T HOMAS concurring : “Government cannot make us equal; it can only recognize, respect, and protect us as equal before the law. . . . There can be no doubt that the paternalism that appears to lie at the heart of this program is at war with the principle of inherent equality that underlies and infuses our Constitution.” S TEVENS dissenting : Reiterates his belief that benign or remedial racial classifications should be subject to a lesser review. Given that the federal statute was intended to remedy past discrimination, S TEVENS argues that it should be subject to the rational basis test. G INSBURG (joined by B REYER ) dissenting : “Bias both conscious and unconscious, reflecting traditional and unexamined habits of thought, keeps up barriers that must come down if equal opportunity and nondiscrimination are ever genuinely to become this country’s law and practice.” The Court’s decision in CROSON and ADARAND is an example of making the choice to view BROWN as anti-classification as opposed to anti-subjugation. 2. A FFIRMATIVE A CTION A FTER CROSON & ADARAND: Options for Evaluating Affirmative Action Plans following CROSON & ADARAND Level of Scrutiny Inquiry Strict [race context] Compelling government interest that is narrowly tailored Intermediate [gender – some consider it intermediate +] Important government purpose that is substantially related Rational basis Legitimate government purpose that is rationally related REGENTS OF UNIV. OF CALI. V. BAKKE (1978): [unassigned but briefly mentioned in class] Justice P OWELL ’s plurality opinion applied strict scrutiny in striking down a challenged UC Davis medical school racial quota admissions policy. P OWELL ’s opinion for the divided Court remained influential subsequently. 116
In his analysis, P OWELL did find that attaining a diverse student body is clearly a constitutionally permissible goal and is indeed a compelling interest. However, the UC Davis admissions policy was not narrowly tailored to such end. [Harvard’s practice that did not involve racial quotas had been upheld] GRUTTER V. BOLLINGER (2003): Plaintiff challenged the University of Michigan Law School’s use of race as a factor in student admissions as a violation of the Equal Protection Clause. Mich. had tailored its policy to P OWELL ’s opinion in BAKKE. Held : Ct. here expressly “endorses” P OWELL ’s opinion in BAKKE. Applying strict scrutiny, the Ct found: o The Law School had a compelling interest in attaining a diverse student body o Law School’s policy was sufficiently narrowly tailored – “[To] be narrowly tailored, a race-conscious admissions program must not ‘unduly burden individuals who are not members of the favored racial or ethnic groups.’ We are satisfied that the Law School’s admissions program does not.” o The Law School’s “race-conscious admissions program adequately ensures all factors that may contribute to student body diversity are meaningfully considered alongside race in admissions decisions”
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