Amendment 14 — Early Doctrine On Appropriate Scrutiny

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Fourteenth Amendment , Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Of critical importance in equal protection litigation is the degree to which government is permitted to take race or another suspect classification into account when formulating and implementing a remedy to overcome the effects of past discrimination. Often the issue is framed in terms of “reverse discrimination,” in that the governmental action deliberately favors members of one class and consequently may adversely affect nonmembers of that class.[1](https://www.law.cornell.edu/constitution-conan/amendment-14/early-doctrine-on-appropriate-scrutiny#fn1amd14 " While the emphasis is upon governmental action, private affirmative actions may implicate statutory bars to uses of race. E.g., McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273 (1976), held, not in the context of an affirmative action program, that White people were as entitled as any group to protection of federal laws banning racial discrimination in employment. The Court emphasized that it was not passing at all on the permissibility of affirmative action programs. Id. at 280 n.8. In United Steelworkers v. Weber, 443 U.S. 193 (1979), the Court held that title VII did not prevent employers from instituting voluntary, race-conscious affirmative action plans. Accord, Johnson v. Transportation Agency, 480 U.S. 616 (1987). Nor does title VII prohibit a court from approving a consent decree providing broader relief than the court would be permitted to award. Local 93, Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501 (1986). And, court-ordered relief pursuant to title VII may benefit persons not themselves the victims of discrimination. Local 28 of the Sheet Metal Workers’ Int’l Ass’n v. EEOC, 478 U.S. 421 (1986). ") Although the Court had previously accepted the use of suspect criteria such as race to formulate remedies for specific instances of past discrimination[2](https://www.law.cornell.edu/constitution-conan/amendment-14/early-doctrine-on-appropriate-scrutiny#fn2amd14 " E.g., Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 22–25 (1971). ") and had allowed preferences for members of certain non-suspect classes that had been the object of societal discrimination,[3](https://www.law.cornell.edu/constitution-conan/amendment-14/early-doctrine-on-appropriate-scrutiny#fn3amd14 " Programs to overcome past societal discriminations against women have been approved, Kahn v. Shevin, 416 U.S. 351 (1974); Schlesinger v. Ballard, 419 U.S. 498 (1975); Califano v. Webster, 430 U.S. 313 (1977), but gender classifications are not as suspect as racial ones. Preferential treatment for American Indians was approved, Morton v. Mancari, 417 U.S. 535 (1974), but on the basis that the classification was political rather than racial. ") it was not until the late 1970s that the Court gave plenary review to programs that expressly used race as the primary consideration for awarding a public benefit.[4](https://www.law.cornell.edu/constitution-conan/amendment-14/early-doctrine-on-appropriate-scrutiny#fn4amd14 " The constitutionality of a law school admissions program in which minority applicants were preferred for a number of positions was before the Court in DeFunis v. Odegaard, 416 U.S. 312 (1974), but the Court did not reach the merits. ")

In United Jewish Organizations v. Carey,[5](https://www.law.cornell.edu/constitution-conan/amendment-14/early-doctrine-on-appropriate-scrutiny#fn5amd14 " 430 U.S. 144 (1977). Chief Justice Warren Burger dissented, id. at 180, and Justice Thurgood Marshall did not participate. ") New York State had drawn a plan that consciously used racial criteria to create districts with “nonwhite” populations in order to comply with the Voting Rights Act and to obtain the United States Attorney General’s approval for a redistricting law. These districts were drawn large enough to permit the election of nonwhite candidates in spite of the lower voting turnout of nonwhite citizens. In the process a Hasidic Jewish community previously located entirely within one senate and one assembly district was divided between two senate and two assembly districts, and members of that community sued, alleging that the value of their votes had been diluted solely for the purpose of achieving a racial quota. The Supreme Court approved the districting, although the fragmented majority of seven concurred in no majority opinion.[6](https://www.law.cornell.edu/constitution-conan/amendment-14/early-doctrine-on-appropriate-scrutiny#fn6amd14 " For a detailed discussion of the use of racial considerations in apportionment and districting by the states, see . ")

Justice Byron White, delivering the judgment of the Court, based the result on alternative grounds. First, because the redistricting took place pursuant to the administration of the Voting Rights Act, Justice Byron White argued that compliance with the Act necessarily required states to be race conscious in the drawing of lines so as not to dilute minority voting strength. Justice Byron White noted that this requirement was not dependent upon a showing of past discrimination and that the states retained discretion to determine just what strength minority voters needed in electoral districts in order to assure their proportional representation. Moreover, the creation of the certain number of districts in which minorities were in the majority was reasonable under the circumstances.[7](https://www.law.cornell.edu/constitution-conan/amendment-14/early-doctrine-on-appropriate-scrutiny#fn7amd14 " 430 U.S. at 155–65. Joining this part of the opinion were Justices William Brennan, Harry Blackmun, and John Paul Stevens. ")

Second, Justice Byron White wrote that, irrespective of what the Voting Rights Act may have required, what the state had done did not violate either the Fourteenth or the Fifteenth Amendment . This was so because the plan, even though it used race in a purposeful manner, represented no racial slur or stigma with respect to White citizens or any other race; the plan did not operate to minimize or unfairly cancel out white voting strength, because as a class White citizens would be represented in the legislature in accordance with their proportion of the population in the jurisdiction.[8](https://www.law.cornell.edu/constitution-conan/amendment-14/early-doctrine-on-appropriate-scrutiny#fn8amd14 " 430 U.S. at 165–68. Joining this part of the opinion were Justices John Paul Stevens and William Rehnquist. In a separate opinion, Justice William Brennan noted that preferential race policies were subject to several substantial arguments: (1) they may disguise a policy that perpetuates disadvantageous treatment; (2) they may serve to stimulate society’s latent race consciousness; (3) they may stigmatize recipient groups as much as overtly discriminatory practices against them do; (4) they may be perceived by many as unjust. The presence of the Voting Rights Act and the Attorney General’s supervision made the difference to him in this case. Id. at 168. Justices Potter Stewart and Lewis Powell concurred, agreeing with Justice Byron White that there was no showing of a purpose on the legislature’s part to discriminate against White voters and that the effect of the plan was insufficient to invalidate it. Id. at 179. ")

It was anticipated that Regents of the University of California v. Bakke[9](https://www.law.cornell.edu/constitution-conan/amendment-14/early-doctrine-on-appropriate-scrutiny#fn9amd14 " 438 U.S. 265 (1978). ") would shed further light on the constitutionality of affirmative action. Instead, the Court again fragmented. In Bakke, the Davis campus medical school admitted 100 students each year. Of these slots, the school set aside sixteen of those seats for disadvantaged minority students, who were qualified but not necessarily as qualified as those winning admission to the other eighty-four places. Twice denied admission, Bakke sued, arguing that had the sixteen positions not been set aside he could have been admitted. The state court ordered him admitted and ordered the school not to consider race in admissions. By two 5-4 votes, the Supreme Court affirmed the order admitting Bakke but set aside the order forbidding the consideration of race in admissions.[10](https://www.law.cornell.edu/constitution-conan/amendment-14/early-doctrine-on-appropriate-scrutiny#fn10amd14 " Four Justices did not reach the constitutional question. In their view, Title VI of the Civil Rights Act of 1964, which bars discrimination on the ground of race, color, or national origin by any recipient of federal financial assistance, outlawed the college’s program and made unnecessary any consideration of the Constitution. See 78 Stat. 252, 42 U.S.C. §§ 2000d-2000d–7. These Justices would have admitted Bakke and barred the use of race in admissions. 438 U.S. at 408–21 (Stevens, Stewart, and Rehnquist, JJ., and Burger, C.J.). The remaining five Justices agreed among themselves that Title VI, on its face and in light of its legislative history, proscribed only what the Equal Protection Clause proscribed. 438 U.S. at 284–87 (Powell, J.,), 328–55 (Brennan, White, Marshall, and Blackmun, JJ.). They thus reached the constitutional issue. ")

Four Justices, in an opinion by Justice William Brennan, argued that racial classifications designed to further remedial purposes were not foreclosed by the Constitution under appropriate circumstances. Even ostensibly benign racial classifications, however, could be misused and produce stigmatizing effects; therefore, they must be searchingly scrutinized by courts to ferret out these instances. But benign racial preferences, unlike invidious discriminations, need not be subjected to strict scrutiny; instead, an intermediate scrutiny would do. As applied, then, this review would enable the Court to strike down a remedial racial classification that stigmatized a group, that singled out those least well represented in the political process to bear the brunt of the program, or that was not justified by an important and articulated purpose.[11](https://www.law.cornell.edu/constitution-conan/amendment-14/early-doctrine-on-appropriate-scrutiny#fn11amd14 " Id. at 355–79 (Brennan, White, Marshall, and Blackmun, JJ.). The intermediate standard of review adopted by the four Justices is that formulated for gender cases. “Racial classifications designed to further remedial purposes ‘must serve important governmental objectives and must be substantially related to achievement of those objectives.’” Id. at 359. ")

Justice Lewis Powell, however, argued that all racial classifications are suspect and require strict scrutiny. Because none of the justifications asserted by the college met this high standard of review, he would have invalidated the program. But he did perceive justifications for a less rigid consideration of race as one factor among many in an admissions program; diversity of student body was an important and protected interest of an academy and would justify an admissions set of standards that made affirmative use of race. Ameliorating the effects of past discrimination would justify the remedial use of race, the Justice thought, when the entity itself had been found by appropriate authority to have discrimin