GPO-CONAN-2017-10-15.pdf

A series of opinions by six justices all recognized

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A series of opinions by six Justices all recognized that alleviation and remediation of past societal discrimination was a legitimate goal and that race was a permissible classification to use in remedying the present effects of past discrimination. Chief Judge Burger is- sued the judgment, which emphasized Congress’s preeminent role under the Commerce Clause and the Fourteenth Amendment to de- termine the existence of past discrimination and its continuing ef- fects and to implement remedies that were race conscious in order to cure those effects. The principal concurring opinion by Justice Marshall applied the Brennan analysis in Bakke , using middle-tier scrutiny to hold that the race conscious set-aside was “substan- tially related to the achievement of the important and congressio- nally articulated goal of remedying the present effects of past dis- crimination.” 1809 Taken together, the opinions established that, although Con- gress had the power to make the findings that will establish the necessity to use racial classifications in an affirmative way, these findings need not be extensive nor express and may be collected in 1806 438 U.S. at 287–320. 1807 See 438 U.S. at 319–20 (Justice Powell). 1808 448 U.S. 448 (1980). Justice Stewart, joined by Justice Rehnquist, dis- sented in one opinion, id. at 522, while Justice Stevens dissented in another. Id. at 532. 1809 448 U.S. at 517. 2161 AMENDMENT 14—RIGHTS GUARANTEED
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many ways. 1810 Moreover, although the opinions emphasized the lim- ited duration and magnitude of the set-aside program, they ap- peared to attach no constitutional significance to these limitations, thus leaving open the way for programs of a scope sufficient to rem- edy all the identified effects of past discrimination. 1811 But the most important part of these opinions rested in the clear sustaining of race classifications as permissible in remedies and in the approv- ing of some forms of racial quotas. The Court rejected arguments that minority beneficiaries of such programs are stigmatized, that burdens are placed on innocent third parties, and that the pro- gram is overinclusive, so as to benefit some minority members who had suffered no discrimination. 1812 Despite these developments, the Court remained divided in its response to constitutional challenges to affirmative action plans. 1813 As a general matter, authority to apply racial classifications was found to be at its greatest when Congress was acting pursuant to section 5 of the Fourteenth Amendment or other of its remedial pow- ers, or when a court is acting to remedy proven discrimination. But a countervailing consideration was the impact of such discrimina- tion on disadvantaged non-minorities. Two cases illustrate the lat- ter point. In Wygant v. Jackson Board of Education , 1814 the Court invalidated a provision of a collective bargaining agreement giving minority teachers a preferential protection from layoffs. In United States v. Paradise , 1815 the Court upheld as a remedy for past dis- 1810 Whether federal agencies or state legislatures and state agencies have the
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