Preferential Treatment on the Preferential Treatment on the JobJob Background: From Background: From PlessyPlessy to to BrownBrown United Steelworkers v. WeberUnited Steelworkers v. Weber Other relevant casesOther relevant cases

Plessy v. Ferguson (1895)Plessy v. Ferguson (1895) Laws requiring “separate but equal” Laws requiring “separate but equal”

facilities for blacks and whites do not facilities for blacks and whites do not violate the “equal protection” clause.violate the “equal protection” clause.

J. Harlan’s dissent: the Constitution is J. Harlan’s dissent: the Constitution is “colorblind.” The 14th amendment does “colorblind.” The 14th amendment does not permit the Government to recognize not permit the Government to recognize racial differences.racial differences.

Brown v. Board of Education Brown v. Board of Education (1954)(1954) Did not reverse Did not reverse PlessyPlessy in principle, in principle, Did not accept the colorblind standard Did not accept the colorblind standard

proposed by NAACP. proposed by NAACP. Used psychological data to argue that Used psychological data to argue that

separation education is in fact harmful separation education is in fact harmful to black children, and so "inherently to black children, and so "inherently unequal".unequal".

United Steelworkers v. Weber United Steelworkers v. Weber et al. et al. (1979)(1979) Voluntary preferential treatment plan in Voluntary preferential treatment plan in

employment (craft training)employment (craft training) Not defended as a remedy for past Not defended as a remedy for past

discrimination by Kaiser.discrimination by Kaiser. Seeking to equalize the representation Seeking to equalize the representation

of whites and blacks, despite past of whites and blacks, despite past societal discrimination.societal discrimination.

Rehnquist's dissentRehnquist's dissent Compares the majority opinion to Compares the majority opinion to

Newspeak in Orwell's Newspeak in Orwell's 19841984.. Appeal to the language of Title VII of the Appeal to the language of Title VII of the

Civil Rights Act (1964).Civil Rights Act (1964). Appeal to the legislative history of the Appeal to the legislative history of the

Act (especially the lengthy Senate Act (especially the lengthy Senate debate).debate).

Title VII of the 1964 Civil Title VII of the 1964 Civil Rights ActRights ActIt is] unlawful for an employer to classify his It is] unlawful for an employer to classify his

employees in any way which would deprive employees in any way which would deprive any individual of employment opportunities any individual of employment opportunities or otherwise adversely affect his status as or otherwise adversely affect his status as an employee, because of such individual's an employee, because of such individual's race, color, religion, sex or national origin.race, color, religion, sex or national origin.

The Act includes no exceptions to this ban The Act includes no exceptions to this ban or racial discrimination.or racial discrimination.

The Legislative History of The Legislative History of Title VIITitle VII Senator Humphrey (majority whip, co-Senator Humphrey (majority whip, co-

manager of the bill in the Senate): Title manager of the bill in the Senate): Title VII does not permit the use of racial VII does not permit the use of racial quotas. It is a "bugaboo" to insist that it quotas. It is a "bugaboo" to insist that it could be used to require racial balance. could be used to require racial balance. "The very opposite is true. Title VII "The very opposite is true. Title VII prohibits discrimination."prohibits discrimination."

Sen. Kuchel (minority whip, co-Sen. Kuchel (minority whip, co-manager): "The statute is colorblind."manager): "The statute is colorblind."

Brennan's opinion for the Brennan's opinion for the CourtCourt No state action -- 14th amendment does No state action -- 14th amendment does

not apply.not apply. Rely on underlying purpose, not literal Rely on underlying purpose, not literal

interpretation of the Act.interpretation of the Act. Argument from silence -- paragraph j.Argument from silence -- paragraph j. Legislative history -- a second look.Legislative history -- a second look.

Kaiser plan is not state actionKaiser plan is not state action The plan was undertaken voluntarily by The plan was undertaken voluntarily by

Kaiser and the unions. (Pressure from Kaiser and the unions. (Pressure from Labor Dept.?)Labor Dept.?)

The 14th amendment’s equal protection The 14th amendment’s equal protection clause applies only to state action.clause applies only to state action.

Interpret by purpose, not Interpret by purpose, not literallyliterally The historical context that provided the The historical context that provided the

impetus for the Act was the worsening impetus for the Act was the worsening position of black Americans in the work position of black Americans in the work force (rising black unemployment rate).force (rising black unemployment rate).

There was no concern about There was no concern about discrimination against whites.discrimination against whites.

Appeal to section 703 (j)Appeal to section 703 (j)

Nothing contained in this title shall be Nothing contained in this title shall be interpreted to require any employer, interpreted to require any employer, etc., to grant preferential treatment to etc., to grant preferential treatment to any individual, or to any group because any individual, or to any group because of race, color, religion, sex or national of race, color, religion, sex or national origin of such individual or group on origin of such individual or group on account of an imbalance which may account of an imbalance which may exist. [emphasis Brennan's]exist. [emphasis Brennan's]

Argument from silenceArgument from silence Brennan points out that the paragraph Brennan points out that the paragraph

does not say "require or permit". does not say "require or permit". Since the framers ommitted the phrase Since the framers ommitted the phrase

"or permit", Brennan infers that they "or permit", Brennan infers that they intended that the Act should permit intended that the Act should permit employers to grant preferential employers to grant preferential treatment.treatment.

Rehnquist’s rebuttalRehnquist’s rebuttal Paragraph (j) is addressed to the courts, Paragraph (j) is addressed to the courts,

not to employers, so it's not surprising that not to employers, so it's not surprising that it does not there discuss what is permitted it does not there discuss what is permitted of employers.of employers.

Paragraphs (a) and (d) explicitly forbid Paragraphs (a) and (d) explicitly forbid "preferential treatment to any individual" on "preferential treatment to any individual" on account of "race, color, etc." It would be account of "race, color, etc." It would be redundant for paragraph (j) to state again redundant for paragraph (j) to state again that this is not permitted.that this is not permitted.

Legislative historyLegislative history Sen. Humphrey stated that Title VII Sen. Humphrey stated that Title VII

would not allow establishment of would not allow establishment of systems "to maintain racial balance in systems "to maintain racial balance in employment" (emphasis Brennan's). employment" (emphasis Brennan's).

The Kaiser plan seeks to The Kaiser plan seeks to createcreate, and , and not to maintain, such racial balance.not to maintain, such racial balance.

Blackmun’s Concurring Blackmun’s Concurring OpinionOpinion Blackmun shares Rehnquist's concerns Blackmun shares Rehnquist's concerns

about the meaning and legislative about the meaning and legislative history of Title VII. history of Title VII.

Nonetheless: "I believe that additional Nonetheless: "I believe that additional considerations, practical and equitable, considerations, practical and equitable, only partially perceived, if perceived at only partially perceived, if perceived at all, by the 88th Congress, support the all, by the 88th Congress, support the conclusion reached.."conclusion reached.."

A Twofold ArgumentA Twofold Argument To concerns of public policy and utility To concerns of public policy and utility

("practical considerations"). ("practical considerations"). Consequentialist.Consequentialist.

To matters of natural justice ("equitable To matters of natural justice ("equitable considerations"). Deontological.considerations"). Deontological.

These can override These can override bothboth the literal the literal meaning and the legislative intent.meaning and the legislative intent.

The argument Rehnquist The argument Rehnquist didn'tdidn't make make

If we interpret Title VII as Brennan et al. insist, If we interpret Title VII as Brennan et al. insist, then Title VII makes an invidious distinction then Title VII makes an invidious distinction between whites and blacks (forbidding between whites and blacks (forbidding discrimination against blacks, but not against discrimination against blacks, but not against whites). whites).

So interpreted, Title VII would involve a violation So interpreted, Title VII would involve a violation of the equal protection clause of the 14th of the equal protection clause of the 14th amendment. (The Kaiser plan may not be a amendment. (The Kaiser plan may not be a state action, but the Civil Rights Act certainly is.)state action, but the Civil Rights Act certainly is.)

Strict scrutiny of preferential Strict scrutiny of preferential treatment treatment By permitting preferential treatment only By permitting preferential treatment only

of non-whites, Title VII (as interpreted of non-whites, Title VII (as interpreted by Brennan) employs the suspect by Brennan) employs the suspect category of race.category of race.

This triggers “strict scrutiny”.This triggers “strict scrutiny”. Preferences must be necessary and Preferences must be necessary and

narrowly tailored to a “compelling state narrowly tailored to a “compelling state interest.”interest.”

Other Relevant CasesOther Relevant Cases Griggs v. Duke Power Co. (1971) Griggs v. Duke Power Co. (1971)

Employers are liable, not only for overt Employers are liable, not only for overt racial discrimination, but for any racial discrimination, but for any business practice have a disparate business practice have a disparate impact along racial lines, unless the impact along racial lines, unless the practice can be proved to be a practice can be proved to be a "business necessity.""business necessity."

City of Richmond v. J. R. City of Richmond v. J. R. Croson Co.Croson Co.

O'Connor writes majority opinion. O'Connor writes majority opinion. Racial classifications must be a Racial classifications must be a

"narrowly tailored remedy", "strictly "narrowly tailored remedy", "strictly reserved for a remedial setting."reserved for a remedial setting."

Wards Cove v. Atonio Wards Cove v. Atonio (1989)(1989) GriggsGriggs "disparate impact" standard is "disparate impact" standard is

rejected. Unequal results are not enough to rejected. Unequal results are not enough to prove discrimination: we must also look at prove discrimination: we must also look at the composition of the pool of qualified the composition of the pool of qualified candidates. candidates.

Shifted the burden of proof concerning Shifted the burden of proof concerning whether the practice is a "business whether the practice is a "business necessity" from the employer to the necessity" from the employer to the plaintiff.plaintiff.

Metro Broadcasting v. FCC Metro Broadcasting v. FCC (1990)(1990) 5 member majority accepted 5 member majority accepted

Congressionally mandated set-asides Congressionally mandated set-asides for minority ownership of broadcast for minority ownership of broadcast licenses. licenses.

O'Connor writes dissenting opinion.O'Connor writes dissenting opinion.

Adarand Constructors v. Pena Adarand Constructors v. Pena (1995)(1995) Federally mandated affirmative action Federally mandated affirmative action

programs must be held to the standard programs must be held to the standard of "strict scrutiny". of "strict scrutiny".

O'Connor writes majority opinion.O'Connor writes majority opinion.

Preferential Treatment in Preferential Treatment in Higher EducationHigher Education BakkeBakke decision. decision. Triggers strict scrutiny?Triggers strict scrutiny? Is diversity a compelling state interest?Is diversity a compelling state interest? Practical problems with Practical problems with BakkeBakke

(Hopwood).(Hopwood).

Regents of the University of Regents of the University of California v. Bakke California v. Bakke (1978)(1978) Decided 5-4.Decided 5-4. Brennan bloc (concurring).Brennan bloc (concurring). Stevens bloc (dissenting).Stevens bloc (dissenting). Powell’s decision for the Court.Powell’s decision for the Court.