How does affirmative action violate the 14th amendment

Croson Co. But it left the question open whether the strict scrutiny standard applied to federal cases. In Metro Broadcasting, Inc. FCC , the court seemed to settle the issue. The court upheld a Federal Communications Commission policy that Congress had approved. The policy counted minority ownership as a plus factor on applications for broadcast licenses.

The court majority ruled that the policy did not violate equal protection, because it was substantially related to the achievement of the important governmental objective of broadcast diversity.

This is the intermediate scrutiny standard. Five years later, however, the court decided the Adarand case , discussed at the beginning of this article. In a ruling on June 12, , the Supreme Court decided that strict scrutiny applies to federal cases.

The court overruled the part of the Metro Broadcasting case that set intermediate scrutiny as the standard. Although the court did not overrule Fullilove by name, Adarand 's reasoning arguably is at odds with the reasoning in Fullilove as well.

Writing for the court, Justice O'Connor said that whenever racial groups are treated differently by any level of government, as they were by the Department of Transportation's affirmative action program, the government may do so "only for the most compelling reasons.

Therefore, the presence of a most "compelling reason" is the new test that all affirmative action programs with racial or ethnic preferences will have to pass. The Supreme Court, however, has not yet defined what a "compelling reason" might be. Two justices, Scalia and Thomas , have indicated that government could never have a compelling reason for making race preferences.

As Justice Scalia said in his concurring opinion in Adarand : "In my view, government can never have a compelling interest in discriminating on the basis of race in order to make up for past racial discrimination in the opposite direction. But the other justices have not shut the door on affirmative action programs with racial preferences. Justice O'Connor's opinion stated that the government may have a compelling reason to act on the basis of race to overcome the "persistence of both the practice and lingering effects of racial discrimination against minority groups in this country.

The Supreme Court has ruled that racial groups may be treated differently by government-sponsored affirmative action programs "only for the most compelling reasons. Program 1: The Department of Transportation affirmative action policy in the Adarand case discussed at the beginning of the article. Program 2: African Americans make up 35 percent of the population of a Southern city that, in the past, practiced racial discrimination in hiring police officers.

Today, 4 percent of the city's police are black. An affirmative action plan, ordered by the courts, requires that half of all new qualified officers hired must be African Americans until 35 percent of the police department is made up of members of that group. Program 3 : A Northern city recently added a large number of minority teachers to its previously almost all-white teacher staff.

During a time of budget cutbacks, the school board laid off three white teachers for every minority teacher regardless of seniority. This was done to keep as many minority teachers as possible to provide role models for the growing numbers of minority students in the city's schools.

Program 4: A prestigious public university awards "extra points" in its admissions process to qualified minorities and women. The purpose of this affirmative action policy is to achieve a diverse student body. The Court rejected arguments that minority beneficiaries of such programs are stigmatized, that burdens are placed on innocent third parties, and that the program is overinclusive, so as to benefit some minority members who had suffered no discrimination.

Despite these developments, the Court remained divided in its response to constitutional challenges to affirmative action plans. But a countervailing consideration was the impact of such discrimination on disadvantaged non-minorities. Two cases illustrate the latter point. In Wygant v. Jackson Board of Education , the Court invalidated a provision of a collective bargaining agreement giving minority teachers a preferential protection from layoffs.

In United States v. Paradise , the Court upheld as a remedy for past discrimination a court-ordered racial quota in promotions. Justice White, concurring in Wygant , emphasized the harsh, direct effect of layoffs on affected non-minority employees. A clear distinction was then drawn between federal and state power to apply racial classifications. In City of Richmond v. Croson Co. By contrast, the Court in Metro Broadcasting, Inc. FCC 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.

These racial preferences—unlike the set-asides at issue in Fullilove — originated as administrative policies rather than statutory mandates. Metro Broadcasting was noteworthy for several other reasons as well. The distinction between federal and state power to apply racial classifications, however, proved ephemeral.

The Court ruled in Adarand Constructors, Inc. Pena 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. The underlying principle, the Court explained, is that the Fifth and Fourteenth Amendments protect persons, not groups. Bollinger , and Gratz v. 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 e.

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. Further, the Court emphasized the role of education in developing national leaders.

Applicants with scores over were generally admitted, while those with scores of less than fell into categories that could result in either admittance, postponement, or rejection. Of particular interest to the Court was that an applicant would be entitled to 20 points based solely upon his or her membership in an underrepresented racial or ethnic minority group. According to the majority opinion in Gratz , the undergraduate policy did not provide for such individualized consideration.

The Court subsequently revisited the question of affirmative action in undergraduate education in its decision in Fisher v. While institutions of higher education were striving to increase racial diversity in their student populations, state and local governments were engaged in a similar effort with respect to elementary and secondary schools.

Whether this goal could be constitutionally achieved after Grutter and Gratz , however, remained unclear, especially as the type of individualized admission considerations found in higher education are less likely to have useful analogies in the context of public school assignments.

Thus, for instance, in Parents Involved in Community Schools v. Seattle School District No. In an opinion by Chief Justice Roberts, a majority of the Court in Parents Involved in Community Schools agreed that the plans before the Court did not include the kind of individualized considerations that had been at issue in the university admissions process in Grutter , but rather focused primarily on racial considerations.

West Virginia, U. Moreover it will not do to argue that a law that segregates the races or prohibits contacts between them discriminates equally against both races. Warley, U.

Compare Pace v. Alabama, U. Florida, U. Virginia, U. Hopkins, U. Rives, U. City of Boston, 59 Mass. Ferguson, U. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. The act of Congress in providing for separate schools in the District of Columbia was specifically noted. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.

Rice, U. Richmond County Bd. Kentucky, U. Gaines v. Canada, U. See also Sipuel v. Board of Regents, U. Painter, U. Oklahoma State Regents, U. Segregation in the schools of the District of Columbia was held to violate the due process clause of the Fifth Amendment in Bolling v. Sharpe, U. Board of Education, U. Aaron, U. Edwards, F. Raleigh City Bd. Parham, F. Greensboro City Bd. School Board of Roanoke, F. Board of Pub. Instruction of Dade County, F.

Board of Educ. Cahokia Bd. Prince Edward County School Bd. On school closing legislation in another State, see Bush v. Orleans Parish School Bd. Helena Parish School Bd. Knoxville Bd. Such plans permitted as of right a student assigned to a school in which students of his race were a minority to transfer to a school where the student majority was of his race.

City of Memphis, U. In Bradley v. School Bd. Latimer, U. See Singleton v. Jackson Municipal Separate School Dist. HEW guidelines were designed to afford guidance to state and local officials in interpretations of the law and were accepted as authoritative by the courts and used. Davis v. Beasley, F.

Gould Bd. These cases had been preceded by a circuit-wide promulgation of similar standards in United States v. Jefferson County Bd. School boards such as the respondent then operating state-compelled dual systems were nevertheless clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.

The case laid to rest the dictum of Briggs v. Elliott, F. Montgomery County Bd. Clarksdale Mun. Separate School Dist. Holmes County Bd. The Court summarily reiterated its point several times in the Term. Carter v. Barresi, U. The 14th Amendment was necessary to make clear that Black people, as well as anyone born in the country or naturalized, were American citizens. The 14th Amendment was enacted with the intent to support a series of race-conscious programs that were created at the time to aid Blacks newly emancipated by the 13th Amendment.

The road to equality by way of the 14th Amendment was not always an easy one. Some of the most ignoble policies and practices, such as forced racial segregation in public schools and public spaces and the incarceration of Japanese-Americans and people of Japanese ancestry during World War II, were found to be consistent with the Constitution.

And, as time has passed, its initial emphasis on addressing the rights of freed Black people has shifted substantially. Powell Jr. Of significance, he relied in part on the First Amendment. The freedom of a university to make its own judgments as to education includes the selection of its student body.

Powell subsequently argued that the university could exercise its freedom to give some weight to race in its admissions process, as long as it did not use strict quotas, as he believed the University of California had improperly done. The Court encountered two similar cases in New Hampshire and Keyishian v. The majority fails in its summary effort to prove this point. The Court did not raise the First Amendment in the companion case of Gratz v.

Bollinger , in which Chief Justice William H. With recent changes on the U. Supreme Court, it may well revisit this issue in the near future.

He is co-editor of the Encyclopedia of the First Amendment.