Legal Affairs

March|April 2003

Swing Votes: Lincoln Caplan

THE BAKKE AFFIRMATIVE ACTION DECISION, up for review in Supreme Court cases about admissions practices at the University of Michigan, was reached in 1978 with what Justice Lewis Powell called "a notable lack of unanimity." Usually described as a 5-4 ruling, it was actually 4-1-4. Four justices struck down a program that set aside 16 places for minorities in a class of 100 at the University of California-Davis medical school; four justices said it was constitutional to take race into account as a factor in admissions. Powell, in effect, joined both groups.

Powell wanted to preserve "the ideal of a color-blind society," according to his biographer John Jeffries, but also believed that outlawing affirmative action would be "a disaster for the country." These contradictory impulses led him to use the most exacting standard of constitutional analysis—but to temper it by creating an important exception.

Under so-called strict scrutiny, a race-conscious program must serve a compelling government interest and be narrowly tailored to do so. Just one program has ever been upheld by the Supreme Court under the standard, earning strict scrutiny the designation "strict in theory but fatal in fact." The program that survived—itself exceptional—was the internment of Japanese-Americans during World War II, upheld only because its backers played a wartime trump card: national security.

Powell understood that affirmative action could not survive strict scrutiny. In his Bakke opinion, he tried to loosen the standard by shoehorning in educational diversity as a compelling government interest. But he didn't explain the basis for the exception he wanted to make, and not explaining was tantamount to leaving the standard un-changed. Powell's vote saved affirmative action at U.C.-Davis but set up other race-conscious programs to be struck down.

As a result, in Jeffries's words, affirmative action became "familiar, widespread, and significantly successful" but also "resented, contested, and sometimes curtailed." That confusion, legal and social, has been Powell's legacy.

To Justice William Brennan, writing in the Bakke case for himself and three others, the distinction that mattered was between an admissions program that used race to demean minorities and one that used it to help them advance. Racial distinctions shouldn't be taken lightly, but there was an essential difference between exclusion and inclusion. In the U.C.-Davis program, while 16 places were set aside for minorities, 84 places were open to all applicants, which meant that the program didn't exclude whites. Brennan proposed that such an inclusive program be judged constitutional if it had "an important and articulated purpose," a more open-minded standard than strict scrutiny.

In 1990, for a majority of five justices, Brennan wrote an opinion upholding policies established by the FCC to enhance minority ownership and management of radio and TV stations. Brennan applied his Bakke standard to that federal program. Five years later, in a case about awarding federal contracts to minority-owned small businesses, a different five-justice majority abandoned Brennan's standard for Powell's. Sandra Day O'Connor, writing for the majority, said that all government affirmative action, whether state or federal, must meet the strict scrutiny test—though she made a point of saying that it "is not true that strict scrutiny is strict in theory, but fatal in fact."

Today there are five justices who have never voted to uphold an affirmative action program based on race, O'Connor among them. The other four justices, like Brennan before them, see a difference between racial classifications that help minorities and those that discriminate against them. Their view reflects the fact that leading businesses, unions, and public agencies as well as universities throughout the country rely on affirmative action as a tool to combat discrimination and discrepancies in opportunity that would otherwise stay embedded in their institutions and in society.

The four justices, in other words, have a view of the law that squares with America's experience. They recognize that leading institutions turn to affirmative action voluntarily because they think it's in their interest, and society's, to do so. Given the divisions in today's court, it's unlikely that Brennan's standard will replace Powell's anytime soon. Still, in the Michigan cases, O'Connor could make a world of difference by acting on her stated view that strict scrutiny is not fatal and joining the four on a more fundamental point. Even without embracing Michigan's approach, she could recognize that affirmative action in admissions is not an end in itself but a means to closing the still-large gap between the ideal of equal opportunity and prevailing racial inequities—a goal that should be a compelling interest of the U.S. government.

Lincoln Caplan is the editor and president of Legal Affairs and the author of Up Against the Law: Affirmative Action and the Supreme Court.



					March\|April 2003 Swing Votes: Lincoln Caplan THE BAKKE AFFIRMATIVE ACTION DECISION, up for review in Supreme Court cases about admissions practices at the University of Michigan, was reached in 1978 with what Justice Lewis Powell called "a notable lack of unanimity." Usually described as a 5-4 ruling, it was actually 4-1-4. Four justices struck down a program that set aside 16 places for minorities in a class of 100 at the University of California-Davis medical school; four justices said it was constitutional to take race into account as a factor in admissions. Powell, in effect, joined both groups. Powell wanted to preserve "the ideal of a color-blind society," according to his biographer John Jeffries, but also believed that outlawing affirmative action would be "a disaster for the country." These contradictory impulses led him to use the most exacting standard of constitutional analysis—but to temper it by creating an important exception. Under so-called strict scrutiny, a race-conscious program must serve a compelling government interest and be narrowly tailored to do so. Just one program has ever been upheld by the Supreme Court under the standard, earning strict scrutiny the designation "strict in theory but fatal in fact." The program that survived—itself exceptional—was the internment of Japanese-Americans during World War II, upheld only because its backers played a wartime trump card: national security. Powell understood that affirmative action could not survive strict scrutiny. In his Bakke opinion, he tried to loosen the standard by shoehorning in educational diversity as a compelling government interest. But he didn't explain the basis for the exception he wanted to make, and not explaining was tantamount to leaving the standard un-changed. Powell's vote saved affirmative action at U.C.-Davis but set up other race-conscious programs to be struck down. As a result, in Jeffries's words, affirmative action became "familiar, widespread, and significantly successful" but also "resented, contested, and sometimes curtailed." That confusion, legal and social, has been Powell's legacy. To Justice William Brennan, writing in the Bakke case for himself and three others, the distinction that mattered was between an admissions program that used race to demean minorities and one that used it to help them advance. Racial distinctions shouldn't be taken lightly, but there was an essential difference between exclusion and inclusion. In the U.C.-Davis program, while 16 places were set aside for minorities, 84 places were open to all applicants, which meant that the program didn't exclude whites. Brennan proposed that such an inclusive program be judged constitutional if it had "an important and articulated purpose," a more open-minded standard than strict scrutiny. In 1990, for a majority of five justices, Brennan wrote an opinion upholding policies established by the FCC to enhance minority ownership and management of radio and TV stations. Brennan applied his Bakke standard to that federal program. Five years later, in a case about awarding federal contracts to minority-owned small businesses, a different five-justice majority abandoned Brennan's standard for Powell's. Sandra Day O'Connor, writing for the majority, said that all government affirmative action, whether state or federal, must meet the strict scrutiny test—though she made a point of saying that it "is not true that strict scrutiny is strict in theory, but fatal in fact." Today there are five justices who have never voted to uphold an affirmative action program based on race, O'Connor among them. The other four justices, like Brennan before them, see a difference between racial classifications that help minorities and those that discriminate against them. Their view reflects the fact that leading businesses, unions, and public agencies as well as universities throughout the country rely on affirmative action as a tool to combat discrimination and discrepancies in opportunity that would otherwise stay embedded in their institutions and in society. The four justices, in other words, have a view of the law that squares with America's experience. They recognize that leading institutions turn to affirmative action voluntarily because they think it's in their interest, and society's, to do so. Given the divisions in today's court, it's unlikely that Brennan's standard will replace Powell's anytime soon. Still, in the Michigan cases, O'Connor could make a world of difference by acting on her stated view that strict scrutiny is not fatal and joining the four on a more fundamental point. Even without embracing Michigan's approach, she could recognize that affirmative action in admissions is not an end in itself but a means to closing the still-large gap between the ideal of equal opportunity and prevailing racial inequities—a goal that should be a compelling interest of the U.S. government. Lincoln Caplan is the editor and president of Legal Affairs and the author of Up Against the Law: Affirmative Action and the Supreme Court.