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id. at 620 n.2.148476 U.S. 267 (1986).149480 U.S. 149 (1987).150476 U.S. at 294. A plurality of Justices in Wygant thought that past societaldiscrimination 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 Burgerand by Justices Rehnquist and O’Connor).tach no constitutional significance to these limitations, thus leavingthe way open for programs of a scope sufficient to remedy all theidentified effects of past discrimination.145But the most importantpart of these opinions rests in the clear sustaining of race classi-fications as permissible in remedies and in the approving of someforms of racial quotas. Rejected were the arguments that a stigmaattaches to those minority beneficiaries of such programs, that bur-dens are placed on innocent third parties, and that the program isoverinclusive, benefitting some minority members who had sufferedno discrimination.146The Court remains divided in ruling on constitutional chal-lenges147to affirmative action plans. As a general matter, author-ity to apply racial classifications is at its greatest when Congressis acting pursuant to section 5 of the Fourteenth Amendment orother of its powers, or when a court is acting to remedy proven dis-crimination. But impact on disadvantaged non-minorities can alsobe important. Two recent cases illustrate the latter point. InWygant v. Jackson Board of Education,148the Court invalidated aprovision of a collective bargaining agreement giving minorityteachers a preferential protection from layoffs; in United States v.Paradise,149the Court upheld as a remedy for past discriminationa 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.150By 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
1867AMENDMENT 14—RIGHTS GUARANTEED151480 U.S. at 182–83 (opinion of Justice Brennan, joined by Justices Marshall,Blackmun, and Powell). A majority of Justices emphasized that the egregious natureof the past discrimination by the governmental unit justified the ordered relief. 480U.S. at 153 (opinion of Justice Brennan), id. at 189 (Justice Stevens).152488 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 ChiefJustice 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, andBlackmun dissented.
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Fourteenth Amendment to the United States Constitution