1. American Academy of Political and Social Science
Legal Foundations of Civil Rights and Pluralism in America
Author(s): Charles M. Lamb
Source: Annals of the American Academy of Political and Social Science, Vol. 454, America as a
Multicultural Society (Mar., 1981), pp. 13-25
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2. ANNALS, AAPSS, 454, March 1981
Legal Foundations of Civil Rights
and Pluralism in America
By CHARLESM. LAMB
ABSTRACT: Central to the dynamics of American pluralism
are legal protections provided for minorities. To a large degree
these rights revolve around the concept of equal protection
of the laws. Whether reflected in the Fourteenth Amendment
or statutes, the principal question is, Under what conditions
is it just or reasonable to afford different treatment to persons
because of their race? Here this question is addressed in the
context of the transformation of the concept of equal protec-
tion since Plessy v. Ferguson (1896). Certainly the legal meta-
morphosis from the "separate but equal" doctrine to the cur-
rent status of minority rights is truly profound. Particularly
important in recent years is the issue of affirmative action.
After a brief survey of the legal transition from Plessy into the
1970s and of the various levels of scrutiny that the United
States Supreme Court has given to equal protection prob-
lems, the progression of the equal protection principle is
traced herein with emphasis placed on the three most recent
affirmative action decisions announced by the Court: Univer-
sity of California Regents v. Bakke (1978), United Steel-
workers of America v. Weber (1979), and Fullilove v. Klutz-
nick (1980).
Charles M. Lamb is an assistant professor of political science, State University
of New Yorkat Buffalo. The author of several articles on civil rights andjudicial
philosophy, he formerly served on the staffs of the United States Commission on
Civil Rights and George Washington University.
13

3. THE ANNALS OF THE AMERICAN ACADEMY
ALTHOUGH progress has often
been too slow, the political,
economic, and social status of most
American minorities has improved
dramatically since the turn of the
twentieth century. The same gener-
alization applies to the legal rights
of minorities. The legislative and
executive branches of the federal
government have played a substan-
tial role in this legal transforma-
tion. For example, Congress must be
applauded for passing the Civil
Rights acts of 19601 and 1964,2 the
Voting Rights Act of 1965,3 and the
Fair Housing Act of 1968.4 Similarly,
President Kennedy must be com-
mended for issuing Executive Order
11063,5 the first major federal re-
quirement for equal opportunity in
housing, and President Johnson must
be given credit for his Executive
Order 11246,6 which prohibits em-
ployment discrimination by govern-
ment contractors. Yet the United
States Supreme Court has been at
the cutting edge of much civil rights
progress, particularly prior to the
1960s. It is therefore appropriate
for this article to stress the role
of the Court in ensuring equal pro-
tection through both its constitu-
tional and statutory constructions of
the law.
THE EVOLUTION OF EQUAL
PROTECTION SINCE PLESSY:
AN OVERVIEW
Any account of legal develop-
ments under the concept of equal
1. Public Law (P.L.) No. 86-449, 74 Stat.
86.
2. P.L. No. 88-352, 78 Stat.241.
3. P.L. No. 89-110, 79 Stat.437.
4. P.L. No. 90-284, 82 Stat.81.
5. 3 Code of Federal Regulations 652
(1959-1963 Compilation).
6. 3 Code of Federal Regulations 339
(1964-1965 Compilation).
protection must begin at least as far
back as the 1896 decision in Plessy
v. Ferguson.7 There the Court held
that a Louisiana statute requiring
"separate but equal" railroad ac-
commodations for Blacks and Whites
was not a violation of either the Thir-
teenth or Fourteenth amendments
of the Constitution. Justice Brown,
speaking for the Court, stressed
that the Thirteenth Amendment ap-
plied strictly to slavery and that
separate but equal accommodations
did not "constitute badges of slavery
or servitude," as was contended by
the first Justice Harlan's stirring
and historic dissent.
Moreover, according to the ma-
jority, the Fourteenth Amendment
required only political-not social
-equality. Thus states had the right
under their police power to separate
Blacks and Whites if the traditions
and customs of the states suggested
that such a law was not unreason-
able. Justice Harlan, on the other
hand, took the famous position that
"in view of the constitution, in the
eye of the law, there is in this country
no superior, dominant ruling class of
citizens. . . . Our constitution is col-
or-blind." State laws that separate
races, he explained, would naturally
contribute to interracial distrust and
would force Blacks into a position of
inferiority.
Of course, under the "separate but
equal" principle, it was rare that
separation was ever accompanied by
actual equality. But some three dec-
ades after Plessy a more liberal
Supreme Court gradually began to
underscore the fact that the equality
component was indeed required by
the Equal Protection Clause of the
Fourteenth Amendment. In Missouri
ex rel. Gaines v. Canada,8 the Court
7. 163 U.S. 537 (1896).
8. 305 U.S. 337 (1938).
14

4. LEGAL FOUNDATIONS
invalidated a Missouri statute that
prohibited Blacks from attending the
University of Missouri Law School,
even though the statute provided
tuition payments for Blacks to study
law in neighboring states where
segregation was not enforced. Equal
facilities for Blacks' legal education
was required by the Court; Missouri
could not abdicate its responsibility
for providing equal educational op-
portunity through another state. Like-
wise, a decade later in Sipuel v.
Board of Regents of the University
of Oklahoma,9 a black woman was
held to have been denied equal pro-
tection when refused admission to
the Law School of the University of
Oklahoma.
Two 1950 decisions further under-
scored the "equal" component of
Plessy, thereby delivering noteworthy
blows to its continued existence.
McLaurin v. Oklahoma State Re-
gents'? ruled that black graduate stu-
dents could not be subjected to var-
ious segregative practices in class-
rooms, libraries, and cafeterias. And
Sweatt v. Painter"1 announced that
it was difficult, if not impossible, for
a state to meet the "separate but
equal" requirement where there
were disparities in vital intangible
factors, such as the reputation and
prestige of white as opposed to black
law schools.
The stage was thus set for a final
assault on Plessy via Brown v. Board
of Education.12 In a short, unani-
mous opinion, the Brown Court
overruled the "separate but equal"
standard as it was applied in public
schools, although physical facilities
and other tangible factors might in
fact be equal. Basing its decision on
9. 332 U.S. 631 (1948).
10. 339 U.S. 637 (1950).
11. 339 U.S. 629 (1950).
12. 247 U.S. 483 (1954).
both constitutional principles and
social science findings, the Warren
Court noted that "to separate [black
children] from others of similar age
and qualifications solely because of
their race generates a feeling of
inferiority as to their status in the
community that may affect their
hearts and minds in a way unlikely
to ever be undone." Since feelings
of inferiority retard a child's drive
to learn, and since education is vital
for success in later life, the Court
announced that "in the field of pub-
lic education the doctrine of 'sepa-
rate but equal' has no place. Sepa-
rate educational facilities are in-
herently unequal."
By so ruling, the Court reversed
Plessy as it related to public edu-
cation, vindicated Justice Harlan's
"color-blind" dissent, and implicitly
suggested that "separate but equal"
would not meet constitutional stand-
ards in other areas of segregation as
well. The most apparent reasons for
this change in legal policy were the
directions taken by the cases leading
up to the Brown decision, the fact
that the Court's members were gen-
erally more liberal than they had
been in prior decades, and perhaps
most crucially, the brilliant leader-
ship of Chief Justice Warren, which
ably and assertively forged una-
nimity in Brown.
Nevertheless, from the initiation of
the Brown litigation, all the justices
of the Warren Court-whether lib-
eral or conservative-were fully
cognizant of the problems that would
be inevitably associated with imple-
menting school desegregation. The
Court therefore directed the plain-
tiffs to come before it again during
the 1955 term to argue how imple-
mentation should take place. Then,
in Brown II,13 the justices relied
13. 349 U.S. 294 (1955).
15

5. THE ANNALS OF THE AMERICAN ACADEMY
on ad hoc gradual relief by calling
for "good faith compliance atthe earli-
est practicable date" and for school
desegregation to proceed "with all
deliberate speed."'4
Since the midfifties, the Supreme
Court has largely continued to en-
sure that the guarantee of equal pro-
tection be afforded to this nation's
minorities. Especially crucial was
the period from 1967 through 1973.
For example, in Loving v. Virginia,15
the Court outlawed a state criminal
statute proscribing marriage between
persons of different races. In Jones
v. Alfred H. Mayer Company,16 the
Court prohibited racial discrimina-
tion in the rental and sale of virtually
all private and public property. In
Green v. County School Board,'7 the
Court ruled that "freedom of choice"
plans were inadequate for comply-
ing with Brown. In Alexander v.
Holmtes County Board of Educa-
tion,18 the Court held that every
school district in the country had to
take immediate steps to eliminate sep-
arate schools for Blacks and Whites.
In Swann v. Clharlotte-Mecklenberg
Board of Education,19 the Court
announced that busing was one
legitimate tool that could be used to
desegregate schools. And in Keyes v.
School District No. 1, Denver, Colo-
rado,20the Court extended its school
desegregation principles to northern
states by declaring that segregation
not required by law but resulting
from the placement of schools and
14. For the implementation problems en-
countered in the field of education, see the
sources cited in Stephen L. Wasby, The Im-
pact of the United States Supreme Court
(Homewood, II: Dorsev, 1970), pp. 288-89.
15. 388 U.S. 1 (1967).
16. 392 U.S. 409 (1968).
17. 391 U.S. 430 (1968).
18. 396 U.S. 19 (1969).
19. 402 U.S. 1 (1971).
20. 413 U.S. 189 (1973).
the manipulation of school zones
was nevertheless dejure discrimina-
tion and therefore unconstitutional.
Although this list could be con-
tinued to the present, including the
three affirmative action cases re-
ceiving detailed attention in the fol-
lowing pages, it is also important to
note that in recent years the Court
has not been as consistently sym-
pathetic toward some of the claims
of minorities as it was from Brown
through Keyes.21 Nor has it been
unanimous as regularly in its civil
rights decisions since 1973 as it was
in the preceding years.
THREE-TIERED SCRUTINY
In cases such as those discussed
in the preceding paragraphs, the
Court has essentially adopted three
different approaches over time for
determining whether a law comports
with the requirements of equal pro-
tection. Traditionally, governmental
regulatory classification had only to
meet the low-level "minimum ra-
tionality" or "rational basis" test.
As the Court stated in F.S. Royster
Guano Company v. Virginia: "The
classification must be reasonable,
not arbitrary, and must rest on some
ground of difference having a fair
and substantial relation to the ob-
ject of the legislation, so that all
persons similarly circumstanced shall
be treated alike."22
In order to pass constitutional
muster, then, a state classification
need only reasonably relate to legis-
lative purpose. There is not much
21. See, for example, Village of Arlington
Heights v. Metropolitan Housing Develop-
17mentCorporation, 429 U.S. 252 (1977); City
of Eastlake v. Forest City Enterprises, In-
corporated, 426 U.S. 668 (1976); Washington
v. Davis, 426 U.S. 229 (1976); and Milliken
v. Bradley, 418 U.S. 717 (1974).
22. 253 U.S. 412 (1920).
16

6. LEGALFOUNDATIONS
emphasis on evaluating the legiti-
macy of the purposes, either. The
focus is on the means, and that
focus is rather cursory. The fit be-
tween the means and the ends need
not be a very tight one. In Railway
Express Agency v. New York, Justice
Jackson summarized the minimum
rationality test by writing that the
command of equal protection was
only that government must not im-
pose differences in treatment "ex-
cept upon some reasonable differen-
tiation fairly related to the object of
regulation."23 Such a loose test, used
primarily in matters of economic
regulation, is tantamount to sustain-
ing the classification.
A much higher level of scrutiny
has been applied to certain types of
classifications, however. This "strict
scrutiny" test has its genesis in
Justice Stone's famous footnote 4 in
United States v. Carolene Products
Company.24 Stone wrote that "preju-
dice against discrete and insular
minorities may be a special condi-
tion, which tends seriously to curtail
the operation of those political proc-
esses ordinarily to be relied upon to
protect minorities, and which may call
for a correspondingly more search-
ing judicial inquiry." Thus because
of a need to protect "discrete and
insular minorities," the judiciary
has assumed an interventionist role
in examining certain types of classi-
fications. The strict scrutiny test is
triggered by the presence of either
a "fundamental interest" or a "sus-
pect classification." Some examples
of fundamental interests are voting
rights, criminal appeals, and the
right to travel. Of more relevance to
the present inquiry is the triggering
mechanism of a suspect classification.
What makes a particular classifica-
23. 336 U.S. 106 (1949).
24. 304 U.S. 144 (1938).
tion "suspect"? In San Antonio
School District v. Rodriguez, the
Court articulated some criteria: "an
immutable characteristic determined
solely by accident of birth, or a class
saddled with such disabilities, or
subjected to such a history of pur-
poseful unequal treatment, or rele-
gated to such a political power-
fulness as to command extraordinary
protection from the majoritarian po-
litical processes."25
The prototypical suspect classifi-
cation is race, and it was declared
so in 1944 in Korematsu v. United
States.26 There the Court empha-
sized "thatall legal restrictions which
curtail civil rights of a single racial
group are immediately suspect. That
is not to say that all such restrictions
are unconstitutional. It is to say that
courts must subject them to the most
rigid scrutiny." Ironically, the case
of Korematsu, which articulated the
"suspectness" of race -as a classifi-
cation, was only one of the rare times
that the classification withstood the
scrutiny.
Strict scrutiny, unlike minimum
rationality, examines both ends and
means. The end must not only be
legitimate, but must present a "com-
pelling state interest." The means
must not only be rationally related
to the achievement of the end, but
must be a necessary means to that
compelling end. This rigid scrutiny
standard was articulated in Loving v.
Virginia. There the Court noted that
[t]he Equal Protection Clause demands
that racial classifications be subjected
to the "most rigid scrutiny,"and if they
are ever upheld, they must be shown
to be necessary to the accomplishment
of some permissible state objective, in-
dependent of the racial discrimination
25. 411 U.S. 1 (1973).
26. 323 U.S. 214 (1944).
17

7. THE ANNALS OF THE AMERICAN ACADEMY
which it was the object of the Four-
teenth Amendment to eliminate.27
Hence, while the minimum ration-
ality test usually results in sustaining
the classification, the decision to ap-
ply strict scrutiny generally results
in a finding of unconstitutionality.
The Burger Court has added a
third "tier" between these two ex-
tremes, namely, the "strict ration-
ality" or "intermediate scrutiny" ap-
proach. This test has primarily been
developed for equal protection claims
emanating from sex-based classifi-
cations. Its level of scrutiny was
first articulated by Chief Justice
Burger in Reed v. Reed.28 In order
to pass scrutiny the classification
"must rest upon some ground of dif-
ference having a fair and substantial
relation to the object of the legisla-
tion." Thus instead of a glancing
look at a very loose fit between
classifications and ends, the means
must be "substantially" related to
the objectives. This intermediate
approach is discussed further next
because one wing of the Court selec-
ted it for use in Bakke and Fullilove.
It is readily apparent that in most
cases the selection of the level of
scrutiny is de facto dispositive of the
constitutionality of its classification.
Many proponents of ameliorative
racial preferences therefore argue
that strict scrutiny is not appropriate
because the "discrimination" is not
directed against "insular and dis-
crete minorities." The use of suspect
classifications is apparently a re-
sponse to a need for protection for
minorities unable to fend for them-
selves in the political process. In
the case of"discrimination" against
Whites, the political majority, the
question is, Does strict scrutiny ap-
ply in such instances? It will be
27. 388 U.S. 1(1967).
28. 404 U.S. 71 (1971).
shown that one of the fundamental
intra-Court battles in Bakke was over
the appropriate standard of scrutiny.
Does "benign discrimination" still
trigger suspectness? If the purpose
is amelioration, is that a compelling
state interest that would allow such
practices to be one of the few in-
stances to survive strict scrutiny?
What about the intermediate level?
These questions will be touched
upon as follows in the context of re-
cent affirmative action cases.
EQUAL PROTECTION AND
AFFIRMATIVE ACTION
Among the many contentious is-
sues currently facing the American
legal and political systems, perhaps
the most intransigent revolves around
the whole matter of affirmative ac-
tion. The practices involved have
been referred to in a variety of ways:
"ameliorative racial preference," "be-
nign discrimination," and more pe-
joratively, "reverse discrimination."
Essentially they involve forms of
race-conscious or sex-conscious ac-
tivity that provide some degree of
preferential treatment to compen-
sate for past discrimination. Need-
less to say, such practices raise a
plethora of legal as well as phil-
osophical questions. The following
pages examine the post-Brown devel-
opment of the equal protection doc-
trine by focusing specifically on the
three leading affirmative action deci-
sions handed down by the Burger
Court. What one finds is a Court
molding and shaping remedies in or-
der to conform with the exigencies
of the times.
Bakke
University of California Regents
v. Bakke29 arose when Alan Bakke,
29. 438 U.S. 265 (1978).
18

8. LEGALFOUNDATIONS
a white applicant, was denied ad-
mission to the University of Cali-
fornia at Davis Medical School. The
school's admission procedure in-
cluded a set-aside quota that re-
served 16 of the 100 entering places
for minorities. Bakke alleged that
denial of his ability to compete for
these seats violated his rights under
Title VI of the 1964 Civil Rights
Act and denied him equal protection
of the laws. The Court was thoroughly
divided over the controversy. There
was essentially a 4-1-4 split, with
Justice Powell assuming the com-
manding ground. The "conserva-
tive" wing was composed of justices
Stevens, Stewart, Rehnquist, and
Chief Justice Burger. The "liberal"
wing consisted of justices Brennan,
Marshall, Blackmun, and White.
The most significant question be-
fore the Court was whether Davis's
quota violated Title VI or the Equal
Protection Clause of the Fourteenth
Amendment. Justice Stevens, writing
for the conservative bloc, settled the
matter strictly on statutory grounds.
Adopting a "color-blind" interpreta-
tion of Title VI, Stevens held the
Davis program to be in contraven-
tion of the federal law. He specifi-
cally pointed out that Title VI was
not merely a restatement of the Four-
teenth Amendment; their require-
ments and proscriptions were not
coterminous. Stevens then inter-
preted Title VI as being less flexible
in what is allowable. This wing of
the Court took issue with the other
justices' discussion of the legality
of race as a criterion generally.
Stevens argued that the Court was
presented with a specific case and
that was all it should decide. In short,
Stevens, Burger, Stewart, and Rehn-
quist held that the Davis program
was an ipso facto violation of Title
VI, but they refused to comment on
the use of race as a broader cri-
terion.
Justice Brennan, writing for him-
self and justices Marshall, Blackmun,
and White, took a position diametri-
cally opposed to the Stevens' bloc.
The Brennan group interpreted Title
VI and the Equal Protection Clause
as coterminous. The discrimination
prohibited under the statute was also
unconstitutional under the Four-
teenth Amendment. In addition,
whatever remedial use of race was
constitutionally permissible under
the Equal Protection Clause was
also allowable under Title VI. Bren-
nan found the Davis program per-
missible under both.
Title VI, wrote Brennan, was not
intended "to bar all race conscious
efforts to extend the benefits of
federally financed programs to mi-
norities who have been historically
exluded from the full benefits of
American life." Furthermore, the
permissibility of racial preferences
should not be confined to situ-
ations where institutions had en-
gaged in demonstrated discrimina-
tion or where minorities could be
identified as victims of specific dis-
crimination. A general historical dis-
crimination by society was sufficient
to justify such race-conscious reme-
dies. As long as the racial classifi-
cation served the "benign" purpose
of remedying the effects of past
societal discrimination, then they
were legitimate. The Brennan posi-
tion asserted that there need be no
"intent"; "effect" alone justified race-
conscious remedies.
In handling the constitutional ques-
tion, Justice Brennan rejected the
application of strict scrutiny. He
found that no fundamental rights
were violated and he found no "sus-
pectness" because the discrimina-
tion was "benign." Instead, Brennan
relied on the middle-level test bor-
rowed from the gender discrimina-
tion cases and concluded that the
racial classification designed to fur-
19

9. THE ANNALS OF THE AMERICAN ACADEMY
ther remedial objectives could be
justified if there were an "impor-
tant and articulated purpose for its
use" and if, in addition, it did not
"stigmatize politically powerless seg-
ments of our society." Brennan urged
that the Davis admissions program
passed this level of scrutiny: the
articulated purpose of remedying the
effects of past societal discrimination
is, under our cases, sufficiently impor-
tant to justify the use of race-conscious
. . . programs where there is a sound
basis forconcluding thatminorityunder-
representationis substantialand chronic,
and that the handicap of past discrimi-
nation is impeding access to minorities
to the medical school.
Thus the Brennan group upheld
the program after applying inter-
mediate scrutiny.
Justice Powell's position was piv-
otal. He argued that Title VI pro-
scribed only those racial classifi-
cations that also violate the Con-
stitution. On this point his views
were consonant with those of Bren-
nan. Yet the thrust of Powell's
reasoning was also that while the
Fourteenth Amendment requires
equality of opportunity, it does not
require equality of results. Equal
opportunity must be provided to all
without regard to race or color. So,
on the other hand, Powell rejected
Brennan's benign-invidious classi-
fication distinction and insisted on
strict scrutiny: "Racial and ethnic
distinctions of any sort are inher-
ently suspect and thus call for the
most exacting judicial examination."
Powell viewed rights as individual,
not collective. With even "benign"
classifications suspect, the state must
show "that its purpose or intent is
both constitutionally permissible and
substantial, and that its use of the
classification is necessary . . . to
the accomplishment of its purpose
or the safeguarding of its interests."
Thus the purposes of the special
admissions program at Davis had to
be compelling, and the means-the
quota-had to be closely related and
necessary to the achievement of
those ends. The Medical School ar-
ticulated four purposes of the pro-
gram, which were each treated by
Justice Powell. The first was "re-
ducing the historic deficit of tradi-
tionally disfavored minorities in med-
ical schools and the medical profes-
sion." Powell responded that while
increasing the representation of
historically disfavored minorities
through the imposition of a specified
percentage was not unsubstantial, it
was "facially invalid. Preferring mem-
bers of any one group for no reason
other than race or ethnic origin is
discrimination for its own sake."
The second purpose was "counter-
ing the effects of societal discrimina-
tion." Powell also rejected this as a
justification for the Davis program.
"We have never approved," wrote
Powell, "a classification that aids
persons perceived as members of
relatively victimized groups at the
expense of other innocent individ-
uals in the absence of judicial, legis-
lative, or administrative findings of
constitutional or statutory violations."
The third purpose of the Davis
program involved "increasing the
number of physicians who will prac-
tice in communities currently un-
derserved." Powell quickly rejected
this justification by stating that the
university had presented no evi-
dence to show that the special ad-
missions program was "either needed
or geared to promote the goal."
The final purpose was "obtaining
the educational benefits that flow
from an ethnically diverse student
body." Powell agreed that this was a
"compelling interest," but he ar-
gued that a quota for minorities
entering higher education was not
the only way of achieving that end,
20

10. LEGAL FOUNDATIONS
as was demonstrated by the Harvard
College program, which he held up
as an acceptable prototype. He in-
sisted on less onerous means to that
end if they were available. There-
fore for Powell, as for the majority
of the Court, race could be one factor
in admissions policy, but it could not
be the decisive factor.
Weber
In 1979, the Supreme Court handed
down a decision involving preferen-
tial treatment in employment: United
States Steelworkers of America
v. Weber.30 An affirmative action
program was collectively bargained
by the Kaiser Aluminum and Chem-
ical Corporation and the Steelwork-
ers of America. In this program,
50 percent of the slots for in-plant
craft training programs were re-
served for black employees until the
proportion of black craft workers
equalled the proportion of Blacks in
the local labor force. Weber, a White
denied admission to the training
program, claimed that the program
violated Title VII of the Civil Rights
Act of 1964, which reads that the
statute "shall not be interpreted to re-
quire any employer ... to grant
preferential treatment . . . to any
group because of the race of ...
such group on account of [a racial
imbalance in the work force]." The
Court upheld the program by a five
to two vote. Two of the most im-
portant figures in Bakke, justices
Powell and Stevens, did not partici-
pate. Also significant is the fact that
Justice Stewart switched his Bakke
position without any explanation for
doing so.
Justice Brennan's majority opin-
ion argued that Title VII is not
color-blind. He asserted that the
question in Weber was not what
30. 443 U.S. 193 (1979).
Title VII required or with what a
court might order to remedy a past
proven violation. The only relevant
question, according to Brennan, was
the narrow statutory issue of whether
Title VII forbids private employers
and unions from voluntarily agree-
ing upon a bona fide affirmative
action program that accords racial
preferences in the manner and pur-
pose of this plan. Although no proven
past discrimination by Kaiser was
shown, Brennan took judicial notice
of the exclusion of Blacks from
craft unions generally. He contended
that the purpose of Title VII and
those of the program were identical:
to destroy traditional patterns of
racial segregation. He also did not
perceive the infringement of Whites'
rights as particularly severe. The
preferential program
does not unnecessarily trammel the
interests of white employees. The plan
does not require the discharge of white
workersandtheirreplacementwith new
black hires .... Nor does the plan
create an absolute bar to the advance-
ment of white employees; half of those
trained in the program will be white.
Moreover,the plan is a temporarymeas-
ure; it is not intended to maintain a
racial balance, but simply to eliminate
a manifestracialimbalance.Preferential
selection ofcrafttraineesatthe Gramercy
plant will end as soon as the percent-
age of black skilled craftworkersin the
Gramercy plant approximates the per-
centage of blacks in the local labor
force.
Brennan concluded by writing: "We
hold that Title VII's prohibitions in
??703(a) and (d) against racial dis-
crimination does not condemn all
private, voluntary, race-conscious af-
firmative action plans."
Justice Blackmun, concurring, em-
ployed the "arguable violations"
approach used by Judge Wisdom of
the Court of Appeals. Although Kaiser
denied prior discrimination, it con-
21

11. THE ANNALS OF THE AMERICAN ACADEMY
ceded that its past hiring practices
may have been subject to question.
Blackmun, like Wisdom, concluded
that employers and unions that had
committed "arguable violations" of
Title VII should be free to take
reasonable responses without fear
of liability to Whites, and that the
Kaiser program was a reasonable
response. Blackmun asserted that
the Brennan interpretation that Title
VII permitted affirmative action by
an employer whenever the job cate-
gory in question was "traditionally
segregated" was far too broad and
sweeping. Therefore he presented
his narrower "arguable violations"
approach.
The dissenters, Rehnquist and
Burger, employed a strict, literal
reading of ??703(a) and (d) of Title
VII, and held that no racial discrimi-
nation whatsoever was allowable.
This color-blind approach accused
the majority of a Houdini-like act
of eluding clear "statutory language,
'uncontradicted' legislative history,
and uniform precedent in conclud-
ing that employers are, after all,
permitted to consider race in making
employment decisions."
Fullilove
Fullilove v. Klutznick,31the latest of
the affirmative action cases, emerged
out of a constitutional challenge to
?103(f)(2) of the Public Works Em-
ployment Act of 1977. This section,
known as the "minority business
enterprise" (MBE) provision, stipu-
lated that a minimum of 10 percent
of federal monies provided for local
public works projects must be uti-
lized by the grantee to purchase
services or supplied from minority-
owned businesses, unless there was
an administrative waiver.
Before proceeding with the Court's
treatment of Fullilove, it is essential
to note that the challenged state
actor was Congress, whereas the
Fourteenth Amendment applies only
to the states. Thus the legal question
involved the Due Process Clause of
the Fifth Amendment. This has been
the mechanism since Bolling v.
Sharp,32 a companion case to Brown
I. In Bolling, the Court held that the
Due Process Clause of the Fifth
Amendment required the same re-
sult as Brown, where the Four-
teenth Amendment's Equal Protec-
tion Clause was applied. It would
be "unthinkable," said the Court,
that the Constitution imposed a
lesser duty on the federal govern-
ment than on the states. Equal pro-
tection is a more specific safeguard
than due process, and the concepts
are not "interchangable." But the
liberty protected by the Due Process
Clause includes "the full range of
conduct which the individual is free
to pursue, and it cannot be restricted
except for a proper governmental
objective." Bolling therefore pointed
out the equal protection component
of the Due Process Clause of the
Fifth Amendment, which now pro-
vided the basis of the constitutional
challenge in Fullilove.
In Fullilove, the Court upheld
the set-aside MBE program, but its
reasoning was quite fragmented.
Chief Justice Burger wrote the "opin-
ion of the Court," joined by justices
White and Powell. Burger's opinion
called for close scrutiny, but at the
same time was highly deferential
to the congressional act:
A programthat employs racialor eth-
nic criteria, even in a remedial con-
text, calls for close examination;yet we
are bound to approachour task with ap-
31. 100 S.Ct. 2758 (1980).
22
32. 347U.S.947(1954).

12. LEGAL FOUNDATIONS
propriate deference to the Congress, a
co-equal branch charged by the Con-
stitution with the power to "provide for
the . . . general Welfare of the United
States" and "to enforce by appropriate
legislation"the equal protectionguaran-
tees of the Fourteenth Amendment.
Burger pointed out that the program
was designed to prevent the per-
petuation of the effects of prior
discrimination that had impaired or
foreclosed access by minority busi-
nesses to public contracting op-
portunities. Hence past discrimina-
tion was crucial.
The Chief Justice used a two-step
analysis. First he determined whether
the objectives of the legislation were
within the powers of Congress. He
found that they were. Second was
the question whether the limited use
of racial and ethnic criteria, in the
context presented, was a constitu-
tionally permissible means for achiev-
ing the congressional objectives.
Burger noted that ordinarily the
remedy must be limited to the wrong-
doing. However, Congress has sweep-
ing powers:
Here we deal . . . not with the
limited remedial powers of a federal
court, for example, but with the broad
remedial powers of Congress. It is
fundamentalthat in no organof govern-
ment, state orfederal, does there repose
a more comprehensive remedial power
than in the Congress, expressly charged
by the Constitution with competence
andauthorityto enforce equal protection
guarantees.
With the invocations of judicial
restraint, Burger therefore argued
that Congress has broad power to
select the techniques and mecha-
nisms to achieve its legitimate ob-
jectives. Indeed, upon reading the
opinion, one is struck with the im-
pression that when Congress is the
actor, somehow strict scrutiny is not
applicable. All the language and
techniques of strict scrutiny were
conspiciously absent from the Chief
Justice's opinion.
Justice Powell's concurrence un-
derscored this fact. He believed that
his Bakke strict scrutiny approach
should have also been applied in
Fullilove: "The MBE law employs
a racial classification that is con-
stitutionally prohibited unless it is
a necessary means of advancing a
compelling state interest." But after
analysis he concluded, "I believe
?103(f)(2) is justified as a remedy
that serves the compelling govern-
mental interest in eradicating the
continuing effects of past discrimina-
tion identified by Congress." Hence
for Powell, the institution taking the
action was critical. He agreed with
the Chief Justice that Congress has
much broader powers and thus strict
scrutiny was more easily survived.
In concurrence, too, was Marshall,
joined by Brennan and Blackmun,
who insisted that their approach in
Bakke was also controlling in Fulli-
love. Using the intermediate scru-
tiny test, they analyzed the situation
as follows. First, remedying present
effects of past discrimination is a
sufficiently important governmental
interest to justify the use of racial
classifications. And second, the means
chosen by Congress to implement
the set-aside provision were sub-
stantially related to the achievement
of its remedial purpose. "The set-
aside, enacted by Congress and im-
plemented by the Secretary of Com-
merce, is avoiding stigmatization
and penalizing those least able to
protect themselves in the political
process." In contrast, the dissenters
-justices Stevens and Rehnquist-
invoked Harlan's dissent in Plessy
and insisted on a color-blind Con-
stitution. Raising the specter of Nur-
emberg-like racial tests and race
laws, they urged that race should
23

13. THE ANNALS OF THE AMERICAN ACADEMY
never be a criterion, and indeed
was proscribed by the Constitution.
CONCLUDING QUERIES AND
PROJECTIONS
It seems appropriate in closing
that one should raise some questions
and offer projections concerning
equal protection and affirmative ac-
tion in the 1980s. First, since both
sides of the affirmative action con-
troversy periodically rely upon Brown
to bolster their positions, what is the
relationship between Bakke, Weber,
and Fullilove, on the one hand, and
Brown on the other? More specifi-
cally, under Brown, are race-con-
scious remedies legitimate and nec-
essary to compensate for past dis-
crimination? In contemplating this
question one must note the com-
monly accepted view that Brown
-embraced Justice Harlan's color-
blind dissent in Plessy. If this is true,
affirmative action would seem con-
trary to the letter of Brown, as the
Court's dissenters-primarily con-
servatives-contended in Bakke,
Weber, and Fullilove. Certainly a
careful reading of Brown does not
provide any proof that racial quotas
were envisioned by the Court in
1954. Yet there is an alternative
interpretation in Brown and its re-
lationship to ameliorative remedies.
For instance, Justice Neill of the
Washington State Supreme Court
argued as follows in DeFunis v.
Odegaard: "Brown did not hold that
all racial classifications are per se
unconstitutional; rather, it held that
invidious racial classifications -i.e.,
those that stigmatize a racial group
with the stamp of inferiority-are
unconstitutional."33 Hence if Brown
proscribed only color-conscious
state activity that is invidious, per-
33. 507 P.2d 1169 (1973).
haps the letter of Brown has been
violated in affirmative action cases,
but it would seem reasonable to
argue that the spirit of Brown is still
being honored.
Other questions will undoubtedly
be raised in future litigation, but it
is more difficult to answer them with
certainty at this time. For example,
given the trend established in Bakke,
Weber, and Fullilove, will the Court
continue to support affirmative ac-
tion generally? The answer would
seem to be yes at first blush; that
is what the case law suggests. How-
ever, there is apparently a rising
conservative mood in this country,
as reflected in the election of Ronald
Reagan, a Republican majority in the
Senate, and the substantial increase
of Republicans in the House. Given
a changing political environment,
new significant affirmative action
questions may well not reach the
Court in the next few years be-
cause there will presumably be less
of an affirmative action push by the
federal government. Thus perhaps
new affirmative action efforts will
have to be initiated largely by pro-
gressive states or businesses. But a
Supreme Court with one, two, or
even three Reagan appointees, com-
bined with the Nixon and Ford ap-
pointees, is unlikely to extend the
legitimacy of affirmative action pro-
grams like that at the University of
California at Davis or private pro-
grams like that of the Kaiser Alumi-
num Company.
Also, in light of a more conserva-
tive political climate and anticipated
Reagan appointees, will the Court
extend its past affirmative action
trends to other minority groups, such
as Hispanics, and to women? Here
again one's guess might be yes, but
how farthe Court will go cannot now
be predicted. Clearly there are criti-
cal historical differences in this
24

14. LEGAL FOUNDATIONS
country in the plight of other minori-
ties and women as contrasted with
that of Blacks. But other minorities
definitely fall within the provisions
of civil rights laws such as Title VII
and federal economic legislation
such as the MBE program. And one
might logically expect the Court to
uphold affirmative action programs
for women-especially since it was
none other than Chief Justice Burger
himself who established the inter-
mediate scrutiny test in Reed v.
Reed.34 However, the Court has yet
to address this question, and one
must exercise caution in speculating
about how the justices will decide
even this logical extension of af-
firmative action involving sex dis-
crimination.
Finally, will the Court require af-
34. 404 U.S. 71 (1971).
firmative action in the field of equal
housing opportunity as it did in edu-
cation, employment, and minority
contracts? This is the most sensitive
of the questions because fair housing
seems to constitute the most con-
troversial and emotion-laden one in
civil rights today. A majority of
Whites appear more willing to work
with minorities, or to have their
children attend schools with mi-
norities, than to accept them as
neighbors. Therefore perhaps the
housing issue will be the last in
which the Court will decide that af-
firmative action is essential to meet
the requirements of the Equal Pro-
tection Clause. Yet we cannot be
sure when, or if, this will come to
fruition during a period of con-
servative politics that will probably
be reflected in Supreme Court de-
cisions.
25