Bickel/Powell: any use of immutable characteristic as basis to dist rts is per se unconst—Brown takes this view and affirmative action struck down under this principle:
Ely/Dworkin/Brennan. Classifications which are expressions of invidious irrational hatred are subject to strict scrutiny and struck down. But if such classification is considerate expression of justice of what is owed to ppl of color NOT SUSPECT, should be subject to weaker standard of rev (Ely: rational basis)
Ely: Brown is the product of unfair rep but if white majority imposes burden of affirmative action, it is fairly represented, so affirmative action should be upheld.
Dworkin:. Bickel’s principle isn’t morally acceptable. Real principle of Brown is whether classification is the product of irrational race hatred which affirmative action is not.
Background: Racial classifications are irrelevant for any public purpose, question if an exception should be made for affirmative action. Swann held that racial classifications are permitted when being used to remedy de jure seg. Controversy comes in communities where c/n show de jure seg.
Note that in employment discrimination more likely to allow affirmative action in hiring than in firing since firing has a focused disadvantage.
Politically powerless minority: not permitted to vote until 1965 Voting Rights Act, once get the vote remain isolated within the political process w/ little democratic weight.
Classifications should all be highly suspect: this view would render affirmative action problematic. (Bickell’s view in the Least Dangerous Branch).
Depends on how classification is used: Ely view that legitimate for court to secure fair representation for minorities. Should be concerned only when suspect classification is dominated by racial hatred. (Dworkin)
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