Amendment 14 — Modern 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.

A clear distinction was then drawn between federal and state power to apply racial classifications. In City of Richmond v. J.A. Croson Co.,[1](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-appropriate-scrutiny#fn1amd14 " 488 U.S. 469 (1989). Croson was decided by a 6-3 vote. The portions of Justice Sandra Day O’Connor’s opinion adopted as the opinion of the Court were joined by Chief Justice William Rehnquist and by Justices Byron White, John Paul Stevens, and Anthony Kennedy. The latter two Justices joined only part of Justice Sandra Day O’Connor’s opinion; each added a separate concurring opinion. Justice Antonin Scalia concurred separately; Justices Thurgood Marshall, William Brennan, and Harry Blackmun dissented. ") the Court invalidated a minority set-aside requirement that holders of construction contracts with the City subcontract at least 30% of the dollar amount to minority business enterprises. Applying strict scrutiny, the Court found Richmond’s program to be deficient because it was not tied to evidence of past discrimination in the City’s construction industry. By contrast, the Court in Metro Broadcasting, Inc. v. FCC[2](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-appropriate-scrutiny#fn2amd14 " 497 U.S. 547 (1990). This was a 5-4 decision, Justice William Brennan’s opinion of the Court being joined by Justices Byron White, Thurgood Marshall, Harry Blackmun, and John Paul Stevens. Justice Sandra Day O’Connor wrote a dissenting opinion joined by the Chief Justice and by Justices Antonin Scalia and Anthony Kennedy, and Justice Anthony Kennedy added a separate dissenting opinion joined by Justice Antonin Scalia. ") applied a more lenient standard of review in upholding two racial preference policies used by the FCC in the award of radio and television broadcast licenses. The FCC policies, the Court explained, are “benign, race-conscious measures” that are “substantially related” to the achievement of an “important” governmental objective of broadcast diversity.[3](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-appropriate-scrutiny#fn3amd14 " Id. at 564–65. ")

In Croson, the Court ruled that the City had failed to establish a “compelling” interest in the racial quota system because it failed to identify past discrimination in its construction industry. Mere recitation of a “benign” or remedial purpose will not suffice, the Court concluded, nor will reliance on the disparity between the number of contracts awarded to minority firms and the minority population of the city. “[W]here special qualifications are necessary, the relevant statistical pool for purposes of demonstrating exclusion must be the number of minorities qualified to undertake the particular task.” [4](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-appropriate-scrutiny#fn4amd14 " 488 U.S. at 501–02. ") The Court also said that because the ordinance defined “minority group members” to include “citizens of the United States who are Blacks, Spanish-speaking, Orientals, Indians, Eskimos, or Aleuts,” this expansive definition “impugn[ed] the city’s claim of remedial motivation,” there having been “no evidence” of any past discrimination against non-Black racial minorities in the Richmond construction industry.[5](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-appropriate-scrutiny#fn5amd14 " Id. at 506. ") It followed that Richmond’s set-aside program also was not “narrowly tailored” to remedy the effects of past discrimination in the city: an individualized waiver procedure made the quota approach unnecessary, and a minority entrepreneur “from anywhere in the country” could obtain an absolute racial preference.[6](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-appropriate-scrutiny#fn6amd14 " Id. at 508. ")

At issue in Metro Broadcasting were two minority preference policies of the FCC, one recognizing an “enhancement” for minority ownership and participation in management when the FCC considers competing license applications, and the other authorizing a “distress sale” transfer of a broadcast license to a minority enterprise. These racial preferences—unlike the set-asides at issue in Fullilove—originated as administrative policies rather than statutory mandates. Because Congress later endorsed these policies, however, the Court was able to conclude that they bore “the imprimatur of longstanding congressional support and direction.” [7](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-appropriate-scrutiny#fn7amd14 " 497 U.S. at 600. Justice Sandra Day O’Connor’s dissenting opinion contended that the case “does not present ‘a considered decision of the Congress and the President.’” Id. at 607 (quoting Fullilove, 448 U.S. at 473). ")

Metro Broadcasting was noteworthy for several other reasons as well. The Court rejected the dissent’s argument—seemingly accepted by a Croson majority—that Congress’s more extensive authority to adopt racial classifications must trace to Section 5 of the Fourteenth Amendment , and instead ruled that Congress also may rely on race-conscious measures in exercise of its commerce and spending powers.[8](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-appropriate-scrutiny#fn8amd14 " 497 U.S. at 563 & n.11. For the dissenting views of Justice Sandra Day O’Connor see id. at 606–07. See also Croson, 488 U.S. at 504 (opinion of Court). ") This meant that the governmental interest furthered by a race-conscious policy need not be remedial, but could be a less focused interest such as broadcast diversity. Secondly, as noted above, the Court eschewed strict scrutiny analysis: the governmental interest need only be “important” rather than “compelling,” and the means adopted need only be “substantially related” rather than “narrowly tailored” to furthering the interest.

The distinction between federal and state power to apply racial classifications, however, proved ephemeral. The Court ruled in Adarand Constructors, Inc. v. Pena[9](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-appropriate-scrutiny#fn9amd14 " 515 U.S. 200 (1995). This was a 5-4 decision. Justice Sandra Day O’Connor’s opinion for Court was joined by Chief Justice William Rehnquist, and by Justices Anthony Kennedy, Clarence Thomas, and—to the extent not inconsistent with his own concurring opinion—Antonin Scalia. Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer dissented. ") that racial classifications imposed by federal law must be analyzed by the same strict scrutiny standard that is applied to evaluate state and local classifications based on race. The Court overruled Metro Broadcasting and, to the extent that it applied a review standard less stringent than strict scrutiny, Fullilove v. Klutznick. Strict scrutiny is to be applied regardless of the race of those burdened or benefited by the particular classification; there is no intermediate standard applicable to “benign” racial classifications. The underlying principle, the Court explained, is that the Fifth and Fourteenth Amendment s protect persons, not groups. It follows, therefore, that classifications based on the group characteristic of race “should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection . . . has not been infringed.” [10](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-appropriate-scrutiny#fn10amd14 " 515 U.S. at 227 (emphasis original). ")

By applying strict scrutiny, the Court was in essence affirming Justice Lewis Powell’s individual opinion in Bakke, which posited a strict scrutiny analysis of affirmative action. There remained the question, however, whether Justice Lewis Powell’s suggestion that creating a diverse student body in an educational setting was a compelling governmental interest that would survive strict scrutiny analysis. It engendered some surprise, then, that the Court essentially reaffirmed Justice Lewis Powell’s line of reasoning in the cases of Grutter v. Bollinger[11](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-appropriate-scrutiny#fn11amd14 " 539 U.S. 306 (2003). ") and Gratz v. Bollinger.[12](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-appropriate-scrutiny#fn12amd14 " 539 U.S. 244 (2003). ")

In Grutter, the Court considered the admissions policy of the University of Michigan Law School, which requires admissions officials to evaluate each applicant based on all the information available in their file (for example, grade point average, Law School Admissions Test score, personal statement, recommendations) and on “soft” variables (for example, strength of recommendations, quality of undergraduate institution, difficulty of undergraduate courses). The policy also considered “racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like African-Americans, Hispanics and Native Americans . . . .” Although, the policy did not limit the seeking of diversity to “ethnic and racial” classifications, it did seek a “critical mass” of minorities so that those students would not feel isolated.[13](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-appropriate-scrutiny#fn13amd14 " 539 U.S. at 316. ")

The Grutter Court found that student diversity provided significant benefits, not just to the students who might have otherwise not been admitted, but also to the student body as a whole. These benefits include “cross-racial understanding,” the breakdown of racial stereotypes, the improvement of classroom discussion, and the preparation of students to enter a diverse workforce. Further, the Court emphasized the role of education in developing national leaders. Thus, the Court found that such efforts were important to “cultivate a set of leaders with legitimacy in the eyes of the citizenry.” [14](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-appropriate-scrutiny#fn14amd14 " Id. at 335. ") As the university did not rely on quotas, but rather relied on “flexible assessments” of a student’s record, the Court found that the university’s policy was narrowly tailored to achieve the substantial governmental interest of achieving a diverse student body.[15](https://www.law.cornell.edu/constitution-conan/amendment-14/modern-doctrine-on-appropriate-scrutiny#fn15amd14 " Id., at 315. While an educational institution will receive deference in its judgment as to whether diversity is essential to its educational mission, the courts must closely scrutinize the means by which this goal is achieved. Thus, the institution will receive no deference regarding the question of the necessity of the means chosen and will bear the burden of demonstrating that “each applicant is evaluated as an individual and not in a way that an applicant’s race or ethnicity is the defining feature of his or her application.” Fisher v. Univ. of Tex. at Austin (F