American Constitutionalism in Historical Perspective (packet)

Brennan/Stevens dissent : Bakke plan is ok but d/n adopt Ely’s rational basis scrutiny. Uses intermediate scrutiny to ensure that plans a/n used to express unacceptable motives.

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   Worried that in attempt to ameliorate one minority prob will harm another minority. p. 715. (UJO v. Carey, redrew districts to aid minorities but harmed Hasidim, used intermediate scrutiny to determine w/n motivated by anti-Semitism)
   
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   Need to show impt as opposed to compelling govt interest. Purpose is to ameliorate racial discrim and admitting minority students in benign way is a rational/substantial pursuit of this end. Bakke plan is more honest than Harvard plan. Ethnic/racial discrimin should be given more wt than other factors given our history. Plans allow states to try all different options and make policy choices themselves
   

Grutter v. Bollinger (2003) P. 718 O’Connor applies Powell’s standard of strict scrutiny to allow for affirmative action in Michigan Law School. Race as a “plus” factor in individualized consideration of each applicant and considers race-neutral alternatives to achieve diversity

Gratz v. Bollinger (2003) p.727 struck down University of Michigan points program which automatically awarded 20 points of 100 points to guarantee admission. Dissent: (Souter) p. 729: % plans of public universities where guarantee admission to a fixed % of top students from each high school in the state are just as race conscious as point system w/out saying what they’re doing.

Wygant v. Jackson Board of Education: p. 736 preferring to retain minorities in teacher layoffs is unconstitutional b/c firing someone is palpable injury to someone w/ vested interest.

Fullilove v. Klutznick, 1980: p. 737 fed gov’t set aside program const. nder strict scrutiny b/c Congress was empowered to make findings that there was a history of de jure discrim and can apply racial classifications as a remedy. Powell: thus can mandate that 10% of fed funds granted for local public works projects must by used by state/local grantee to procure services from businesses controlled by members of specified minority groups

Richmond v. J.A. Croson Co., 1989: strikes down municipal set aside program under strict scrutiny, modeled on fed program, b/c majority of the council members were black. No de jure seg. Looked like the Ely we/they dichotomy w/ blacks disadvantaging whites as pay back for past discrimin but no prob of unfair rep of blacks. O’Connor saw this as invidious discrimination. Marshall dissents, pp. 746-47 noting that the classification was used to ameliorate past discrimin. Would have upheld the set aside under intermediate scrutiny b/c they had a non-racist purpose, believes majority not taking seriously the depth and character of racism.

Adarand Constructors, Inc. v. Pena, 1995: pp. 749-50 struck down set aside program that provided fin incentives to contractors that hired minorities. O’Connor argued against using socially disadvantaged minority classifications b/c not all social disadvantage matches discrimin so these classifications are over inclusive. Ethnic classifications are presumptively invidious and s/n be used as a proxy. First time majority says that strict scrutiny should be used for all ethnic classifications (Bickel) and cuts back on legitimacy of affirmative action.

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