at 620 n2 148 476 US 267 1986 149 480 US 149 1987 150 476 US at 294 A plurality

At 620 n2 148 476 us 267 1986 149 480 us 149 1987 150

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id. at 620 n.2. 148 476 U.S. 267 (1986). 149 480 U.S. 149 (1987). 150 476 U.S. at 294. A plurality of Justices in Wygant thought that past societal discrimination alone is insufficient to justify racial classifications; they would re- quire some convincing evidence of past discrimination by the governmental unit in- volved. 476 U.S. at 274–76 (opinion of Justice Powell, joined by Chief Justice Burger and by Justices Rehnquist and O’Connor). tach no constitutional significance to these limitations, thus leaving the way open for programs of a scope sufficient to remedy all the identified effects of past discrimination. 145 But the most important part of these opinions rests in the clear sustaining of race classi- fications as permissible in remedies and in the approving of some forms of racial quotas. Rejected were the arguments that a stigma attaches to those minority beneficiaries of such programs, that bur- dens are placed on innocent third parties, and that the program is overinclusive, benefitting some minority members who had suffered no discrimination. 146 The Court remains divided in ruling on constitutional chal- lenges 147 to affirmative action plans. As a general matter, author- ity to apply racial classifications is at its greatest when Congress is acting pursuant to section 5 of the Fourteenth Amendment or other of its powers, or when a court is acting to remedy proven dis- crimination. But impact on disadvantaged non-minorities can also be important. Two recent cases illustrate the latter point. In Wygant v. Jackson Board of Education , 148 the Court invalidated a provision of a collective bargaining agreement giving minority teachers a preferential protection from layoffs; in United States v. Paradise , 149 the Court upheld as a remedy for past discrimination a court-ordered racial quota in promotions. Justice White, concur- ring in Wygant , emphasized the harsh, direct effect of layoffs on af- fected non-minority employees. 150 By contrast, a plurality of Jus- tices in Paradise viewed the remedy in that case as affecting non- minorities less harshly than did the layoffs in Wygant , since the
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1867 AMENDMENT 14—RIGHTS GUARANTEED 151 480 U.S. at 182–83 (opinion of Justice Brennan, joined by Justices Marshall, Blackmun, and Powell). A majority of Justices emphasized that the egregious nature of the past discrimination by the governmental unit justified the ordered relief. 480 U.S. at 153 (opinion of Justice Brennan), id. at 189 (Justice Stevens). 152 488 U.S. 469 (1989). Croson was decided by a 6–3 vote. The portions of Jus- tice O’Connor’s opinion adopted as the opinion of the Court were joined by Chief Justice Rehnquist and by Justices White, Stevens, and Kennedy. The latter two Jus- tices joined only part of Justice O’Connor’s opinion; each added a separate concur- ring opinion. Justice Scalia concurred separately; Justices Marshall, Brennan, and Blackmun dissented.
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  • Summer '17
  • timothy carlin
  • Fourteenth Amendment to the United States Constitution

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