Tron Riley
Amanda Jones
Constitutional Law 2016
12 April 2016
Topic 9: Reverse Discrimination The claim of reverse discrimination is full of multifaceted intricacies that ultimately reserve it as a question with no apparent say-all answer. Since the 1970s, cases of reverse discrimination have been widespread among Americans who feel that affirmative action is no longer necessary. On the one hand, Americans feel as if the affirmative action dogma is wasteful in leveling the playing field for minorities and instead creates an unfair prejudice to particularly White Americans. The reverse side of that argument is that the affirmative action notion corrects the incongruities of opportunities for underrepresented minorities who may have not otherwise had any privilege to certain employment, school admission, and/or societal benefits. Cases such as University of California v Bakke, Grutter v Bollinger, and Fisher v Texas have been cognizant of the resourceful means of the affirmative action notion and its implementation. However, cases like City of Richmond v Crosan and Adarand v Pena have been unsympathetic of the affirmative action idea and reject its practice. I tend to disagree with the verdicts delivered in both City of Richmond v Crosan and Adarand v Pena for reasons that allude to the upward mobility of historically oppressed people. In 1978, Allen Bakke applied for admission to the University of California twice and was rejected both times. The school admitted that they reserved 16 spots out of each entering class of about 100 for qualified minorities as part of the University’s affirmative action program to bolster minority inclusion at the University. Bakke had an academic record that was exceptionally better than most of the minority candidates who applied for the school but was denied on the basis that he was not a minority. Bakke contended in the California courts and once they ruled against him, he appealed to the Supreme Court. The Supreme Court held that any racial quota system reinforced by a government violated the Civil Rights Act of 1964, however using race as a criterion in admitting students was constitutionally permissible and therefore affirmative action is sustained. Following the Bakke case, Richmond v Crosan arises nearly a decade later with a similar affirmative action conflict. In Richmond, Virginia a regulation was implemented which maintained that local construction companies awarded by city construction contracts must subcontract at least 30 percent of projects to minority businesses who had not been entitled to contracts in the past due to racism. J.A Crosan was a company not included in the minority category that lost a contract because of the 30 percent ordinance set aside by city officials. The J.A Crosan Company brought a suit against the city of Virginia stating that the 30 percent city ordinance violated the Equal Protection Clause outlined in the Fourteenth Amendment. The Supreme Court held that past generalized assertions of racism and wrongdoings are not strong enough to necessitate racial quotas for construction contracts. The Court believed that it was impractical to assume there was any injury incurred by companies that the 30 percent project could remedy and that the quota would actually distort constitutional values. In Adarand Contractors Inc. v Pena like Crosan, Adarand was contracting company that specialized in guardrail manufacturing and submitted a bid to work under contract for the United States Department of Transportation. There was a statute in place whereas the prime contractor of any project would receive additional compensation if they were to hire any small company that was socially and economically disadvantaged which particularly included Black Americans, Hispanic Americans, Asian Americans and other minorities. Once Adarand was denied the bid at the hand of another minority contract company, the Adarand Company filed suit against the Department of Transportation citing that this process was unconstitutional. The Supreme Court ruled that the statute was unconstitutional and implied that a strict scrutiny standard must be applied to narrowly classify which groups are fit for minority benefits. In this ruling, the court curtailed the extension of affirmative action and mandated that there must be a narrowly defined classification of affirmative action beneficiaries. After the Adarand decision, Grutter v Bollinger restored the unrestricted application of the affirmative action notion. Barbara Grutter was a resident in Michigan who applied for admission to the University of Michigan Law School but was denied admission even with outstanding grades. The school announced that they consider race as a factor in determining admission in an attempt to oblige the compelling interest of developing an all-encompassing student body respective to a variety of different races. Grutter took the case before the District Court citing the Equal Protection Clause in which the Court ruled that an all-inclusive student body was not a compelling interest and lacked relevance in denying the application. The Court of Appeals reversed the District Court ruling by stating the precedence set in California v Bakke which established diversity as a compelling interest. The Supreme Court reasoned that the Equal Protection Clause does not forbid the University to use the factor of race to dictate admissions into the school. The ruling here was also supportive of the affirmative action notion. Most recently, Fisher v University of Texas involved the denial of Abigail Fisher’s application to the University of Texas in 2008. Fisher was a student of mediocre grades but believed that her application was denied based solely on her race. She claimed that her spot was given to a less qualified minority student and that the University of Texas use of race as a factor in admission was a violation of the Equal Protection Clause of the Fourteenth Amendment. The University of Texas argued that the use of race was narrowly tailored in an attempt to build a diverse campus. The District Court of Appeals ruled in favor of Texas and then the United States Court of Appeals (5th Circuit) affirmed the decision. The Supreme Court ruled in favor of Texas but reasoned that the lower courts erred in not applying the strict scrutiny standard to the University policy in order to judge whether the policy was in fact geared towards a compelling interest. Two questions linger about throughout the initiation in the aforementioned cases. One question being, can affirmative action be applied constitutionally in respect to the Equal Protection Clause of the Fourteenth Amendment? Second question being, should there be a strict scrutiny standard applied when considering the application of the affirmative action idea? All of aforementioned cases outside of Crosan and Adarand concur that the affirmative action notion is constitutional and with the exception of Fisher, those same cases strip the idea of a strict scrutiny standard. I agree with the affirmative action notion in the sense that there must be some mechanism in place that allows historically neglected people a chance to thrive and essentially catch pace to a group of people who have been financially and socially superior for hundreds of years. The perception that affirmative action is reverse discrimination and furthermore racially unfair, does not take into account the history of beneficiaries in the United States. It cannot be disputed that centuries of historic ethnicity exclusion yields an immediate Fourteenth Amendment problem. The constitution has to be interpreted to bring about the desired end result in which it was initially written, racial equality. In doing so, there has to be some instrument to ensure that the historic racial imposition of minorities ingrained in American society be eradicated by leveling out the platform. Affirmative action is not the end-all of inequities of minorities but I does provide for a mitigation effort in attempt to strengthen inclusion and diversity.