Supreme Court Review - Page A4
January 30, 1997 Legal Memo:
by Howard Hobbs, PhD, Editor1.
The End of Affirmative ActionWASHINGTON DESK - In three landmark Supreme Court cases the Court ruled, last term, five-to-four, to severely limit federal affirmative action programs2.
It further reduced the ability of states to create majority black and Hispanic congressional and state legislative districts,3 and reduced the remedial power of federal district courts to order magnet programs and higher teacher pay in order to accomplish desegregation.4
The Court's current equal protection jurisprudence is a return to Brown v. Board of Education.4 In fact, what we're seeing is the Court evolving incrementally full circle to the Brown v. Board of Education decision.
Let me take the cases very briefly, piecemeal, to illustrate this point. In Adarand Constructors, Inc. v. Pena2 the Court applied strict equal protection scrutiny to what essentially amounted to racial preferences in the government business contracting area.10 That case is actually an extension and elaboration of an earlier case, Richmond v. J.A. Croson.6 While Adarand overruled Metro Broadcasting, Inc. v. FCC,7 it is my view that Metro Broadcasting actually is a departure, from the Court's recent jurisprudence.
The Miller v. Johnson10 case, a Georgia case that dealt with electoral redistricting, indicated very clearly that strict judicial scrutiny applies to the use of race in the drawing of electoral boundaries.9 Judging by the Court's rhetoric, a very strict standard of scrutiny would be applied. But that case seems to me to be a natural follow-up to Shaw v. Reno, the case that this symposium examined specifically last year.
Missouri v. Jenkins12 was a school desegregation case dealing with, essentially, the point at which school districts are entitled to be released from judicial supervision, and from earlier desegregation orders.11 In Oklahoma City v. Dowell,22 the Court articulated more clearly than it had previously, the standards for ending desegregation decrees and restoring educational policy decision making to the elected and appointed local school officials.13 So Jenkins is not a startling result. It's one that I think was fairly predictable from the Court's jurisprudence, both in Dowell and in a case called Freeman v. Pitts,14 which also preceded the Jenkins case.
Finally, there was another case that I think is noteworthy, not because it was decided on the merits by the Supreme Court last Term, but because the Supreme Court refused to consider it.15 And while it has no precedential value on the merits, we may be able to draw some insights concerning the Court's direction.
That's the Podberesky v. Kirwan case, which dealt with racially exclusive college scholarships at the University of Maryland.16 The Fourth Circuit struck down that program at the University of Maryland as unjustifiable under the strict scrutiny test applicable under the Equal Protection Clause,17 and the Supreme Court decided not to review it.18
Last Term, the Supreme Court continued an evolutionary process in four different cases, arguably four, certainly three, indicating again incremental progress, in my view, towards color-blindness and away from racial preferences.
The idea of racial preference is under serious scrutiny, not only in the courts, but throughout our society. The clearest and most pressing danger to the use of racial preferences in the many areas that they now are commonplace in our society is coming from the political process; the issue has been brought very publicly to the surface by Proposition 209, the California Civil Rights Initiative.19 That initiative, more than anything else, is really fueling the extraordinary public debate that we're seeing on affirmative action generally, and racial preferences specifically.
Proposition 187 in California,20 and what can be properly regarded as its successor,Proposition 209, the California Civil Rights Initiative (CCRI) campaign going on.21
Proposition 187, passed, and has been tied up in federal court after a federal judge issued an injunction on an appeal based upon the legal theory that it may have elements which are unconstitutional.
Those who support affirmative action contend there is no harmful social or economic impacts from unrestrained legal and illegal immigration in California. They also try to make an unsupported claim that limiting affirmative action programs 'singles-out' minorities for discrimination by American communities, schools, and businesses.
Supporters of the status quo have said that in California even if you accept the argument that somehow adding more people to the population is going to hurt minorities, the American people do not intend to spend any tax money to help minorities get ahead.
Quite the opposite has been true, of course. The college admissions controversy arose at Berkeley when Asian-American high school students noticed that their test scores and grades were going up.31
The rate at which they were admitted to prestigious Ivy League schools, other top public universities and other programs in science and math has gradually edged-out all other racial groups attending good universities. 31.
REFERENCE LINKS
1. Daily Republican Amicus Brief, Draft by Howard E. Hobbs, J.D., Ph.D., Economics Institute, Washington D.C. 9th Circuit Court of Appeals
2.See Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097 (1995).
3.See Missouri v. Jenkins, 115 S. Ct. 2038 (1995).
4.347 U.S. 483, 495 (1954) (holding that segregation in public schools, solely on basis of race, deprives children in minority groups of equal educational opportunities in contravention of Equal Protection Clause).
5.115 S. Ct. 2097 (1995).
6.Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097, 2113 (1995).
7.488 U.S. 469, 510 (1989) (holding that city plan requiring prime construction contractors to subcontract at least 30% of dollar amount to minority business enterprises failed to show compelling state interest and was not narrowly tailored).
8.497 U.S. 547, 568-69 (1990) (holding that FCC preferential licensing treatment of minority businesses did not violate Equal Protection Clause), overruled by Adarand, 115 S. Ct. at 2097.
9.115 S. Ct. 2475 (1995).
10.Miller v. Johnson, 115 S. Ct. 2475, 2482 (1995).
11.115 S. Ct. 2038 (1995).
12.Missouri v. Jenkins, 115 S. Ct. 2038, 2055-56 (1995).
13.498 U.S. 237 (1991).
14.Oklahoma City v. Dowell, 498 U.S. 237, 247-48 (1991).
15.Freeman v. Pitts, 503 U.S. 467, 490 (1992) (holding that district court may relinquish supervision of school district in incremental stages before full compliance with desegregation decree has been achieved).
16.Podberesky v. Kirwan, 38 F.3d 147 (4th Cir. 1994), cert. denied, 115 S. Ct. 2001 (1995).
17.Id. at 161.
18.Id.
19.Podberesky v. Kirwan, 115 S. Ct. 2001 (1995), denying cert. to 38 F.3d 147 (4th Cir. 1994).
20.See Max Vanzi, Affirmative Action Opponents File Initiative with State Officials, L.A. TIMES, Aug. 8, 1995, at A3. The California Civil Rights Initiative (CCRI) recently submitted to the state attorney general as the first step in an effort to qualify it as a 1996 ballot initiative, would ban the practice of granting preferences based on race, color, or gender in state hiring, contracting, and college admissions. Id.
21.See Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097, 2116 (overruling Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990)).
22.448 U.S. 448 (1980).
23.See BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES 13 (1994).
24.See Remarks on Signing the Executive Order on Education Excellence for Hispanic Americans, 30 WEEKLY COMP. PRES. DOC. 344, 345 (Feb. 22, 1994) (stating that projections indicate that in next century, Hispanics will pass Blacks as largest minority population); see also Alex M. Johnson Jr., The Voice of Color 100 YALE L.J. 2007, 2063 (1991).
25.CAL. EDUC. CODE §§ 48215, 66010.8 (West 1995) (codifying California's controversial Proposition 187); CAL. GOV'T CODE § 53069.65 (West 1995) (same); CAL. HEALTH & SAFETY CODE § 130 (West 1995) (same); CAL. PENAL CODE § 113 (West 1995) (same); CAL. WELF. & INST. CODE § 10001.5 (West 1995) (same). Proposition 187 would ban illegal immigrants from receiving public education, non-emergency health care, and social welfare services, and would require officials to report suspected illegal immigrants to state and federal authorities. See Paul Feldman, Judge Delays Prop. 187 Ruling for a Month, L.A. TIMES, Sept. 8, 1995, at A3.
26.See supra note 24 (discussing Proposition 209 California Civil Rights Initiative.
27.See Paul Feldman, Judge Hints That Prop. 187 May Be Unconstitutional, L.A. TIMES, July 27, 1995, at A3. U.S. District Court Judge Mariana Pfaelzer indicated that she has serious questions regarding the constitutionality of the controversial illegal immigration initiative. Id. Many legal observers believe the case will eventually reach the U.S. Supreme Court, a process that will take several years and keep the ballot measure on hold. Id.
28.See Larry Gordon, UC Admissions Study Fails to Resolve White-Asian Bias Issue, L.A. TIMES, Oct. 8, 1987, at A1. A study by the University of California, Berkeley, concluded that white students have a slightly easier time than Asian students in gaining admission to U.C.-Berkeley. Id.
29.See Nanette Asimov, A Hard Lesson in Diversity: Chinese Americans Fight Lowell's Admissions Policy, S.F. CHRON., June 19, 1995, at A1. Lowell's system of affirmative action, which like the rest of the San Francisco school district requires that at least four ethnic groups be represented at each school but that no one group can exceed 40% of its enrollment, has produced only modest gains for its intended beneficiaries, blacks and Latinos, while aiding a group not generally thought to need help, whites. Id.
30.See Gordon, supra note 93, at A1. The 230-page report found that the admissions rates of whites were higher than Asians in 37 out of 49 categories, even though the whites had lower high school grades and entrance test scores in 12 of those 37 categories. Id.
31.See Fox Butterfield, Why Asians Are Going to the Head of the Class: Some Fear Colleges Use Quotas to Limit Admissions, N.Y. TIMES, Aug. 3, 1986, § 12, at 22. Remarkable success of Asian Americans has sparked debate that some colleges are limiting their admissions by quota. Id.