The constitutional implications of race-neutral affirmative action

Georgetown Law Journal

Volumn 88, Issue 8, 2000, Pages 2331-2398

  Forde Mazrui, Kim ^a  

^a UNIVERSITY OF VIRGINIA   (United States)

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EID: 23044522597     PISSN: 00168092     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (235)

1. 78 F.3d 932 (5th Cir. 1996).
2. 38 F.3d 147 (4th Cir. 1994).
3. See Douglas Lederman, Suit Challenges Affirmative Action in Admissions at U. of Michigan; Legal Group That Won Case Against Texas Law School Now Shifts Attention to Undergraduates, CHRON. OF HIGHER EDUC., Oct. 24, 1997, at A27.
4. See Adam Cohen, When the Field Is Level; In California, Minority Students Are "Cascading" Out of Top Schools and into the Second Tier. Is This Good for Them?, TIME, July 5, 1999, at 30 (noting that "[o]ther states are considering Prop. 209-style initiatives, among them Florida, where a drive is on to put an anti-affirmative action referendum on the 2000 ballot");
5. Initiative 200; Another Blow to Affirmative Action, STAR TRIBUNE (Minneapolis, MN), Nov. 7, 1998, at A18 (stating that "[p]roposals for additional 'Spawn of 209' legislation are under consideration in several states").
6. The House of Representatives considered and defeated, by a 249-171 vote, a bill that would have prohibited federal aid to any public colleges or universities that use race, ethnicity or sex in the admissions process. See Editorial, Why Colleges Need Affirmative Action, GRAND RAPIDS PRESS, May 21, 1998, at A15. As originally drafted, the ban on affirmative action would have applied to private schools as well. See id.
7. See Michele Norris & Peter Jennings, Colleges Seek Alternative to Affirmative Action Keeping Minority Enrollment Numbers Up, WORLD NEWS TONIGHT (ABC television broadcast, May 20, 1998) (describing how school administrators in California and Texas, "[w]orried that higher education could slip back toward segregation, ... are trying to find new ways to boost minority enrollment - not affirmative action, alternative action").
8. See Michelle Locke, In Post-Affirmative-Action Era, Essays Allow Students to Get 'A' for Adversity, SEATTLE TIMES, May 24, 1998, at A6 (describing recent University of California "post-affirmative-action" admissions program by which applicants write "hardship essays" in which they explain difficult circumstances they have faced "such as poverty, having a parent in prison, speaking English as a second language or having a physical disability" and stating that "[r]esponses ranged from deaths in the family to being the child of a gang member"); id. (stating that "[a]fter losing a court battle to use race as a factor in admissions, the [University of Texas] added a two-page statement on disadvantage to its application this year");
9. see also Wade Goodwyn, Morning Edition: Texas Affirmative Action Debate - NPR's Wade Goodwyn Reports From Austin, Texas on the Legal Battle Between the State's Attorney General and the University of Texas Law School (National Public Radio broadcast, May 13, 1998) (explaining that after Hopwood, the University of Texas "tried to compensate in other ways" including asking applicants to write "essays about overcoming adversity" in which admissions officers look for certain "kind[s] of qualities in a minority student").
10. See TEX EDUC. CODE ANN. § 51.803 (West 1999);
11. see also Why Colleges Need Affirmative Action, supra note 5, at A15 (stating that following Hopwood, "the Texas legislature passed a bill requiring state universities to admit the top 10 percent of every high school graduating class").
12. See Kenneth R. Weiss, D-Day Comes as Minority Students Decide on College Education: Seniors Choosing Among Prestigious Universities Pay Little Attention to Affirmative Action Ban, L.A. TIMES, May 3, 1998, at A1 (reporting that "UCLA officials decided to be more competitive this year in chasing top minority students by offering new Blue and Gold Scholarships to 200 of the best students from high schools in underprivileged neighborhoods").
13. See Donna Foote & Patricia King, The Provost Played On: In the Post-Affirmative-Action Era, Minorities are a Valuable Commodity on California Campuses, NEWSWEEK, May 4, 1998, at 61 (explaining that, in response to Proposition 209, the University of California San Diego opened academic assistance programs for low-income and bilingual elementary school students, and quoting UC Santa Cruz Chancellor as vowing to "go all the way back to the first grade" if necessary);
14. Michelle Locke, Post-Affirmative Action Era Starts, AP ONLINE, May 21, 1998, at A6 (quoting spokesperson for the American Civil Rights Institute, an organization against affirmative action, as saying it is time to "get past the debate on preferences and start working to reform (public schools) and make these kids qualified"); Norris & Jennings, supra note 6 (noting that "[o]ther schools use other experiments to achieve diversity. The University of California at Riverside helps minority teens sharpen their academic skills well before they get to college").
15. U.S. CONST. amend. XIV, § 1.
16. 488 U.S. 469 (1989).
17. See id. at 509-10.
18. See id. at 528 (Scalia, J., concurring in the judgment).
19. See Podberesky v. Kirwan, 38 F.3d 147, 158 (4th Cir. 1994).
20. See Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344, 351-52 (D.C. Cir. 1998) (invalidating FCC policy that exerted pressure on broadcasters to hire racial minorities and suggesting that the FCC could mandate "racially neutral" recruiting practices in order to enhance racial diversity).
21. See infra notes 78-80 and accompanying text.
22. For convenience, the shorthand term "racial classification" denotes a law or governmental policy that employs an express racial classification, as opposed to a law which is race-neutral on its face but may have been motivated by a racially discriminatory purpose. While this terminology is generally consistent with that of the Court's, see, e.g., Washington v. Seattle Sch. Dist. Number 1, 458 U.S. 457, 484-85 (1982) (explaining that a challenge to "facially neutral legislation" requires an inquiry into intent whereas "[a] racial classification, regardless of purported motivation, is presumptively invalid" (quoting Personnel Adm'r v. Feeney, 442 U.S. 256, 272 (1979))), the Court has on occasion referred to a race-neutral law motivated by a discriminatory purpose as an implicit racial classification, and has said that such laws trigger strict scrutiny just as express racial classifications trigger strict scrutiny. Since a principal objective of this project is to distinguish on doctrinal grounds between express racial classifications and laws that are race-neutral on their face, it is imperative that this Article does not misleadingly imply a distinction based on the choice of terms. The author has endeavored to avoid this risk and believes further that, on balance, the convenience and clarity of explication afforded by the shorthand justifies its use. See also infra note 19 for definitions of "race-operative" and "race-neutral" classifications.
23. "Race-operative" laws mean laws or governmental policies whose administration involves treating individuals on the basis of their race. These include express racial classifications and also laws which, though race-neutral on their face, are administered in a racially discriminatory manner. Examples of the latter include discretionary decisionmaking pursuant to race-neutral policies exercised in a racially discriminatory manner, such as racially motivated peremptory challenges, police arrests, and university admission decisions made without explicit authorization to consider race. "Race-based" laws or "racial preferences" are also race-operative. Unless the context clearly indicates otherwise, "race-neutral" classifications, laws, means, or policies refer to laws or policies that rely completely on race-neutral criteria in both their terms and operation but which may have been motivated by a discriminatory purpose in their formulation or adoption. This Article assumes there is no meaningful distinction between race-operative laws that employ express racial classifications and those that are race-neutral in content but are administered on a racially discriminatory basis. It does distinguish, however, between racial classifications and other race-operative laws, on the one hand, and race-neutral classifications (operated on a race-neutral basis) potentially motivated in their formulation or adoption by a discriminatory purpose, on the other.
24. See supra note 19 for a definition of "race-neutral classifications."
25. This Article recognizes that, as the pivotal vote in prior affirmative action cases, Justice O'Connor is a logical target of arguments defending affirmative action. See Akhil Reed Amar & Neal Kumar Katyal, Bakke's Fate, 43 UCLA L. REV. 1745, 1754 (1996) (emphasizing affirmative action opinions of Justice O'Connor, who "may well hold the fate of Bakke in her hands");
26. cf. Susan R. Estrich & Kathleen M. Sullivan, Abortion Politics: Writing for an Audience of One, 138 U. PA. L. REV. 119, 132 (1989) (discussing Justice O'Connor's determinative position on the constitutional status of abortion rights). This Article shall attempt, however, to resist such strategic scholarship. Decisions representing a majority of the Justices are those of the Court. Moreover, the arguments developed below are consistent with the reasoning of a substantial majority of Justices currently on the Court. This Article shall therefore generally refer to the Court, and not Justice O'Connor, as the source of existing doctrine and as the object of its arguments. Concededly, on some issues over which the Justices have not reached clarity or consensus, a focus on opinions of Justice O'Connor may provide the most useful guidance in predicting the future direction of the Court. As a general matter, however, the author is reluctant, perhaps naïvely, to discuss constitutional law as if it were the province of an individual Justice.
27. 488 U.S. 469 (1989).
28. See id. at 493-99; id. at 520 (Scalia, J., concurring in the judgment). Under this most rigorous standard of judicial review, a racial classification will be upheld only if it was actually intended to further a "compelling" governmental interest and the use of the classification is "necessary" or "narrowly tailored" to the accomplishment of that interest.
29. See Metro Broad., Inc. v. FCC, 497 U.S. 547, 566 (1990) (holding that intermediate scrutiny applied to federally enacted minority set-aside). The Court in Croson had applied strict, not intermediate, scrutiny to state-sponsored affirmative action. See supra note 23 and accompanying text.
30. 515 U.S. 200 (1995).
31. The Court in Adarand did not apply strict scrutiny, instead remanding the case for such analysis in the first instance by the district court. See id. at 237. The opinion therefore did not clarify the scope of strict scrutiny beyond the articulation of the test in Croson. The significance of Adarand is in its holding that the federal government's authority to employ benign racial classifications is just as constrained as the states' authority. Whatever the demands of strict scrutiny require of state and local actors, Adarand suggests that federally enacted racial classifications are subject to similar constraints.
32. 488 U.S. 469 (1989). At issue in Croson was a program by the City of Richmond, Virginia, that required prime contractors awarded city construction contracts to subcontract at least 30% of contract funds to minority-owned construction firms. See id. at 477.
33. See supra note 26.
34. The part of Justice O'Connor's opinion applying strict scrutiny represents a majority of the Justices. See Croson, 488 U.S. at 493-99; id. at 520 (Scalia, J., concurring in the judgment).
35. See id. at 500-03. What the Court means by "passive participation" is not entirely clear. At a minimum, the Court seems to mean the city's support through public contracting funds of private companies that discriminate even if the city did not intend or was not aware of the discrimination. Thus, the city may be a passive participant in discrimination, which it has a compelling interest to remedy, even if the city itself did not violate the Equal Protection Clause by intentionally discriminating. Whether a state actor may be a passive participant in private discrimination without having financially supported the discriminator was not addressed. For an interesting discussion of possible interpretations of "passive participation," see Ian Ayres & Fredrick E. Vars, When Does Private Discrimination Justify Public Affirmative Action?, 98 COLUM. L. REV. 1577, 1586-87 (1998).
36. To establish a compelling need for a race-based remedy, the Court explained, the city council must rely on more particularized evidence than congressional findings as to nationwide discrimination or the mere assertions by city councilmembers of discrimination in the local industry. The Court also rejected the city's comparison of the percentage of residents in the Richmond area who are minority (50%) and the percentage of firms receiving city construction contracts that are minority-owned (0.67%) as a basis for inferring the existence of local discrimination, noting that the relevant comparison was between minority-owned firms receiving public contracts and those eligible to do so. It was unrealistic, the Court explained, to conclude that racial minorities would enter the construction industry in "lockstep" proportion to their percentage in the general population. See Croson, 488 U.S. at 507.
37. Id. at 498-500.
38. Id.
39. See id. at 493 ("Classifications based on race carry a danger of stigmatic harm. Unless they are strictly reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to a politics of racial hostility."); see also id. at 511 (Stevens, J., concurring in part and concurring in the judgment) (disagreeing with "the premise that seems to underlie today's decision, as well as the decision in Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986), that a governmental decision that rests on a racial classification is never permissible except as a remedy for a past wrong") (internal citations omitted).
40. The program required prime contractors on city construction projects to subcontract 30% of each contract to "Minority Business Enterprises," defined as companies effectively owned or controlled by "[c]itizens of the United States who are Negroes, Spanish-speaking, Orientals, Indians, Eskimos, and Aleuts." Croson, 488 U.S. at 477-78. Noting the complete lack of evidence that the nonblack groups were victims of Richmond's discrimination, the Court remarked that "[i]t may well be that Richmond has never had an Aleut or Eskimo citizen." Id. at 506.
41. The Court noted: "The random inclusion of racial groups that, as a practical matter, may never have suffered from discrimination in the construction industry in Richmond suggests that perhaps the city's purpose was not in fact to remedy past discrimination." Id. at 506.
42. In a half-hearted response to political process theorists' defense of affirmative action, most notably that of Professor John Hart Ely, Justice O'Connor noted that a majority of the Richmond city council was black. See id. at 472. The comment seems half-hearted in that its passing nature following the lengthy defense of applying strict scrutiny to all racial classifications and the extent to which the comment reflects a highly superficial understanding of process theory suggests the Court was not relying on the racial composition of the city council in deciding to apply strict scrutiny. Nonetheless, the comment, along with other skeptical criticisms of the set-aside program, suggests that the plurality believed the affirmative action program was more a product of racial interest group politics rather than a meaningful effort to identify and remedy discrimination. For an account of what the Court may mean by "simple racial politics," see infra Part II.A.1., and see also David A. Strauss, Affirmative Action and the Public Interest, 1995 SUP. CT. REV. 1, 25 (exploring Court's apparent concern over racial interest group politics at the expense of the public interest).
43. The Court has, however, upheld racial quotas as a court-ordered remedy to racial discrimination where the discrimination had been flagrant and persistent. See, e.g., United States v. Paradise, 480 U.S. 149 (1987); Local 28 of the Sheet Metal Workers' Int'l Ass'n v. EEOC, 478 U.S. 421 (1986).
44. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 237 (1995) (quoting Fullilove v. Klutznick, 448 U.S. 448, 519 (1980) (Marshall, J., concurring in judgment)).
45. 438 U.S. 265 (1978) (invalidating admission program based on racial quota but holding that race may be used as one of many factors in the admission process).
46. 38 F.3d 147 (4th Cir. 1994).
47. 78 F.3d 932 (5th Cir. 1996).
48. The scholarship program was voluntarily established by the University of Maryland at College Park. The district court granted summary judgment in the University's favor holding that the scholarship was narrowly tailored to remedy the University's own past discrimination. See Podberesky, 38 F.3d at 151-52.
49. The University had identified four such effects: (1) the University's poor reputation within the black community; (2) the underrepresentation of blacks in the student population; (3) the low retention and graduation rates of blacks who do enroll; and (4) an atmosphere on campus perceived by blacks as racially hostile. See id. at 152.
50. The court denied that the racially hostile environment on campus was "necessarily" an effect of the University's past discrimination because it could have resulted instead from present or past societal discrimination. See id. at 154. Similarly, with respect to the underrepresentation and attrition of minority students, the court held that the record failed to establish that any such effects were caused exclusively by the University's own discrimination and not societal discrimination or economic factors. See id. at 155-57.
51. 78 F.3d 932.
52. The district court found the effects of the law school's past discrimination included the school's reputation in the minority community as a "white" school, a school environment perceived by minority students as racially hostile, and an underrepresentation of minority students. See id. at 952.
53. Relying on Podberesky, the court rejected the poor reputation and hostile environment effects because they were likely caused by societal discrimination rather than discrimination by the school. See id. at 952-53. The court further suggested that any racial tensions may have been caused by the affirmative action program itself. See id. at 953 (stating that "[a]ny racial tension at the law school is most certainly the result of present societal discrimination and, if anything, is contributed to, rather than alleviated by, the overt and prevalent consideration of race in admissions"); see also id. at 953 & n.45 (stating that "racial preferences, if anything, can compound the problem of a hostile environment" and citing trial testimony about disrespect toward minority students from students who "assumed that minorities attained admission because of the racial preference program"). The court also rejected minority underrepresentation in the student body as a basis for the program because, to the extent such underrepresentation was caused by the state's discrimination, it was due to discrimination by the state educational system as a whole, including elementary and secondary schools, and not discrimination by the law school. See id. at 953-54. The court also expressed skepticism that remedying past discrimination was a sincere goal of the program because it gave a preference to Mexican-Americans without any evidence that they had been discriminated against in the past, whether by the law school or by the state educational system. See id. at 953, 954 n.46, 955 n.50.
54. Remedying discrimination is compelling, the court concluded, only if the discrimination is that of a specific governmental unit or agency, even if the highest state authority is pursuing the remedial goal. See id. at 949-52; see also id. at 951 n.43 (explaining that even if the State of Texas is responsible for the past wrongs of the law school, only the wrongs of specific governmental units can serve as the justifying interests of a racial classification); id. at 952 ("The fact that the law school ultimately may be subject to the directives of others, such as the board of regents, the university president, or the legislature, does not change the fact that the relevant putative discriminator in this case is still the law school. In order for any of these entities to direct a racial preference program at the law school, it must be because of past wrongs at that school."). Accordingly, only effects of past discrimination by the law school could justify the preferential admission program and, moreover, "the law school must show that it adopted the program specifically to remedy the identified present effects of [its own] past discrimination." Id. at 952.
55. See id. at 945-47.
56. The court observed that Justice Powell's opinion in Bakke stood alone in endorsing diversity as a compelling interest and, moreover, subsequent affirmative action cases by the Supreme Court have clearly limited the proper bases for racial classifications to remedying discrimination. See id. at 944-48.
57. The court in Hopwood declined to consider whether the admissions program was narrowly tailored because it concluded that the evidence had failed to satisfy the compelling interest prong. See id. at 955.
58. See Podberesky, 38 F.3d at 157-58.
59. See id. at 158.
60. See id. at 158-59.
61. See id. at 160-61.
62. Most students entering college this Fall were born after 1982. Not only had public universities ceased discriminating against minorities by this time but most were operating under affirmative action policies. See supra note 58.
63. Professor Issacharoff has made a similar observation. See Samuel Issacharoff, Can Affirmative Action Be Defended?, 59 OHIO ST. L.J. 669, 681 (1998) (observing that "it is highly unlikely in this day and age that the institutions of higher education that have heavily internalized a commitment to affirmative action are at the same time remedying their own discrimination").
64. See Mark Hornbeck, Engler Quiet on Racial Quotas: Governor Soft-Pedals Affirmative Action, Fears It's a No-Win Situation, Experts Say, DETROIT NEWS, May 18, 1998, at D1, available in 1998 WL 3824655 (noting pending lawsuit against University of Michigan for considering race as a factor in admissions);
65. I-200 Flap Ends as Footnote in Voter Pamphlet, SEATTLE TIMES, Sept. 17, 1998, at B4, available in 1998 WL 3172159 (describing "reverse discrimination" lawsuit against University of Washington School of Law).
66. For example, lawsuits have been filed against both the National Institutes of Health and Texas A & M University alleging the illegal use of racial preferences, see Peter Schmidt, NIH, Texas A&M Sued Over Race-Based Policy, CHRON. OF HIGHER EDUC., Mar. 7, 1997, at A30, available in 1997 WL 24391283, and a complaint has been filed by the Washington Legal Foundation with the Office for Civil Rights alleging that Florida Atlantic University unlawfully sponsors race-based scholarships,
67. see Yollander Hardaway, Affirmative Action: Does the Fifth Circuit's Hopwood Ruling Place Affirmative Action on Shaky Ground?, 122 EDUC. L. REP. 1089, 1098 (1998).
68. Enacted as article 1, section 31 of the California Constitution, Proposition 209 provides in relevant part: "The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." CAL. CONST. art. 1, § 31(a).
69. See Gore Says He Will Fight for Affirmative Action, BOSTON GLOBE, July 10, 1999, at A18 (describing Initiative 200, which passed in Washington state and bans affirmative action programs in public education, employment, and contracting).
70. See, e.g., Hornbeck, supra note 59, at D1 (describing political efforts to abolish affirmative action in Michigan); see also supra note 4.
71. 42 U.S.C. § 2000d (1994).
72. An aspect of Bakke not often emphasized is that a majority of the Justices held that Title VI of the Civil Rights Act of 1964 is violated by racial discrimination that would violate the Equal Protection Clause if committed by a state actor. See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 287 (1978) (Powell, J.) (concluding that Title VI prohibits "only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment"); id. at 340 (Brennan, J., joined by White, Marshall, & Blackmun, JJ., concurring in part and dissenting in part) (the "Brennan four") (concluding that Congress equated "Title VI's prohibition with the commands of the Fifth and Fourteenth Amendments, . . . [and] intended the meaning of the statute's prohibition to evolve with the interpretation of the commands of the Constitution"); see also Amar & Katyal, supra note 21, at 1747 n.12 (noting that "post-Bakke, Title VI is to be interpreted in line with the Equal Protection Clause"). After Croson and Adarand, therefore, benign racial classifications that would violate the Constitution if employed by government would violate Title VI if employed by a school receiving federal financial assistance. Indeed, Bakke provides particularly strong support for the proposition that Title VI is at least implicated by affirmative action, whether or not violated. The Justices in Bakke were unanimous in concluding that Title VI applied to the preferential admissions program at issue, although only a majority concluded that Title VI was actually violated. See Bakke, 438 U.S. at 287, 320 (Powell, J.) (concluding that Title VI prohibits what the Equal Protection Clause forbids, and further concluding that program violated Equal Protection Clause); id. at 417-18 (Stevens, J., joined by Burger, C.J., Stewart, & Rehnquist, JJ., concurring in part and dissenting in part) (concluding that admission program violated Title VI); id. at 357-62 (Brennan four) (concluding that although strict scrutiny was inapplicable, some form of intermediate heightened review was appropriate, but concluding that such review was satisfied).
73. See Corinne E. Anderson, A Current Perspective: The Erosion of Affirmative Action in University Admissions, 32 AKRON L. REV. 181, 191 n.48 (1999) (observing that "Title VI of the Civil Rights Act of 1964, which once provided an incentive to promote equal educational opportunities, is now used as a tool to force public and private universities to limit the reach of their affirmative action policies"
74. citing Tanya Y. Murphy, An Argument for Diversity Based Affirmative Action in Higher Education, 95 ANN. SURV. AM. L. 515, 516-17 (1995)). This effect can already be seen in Texas where the former state attorney general, as well as administrators of private Texas colleges, have interpreted Hopwood as forbidding the use of racial preferences by private schools that receive federal funds.
75. See All Things Considered: Private Schools and Hopwood - NPR's John Burnett Reports on a Little-Reported Aspect of the Hopwood Decision (NPR broadcast, May 15, 1998), available in 1998 WL 3644958 [hereinafter All Things Considered].
76. Professor Klarman observes that the Court did not adopt a "racial classification rule," a presumptive ban against racial classifications that disadvantage racial minorities, until 1964 in McLaughlin v. Florida, 379 U.S. 184 (1964). See Michael J. Klarman, An Interpretive History of Modern Equal Protection, 90 MICH. L. REV. 213, 255 (1991). Prior to that time, the Court applied a form of rationality review except where a racial classification denied racial minorities certain fundamental rights such as voting or jury service. See id. Because the context in which the racial classification rule was applied in the 1960s and '70s involved discrimination against racial minorities, it was unclear whether the racial classification rule would apply to benign racial classifications. The Court's affirmative action cases seem to have established a racial classification rule across the board. The rigors of strict scrutiny, moreover, mean that the racial classification rule is, in practice, a per se and not just a presumptive ban on all racial classifications.
77. For a description of several such programs, see supra notes 6-10 and accompanying text.
78. 426 U.S. 229 (1976).
79. Several cases before Washington v. Davis involved laws that, though race-neutral on their face, were motivated by a discriminatory purpose to disadvantage blacks. Particularly illustrative are cases involving the use of race-neutral means by segregationist states to disenfranchise blacks, such as poll taxes, literacy tests, "grandfather" clauses, gerrymandered electoral districts, and criminal records. See, e.g., Gomillion v. Lightfoot, 364 U.S. 339, 347 (1960) (invalidating city boundary drawn to exclude black voters); Guinn v. United States, 238 U.S. 347, 365 (1915) (invalidating grandfather clause designed to evade Fifteenth Amendment); see also Shaw v. Reno, 509 U.S. 630, 639-40 (1993) (describing ostensibly race-neutral devices employed by several states following adoption of the Fifteenth Amendment to disenfranchise blacks, including "grandfather" clauses, "good character" provisos, and gerrymandered electoral districts); Thornburg v. Gingles, 478 U.S. 30, 38 (1986) (describing North Carolina's disenfranchisement of blacks by poll tax and literacy test); Hunter v. Underwood, 471 U.S. 222, 31-33 (1985) (invalidating criminal record voting disability adopted to disenfranchise blacks); Bakke, 438 U.S. at 390 (Marshall, J., concurring in part and dissenting in part) (describing post-Civil War disenfranchising techniques employed by Southern states, "including poll taxes, deliberately complicated balloting processes, property and literacy qualifications, and finally the white primary"). Although many of these cases involved the Fifteenth Amendment rather than the Equal Protection Clause of the Fourteenth Amendment, the Court has subsequently relied on them as equal protection precedents. See, e.g., Shaw, 509 U.S. at 644-45. It should be noted that, until Davis, the Court had not clearly resolved whether a discriminatory purpose was either necessary or sufficient to constitute unconstitutional discrimination. At the time of Guinn, for example, the Court insisted that it would not generally inquire into legislative motivation, but concluded that the grandfather clause was such a close surrogate for race that it was as if the classification explicitly relied on race. See Klarman, supra note 67, at 295-96.
80. See 426 U.S. at 244-45.
81. 442 U.S. 256 (1979). Although Feeney involved a claim of sex-based discrimination, the test there announced for determining whether a purpose is "discriminatory" with respect to a particular trait has been applied to claims of racial discrimination as well. See Hernandez v. New York, 500 U.S. 352, 360 (1991) (citing Feeney, 442 U.S. at 279).
82. 442 U.S. at 279 (citation omitted). The Court established two years before Feeney that strict scrutiny is triggered when a governmental decision is shown to have been motivated in part by a discriminatory purpose, even if other motivations played an equal or greater role. See Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 265-66 (1977).
83. Moreover, as suggested in the previous section with respect to benign racial classifications, a Croson-like interpretation of civil rights statutes could restrain the ability of private schools to pursue race-neutral remedial policies. See supra notes 64-66 and accompanying text.
84. See, e.g., DINESH D'SOUZA, ILLIBERAL EDUCATION: THE POLITICS OF RACE AND SEX ON CAMPUS 251-53 (1991) (condemning racial preferences but endorsing "nonracial affirmative action");
85. ANDREW KULL, THE COLOR-BLIND CONSTITUTION 222 (1992) (advocating colorblind governmental decisionmaking while endorsing race-neutral approaches to remedying past discrimination);
86. Jim Chen, Diversity in a Different Dimension: Evolutionary Theory and Affirmative Action's Destiny, 59 OHIO ST. L.J. 811, 907-08 (1998) (proposing large-scale investment in primary and secondary education in exchange for eliminating race-based affirmative action);
87. Terry Eastland, The Case Against Affirmative Action, 34 WM. & MARY L. REV. 33, 35-36 (1992) (opposing preferential affirmative action but supporting other means, such as Head Start, to remedy historical discrimination against minorities);
88. see also Locke, supra note 10, at A6; All Things Considered, supra note 66 (while acknowledging concern over declining minority populations at Texas universities, then state Attorney General Dan Morales opposed a return to affirmative action advocating instead that "public universities can accomplish that [diversity] objective using race-neutral means and mechanisms"); Norris & Jennings, supra note 6 (noting that "[e]ven critics of affirmative action welcome these experiments" to achieve diversity in colleges by helping teenagers develop their academic skills). Only a few articles discuss at length the constitutional difficulties facing race-neutral affirmative action.
89. See Ian Ayres, Narrow Tailoring, 43 UCLA L. REV. 1781, 1806-08 (1996) (arguing that race-neutral remedial programs are not only subject to strict scrutiny but are arguably less well-tailored than programs that use racial preferences);
90. Kathleen M. Sullivan, After Affirmative Action, 59 OHIO ST. L.J. 1039 (1999) (defending their constitutionality); Chapin Cimino,
91. Comment, Class-Based Preferences in Affirmative Action Programs After Miller v. Johnson: A Race-Neutral Option, or Subterfuge?, 64 U. CHI. L. REV. 1289 (1997) (arguing against their constitutionality).
92. City of Richmond v. J.A. Croson, Co., 488 U.S. 469, 509-10 (1989).
93. Id. at 526, 528 (Scalia, J., concurring in the judgment).
94. Relying on a study concerning the causes of low retention and graduation rates of black students at the University of Maryland, the court in Podberesky stated: "[Minority students] are more likely to provide their own expenses and have little time for campus activities and friends due to off campus living and work." . . . That study suggests that the best remedy is "campus job opportunities and convenient, attractive, and economically reasonable campus housing . . . available to a greater proportion of students." . . . . . . . [T]he University has not made any attempt to show that it has tried, without success, any race-neutral solutions to the retention problem. Thus, the University's choice of a race-exclusive merit scholarship program as a remedy cannot be sustained. Podberesky v. Kirwan, 38 F.3d 147, 161 (4th Cir. 1994).
95. 141 F.3d 344 (D.C. Cir. 1998).
96. In the process of invalidating, under strict scrutiny, an FCC policy that pressured broadcast licensees to use racial preferences in hiring to achieve racial diversity among the staff, the court opined that the FCC could have sought to increase such diversity within licensees by mandating "racially neutral" recruitment and hiring policies. See id. at 351.
97. As explained more fully below, this Article does not defend efforts to promote racial diversity for nonremedial purposes against constitutional challenge. See infra notes 110-11 and accompanying text.
98. In this Article, I generally refer to white people when discussing those not benefited by commonly used racial preferences. I also refer to black people as the most common beneficiaries of affirmative action as well as the most common victims of historical discrimination. I recognize that such generalizations oversimplify the myriad circumstances in which discrimination and affirmative action operate. There are minority groups, most notably Native Americans, that have suffered serious discrimination, and there are minority groups who are not always included in the groups preferred by affirmative action programs. I do not mean to suggest otherwise. I refer to blacks and whites loosely as the principal minority and majority groups in part for convenience and in part because these groups have centered most prominently in the legal history of discrimination and affirmative action in the United States. Several scholars have in fact argued that the history of discrimination experienced by black people makes them uniquely entitled to affirmative action. See, e.g., Paul Brest & Miranda Oshige, Affirmative Action for Whom?, 47 STAN. L. REV. 855, 900 (1995) ("[N]o other group compares to African Americans in the confluence of the characteristics that argue for inclusion in affirmative action programs.");
99. Roy L. Brooks, Race as an Under-Inclusive and Over-Inclusive Concept, 1 AFR.-AM. L. & POL'Y REP. 9, 15 (1994) ("African Americans . . . are the only social group . . . that did not come to this country of their own free will.");
100. Alex M. Johnson, Jr., Defending the Use of Quotas in Affirmative Action: Attacking Racism in the Nineties, 1992 U. ILL. L. REV. 1043, 1071-73 (arguing that the unique experience of blacks justifies the use of racial quotas for their benefit).
101. Part III shall argue that such programs could be adopted not to benefit racial minorities but to benefit the nonsuspect groups of victims of societal discrimination and members of cultural groups. Such programs would then not trigger strict scrutiny. This Part analyzes race-neutral affirmative action programs that have been adopted for the purpose of benefiting racial minorities and which, therefore, must satisfy strict scrutiny.
102. Cf. Strauss, supra note 37, at 14 (remarking that "[w]hatever the supposed vices of affirmative action, maintaining a system of racial supremacy is not among them").
103. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 226 (1995) (noting that the role of strict scrutiny is to "smoke out" illegitimate purposes); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) (same).
104. Croson, 488 U.S. at 493.
105. In Loving v. Virginia, 388 U.S. 1, 11 (1967), for example, the Court rejected as impermissible the objective of preventing racial mixture through miscegenation, concluding that such a purpose was based on a belief in white supremacy.
106. Justice Stevens used this metaphor in chiding the majority in Adarand for equating affirmative action with historical discrimination against blacks: The consistency that the Court espouses would disregard the difference between a "No Trespassing" sign and a welcome mat. It would treat a Dixiecrat Senator's decision to vote against Thurgood Marshall's confirmation in order to keep African-Americans off the Supreme Court as on a par with President Johnson's evaluation of his nominee's race as a positive factor. . . . An attempt by the majority to exclude members of a minority race from a regulated market is fundamentally different from a subsidy that enables a relatively small group of newcomers to enter that market. Adarand, 515 U.S. at 245 (Stevens, J., dissenting).
107. See supra text accompanying note 85.
108. Four Justices currently on the Court dissented in Metro Broadcasting, criticizing Congress for relying on the "demeaning" assumption that a broadcaster's race was correlated with the broadcaster's choice of programming content. See Metro Broad., Inc. v. FCC, 497 U.S. 547, 617 (1990) (O'Connor, J., dissenting) (criticizing the assumption that race predicts viewpoint); id. at 636 (criticizing FCC policy as seemingly based on "demeaning notion that members of the defined racial groups ascribe to certain 'minority views'"). The replacement of Thurgood Marshall with Clarence Thomas makes five Justices that would likely vote with the Metro Broadcasting dissenters.
109. Klarman, supra note 67, at 311; see also George A. Rutherglen, After Affirmative Action: Conditions and Consequences of Ending Preferences in Employment, 1992 U. ILL. L. REV. 339, 340 (arguing that "[a]n increasingly conservative Court is likely to limit affirmative action to progressively narrower circumstances, and perhaps, to prohibit it entirely").
110. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989).
111. Strauss, supra note 37, at 25.
112. See Croson, 488 U.S. at 495-96 (explaining that because blacks were majority of city council members the case was not one in which a majority was disadvantaging itself).
113. Strauss, supra note 37, at 25.
114. Miller v. Johnson, 515 U.S. 900, 920 (1995) (quoting Shaw v. Reno, 509 U.S. 630, 647 (1993)).
115. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 229-30 (1995).
116. The concern with perpetuating stereotypes is independent of, though related to, the concern with stereotypical motivations behind a law. A racial classification could express a stereotypical message, thereby perpetuating such thinking among the public without the enacting legislature having held the stereotype. The message could be inadvertent. The two concerns are related, however, in that the more a classification expresses a stereotype the more likely it is that the enacting body was motivated by similar assumptions.
117. Professor Kathleen Sullivan notes the emergence in Croson of concerns among several Justices over the risk that racial classifications may cause resentment and hostility. See Kathleen M. Sullivan, City of Richmond v. J.A. Croson Co.: The Backlash Against Affirmative Action, 64 TUL. L. REV. 1609, 1622-23 (1990) (quoting Justices O'Connor, Kennedy, and Scalia). The most "ominous" warning came from Justice Scalia, who wrote that "[w]hen we depart from this American principle [against racial quotas] we play with fire, and much more than an occasional DeFunis, Johnson, or Croson burns." Id. (quoting Croson, 488 U.S. at 527 (Scalia, J., concurring)).
118. See RICHARD D. KAHLENBERG, THE REMEDY: CLASS, RACE, AND AFFIRMATIVE ACTION 44 (1996) (arguing that racial preferences unfairly burden disadvantaged whites). The media routinely report anecdotal evidence of resentment toward affirmative action by disadvantaged whites. One article, for example, describes a conversation with a group of law students about affirmative action in which a white woman breaks in: [E]xcuse me, I dated a black guy all throughout high school. My grades svere better than his. He kept getting special assistance, counseling, scholarship offers. They were going out of their way to get him into college. His dad was a doctor. My mom was on food stamps. Tell me that's fair.
119. Wendy Kaufman & Bob Edwards, Morning Edition: Initiative 200, available in 1998 WL 3308596 (NPR broadcast, Sept. 4, 1998). Even Justice Brennan, who would have upheld the affirmative action program in Bakke, acknowledged the potentially unfair burden to disadvantaged whites. See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 361 (1978) (Brennan, J., concurring in part and dissenting in part) (observing that "[t]he 'natural consequence of our governing process [may well be] that the most "discrete and insular" of whites . . . will be called upon to bear the immediate, direct costs of benign discrimination' ") (quoting United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U.S. 144, 174 (1977) (Brennan, J., concurring in part)).
120. I assume in this Article that, in light of Adarand, the analysis of racial discrimination and affirmative action by the federal government under the Due Process Clause of the Fifth Amendment is essentially identical to the analysis of similar programs by state entities. Accordingly, any references I make to the Equal Protection Clause or to "state" action are intended to apply equally to programs enacted by the federal government.
121. Croson, 488 U.S. at 493.
122. See JOHN HART ELY, DEMOCRACY AND DISTRUST 145-48 (1980);
123. see also Cass R. Sunstein, Naked Preferences and the Constitution, 84 COLUM. L. REV. 1689, 1699-1700 (1984) (arguing that function of heightened judicial review is to ensure that laws are enacted for public values rather than private preferences).
124. After stating that governmental discrimination causes injury to its victims, the Court in Adarand explained that "[t]he application of strict scrutiny . . . determines whether a compelling governmental interest justifies the infliction of that injury." 515 U.S. 200, 230 (1995).
125. Jed Rubenfeld, Affirmative Action, 107 YALE L.J. 427, 438 (1997).
126. Jed Rubenfeld, Affirmative Action, 107 YALE L.J. 427 1997). Id.
127. 480 U.S. 149, 185 (1987) (upholding court-ordered racial hiring quota enacted in response to persistent and egregious discrimination by state police force).
128. See id. at 167.
129. See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 418 n.22 (1978) (Stevens, J., concurring in part and dissenting in part) (distinguishing medical school's preferential admission program from nondiscriminatory "special recruitment policies" of the Department of Health, Education and Welfare). Indeed, regarding recruitment, in Washington v. Davis, in which the Court found insufficient proof of discriminatory intent by the police department, the Court cited with approval the department's race-conscious efforts to recruit minority officers. 426 U.S. 229, 246 (1976) (approving district court's inference that the police department had not discriminated against blacks, which was based in part on the department's "affirmative efforts . . . to recruit black officers"). The Court's reasoning might be that the police department is unlikely to have discriminated against blacks because it discriminates against whites instead. More plausibly, the Court simply did not consider affirmative efforts to recruit black officers as unfair discrimination against potential white officers.
130. Even Justice Powell's opinion in Bakke, the only opinion endorsing diversity in some form, rejected the goal of racial diversity as an end it itself: If [the medical school's] purpose is to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin, such a preferential purpose must be rejected not as insubstantial but as facially invalid. Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids. Bakke, 438 U.S. at 307 (citing Loving v. Virginia, 388 U.S. 1, 11 (1967); McLaughlin v. Florida, 379 U.S. 184, 196 (1964); Brown v. Board of Educ. of Topeka, 347 U.S. 483, 493-96 (1954)).
131. A diversity of "experiences, outlooks, and ideas" was the kind of interest Justice Powell endorsed in Bakke, although he found the racial quota an inappropriate means for achieving it. See Bakke, 438 U.S. at 314.
132. See U.S. CENSUS BUREAU, STATISTICAL ABSTRACT OF THE UNITED STATES, U.S.A. STATISTICS IN BRIEF (1997) [hereinafter CENSUS] (reporting that, in 1995, 12.6% of Americans were black, 73% white and 10.4% Hispanic).
133. See Paul Butler, Affirmative Action and the Criminal Law, 68 U. COLO. L. REV. 841, 868 n.97 (1997) ("In 1994, for the first time in American history, there were more African American men in prison than white men."). Blacks are incarcerated at a rate eight times that of whites.
134. See Pierre Thomas, Study Suggests Black Male Prison Rate Impinges on Political Process, WASH. POST, Jan. 30, 1997, at A3 (citing 1995 Sentencing Project report that the incarceration rate of blacks is 7.66 times that of whites). On any given day, one in three black men in their twenties is under the control of the criminal justice system, see id., more than the number of black men of all ages in college.
135. See DERRICK A. BELL, JR., RACE, RACISM & AMERICAN LAW 340 n.33 (1992). In contrast, only 1 in 16 white males in the same age group is involved with the criminal justice system. See id. at 340. The Sentencing Project also reported that one of every seven black men (1.46 million of a voting population of 10.4 million) is barred from voting because of a felony conviction. See Thomas, supra, at A3.
136. The average income of blacks is 60 % that of whites, and the median wealth of blacks is a mere 8% of that of whites. See CHRISTOPHER EDLEY, JR., NOT ALL BLACK AND WHITE: AFFIRMATIVE ACTION, RACE, AND AMERICAN VALUES 45 (1996). A recent study found that the average income of black high school graduates ($18,700) is roughly the same as that for white high school drop-outs.
137. See Joan Wallace-Benjamin & Ted Murphy, Editorial, Raising the Income of Poor Men, BOSTON GLOBE, Jan. 25, 1998, at E7. Blacks are less likely to be employed, to own their home or to own stock, and are dramatically overrepresented among the poor. See EDLEY, supra, at 43-44, 49.
138. See CENSUS, supra note 112.
139. See Jason Deparle, More Whites Than Minorities Abandoning Welfare, MILWAUKEE J. SENTINEL, July 27, 1998 ("By early 1997, blacks accounted for 37% of the nation's welfare caseload, although they are just 13% of the general population. Hispanics accounted for 22% of the welfare rolls, though they represent 11% of the general population. Whites, by contrast, accounted for just 35% of the welfare rolls, although they make up 73% of the general population.").
140. For example, in Montgomery County, Maryland, 41% of black seventh-graders passed a reading achievement test (the Criterion Reference Tests). This compares to passing grades by 81% of white seventh-graders, 46% of Hispanics, and 75% of Asian-Americans. See Fern Shen, Scores Rise in Reading in Montgomery; Disparity Persists for Racial Groups, WASH. POST, Dec. 10, 1997, at B1. By 1996, with the help of affirmative action, only 7.8% of students, or 1 in 13, graduating from college were black.
141. See THOMAS SNYDER ET AL., U.S. DEP'T OF EDUC., DIGEST OF EDUCATION STATISTICS, 1998, 302-11 (1999). Blacks are particularly underrepresented among those graduating from professional or graduate schools, comprising less than 7% of those receiving professional and Master's degrees, and only 3.7%, or 1 in 27, of successful doctoral candidates. See id. And these fractions are undoubtedly smaller at the most prestigious schools that graduate the most influential members of our society.
142. See Egypt Freeman, The State of Black Health, HEALTH QUEST: THE PUBLICATION OF BLACK WELLNESS, Feb. 28, 1998, at 18 (reporting life expectancy for blacks is 69.6 years as compared to 76.5 years for whites).
143. A "National Institute for Aging [study] shows that blacks enjoy 56 years of reasonably good health, eight years fewer than whites and Hispanic[s] . . . ." Peter T. Kilborn, Racial Health Disparities Continue, Studies Say, PITTSBURGH POST GAZETTE, Jan. 26, 1998, at A6. Christopher Jennings, Chief White House advisor on health issues, said that "huge" disparities remain even when economic status and education are factored out. See id.
144. See Clinton Plan to Target Disparities in the Health of Whites, Minorities, BUFFALO NEWS, Feb. 22, 1998, at A4.
145. Black and other children of color are placed in foster care three times more frequently than white children. See Judith K. McKenzie, Adoption of Children with Special Needs, 3 FUTURE OF CHILDREN 62, 68-69 (1993). According to the U.S. Department of Health and Human Services' Administration for Children and Families, 43% of children in foster care on March 31, 1999 were black, 36% were white, and 15% were Hispanic.
146. See U.S. DEP'T OF HEALTH & HUM. SERVICES, ADMINISTRATION FOR CHILDREN AND FAMILIES, RACE/ETHNICITY OF CHILDREN IN FOSTER CARE (Jan. 2000).
147. The American Cancer Society (ACS) estimates that 234 of every 100,000 black men will get prostate cancer in 1998, compared to estimates of 135 white men this year. The ACS reports that black men are two to three times more likely to die of the disease. See Health Watch: Prostate Cancer, ATLANTA J. & ATLANTA CONST., Jan. 14, 1998, at D6. Once diagnosed with prostate cancer, 66% of black men and 81% of white men survive for five years. See Kilborn, supra note 119, at A6. Since the early 1960s, black men's death rates from cancer have risen 61%, while the rate for white men has increased by only 19%, according to the American Cancer Society. See id. The Center for Disease Control and Prevention reports that while the overall death rate from breast cancer fell 10% between 1990 and 1995, from 23.1 per 100,000 to 21, the death rate for black women remained at 27.5 per 100,000. See id.
148. The Center for Disease Control and Prevention (CDCP) reports that the number of blacks with diabetes rose by 33% from 1980 to 1994, three times the rate of increase for all other Americans. See Editorial, Let's Work to Bridge the Gap in Black Health, BALTIMORE SUN, Feb. 4, 1998, at A15.
149. According to a CDCP study, blacks die of asthma at more than twice the rate of whites See Health Watch: Asthma on the Rise, ATLANTA J. / ATLANTA CONST., Apr. 24, 1998, at F3 (reporting that blacks die of asthma at a rate of 38.5 per million, while the rate for whites is 15.1 per million).
150. See Sheryl Gay Stolberg, Epidemic of Silence: A Special Report; Eyes Shut, Black America Is Being Ravaged by AIDS, N.Y. TIMES, June 29, 1998, at A1 (reporting that African-Americans, only 13% of the U.S. population, account for 57% of this country's new HIV infections).
151. T. Alexander Aleinikoff, A Case for Race-Consciousness, 91 COLUM. L. REV. 1060, 1065-66 (1991) (citations omitted).
152. See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 509 (1989) (explaining that "[n]othing we say today precludes a state . . . from taking action to rectify the effects of identified discrimination").
153. See id. at 492.
154. See id. at 494 (explaining that "[s]tates and their local subdivisions have many legislative weapons at their disposal both to punish and prevent present discrimination and to remove arbitrary barriers to minority advancement"); id. at 500 (suggesting that Richmond could remedy "a prima facie case of a constitutional or statutory violation by anyone in the Richmond construction industry" but concluding that Richmond had failed to establish such a showing) (emphasis added).
155. See id. at 492 (citing Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 274 (1986)).
156. See Croson, 488 U.S. at 500.
157. See Strauss, supra note 37, at 15 (observing that "if the premise is that racial classifications are generally harmful, one would want them employed only to remedy the greatest evils, and offhand societal discrimination seems like a greater evil than discrimination in a specific area"); see also Goodwin Liu, Affirmative Action in Higher Education: The Diversity Rationale and the Compelling Interest Test, 33 HARV. C.R.-C.L. L. REV. 381, 405 (1998) (arguing that "given our nation's woeful history of racial discrimination and the Fourteenth Amendment's promise of equal opportunity, it is reasonable to believe that a general interest in remedying societal discrimination is weighty enough to be constitutionally 'compelling' ");
158. Brent E. Simmons, Reconsidering Strict Scrutiny of Affirmative Action, 2 MICH. J. RACE & L. 51, 84 (1996) (observing that " '[s]ocietal discrimination' is, of course, the sum total of local discriminatory practices").
159. See Croson, 488 U.S. at 505.
160. See Jennifer R. Byrne, Toward a Colorblind Constitution: Justice O'Connor's Narrowing of Affirmative Action, 42 ST. LOUIS U. L.J. 619, 626 (1998) (describing Bakke as holding that correcting societal discrimination is an impermissible goal);
161. Lino A. Graglia, The 'Remedy' Rationale For Requiring or Permitting Otherwise Prohibited Discrimination: How the Court Overcame the Constitution and the 1964 Civil Rights Act, 22 SUFFOLK U. L. REV. 569, 615 (1988) (describing remedying societal discrimination as an impermissible goal);
162. Kent D. Lollis, Strict or Benign Scrutiny Under the Equal Protection Clause: Troublesome Areas Remain, 35 ST. Louis U. L.J. 93, 100 (1990) (describing goal of remedying societal discrimination as "strictly forbidden by the Constitution").
163. Professor Strauss makes a similar observation, stating that "[t]he Court does not disparage the importance of societal discrimination as a concern; on the contrary, it repeatedly acknowledges the 'sorry history of racial discrimination' and its effects." Strauss, supra note 37, at 29 (quoting Croson, 488 U.S. at 499, and citing Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (plurality opinion) and Wygant, 476 U.S. at 276 (plurality opinion)).
164. See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 307-10 (1978) (Powell, J.). Justice Powell's reasoning has been cited with approval in subsequent decisions. See Croson, 488 U.S. at 496-97, 505-06; Wygant, 476 U.S. at 276.
165. Wygant, 476 U.S. at 276.
166. Id. at 274; see also id. at 276.
167. Id. at 276.
168. Croson, 488 U.S. at 505-06 (emphases added) (quoting Bakke, 438 U.S. at 296-97 (Powell, J.)); see also Croson, 488 U.S. at 499 (expressing concern that permitting societal discrimination to justify race-based remedies "would give local governments license to create a patchwork of racial preferences based on statistical generalizations about any particular field of endeavor") (emphasis added).
169. Croson, 488 U.S. at 498.
170. Adarand Constructors, Inc. v. Pena. 515 U.S. 200, 230 (1995).
171. See Lincoln Caplan et al., The Hopwood Effect Kicks in on Campus, U.S. NEWS & WORLD REP., Dec. 23, 1996, at 28 (stating that University of California at Berkeley determined that Hispanic and black student population would drop under class-based affirmative action);
172. Chris Klein, Law School Diversity Hinges on Race Policy, NAT'L L.J., Jan. 27, 1997, at A1 (discussing a study by Linda Wightman finding that minority enrollment would drop significantly under class-based affirmative action).
173. See, e.g., Brest & Oshige, supra note 82, at 897-98; Richard H. Fallon, Jr., Affirmative Action Based on Economic Disadvantage, 43 UCLA L. REV. 1913, 1947 (1996);
174. Deborah C. Malamud, Class-Based Affirmative Action: Lessons and Caveats, 74 TEX. L. REV. 1847, 1894 (1996);
175. Tung Yin, A Carbolic Smoke Ball for the Nineties: Class-Based Affirmative Action, 31 LOY. L.A. L. REV. 213, 230-45 (1997);
176. Nathan Glazer, Race, Not Class, WALL ST. J., Apr. 5, 1995, at A12. An oft-quoted criticism of race-neutral affirmative action as ineffective is that of Justice Blackmun in Bakke: I suspect that it would be impossible to arrange an affirmative-action program in a racially neutral way and have it successful. To ask that this be so is to demand the impossible. In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently. We cannot - we dare not - let the Equal Protection Clause perpetuate racial supremacy. Bakke, 438 U.S. at 407 (Blackmun, J., concurring in part and dissenting in part). Notice that Justice Blackmun's assumption that race-neutral means would be permissible, even if ineffective, suggests that the principal concern of the Justices who voted to invalidate the affirmative action program in Bakke was its race-operative character rather than its motivating objectives.
177. See Croson, 488 U.S. at 498 (quoting Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 275 (1986) (plurality opinion)).
178. Justice Powell expressed this concern in concluding that all racial preferences must be subject to strict scrutiny. Otherwise, he surmised: Courts would be asked to evaluate the extent of the prejudice and consequent harm suffered by various minority groups. Those whose societal injury is thought to exceed some arbitrary level of tolerability then would be entitled to preferential classifications at the expense of individuals belonging to other groups. Those classifications would be free from exacting judicial scrutiny. As these preferences began to have their desired effect, and the consequences of past discrimination were undone, new judicial rankings would be necessary. The kind of variable sociological and political analysis necessary to produce such rankings simply does not lie within the judicial competence - even if they otherwise were politically feasible and socially desirable. Bakke, 438 U.S. at 296-97 (Powell, J.).
179. See supra notes 102-03 and accompanying text (discussion of strict scrutiny's "smoke out" function); see also supra note 85 (citing Court's explanation in Croson and Adarand of this function of strict scrutiny).
180. As the Court explained in Washington v. Davis, subjecting race-neutral classifications to heightened review where no discriminatory purpose is demonstrated, simply because in practice it benefits or burdens one race more than another would be far-reaching and would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white. 426 U.S. 229, 248 (1976).
181. To the extent the Court is concerned with harmful social effects of affirmative action, such as resentment by nonpreferred racial groups, it should limit its concern to resentment that is arguably legitimate. This means resentment by those who truly regret our discriminatory history and desire to remedy it but who may believe that affirmative action is sometimes unfair. Cf. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 276 (1995) (Ginsburg, J., dissenting) ("Court review can ensure that preferences are not so large as to trammel unduly upon the opportunities of others or interfere too harshly with legitimate expectations of persons in once-preferred groups.") (emphasis added). Resentment of any kind, in contrast, should not necessarily concern us, or the Court, because there is always a risk that anything that helps racial minorities will offend some people who believe minorities do not deserve equal rights. Resentment of this sort cannot be deemed a legitimate obstacle to remedial efforts. If any resentment over efforts to pursue racial equality were a basis to avoid such efforts, then the abolitionist and civil rights movements should never have been attempted. See Randall Kennedy, Persuasion and Distrust, A Comment on the Affirmative Action Debate, 99 HARV. L. REV. 1327, 1330 (1986) (describing bitter resistance to civil rights movements).
182. See DINESH D'SOUZA, THE END OF RACISM: PRINCIPLES FOR A MULTIRACIAL SOCIETY 245-87 (1995) (arguing that many people hold stereotypes about blacks as criminals based on personal experience or on an awareness that blacks commit a disproportionately high rate of crime);
183. Carol R. Goforth, 'What is She?' How Race Matters and Why it Shouldn't, 46 DEPAUL L. REV. 1, 63 (1996) (suggesting that negative media reports about blacks, such as high rates of crime, drug use, unemployment, and teen pregnancy reinforce stereotypical beliefs). A psychiatrist in the Boston area recounted his observations of people forming racial stereotypes from reports about blacks: When they [his suburban neighbors] hear of all these murders, all these men in prison, all these women pregnant with no husbands, they don't buy the explanation that it's poverty, or public schools, or racial segregation. They say, "We didn't have much money when we started out, but we led clean and decent lives. We did it. Why can't they?" I try to get inside that statement. So I ask them what they mean. What I hear is something that sounds very much like a genetic answer: "They don't have it." What they mean is lack of brains, or lack of drive, or lack of willingness to work. Something like that.
184. David Benjamin Oppenheimer, Understanding Affirmative Action, 23 HASTINGS CONST. L.Q. 921, 996-97 (1996)
185. (quoting JONATHAN KOZOL, SAVAGE INEQUALITIES 192 (1992)).
186. Dinesh D'Souza, Improving Culture to End Racism, 19 HARV. J.L. & PUB. POL'Y 785, 794 (1996).
187. Professor Rubenfeld has also noted that abandoning affirmative action may have worse effects on stereotypes and racial tensions than those created by affirmative action: Does affirmative action "in fact promote notions of racial inferiority and lead to a politics of racial hostility"? Without doubt. Of course, affirmative action's critics tend to forget that the relevant question on this point is whether affirmative action fosters more racial hostility and stereotyping than would exist without it. (To have extremely few black students at some of our most prestigious academic institutions would also promote notions of racial inferiority. . . .). Rubenfeld, supra note 105, at 446; see also Kennedy, supra note 149, at 1330-31 (arguing that it is unrealistic to think affirmative action is the primary cause of white disparagement of blacks).
188. See Hernandez v. New York, 500 U.S. 352, 361 (1991) (explaining that "Spanish speaking" is not equivalent to "Latino" for equal protection purposes because not all Latinos are Spanish-speaking and not all Spanish speakers are Latino).
189. 500 U.S. 352 (1991).
190. 442 U.S. 256 (1979).
191. Indeed, a couple of cases of dubious status suggest that a classification does not classify by race if it is only under-inclusive of a racial group, even if not over-inclusive. That is, provided there are members of the racial group who do not fall within the classification, then the classification is not based on race, even if everyone within the classification is a member of the racial group. In Morton v. Mancari, 417 U.S. 535 (1974), the Court held that a federal hiring preference for individuals who were "one-fourth or more degree Indian blood and . . . a member of a Federally-recognized tribe" was not a "racial" preference because it "operates to exclude many individuals who are racially to be classified as 'Indians.' In this sense, the preference is political rather than racial in nature." Id. at 554. The preference was thus under-inclusive of the racial group - Indians - notwithstanding that everyone within the hiring classification was racially Indian. Accord United States v. Antelope, 430 U.S. 641, 647 & n.7 (1977) (holding that jurisdictional law that subjected Indians to felony-murder rule was not based on "impermissible racial classifications" because it only applied to members of federally recognized tribes and therefore did "not apply to many individuals who are racially to be classified as 'Indians.' ") (quoting Mancari, 417 U.S. at 554). These holdings are aberrational and inconsistent with prevailing equal protection doctrine. A governmental policy that explicitly disfavors (or favors) members of particular racial groups plainly employs a racial classification even if it limits the burden to only some members of the disfavored groups. A state employment policy against hiring "any blacks without a college education" would trigger strict scrutiny notwithstanding that some blacks, those with a college education, would not be covered by the policy. Consider also Croson's invalidation of the race-based set-aside, even though it benefited only minority persons who also owned construction firms and otherwise qualified to perform the contracted work. The Indian classification cases might be explained in part because they involved the special relationship between the federal government and Native American tribes, a relationship which finds explicit support in the Indian Commerce Clause of the Constitution. See U.S. CONST. art. I, § 8, cl. 3. Those cases might be reconciled with equal protection doctrine to the extent that Congress's principal intent was to address Native American tribes as political entities rather than as racial groups. If membership in a tribe does not necessarily require being a member of a particular racial group, so that there may be non-Indian members as well as nonmember Indians, then tribal membership would not be a racial classification under Hernandez.
192. The classification is here limited to those who suffer "substantially" from societal discrimination because otherwise the classification may well include virtually everyone, since most people might be said to suffer in some way from historical societal discrimination simply by experiencing the negative effects of racial tensions in our society. A state has a legitimate interest in focusing its limited resources on those most acutely harmed by societal discrimination, whose socioeconomic circumstances are significantly below what they would be had historical discrimination not occurred. A state may, of course, wish to target a broader class of victims of societal discrimination. The point is simply that victims of societal discrimination are not a racial group and, therefore, a race-neutral affirmative action plan may target all or any portion of them, whether or not "identified" with particularity, without triggering strict scrutiny.
193. As Professor Strauss observes: A person might be subject to the effects of past discrimination even if he himself has never been the victim of a specific act of discrimination, or has not been discriminated against for decades. Discrimination at an earlier time (or even discrimination against earlier generations) can leave people without the resources, particularly human capital resources, needed to compete - education, experience, reputation, contacts. Strauss, supra note 37, at 21.
194. See Richard D. Kahlenberg, Equal Opportunity Critics, NEW REPUBLIC, July 17, 1995, at 20, 21 (suggesting a sophisticated definition of disadvantage).
195. See Corinne E. Anderson, A Current Perspective: The Erosion of Affirmative Action in University Admissions, 32 AKRON L. REV. 181, 229 (1999) (suggesting as an alternative to racial preferences that universities reconsider weight given to standardized test scores and grade point averages). If a university modified reliance on standardized criteria in order to recruit racial minorities, then such action would be subject to strict scrutiny. If, however, replacing racial preferences with modified admission standards were intended to reach victims of discrimination directly through modified standards instead of relying on racial preferences as a proxy for discrimination victims, then strict scrutiny would not be triggered.
196. "Legacies" refer to the children of university alumni who are often given a preference in the admission process over applicants with stronger paper credentials. See Elaine Woo, Belief in Meritocracy an Equal-Opportunity Myth, L.A. TIMES, Apr. 30, 1995, at A1. "In 1988, for example, Harvard University's legacy preference led to the admission of almost 200 students who arguably would have been rejected otherwise." Yin, supra note 144, at 217 n.22 (citing Woo, supra, at A1). Abandoning the legacy preference could, of course, have its own real cost in lost alumni donations. See id. (explaining that defenders of legacy programs cite the increased donations from alumni such programs tend to encourage which in turn enables schools to fund more need-based scholarships) (citing Woo, supra, at A1).
197. See Kim Forde-Mazrui, Black Identity and Child Placement: The Best Interests of Black and Biracial Children, 92 MICH. L. REV. 925, 948 (1994) (arguing that "not all Black families identify with Black culture");
198. Alex M. Johnson, Jr., Destabilizing Racial Classifications Based on Insights Cleaned from Trademark Law, 84 CAL. L. REV. 887, 948 (1996) (advocating distinction between "black" as a race and "African-American" as a culture, and arguing that not all racially black persons are culturally African-American);
199. Tommy E. Whittler et al., Strength of Ethnic Affiliation: Examining Black Identification with Black Culture, 131 J. SOC. PSYCH. 461, 461 (1991) (explaining that some blacks may identify strongly with Black culture while others may assimilate more with the majority culture).
200. See Johnson, supra note 162, at 950 n.222 ("Of course, nested within the ethnic categorization of African American are a plethora of people of all races, blacks, mestizos, mulattos, and surprisingly, whites.").
201. The nonsuspect nature of cultural classifications applies equally to cultures commonly associated with particular national origins. Thus, for example, government sponsored events or programs that celebrate Irish, German, Chinese, or Mexican cultures are not suspect or subject to strict scrutiny. The reason is that, although national origin, like race, is a suspect classification, having a particular national origin is neither necessary nor sufficient to identifying with a culture associated with a particular national origin.
202. See, e.g., Brest & Oshige, supra note 82, at 876 & n.80 (suggesting that schools might identify students whose presence will most serve affirmative action goals by asking applicants to discuss their cultural backgrounds, "community" ties, or social or political viewpoints) (citing Ian Haney Lopez, Community Ties, Race, and Faculty Hiring: The Case for Professors Who Don't Think White, RECONSTRUCTION, Winter 1991, at 46, 49).
203. For example, class-based affirmative action programs with which some California schools are experimenting should be upheld if they are intended either to compensate for disadvantages caused by societal discrimination or as a means to obtaining students with diverse experiences defined nonracially, such as economic, educational, or cultural backgrounds. The consideration by school admissions officers of "diversity" or "hardship" essays in which applicants describe challenging life experiences could likewise be justified on remedial grounds or as a means for identifying students from a variety of backgrounds who could bring distinct outlooks, ideas, and cultural perspectives to the academic environment. Colleges in Texas might be justified in admitting the top 10% of every high school on the grounds that past societal discrimination, particularly residential and educational segregation, resulted in highly segregated, low-income, ethnic communities that still exist today and which would benefit from the 10% program. Alternatively, Texas colleges might seek students from a cross-section of high schools as a strategy to enrich diversity given that different communities are often defined by a unique mix of demographic characteristics including socioeconomic status, occupation, education, and political, religious, or cultural affiliation. Cf. Kim Forde-Mazrui, Jurai Districting: Selecting Impartial Juries Through Community Representation, 52 VAND. L. REV. 353, 366-67 (1999) (arguing that diversity of jury compositions could be enhanced by selecting jurors from a cross-section of communities).
204. See, e.g., Foote & King, supra note 10, at 61 (explaining that, in response to Proposition 209, the University of California at San Diego opened academic assistance programs for low-income and bilingual elementary school students, and quoting University of California at Santa Cruz Chancellor as vowing to "go all the way back to the first grade" if necessary).
205. See Why Colleges Need Affirmative Action, supra note 5 (stating that "[w]hen the 5th U.S. Circuit Court of Appeals, in its radical Hopwood decision, outlawed any consideration of race in admission to public universities, the Texas legislature passed a bill requiring state universities to admit the top 10 percent of every high school graduating class").
206. For example, University of Texas vice president Patricia Olendorf purportedly said that the new law guaranteeing admission to the top 10% of each graduating high school class in the state was "designed to offset Hopwood." This Morning: Newscast - University of Texas Heads Back to Court to Get an Affirmative Action Ban Overruled (CBS television broadcast, May 18, 1998).
207. See supra note 7.
208. 471 U.S. 222 (1985).
209. See id. at 233.
210. Id. at 233.
211. 413 U.S. 189 (1973).
212. The Court stated: We reject any suggestion that remoteness in time has any relevance to the issue of intent. If the actions of school authorities were to any degree motivated by segregative intent and the segregation resulting from those actions continues to exist, the fact of remoteness in time certainly does not make those actions any less "intentional." Id. at 210-11.
213. 450 U.S. 464 (1981).
214. In rejecting petitioner's claim of illegitimate legislative motivation, the Court reasoned: Subsequent to the decision below, the California Legislature considered and rejected proposals to render § 261.5 gender neutral, thereby ratifying the judgment of the California Supreme Court. That is enough to answer petitioner's contention that the statute was the "accidental by-product of a traditional way of thinking about females." Certainly this decision of the California Legislature is as good a source as is this Court in deciding what is "current" and what is "outmoded" in the perception of women. Id. at 471 n.6 (citations omitted).
215. 453 U.S. 57 (1981).
216. Id. at 58.
217. The Court stated: [W]e reject appellees' argument that we must consider the constitutionality of the MSSA solely on the basis of the views expressed by Congress in 1948, when the MSSA was first enacted in its modern form. Contrary to the suggestions of appellees and various amici, reliance on the legislative history of Joint Resolution 521 and the activity of the various Committees of the 96th Congress considering the registration of women does not violate sound principles that appropriations legislation should not be considered as modifying substantive legislation. Congress did not change the MSSA in 1980, but it did thoroughly reconsider the question of exempting women from its provisions, and its basis for doing so. The 1980 legislative history is, therefore, highly relevant in assessing the constitutional validity of the exemption. Id. at 74-75.
218. 518 U.S. 515 (1996).
219. See id. at 539 (citing Mississippi Univ. for Women v. Hogan, 458 U.S. 718 (1982)).
220. See Virginia, 518 U.S. at 535 ("Virginia has not shown that VMI was established, or has been maintained, with a view to diversifying, by its categorical exclusion of women, educational opportunities within the Commonwealth.") (emphasis added); id. at 536 ("Neither recent nor distant history bears out Virginia's alleged pursuit of diversity through single-sex educational options.") (emphasis added); id. at 539 (considering VMI's report on the re-examination of the single-sex policy and concluding that it did not demonstrate sufficiently important purpose to uphold the policy).
221. Green v. County Sch. Bd., 391 U.S. 430, 437-38 (1968) (declaring that segregated school systems have an affirmative obligation to dismantle their dual school systems "root and branch").
222. Chief Justice Rehnquist's concurrence most clearly reflects this position: VMI was founded in 1839, and, as the Court notes, admission was limited to men because under the then-prevailing view men, not women, were destined for higher education. However misguided this point of view may be by present-day standards, it surely was not unconstitutional in 1839. The adoption of the Fourteenth Amendment, with its Equal Protection Clause, was nearly 30 years in the future. The interpretation of the Equal Protection Clause to require heightened scrutiny for gender discrimination was yet another century away. Even at the time of our decision in Reed v. Reed, therefore, Virginia and VMI were scarcely on notice that its holding would be extended across the constitutional board. They were entitled to believe that "one swallow doesn't make a summer" and await further developments. Those developments were 11 years in coming. . . . . . . . [U]nlike the majority, I would consider only evidence that postdates our decision in Hogan, and would draw no negative inferences from the Commonwealth's actions before that time. I think that after Hogan, the Commonwealth was entitled to reconsider its policy with respect to VMI, and not to have earlier justifications, or lack thereof, held against it. Id. at 560-62 (Rehnquist, C.J., concurring) (emphasis in original).
223. 347 U.S. 483 (1954).
224. A majority of the Court in Bakke held that some use of race in university admissions was constitutional, reversing so much of the lower court's opinion that prohibited any consideration of race. See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 320 (1978) (Powell, J.) (Part V-C of opinion); id. at 328 (Brennan, White, Marshall, & Blackmun, JJ., concurring in part and dissenting in part) (joining Part V-C of Justice Powell's opinion); see also Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 286 (1986) (O'Connor, J., concurring) (noting that racial diversity in higher education has been found to be a compelling state interest) (citing Bakke, 438 U.S. at 311-15 (Powell, J.)).
225. See Jonathan Alger, When Color-blind Is Color-bland: Ensuring Faculty Diversity in Higher Education, 10 STAN. L. & POL'Y REV. 191, 192 (1999) ("Because the Court has not provided further guidance on the issue, colleges and universities continue to rely upon Justice Powell's opinion in Bakke to justify faculty and student diversity programs.") (footnote omitted);
226. Philip T.K. Daniel & Kyle Edward Timken, The Rumors of My Death Have Been Exaggerated: Hopwood's Error in "Discarding" Bakke, 28 J.L. & EDUC. 391, 400 (1999) (observing that "Justice Powell's diversity rationale in Bakke has been embraced by college administrators as the blueprint of permissible admissions").
227. See supra notes 76-77 and accompanying text (quoting suggestion by Justices O'Connor and Scalia that race-neutral means could be used to remedy disadvantages suffered by minority-owned firms).
228. Martin Luther King, Jr., I Have a Dream, in THE WORDS OF MARTIN LUTHER KING, JR. (selected by Coretta Scott King, Newmarket Press: NY 1983) (address on August 28, 1963).
229. See Kathleen A. Graves, Affirmative Action in Law School Admissions: An Analysis of Why Affirmative Action Is No Longer the Arwver . . . Or Is It?, 23 S. ILL. U. L.J. 149, 171 (1998) (quoting King's "I Have a Dream" speech as exemplifying that "[e]ven Martin Luther King, Jr. recognized the detriment of affirmative action and the need to do away with it");
230. Cass R. Sunstein, What the Civil Rights Movement Was and Wasn't (with Notes on Martin Luther King, Jr. and Malcolm X), 1995 U. ILL. L. REV. 191, 203 (1995) ("As we have seen, King's 'I have a dream' speech has been used to give moral weight to the constitutional attack on affirmative action.");
231. Sylvia R. Lazos Vargas, Deconstructing Homo[geneous] Americanus: The White Ethnic Immigrant Narrative and Its Exclusionary Effect, 72 TUL. L. REV. 1493, 1517-18 (1998) (arguing that current attack on affirmative action is premised on the argument that individuals should be judged, according to Martin Luther King, Jr.'s aphorism, on the "content of character and not the color of skin").
232. 347 U.S. 483 (1954) (invalidating segregation in public schools).
233. The Court applied Brown in a series of per curiam orders to invalidate a variety of invidious segregationist practices. See Schiro v. Bynum, 375 U.S. 395 (1964) (municipal auditorium); New Orleans City Park Improvement Ass'n v. Detiege, 358 U.S. 54 (1958) (municipal golf course and parks); Gayle v. Browder, 352 U.S. 903 (1956) (city buses); Holmes v. Atlanta, 350 U.S. 879 (1955) (municipal golf course); Mayor & City Council v. Dawson, 350 U.S. 877 (1955) (public bathhouses and beaches). Other laudable cases following Brown in which the Court invalidated discriminatory practices include Loving v. Virginia, 388 U.S. 1 (1967) (invalidating state antimiscegenation law), McLaughlin v. Florida, 379 U.S. 184 (1964) (striking down law that criminalized interracial cohabitation between unmarried persons), Anderson v. Martin, 375 U.S. 399 (1964) (invalidating law that required election ballots to indicate candidates' races), and NAACP v. Alabama, 357 U.S. 449 (1958) (invalidating state law that required NAACP to disclose membership).
234. The Court so characterized congressional legislation passed during Reconstruction, which it invalidated, that would have prohibited racial discrimination in places of public accommodation. See Civil Rights Cases, 109 U.S. 3, 25 (1883).
235. MARTIN LUTHER KING, JR., WHY WE CAN'T WAIT 136 (1964). Indeed, while Dr. King's principal concern was the condition of blacks, he offered solutions that would help all disadvantaged persons on a race-neutral basis. Thus, in proposing a "Bill of Rights for the Disadvantaged" to "transform the conditions of Negro life," King explained the need to help disadvantaged whites as well: While Negroes form the vast majority of America's disadvantaged, there are millions of white poor who would also benefit from such a bill. . . . It is a simple matter of justice that America, in dealing creatively with the task of raising the Negro from backwardness, should also be rescuing a large stratum of the forgotten white poor. Id. If opponents of affirmative action seek guidance from Martin Luther King, Jr., as we all should, they - and the Court - should also remember all of his Dream. Whatever his position would have been today on racial preferences, he clearly would have supported race-neutral affirmative action.