended at 18 U.S.C. § 243 (1994)).
37. Civil Rights Act of 1875 § 1.
38. Civil Rights Act of 1875 § 2.
40. The Civil Rights Cases, 109 U.S. 3 (1883).
41. One Civil Rights Case was Robinson and Wife v. Memphis & Charleston R. Co., 109 U.S. 3 (1883), where a train conductor refused to allow plaintiff's wife to sit in the ladies car because she was of African descent. Id. at 5.
42. 109 U.S. at 18-19. Section 5 provides that: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."
43. Id. at 12 (citing Virginia v. Rives, 100 U.S. 313 (1880), Ex parte Virginia, 100 U.S. 339 (1880) and United States v. Cruikshank, 92 U.S. 542 (1876), all limiting the reach of the Fourteenth Amendment).
44. U.S. CONST. amend. XIII, § 2 ("Congress shall have the power to enforce this article by appropriate legislation.").
45. The Civil Rights Cases, 109 U.S. at 25.
48. Id. at 24-25. ("It would be running the slavery argument into the ground to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theater, or deal with in other matters of intercourse or business.").
50. The Civil Rights Cases, 109 U.S. 3, 35. (1883) (Harlan, J., dissenting).
55. Jones, supra note 7, at 392 (citing the Unemployment Relief Act of 1933, Ch. 17, § 1, 48 Stat. 22,23 (1933)); Civilian Conservation Corps Act, ch. 383, § 8, 50 Stat. 319, 320 (1937); Civilian Pilot Training Act, ch. 244, § 2, 53 Stat. 855, 856 (1939); National Youth Administration Appropriation Act, ch. 428, § 20, 54 Stat. 580, 583 (1940); Nurses Training Act, ch. 126, § 1, 57 Stat. 153 (1943)). See id. at 393 (citing regulations issued by the Roosevelt Administration pursuant to the National Industrial Recovery Act of 1933, ch. 90, 48 Stat. 195 (1933)).
56. See William E. Fosbath, Why is this Rights Talk Different From All Other Rights Talk? Demoting the Court and Reimagining the Constitution, 46 STAN. L. REV. 1771, 1803 (1994). Separate but equal laws were officially deemed constitutional pursuant to the Supreme Court decision in Plessy v. Ferguson, 163 U.S. 537 (1896), overruled by Brown v. Board of Educ., 347 U.S. 483 (1954), in which the Court determined that there was no violation of the Constitution when the use of facilities was separated by race, so long as the segregated facilities were "equal;" of course the determination of whether they were equal became very suspect.
57. National Industrial Recovery Act, of June 16, 1933, ch. 90, 48 stat. 195 (1933), repealed by Act of Sept. 6, 1966, Pub. L. 89-554, § 8(a), 80 stat. 648.
58. James E. Jones, Jr., The Genesis and Present Status of Affirmative Action in Employment: Economic, Legal, and Political Realities, 70 IOWA L. REV. 901, 905 (1985).
59. Executive Order No. 8,802, 3 C.F.R. 957 (1938-43 comp.); Robert A. Margo, Explaining Black-White Wage Convergence, 1940-1950, 48 INDUST. & LAB. REL. REV. 470, 473 (1995); Ronald Turner, Thirty Years of Title VII's Regulatory Regime: Rights, Theories, and Realities, 46 ALA. L. REV. 375, 379-380 (1995). See Michael K. Braswell et al., Affirmative Action: An Assessment of its Continuing Role in Employment Discrimination Policy, 57 ALB. L. REV. 365, 367 (1993) (The concept of a federal mandate of equal opportunity in the workplace can be "traced to . . . . an executive order issued by President Roosevelt in 1941 that prohibited defense contractors from discriminating on the basis of race, and that charged both employers and unions with a duty 'to provide for the full and equitable participation of all workers in defense industries without [racial] discrimination.'").
60. See, e.g., PUAL BURNSTEIN, DISCRIMINATION, JOBS AND POLITICS: THE STRUGGLE FOR EQUAL EMPLOYMENT OPPORTUNITY IN THE U.S. SINCE THE NEW DEAL 125-155 (1985); Braswell, supra note 59, at 367.
62. Jones, supra note 7, at 395 (citing PRESIDENT'S COMMITTEE ON GOVERNMENT CONTRACTS, PATTERNS FOR PROGRESS: FINAL REPORT TO PRESIDENT EISENHOWER (1960)).
64. Charles R. Lawrence III, The Id, The Ego, and Equal Protection: Reckoning With Unconscious Racism, 39 STAN. L. REV. 317 (1987) (discussing the effect of unconscious racism). My analysis assumes this reality in its more benign manifestation.
65. Exec. Order No. 10,925, 3 C.F.R. 339 (1964-65 comp.).
66. Eastland, supra note 28, at 33 (acknowledging that the intent of Exec. Order No. 10,925 was to benefit African-Americans).
67. Jones, supra note 7, at 397.
68. Id. (citing MICHAEL SOVERN, LEGAL RESTRAINTS ON RACIAL DISCRIMINATION 109-110 (1966) (quoting 110 Cong. Rec. 2574-75 (1964)). The sections in the Civil Rights Act relating to affirmative action are found at 42 U.S.C. §§ 2000d (Title VI) and 2000e (Title VII). These crucial statutes will be discussed later in order to fully understand their relation to contemporary affirmative action programs.
69. See Title VI of the Civil Rights Act of 1964, Pub. L. No. 88-352. 78 Stat. 241 (codified at 42 U.S.C. §§ 2000d et seq. (1994)).
70. Id. ("No person in the United States shall, on the ground 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."). Unlike Title VII of the Civil Rights Act of 1964, Title VI does not protect against gender discrimination.
71. 42 U.S.C. § 2000d-1 (1994) (Title VI of the Civil Rights Act of 1964, § 602).
72. Id. ("Compliance with any requirement adopted pursuant to this section may be effected (1) by the termination of or refusal to grant or to continue assistance under such program or activity to any recipient as to whom there has been an express finding on the record. . . .").
73. Id. (providing an "opportunity for a hearing"). Procedural due process analysis seeks to determine whether the government has provided sufficient procedural protections against erroneously or arbitrarily depriving a person of their life, liberty, or property. Thibodeaux v. Bordelon, 740 F.2d 329, 336 (5th Cir. 1984). In order to sustain a procedural due process attack, it must be shown that a deprivation of a liberty interest existed, within the meaning of the Fifth or Fourteenth Amendment, and that the procedures utilized in that deprivation were not adequate. See Mathews v. Eldridge, 424 U.S. 319, 332 (1975). In Mathews, the Court held that the specific requirements of the Due Process Clause depend on three factors:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Id. at 335. Based on a balancing of these three factors, a determination can be made regarding the procedural sufficiency of a particular practice. See id. at 347.
74. 42 U.S.C. § 2000d-1 (1994) ("[T]ermination . . . shall be limited in its effect to the particular program, or part thereof, in which such noncompliance has been so found. . . .").
75. Id. ("[T]he head of the Federal department or agency shall file with the committees of the House and Senate having legislative jurisdiction over the program or activity involved a full written report of the circumstances and the grounds for such action." (referring to a termination or refusal to grant funds to a prior beneficiary found in noncompliance)).
76. Title VII of the Civil Rights Act of 1964, Pub. L. No. 88-352, 78 stat. 241, 253 (codified at 42 U.S.C. §2000e (1994)).
77. 42 U.S.C. § 2000e(a) (1994). The statute provides:
The term "person" includes one or more individuals, governments, governmental agencies, political subdivisions, labor unions, partnerships, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in cases under Title 11, or receivers.
Id.
78. 42 U.S.C. § 2000e(b) (1994).
79. 42 U.S.C. § 2000e(k) (1994). Section 2000e(k) states, in relevant part:
The terms "because of sex" or "on the basis of sex" include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work . . . .
Id.
80. Civil Rights Act of 1991, Pub. L. No. 102-166, § 202, 105 Stat. 1081 (codified at 42 U.S.C. § 2000e (1994)).
81. 42 U.S.C. § 2000e-2 (1994) (Civil Rights Act of 1964 § 703).
82. § 2000e-2(a). Subsection (a)(1) provides:
It shall be an unlawful employment practice for an employer (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.
83. § 2000e-2(a)(2). Subsection (a)(2) states:
It shall be an unlawful employment practice for an employer to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.
84. § 2000e-2(j). Subsection (j) admonishes:
Nothing contained in this subchapter [42 U.S.C. §§ 2000e et seq.] shall be interpreted to require any employer . . . to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race . . . employed by any employer . . . in comparison with the total number or percentage of persons of such race . . . in any community, State, section or other area.
85. The Supreme Court has held that quotas are illegal under both Title VII and the Fourteenth Amendment.
86. 42 U.S.C. § 2000e-4 (1994) (Civil Rights Act of 1964 § 705).
87. 42 U.S.C. § 2000e-5 (1994) (Civil Rights Act of 1964 § 706).
88. § 2000e-5(b). Subsection (b) provides:
If the Commission determines after such investigation that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation and persuasion.
89. § 2000e-5(f).
90. § 2000e-5(c).
In the case of an alleged unlawful employment practice occurring in a State ... which has a State or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, no charge may be filed under subsection (a)[(b)] by the person aggrieved before the expiration of sixty days after proceedings have been commenced under State or local law. . . .
Id. This provision must be read in conjunction with § 2000e-5(d), which requires the Commission to inform the State in which the alleged violation occurred and allow the State to act before commencing its own enforcement proceedings.
91. The constitutionality of injunctions issued by federal courts will be addressed infra notes 136-73.
92. 42 U.S.C. § 2000e-16 (1994) (Civil Rights Act of 1964 § 717).
93. The EEOC can issue only procedural regulations. 42 U.S.C. § 2000e-12. It cannot issue substantive "rules." Dobbins v. Local 212, 292 F. Supp. 413 (D.C. Ohio 1968). While the EEOC's interpretation of title VII is entitled to "great deference," Griggs v. Duke Power Co., 91 S. Ct. 849, its interpretation is not binding on the court. General Electric Co. v. Gilbert, 97 S. Ct. 401, 410 (1976). However, an employer who in good faith relies on EEOC guidance may claim immunity from liability. 42 U.S.C. 2000e-12(b).
94. The procedural regulations are set forth in 29 C.F.R. § 1607 et. seq. (1995).
95. 42 U.S.C. § 2000e-17 (1994) (Civil Rights Act of 1964 § 718).
96. See, e.g., Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (1991).
97. 490 U.S. 642 (1989). See generally Charles J. Cooper, Wards Cove Packing Co. v. Antonio: A Step Toward Eliminating Quotas in the American Workplace, 14 HARV. J.L. & PUB. POL'Y 84 (1991) (discussing Wards Cove and its intended effect).
98. Wards Cove, 490 U.S. at 656-57. The court demanded that employment discrimination plaintiffs show a disparity between the racial composition of those employed in a particular position and that of the qualified members of the relevant labor pool. Further, the Court held that the plaintiff must also demonstrate causation between the employment policy and the disparity.
101. Civil Rights Act of 1991, Pub. L. 102-166, §§ 105(a), 106, 107, 105 Stat. 1074 (codified at 42 U.S.C. § 2000e-2 (1994)).
102. 42 U.S.C. § 2000e-2(k)(1)(C) (1994). ("The demonstration referred to by subparagraph (A)(ii) shall be in accordance with the law as it existed on June 4, 1989, with respect to the concept of 'alternative employment practice.'"). Wards Cove, 490 U.S. 642, was decided June 5, 1989.
103. 42 U.S.C. § 2000e-2(k)(2) (1994).
104. 42 U.S.C. § 2000e-5(g)(1) (1994).
105. Id. ("If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice and order such affirmative action as may be appropriate. . . .").
106. Exec. Order No. 11,246, 30 Fed. Reg. 12,319 (1965), reprinted as amended in 42 U.S.C. § 2000e (1994).
110. 42 U.S.C. § 2000d-1 (1994).
111. Exec. Order No. 11,478, 34 Fed. Reg. 12,985 (1969), reprinted as amended in 42 U.S.C. § 2000e (1994). The Order stated:
It is the policy of the Government of the United States to provide equal opportunity in Federal employment for all persons, to prohibit discrimination in employment because of race, color, religion, sex, national origin, handicap, or age, and to promote the full realization of equal employment opportunity through a continuing affirmative program in each executive department and agency.
112. Id. at § 2.
113. Id. at § 3.
114. Exec. Order No. 12,067, 43 Fed. Reg. 28,967 (1978), reprinted as amended in 42 U.S.C. § 2000e (1994) (This order basically implemented Reorg. Plan No. 1 of 1978, 43 Fed. Reg. 19,807 (1978)).
115. Exec. Order No. 12,086, 43 Fed. Reg. 46,501 (1978), reprinted as amended in 42 U.S.C. § 2000e (1994).
116. Exec. Order No. 12,250, 45 Fed. Reg. 72,995 (1980), reprinted in 42 U.S.C. § 2000d-1 (1994).
117. Exec. Order No. 12,259, 46 Fed. Reg. 1,253 (1980), reprinted in 42 U.S.C. § 2000 d-1 (1994).
118. 28 C.F.R. § 42.404 (1994).
119. 28 C.F.R. § 42.405 (1994).
120. 28 C.F.R. § 42.406(a) (1994).
121. 28 C.F.R. § 42.407(c) (1994).
122. Exec. Order No. 12,250 § 1-201, 45 Fed. Reg. 72,995 (1980), reprinted in 42 U.S.C. 2000d-1 (1994).
123. 42 U.S.C. § 2000d-1 (1994) (Civil Rights Act of 1964 § 602) ("No such action shall be taken until the department or agency concerned has advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means.").
124. 42 U.S.C. § 2000d-2 (1994) (Civil Right Act of 1964 § 603) (requiring judicial review option in accordance with § 10 of the Administrative Procedure Act, and such agency action is not limited by unreviewable agency discretion).
126. Only one major court decision in this area has been decided.
127. 443 U.S. 193 (1979) (the 5-2 decision was the greatest degree of consensus of any case in which affirmative action was at issue).
128. Weber, 443 U.S. at 201 (citing 110 Cong. Rec. 6548 (1964) ("[Title VII] must therefore be read against the background of the legislative history of Title VII and the historical context from which the Act arose . . . Congress' primary concern . . . was with 'the plight of the Negro in our economy.'")).
129. Id. at 203 (citing 110 CONG. REC. 6548 (1964) ("The crux of the problem was to open up employment opportunities for Negroes in occupations which have been traditionally closed to them . . . ." (referring to the intent of the framers of Title VII)).
130. Id. at 204. Justice Brennan explained:
It would be ironic indeed if a law triggered by a Nation's concern over centuries of racial injustice and intended to improve the lot of those who had 'been excluded from the American dream for so long,' constituted the first legislative prohibition of all voluntary, private, race conscious efforts to abolish traditional patterns of racial segregation and hierarchy.
Id.
133. United Steelworkers v. Weber, 443 U.S. 193, 204 (1979).
134. Id. at 208 ("The purposes of the plan mirror those of the statute. Both were designed to break down old patterns of racial segregation and ierarchy.").
135. Id. at 208 (stating the reasons why the voluntary affirmative action program was constitutional under Title VII of the Civil Rights Act of 1964).
136. George Rutherglen, After Affirmative Action: Conditions and Consequences of Ending Preferences in Employment, 1992 U. ILL. L. REV. 339, 357 (1992).
138. Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561 (1984).
144. Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 579 (1984).
145. Id at 579-83 (interpreting § 706(g) of Title VII through its previous decision in Teamsters v. United States, 431 U.S. 324 (1977), which awarded relief only to "actual" victims of discrimination). Determining actual victims is very problematic though, because it requires a definition which will explain the limits of who is actually discriminated against. According to Senator Humphrey:
No court order can require hiring, reinstatement, admission to membership, or payment of back pay for anyone who was not fired, refused employment or advancement or admission to a union by an act of discrimination forbidden by this title. This is stated expressly in the last sentence of section 707(e) [enacted without relevant changes as §706(g)] . . . Contrary to the allegations of some opponents of this title, there is nothing in it that will give any power to the Commission or to any court to require . . . firing . . . of employees in order to meet a racial 'quota' or to achieve a certain racial balance. That bugaboo has been brought up a dozen times; but it is non existent.
Stotts, 477 U.S. at 580-581 (1984) (citing the Senator's remarks in 110 CONG. REC. 6549 (1964)).
147. Sheet Metal Workers' Int'l Ass'n v. EEOC, 478 U.S. 421 (1986).
148. The Plurality consisted of Justices Brennan, Marshall, Blackmun, and Stevens. Justice Powell, in his separate concurring opinion, agreed that remedial action was not limited to only those directly discriminated against.
149. Id. at 482-83. Six of the Justices agreed that race conscious relief for Title VII violations were appropriate in the proper circumstances. Justice Brennan defined "appropriate circumstances" as situations where courts are "confronted with an employer or labor union that has engaged in persistent or egregious discrimination or such relief may be necessary to dissipate the lingering effects of pervasive discrimination." Id. at 445 (emphasis added). This rationale supports the understanding that Title VII was enacted specifically to address discrimination visited against minorities.
153. Sheet Metal Workers' Int'l Ass'n v. EEOC, 478 U.S. 421, 475 (1986). The Court advised district courts to use discretion in imposing such remedies. The Court all but forbade the district courts from ordering an affirmative action plan when the only evidence is an imbalanced workforce. The courts can, however, use the existence of a racially imbalanced workforce as a factor in determining if judicial relief is necessary.
154. Id. at 474-75 (stating that employing a Stotts interpretation in this case would "distort" the language of Title VII and would not achieve the intent of the equal employment opportunity purpose).
155. Id. The Plurality also determined that the order did not violate the Fifth Amendment's Equal Protection Clause because it served a compelling government interest and was narrowly tailored to serve that interest. Id. at 481. In dictum, Justice Brennan explained that the burden on non-minorities would have been insignificant. Id.
156. Int'l Ass'n of Firefighters v. City of Cleveland, 478 U.S. 501 (1986).
157. Id. at 515-18. The fact that the affirmative action program approved in Firefighters was established pursuant to a consent decree distinguishes this case from Stotts. A consent decree is not the same as a § 706(g) injunction. The district court can approve a consent decree even if the consent decree provides "relief" greater than that which the district court is authorized to order under § 706(g). Id. at 526, 528. Therefore, because the Court was reviewing the district court's power to approve a consent decree, and not reviewing its power to issue a § 706(g) injunction, Stotts is distinguishable.
158. Id. at 519-21. By reviewing the legislative history, the Court realized that the intent of the section was to protect managerial prerogatives from overly burdensome judicial intervention. Id. The statutory limits on the district court's power to modify a disputed consent decree are not implicated when the original decree was wholly voluntary. Id. at 528.
160. Id. at 163 (concerning upper rank promotions, the officer promoted had to be qualified, the rank promoted to had to be less than 25% African-American, and the order remained in effect so long as the department had not developed and implemented a promotion plan for the particular rank that was fair to African-American troopers).
161. Id. at 162-63 (stating that Alabama had not complied with prior similar court orders).
163. United States v. Paradise, 480 U.S. 149, 165 (1987).
164. The Reagan Justice Department was infamous for its lax enforcement of equal employment opportunity laws. Neal Devins, Affirmative Action After Reagan, 68 Texas L. Rev. 353, 353 (1989) (It was the intent of the Reagan Justice Department to limit race-conscious affirmative action.).
165. Paradise, 480 U.S. at 166.
167. Id. at 167. See infra notes 147-167 and accompanying text.
168. Paradise, 480 U.S. at 171.
170. United States v. Paradise, 480 U.S. 149, 180 (1987) (stating that the requirements were meant to help the department achieve its goal in an expeditious manner).
174. Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986).
176. Id. at 274, 279-84. Justice Powell explained that an attempt to remedy societal discrimination by providing role models for minority schoolchildren was not a compelling state interest. Id.
177. Id. at 274. (citing Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 308 (1977)). In order to demonstrate prior discrimination, a comparison must be shown between the racial composition of the school's teaching staff and the racial composition of the qualified public school teachers in the labor market). Hazelwood, 433 U.S. at 308.
180. The Fourteenth Amendment was intended to assure the constitutionality of race-conscious measures intended to address the problems of racism against African-Americans. See supra notes 22-35.
182. The petitioners in both Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1988), and City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), based their claims on a Fourteenth Amendment equal protection violation.
183. Johnson, 480 U.S. at paragraph one of the syllabus.
187. Id. (quotation marks omitted).
188. Johnson v. Transportation Agency, 480 U.S. 616, 632 (1987). If the job is one requiring special skill or training, then the employer may compare the percentages of its minorities in those positions to the percentage of minorities in the general population who have those same special skills.
189. Id. at 632-33. It should also be noted that an employer's plan must also avoid "blind hiring," or hiring based solely on statistics, and which does not take individual qualifications into account. Id. at 637.
198. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 497-98 (1989).
199. Id. at 551-52 (Marshall, J., dissenting).
200. Id. at 535-36 (Marshall, J., dissenting).
201. Fullilove v. Klutznick, 448 U.S. 448, 519 (1980) (Marshall, J., dissenting) (Justice Marshall coined the phrase, "strict in theory, but fatal in fact," in referring to the imposition of a strict scrutiny standard.).
203. Pub. L. No. 95-28, 91 Stat. 116 (1977) (codified in significant part at 42 U.S.C. §§ 6705(e)-6707(j) (1994)).
204. Fullilove, 448 U.S. at 492.
205. Because the Equal Protection Clause of the Fourteenth Amendment does not apply to the federal government, there was some initial confusion as to whether Congress must respect equal protection principles. In Bolling v. Sharpe, 347 U.S. 497 (1954), the Supreme Court held that the Due Process Clause of the Fifth Amendment encompasses the notion of equal protection of the laws, and that federal legislation could thereby be challenged as unconstitutional on equal protection grounds.
206. Fullilove v. Klutznick, 448 U.S. 448, 473 (1980).
207. Id. at 475-80. Section Five of the Fourteenth Amendment provides, "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." U.S. C ONST. amend. XIV, § 5. This has been interpreted to grant Congress vast authority to implement legislation designed to achieve its goal.
208. Id. at 484 (citing Franks v. Bowman Trans. Co., 424 U.S. 747, 777 (1976)).
209. Fullilove, 448 U.S. at 473 (The Court interpreted the provision at issue in the Act to ensure that beneficiaries of federal funds would not allow the effects of prior discrimination to continue.).
211. 497 U.S. 547 (1990).
212. 47 U.S.C. §§ 151-757 (1994).
213. Metro Broadcasting, 497 U.S. at 600 (Congress enacted legislation ending the agency's examination of the policies in question, thereby prohibiting any alteration in the policies).
214. Id. at 565.
215. Id. at 582-83. The Court explained that the conclusion that greater minority ownership of telecommunications stations produced greater broadcast diversity was reached pursuant to a great amount of empirical evidence and was not based on mere stereotypes. Id.
217. Small Business Act, 15 U.S.C. § 637(d)(3)(c) (1994). The Small Business Act further stipulates that members of the designated racial and ethnic minority groups are pressured to be socially disadvantaged. 15 U.S.C. §§ 637(a)(5), 637(d)(2), (3); 13 C.F.R. § 124.105(b)(1) (1994). Non-minority firms are entitled to challenge an award to a minority firm by rebutting the presumption that the firm is economically disadvantaged. 13 C.F.R. §§ 124.111(c), (d) 124.105(b)(1) (1994).
218. Pub. L. No. 100-17, 101 Stat. 132 (1987). See also Adarand, 115 S. Ct. at 2103.
219. STURAA § 106(c)(1). See also Adarand, 115 S. Ct. at 2103.
220. Pursuant to the contract, "The Contractor will be paid an amount computed as follows: 1. If a subcontract is awarded to one DBE, (Disadvantaged Business Enterprise), 10 percent of the amount of the approved DBE subcontract, not to exceed 1.5 percent of the original amount." Adarand Constr. v. Pena, 115 S. Ct. 2097, 2104 (1995).
221. Id at 2106. (These were the unfortunate cases decided during World War II which supported the federal decision to intern and impose strict curfews on Japanese-American citizens). See, e.g., Korematsu v. United States, 323 U.S. 214 (1944); Hirabayashi v. United States, 320 U.S. 81 (1943).
222. The Fourteenth Amendment applied only to state action, therefore no protection was provided for discriminatory federal action because the Fifth Amendment only referred to the right to receive due process of the law.
223. Adarand Constr. v. Pena, 115 S. Ct. 2097, 2107 (1995) (citing McLaughlin v. Florida, 379 U.S. 184 (1964); Bolling v. Sharpe, 347 U.S. 497 (1954)).
224. Adarand, 115 S. Ct. at 2108 (citing Buckley v. Valeo, 424 U.S. 1 (1976); Weinberger v. Wiesenfeld, 420 U.S. 636 (1975)). The Buckley Court explained that the equal protection analysis of the Fifth and Fourteenth Amendments are co-equals. 424 U.S. 1 (1976).
225. 438 U.S. 265 (1978) (plurality opinion) (employing a strict scrutiny test in finding an affirmative action program adopted by a university medical school in violation of the Fourteenth Amendment Equal Protection Clause, but allowed the school to consider race as a factor in making its admissions decisions).
226. 448 U.S. 448 (1980). See supra notes 201-10 and accompanying text.
227. 476 U.S. 267 (1986). See supra notes 174-80 and accompanying text.
228. This group included Justices Powell, Stewart, Rehnquist and Stevens.
229. This group included Justices Brennan, Blackmun, and Marshall.
230. Adarand Constr. v. Pena, 115 S. Ct. 2097, 2109-10 (1995).
231. 488 U.S. 469 (1989). Croson, as discussed previously, involved a 30% set aside program in Richmond, Va., and was challenged pursuant to the Fourteenth Amendment. The Croson Court held that "strict-scrutiny" should be applied in all actions involving race by a state or local government. Therefore, programs such as the 30% set-aside involved did not pass constitutional muster because the court felt that the city did not demonstrate strong enough evidence to prove either that the remedial action was necessary or narrowly tailored. Therefore, the Court invalidated the Richmond program.
232. Adarand, 115 S. Ct. at 2110 ("With Croson, the Court finally agreed that the Fourteenth Amendment requires strict scrutiny of all race-based action by state and local governments.").
233. Id. at 2117.
235. Adarand, 115 S. Ct. at 2113.
236. Id. at 2111 (internal quotations and citations omitted).
237. Id. at 2112. (Justice O'Connor also asserts that the basic principles of the Fifth and Fourteenth Amendments are to protect persons not groups).
238. Adarand Constr. v. Pena, 115 S. Ct. 2097, 2113 (1995).
239. Id. at 2111 (citing Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 273 (plurality opinion); Fullilove v. Klutznick, 448 U.S. 448, 491 (1980); Fullilove, 448 U.S. at 523 (Stewart, J., dissenting)).
240. Adarand, 115 S. Ct. at 2111 (citing City of Richmond v. J.A. Croson Co., 488 U.S. 469, 494 (1989) (plurality opinion); Croson, 488 U.S. at 520 (Scalia, J., concurring); Regents of the Univ. of California v. Bakke, 438 U.S. 265, 289-90 (1978) (Powell, J., concurring)). Justice O'Connor argues that the application of consistency is effective in differentiating between discrimination meant to oppress and discrimination meant to remedy.
241. Adarand, 115 S. Ct. at 2111 (citing Buckley v. Valeo, 424 U.S. 1, 93 (1976); Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975); Bolling v. Sharpe, 347 U.S. 497, 500 (1954)).
242. Adarand, 115 S. Ct. at 2113.
244. Adarand, 115 S. Ct. at 2117.
245. See supra notes 159-73 and accompanying text.
246. Adarand, 115 S. Ct. at 2120 (Stevens, J., dissenting).
247. Id. at 2122. Justice Stevens explained:
Today's lecture about "consistency" will produce the anomalous result that the Government can more easily enact affirmative action programs to remedy discrimination against women than it can enact affirmative action programs to remedy discrimination against African Americans even though the primary purpose of the Equal Protection Clause was to end discrimination against former slaves. (emphasis added).
Id.
248. See supra notes 13-31 and accompanying text.
249. See supra notes 50-54 and accompanying text.
250. See supra notes 55-60 and accompanying text.
251. See supra notes 49-51 and accompanying text.
252. See supra notes 65-66 and accompanying text.
253. See supra notes 111-13 and accompanying text.
254. See supra notes 114-25 and accompanying text.
256. See, e.g., Charles R. McManis, Racial Discrimination in Government Employment: A Problem of Remedies for Unclean Hands, 63 GEO. L.J. 1203 (1975).
257. Such as the Open Letter and Executive Order W-124-95, both issued by Governor Pete Wilson of California, proclaiming his objection to affirmative action on purely rhetorical grounds.
258. Adarand Constr. v. Pena, 115 S. Ct. 2097, 2120-2131 (1995) (Stevens, J., dissenting) (disagreeing with the Majority's use of the "congruence" argument, Justice Stevens was also disturbed by the Court's disregard of stare decisis).
259. Klarman, supra note 8, at 309.
260. Barbara J. Flagg, "Was Blind, But Now
I See": White Race Consciousness and the Requirement of Discriminatory
Intent, 91 MICH. L.
REV. 953, 1013 (1993) (arguing
that whites should be skeptical about the concept of race neutrality because
it perpetuates the inequitable status quo; therefore, the author supports
the use of race-conscious remedies to attain the desired outcome of racial
equity).