GPO-CONAN-2017-10-15.pdf

Any other race the plan did not operate to minimize

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any other race; the plan did not operate to minimize or unfairly cancel out white voting strength, because as a class whites would be represented in the legislature in accordance with their propor- tion of the population in the jurisdiction. 1802 1800 For a detailed discussion of the use of racial considerations in apportion- ment and districting by the states, see infra Amendment 14: Section 1: Rights Guar- anteed: Fundamental Interests: The Political Process: Apportionment and District- ing. 1801 430 U.S. at 155–65. Joining this part of the opinion were Justices Brennan, Blackmun, and Stevens. 1802 430 U.S. at 165–68. Joining this part of the opinion were Justices Stevens and Rehnquist. In a separate opinion, Justice Brennan noted that preferential race policies were subject to several substantial arguments: (1) they may disguise a policy that perpetuates disadvantageous treatment; (2) they may serve to stimulate soci- ety’s latent race consciousness; (3) they may stigmatize recipient groups as much as overtly discriminatory practices against them do; (4) they may be perceived by many as unjust. The presence of the Voting Rights Act and the Attorney General’s super- vision made the difference to him in this case. Id. at 168. Justices Stewart and Pow- 2159 AMENDMENT 14—RIGHTS GUARANTEED
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It was anticipated that Regents of the University of California v. Bakke 1803 would shed further light on the constitutionality of af- firmative action. Instead, the Court again fragmented. In Bakke , the Davis campus medical school admitted 100 students each year. Of these slots, the school set aside 16 of those seats for disadvantaged minority students, who were qualified but not necessarily as quali- fied as those winning admission to the other 84 places. Twice de- nied admission, Bakke sued, arguing that had the 16 positions not been set aside he could have been admitted. The state court or- dered him admitted and ordered the school not to consider race in admissions. By two 5-to-4 votes, the Supreme Court affirmed the order admitting Bakke but set aside the order forbidding the con- sideration of race in admissions. 1804 Four Justices, in an opinion by Justice Brennan, argued that racial classifications designed to further remedial purposes were not foreclosed by the Constitution under appropriate circumstances. Even ostensibly benign racial classifications, however, could be misused and produce stigmatizing effects; therefore, they must be search- ingly scrutinized by courts to ferret out these instances. But be- nign racial preferences, unlike invidious discriminations, need not be subjected to strict scrutiny; instead, an intermediate scrutiny would do. As applied, then, this review would enable the Court to strike down a remedial racial classification that stigmatized a group, that singled out those least well represented in the political process to bear the brunt of the program, or that was not justified by an im- portant and articulated purpose.
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