Amicus Curiae Brief — Wygant v. Jackson Board of Education

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In the Supreme Court of the United States

OCTOBER TERM, 1984

WENDY WYGANT, ET AL., PETITIONERS

Vv.

JACKSON BOARD OF EDUCATION, ETC., ET AL.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

CHARLES FRIED

Acting Solicitor General

WM. BRADFORD REYNOLDS

Assistant Attorney General

CHARLES J. COOPER

Deputy Assistant Attorney General

SAMUEL A. ALITO, JR.

Assistant to the Solicitor General

WALTER W. BARNETT

DAVID K. FLYNN

MICHAEL CARVIN

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

” BEST AVAILABLE COPY

QUESTION PRESENTED

Whether the Equal Protection Clause of the Four-

teenth Amendment permits a public entity to grant cer-

tain public employees preferential protection against lay-

offs solely on the basis of their race or national origin,

when there is neither a finding nor even evidence that

these (or any) employees have been discriminated

against by that entity.

(I)

TABLE OF CONTENTS

LS ae

Introduction and summary of argument ............00000.......

Argument:

The Jackson lay-off quota violates equal protection...

I. Equality before the law is a foundational princi-

II.

Il.

ple of American government ............0. 0022...

Laws that discriminate in favor of some minor-

ity groups must satisfy the same constitutional

standards as other forms of state-sponsored

racial and ethnic discrimination ...........0.0...00......

The Jackson lay-off quota cannot satisfy the

constitutional standards applicable to measures

containing racial and ethnic classifications........

Neen ceumsneneeens

TABLE OF AUTHORITIES

Cases:

Albemarle Paper Co. v. Moody, 422 U.S. 405 _.........

Arthur v. Nyquist, 415 F. Supp. 904, aff’d and

rev'd in part, 573 F.2d 134, cert. denied, 439

esescnnsvcuses

Bolling v. Sharpe, 347 U.S. 497 ..........00.022--.cce.cee0e--

Brown V. Board of Education, 347 U.S. 483 .........

Buchanan v. Warley, 245 U.S. 60..........0.00.00000---0-.

Bushey v. New York State Civil Service Commis-

sion, No. 84-336 (Jan. 7, 1985) —...00.000.o.e ee.

Ceaser v. aaren, aoe Us. 2B ......................................

Dayton Board of Education v. Brinkman, 433 U.S.

a necemnmnenees

DeFunis v. Odegaard, 416 U.S. 312 ........ 8, 9, 10, 18, 22, 23

Detroit Police Officers’ Association v. Young, 608

F.2d 671, cert. denied, 452 U.S. 938 0.000000...

(m1)

Cases—Continued : Page

Dunn v. Blumstein, 405 U.S. 330 ...........00022.2 0... 8

Firefighters Local Union No. 1784 Vv. Stotts, No.

inti lecstiiesrontliinisoen 1, 29

Franks v. Bowman Transportation Co., 424 U.S.

SSR SR arte aah Pereic tc oe Ae enn Ne OT Se 28

Fullilove v. Klutznick, 448 U.S. 448 .....---020020...2 22... passim

Hampton v. Mow Sun Wong, 426 U.S. 88 -............... 30

Hazelwood School District v. United States, 433

RRP NE evr citer ae ee ee Ree 30

Hirabayashi v. United States, 320 U.S. 81-.............. 16, 22

Hurd ¥. Hodge, 384 U.S, 24 ..........................-.-.-.-...-. ll

Janowiak vy. City of South Bend, 750 F.2d 557........ 30

Jones V. Alfred H. Mayer Co., 392 U.S. 409 -.......... 11

Kramer v. Union Free School District, 395 U.S.

RRR I Es SE eS ae aa 8

Lee v. Washington, 390 U.S. 333 ...................-.........- 22

Loving V. Virginia, 388 U.S. 1 .....2...22.....cccccceeeeeeenneee 8

McLaughlin v. Florida, 379 U.S. 184 -..................... 8

Milliken v. Bradley, 418 U.S. 717 ........................------ 27

Mississippi University for Women v. Hogan, 458

Bn FIN sich lates ceieeeesidecdeeatelcinialieiceliiasa tehsil 18

Missouri ex rel. Gaines Vv. Canada, 305 U.S. 337...... 10

Morgan Vv. Kerrigan, 509 F.2d 580, cert. denied,

I Nc acta ih neds eines 25

Oliver v. Michigan State Board of Education, 508

F.2d 178, cert. denied, 421 U.S. 963 _.................... 25

Palmore v. Sidoti, No. 82-1734 (Apr. 25, 1984) ....8, 22, 24

Plessy v. Ferguson, 163 U.S. 587 ............2..--2------------ 7,22

Reed v. Rhodes, 607 F.2d 714, cert. denied, 445

Beer. Se eh NN OL Sa DEY eR Oa 25

Regents of the University of California v. Bakke,

I I I satan heise hahaha tatiana passim

Shapiro v. Thompson, 394 U.S. 618 -......................- 8

Shelley v. Kraemer, 384 U.S. 1 ................................. 10

Smith v. Board of Education, 365 F.2d 770 ............ 25

Sweatt v. Painter, 389 U.S. 629 ............................. 10

Teamsters Vv. United States, 431 U.S. 324 0.0. 29

United Jewish Organizations v. Carey, 480 U.S.

BUIIEP RciccensacthsnedeienianaddheebiinaditeeitabinoiiiebidiaticiidbL sine tieaiala inti 17, 23

United States v. School District, 521 F.2d 530,

GS eee 25

Cases—Continued : Page

United Steelworkers v. Weber, 443 U.S. 193....1, 25, 26, 29

Village of Arlington Heights v. Metropolitan

Housing Development Corp., 429 U.S. 252... 30

Yick Wo v. Hopkins, 118 U.S. 356 ........................ 10

Washington Vv. Davis, 426 U.S. 229... 30

Constitution, statutes and regulation:

U.S. Const. :

Pe ek I OF eicsracetectcineceeeiiniecbeniennnencinteenttnemiansennes 14

RT TRA NE Se i ae ee RS passim

§ 1 (Equal Protection Clause) ...000000....... passim

ERS NSA eC ee eee YN ee eS UREN 12, 29

Act of Mar. 3, 1865, ch. 90, 13 Stat. 507 et seq..... 15

ET oe ae Ae ae ee ee 15

ESSE TORE ee oc se 15

I 15

Act of July 16, 1866, ch. 200, 14 Stat. 173 et seq... 15

SE enn ne ee re 15

SE RE rR ee ROR RRTI SIE 15

iT TI RARE eee TL 15

RE en a 15

ES AS IRS a Oe 15

ENE SARS cee aa Oe ae ene 15

$§ 7-10, 14 Stat. 175-176 ............ 15

eR cre 15

TTT ATTN Send ie 15

| RSE ENE a ee Ee 15

RIES cee ee ee 15

AE SRE ERE Nc a a 15

Act of July 6, 1868, ch. 135, 15 Stat. 83... 15

Civil Rights Act of 1866, ch. 31, 14 Stat. 27 et seq... 11

I al 5 11,13

Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e

RAEN SSAA SSER SL es Oar A 3, 25, 29

§ 706 (e), 42 U.S.C. 2000e-5 (e) ..... 3

§ 706(f) (1), 42 U.S.C. 2000e-5 (f) (1) 1,3

§ 706(g), 42 U.S.C. 2000e-5(g) 29

bo Bk eee 1

Constitution, statutes and regulation—-Continued :

OR ARES ae 7

I a easel nahibilamliteeinaiidibe

BE eS ET ORO

RL SE 9

I, I octane enceidisditincnnsilliaiidiaseniinewmmpsniiasinte

Exec. Order No. 12250, 45 Fed. Reg. 72995 (1980)...

Miscellaneous :

A. Bickel, The Morality of Consent (1975)........

Bickel, The Original Understanding and the Seg-

regation Decision, 69 Harv. L. Rev. 1 (1955) ....

Bureau of the Census, U.S. Dep’t of Commerce:

Historical Statistics of the United States Pt. 1

(SESRCRASE BPR ete ees a a or a Se

Statistical Abstract of the United States 1985

I -cssicnieldiaadesientialissinentitiniesee

Cong. Globe, 39th Cong., 1st Sess. 14 (1865) ........

Cong. Globe, 39th Cong., lst Sess. (1866) :

PUVUVUVTP

i MI stdiciciiiniseen <esdpudneeneiaditnenepiinaianas sihadasieniapedie

A IIIS coniceinitcsionsesinmsancnessciaphptensninenete Saliba

J. Ely, Democracy and Distrust (1980) -................

Ely, The Constitutionality of Reverse Racial Dis-

crimination, 41 U. Chi. L. Rev. 723 (1974) ........

6 C. Fairman, History of the Supreme Court of

the United States—Reconstruction and Re-

I Te I ids irrintiehiaiiadadecdibeitiicndbibiasdadettenns

J. Fishkin, Justice, Equal Opportunity, and the

Family (1983)

11, 21

VII

Miscellaneous—Continued :

H. Flack, The Adoption of the Fourteenth Amend-

he A es Nee En

Frank & Munro, The Original Understanding of

“Equal Protection of the Laws,” 50 Col. L. Rev.

REET oe ome a

N. Glazer, Affirmative Discrimination: Ethnic In-

equality and Public Policy (1975) ...............

Greenawalt, Judicial Scrutiny of “Benign” Racial

Preference in Law School Admissions, 75 Col.

as I had er

J. James, The Framing of the Fourteenth Amend-

kt IRL IE ERE PT a oe Pe

B. Kendrick, The Journal of the Joint Committee

of Fifteen on Reconstruction (1914) ..................

H. Meyer, The History and Meaning of the Four-

teenth Amendment (1977)

Posner:

The Bakke Case and the Future of “Affirma-

tive Action,” 67 Cal. L. Rev. 171 (1979)......

The DeFunis Case and the Constitutionality

of Preferential Treatment of Racial Minori-

ties, 1974 Sup. Ct. Rev. 1 ................................

Radio and Television Remarks Upon Signing the

Civil Rights Bill, 1964 Pub. Papers of President

Johnson

T. Sowell:

Black Education, Myths and Tragedies

ERE ed cnn Ree Rene FM EEE

The Economics and Politics of Race (1983)...

Special Message to Congress on Civil Rights, 1963

Pub. Papers of President Kennedy ..................

J. Wilkinson, From Brown to Bakke (1979)

Page

ee se

2 cme

ivy

a te

tay — ol

* ;

Iu the Supreme Court of the United States

OCTOBER TERM, 1984

No. 84-1340

WENDY WYGANT, ET AL., PETITIONERS

Vv.

JACKSON BOARD OF EDUCATION, ETC., ET AL.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

The government has the responsibility for enforcing

numerous statutes prohibiting discrimination on account

of race or national origin’ and, accordingly, has fre-

quently participated in this Court, both as a party and

as amicus curiae, in cases presenting constitutional and

statutory claims of racial discrimination.’

STATEMENT

Before the 1972-1973 school year, the collective bar-

gaining agreement between the board of education and

teachers association of Jackson, Michigan, called for lay-

1 See, e.g., 42 U.S.C. 2000h-2; 42 U.S.C. 2000e-5(f) (1); and

Exec. Order No. 12250, 45 Fed. Reg. 72995 (1980).

2E.g., Firefighters Local Union No. 1784 Vv. Stotts, No. 82-206

(June 12, 1984); Fullilove v. Klutznick, 448 U.S. 448 (1980);

United Steelworkers v. Weber, 443 U.S. 193 (1979); Regents of the

University of California v. Bakke, 4388 U.S. 265 (1978).

(1)

offs on a strict seniority basis (Pet. App. 21a).° In 1972,

however, the board signed a new pact requiring lay-offs

on a racial and ethnic basis. Specifically, it agreed that

“at no time will there be a greater percentage of minority

personnel laid off than the current percentage of minority

personnel employed at the time of the layoff” (id. at 3a,

23a). The goal of this system was “to have at least the

same percentage of minority racial representation on each

individual staff as is represented by the student popula-

tion of the Jackson Public Schools” (id. at 13a, 22a, 32a).

The agreement defined “minority group personnel” as

those “who are Black, American Indian, Oriental, or of

Spanish descendancy” (Pet. App. 1a).

Petitioners are Jackson teachers who were laid off in

accordance with this provision while “minority” teachers

with less seniority were retained. Petitioners brought

suit in the United States District Court for the Eastern

District of Michigan, claiming that the lay-offs violated

the Equal Protection Clause; Title VII of the Civil

Rights Act of 1964, 42 U.S.C. 2000e et seq.; other fed-

eral civil rights statutes (42 U.S.C. 1981, 1983, and

1985); and various state laws. On cross-motions for

summary judgment, the court dismissed all of petitioners’

claims.

Addressing the teachers’ Fourteenth Amendment

claim, the court first held that a finding of discrimina-

tion was not a prerequisite for the racial and ethnic

preferences granted by the collective bargaining agree-

ment (Pet. App. 25a-27a). Instead, the court held (id.

at 28a-3la) that the Equal Protection Clause was satis-

fied if (1) “ ‘there is a sound basis for concluding that

minority underrepresentation is substantial and chronic,

and that the handicap of past discrimination is impeding

access [and promotion] of minorities’” and (2) the

affirmative action plan meets a test of “reasonableness,”

i.e., is “ ‘substantially related’ to the objectives of reme-

3A poll of the teachers revealed that 96% favored retention of

this system and opposed a freeze offering special protection against

layoffs to minority group members (Pet. App. 2la).

dying past discrimination and correcting ‘substantial’

and ‘chronic’ underrepresentation” (id. at 28a, 3la,

quoting Detroit Police Officers’ Association v. Young,

608 F.2d 671, 694, 696 (6th Cir. 1979), cert. denied, 452

U.S. 938 (1981) ).

Applying this test, the court found “substantial and

chronic underrepresentation” solely because the percent-

age of minority students exceeded the percentage of mi-

nority teachers (Pet. App. 29a). The court reasoned

(ibid.) that “minority teachers are role-models for mi-

nority students.” The court then held (id. at 3la-34a)

that the lay-off quota met the test of “reasonableness”

(id. at 31a).

The court ruled that petitioners’ claims under 42

U.S.C. 1981, 1983, and 1985 failed because the lay-off

provision was constitutional * (Pet. App. 34a-35a); that

petitioners had not satisfied the administrative prerequi-

sites for suit under Title VII° (Pet. App. 34a), and that

dismissal of all the federal claims necessitated dismissal

of the pendent state claims as well (id. at 36a).

The court of appeals affirmed (Pet. App. 2a-19a) in an

cpinion that adopted the district court’s reasoning and

extensively quoted from the district. court’s opinion (id.

at 4a-10a).°®

* The court also held (Pet. App. 36a) that the claim under 42

U.S.C. 1985(3) was defective for failure to allege a conspiracy.

° Petitioners were barred from suing under Title VII because

they had not filed administrative claims with the Equal Employ-

ment Opportunity Commission. 42 U.S.C. 2000e-5(f) (1). Peti-

tioners did not appeal the district court’s dismissal of their Title

VII claims. Moreover, at the time of dismissal, the statute of

limitations for filing administrative claims (42 U.S.C. 2000e-5(e) )

had already run. Accordingly, petitioners are now relegated to

those claims grounded upon the Fourteenth Amendment.

® Judge Wellford concurred, but expressed disagreement with the

majority’s view that underrepresentation of minorities could be

established by comparing the proportion of minority teachers to

minority students rather than to minority representation in the

relevant labor market (Pet. App. 15a-19a). He believed, however,

that petitioners, as plaintiffs below, bore the burden of proving “the

INTRODUCTION AND

SUMMARY OF ARGUMENT

As amicus curiae in Brown v. Board of Education, 347

U.S. 483 (1954), the United States argued that the

Fourteenth Amendment “established the broad constitu-

tional principle of full and complete equality of all per-

sons under the law, and that it forbade all legal distinc-

tions based on race or color.”* The schoolchildren and

their parents and guardians took the same position, con-

tending that “the Fourteenth Amendment prohibits a

state from making racial distinctions in the exercise of

governmental power.” * We make the same argument in

the present case.

In this case, petitioners were laid off from their jobs

as school teachers for the sole reason that they are white

and the respondent school board, a governmental agency

subject to the Fourteenth Amendment, had bound itself

in a collective bargaining agreement to an absolute lay-

off preference for “employees who are Black, American

Indian, Oriental, or of Spanish descendancy” (Pet. App.

la). There was no finding by the school board, the

courts below, or anyone else, that members of some or

all of these groups had been the victims of discrimina-

tion by the school board, by the City of Jackson, or by

the State of Michigan. There was no inquiry into the

reasons for whatever disparities existed between the rep-

resentation of these groups in the teaching and the stu-

dent bodies. All there is by way of justification for the

racially based misfortune visited upon petitioners are

references by the district court and the court of appeals

to a history of “societal discrimination” (Pet. App. 4a,

25a), “underrepresentation” of minority teachers (id.

at 6a-9a, 28a-3la), and the need to supply “role-models”

percentage of qualified minority teachers in the relevant labor

market” (Pet. App. 17a).

7™U.S. Supp. Br. on Reargument at 115; see also id. at 22, 65

(Equal Protection Clause requires government to be color blind.).

* Br. for Appellants in Nos. 1, 2, and 4 and Resp. in No. 10 on

Reargument at 21.

for minority students (id. at 8a, 29a-30a). So casual a

waving aside of the fundamental Fourteenth Amend-

ment principle of equal treatment for all persons regard-

less of race and of our republic’s basic moral vision of

the unity of all mankind cannot be countenanced.

First, the courts below drew a wholly unwarranted

connection between the general history of racial discrim-

ination in this country, and the statistical underrepresen-

tation of minority group members in the teaching corps

relative to the student body—without even the semblance

of an attempt to relate that disparity to some pattern or

practice of conduct by the school board. Second, there is

the further step of using this suppositious discrimination

to justify a remedy which further undoes the connection

between wrongdoer and victim to allow a person, say of

Asian descent whose ancestors suffered discrimination in

the early history of California, to attain for that reason

a concrete advantage over petitioners in Jackson, Michi-

gan, in 1982.

The third and final step in the shambling logic of this

enterprise would justify the explicitly racially based lay-

off of petitioners on the ground that this is necessary to

provide “role-models”’ for minority group _ students.

Stripped of its veneer of unsupported psychological and

sociological conjecture, this justification can only mean

one of two things. It may mean that black, Hispanic or

Asian students learn better if they are taught by black,

Hispanic or Asian teachers. Or it may mean that such

students, conscious of the injustices done to the groups

of which they are members, will draw encouragement

and a practical moral lesson from seeing members of

their own (or some other) minority group in positions

of authority and respect. As to the first of these justifi-

cations, no evidence for such an empirical effect was ever

suggested, let alone examined and subjected to criticism

and refutation. As to the second, the moral conclusions

it teaches beg the question at issue. For one must as-

sume that these students will be aware of the very system

of racial preference which delivers role models in sup-

posedly sufficient numbers. But what is the moral lesson

that such a system teaches? Surely not that ours is a

society in which each person can succeed as a result of his

or her own work and talent. On the contrary, one may

likelier suppose that such a system (its actual working

laid bare) will teach a different and more sinister les-

son: that one hundred and twenty years after the end

of slavery government may still advance some and sup-

press others not as individuals but because of the color

of their skin.

In this brief the United States shall argue, first, that

the Fourteenth Amendment was intended to assure the

equality before the law of all persons, of whatever race

or group; second, that therefore any governmental action

based on race or national origin bears the heaviest pos-

sible burden of justification; third, that racial quotas

cannot lighten much less discharge this burden of justifi-

cation by claiming to favor blacks or other disadvantaged

groups and therefore claiming to be benign; and fourth,

that compensating the victims of discrimination is con-

sistent with these principles, as the compensation is

directed to those who have actually suffered discrimina-

tion. Adherence to these constitutional principles is per-

fectly consistent with a benevolent social policy designed

to provide fair opportunity and a sense of real equaiity

to all persons.

ARGUMENT

THE JACKSON LAY-OFF QUOTA

VIOLATES EQUAL PROTECTION

I. EQUALITY BEFORE THE LAW IS A FOUNDA-

TIONAL PRINCIPLE OF AMERICAN GOVERN-

MENT

The United States’ population is the most diverse in

the world—indeed, probably in the history of the world.

If present trends of immigration and population growth

continue, racial and ethnic diversity will significantly in-

crease in the remaining years of this century.

This diversity, potentially divisive and enervating, has

proved to be a source of strength and cultural richness,

a concrete manifestation of the universality of the prin-

ciples on which this country was founded. Central among

those principles is the equality of all persons before the

law, regardless of race, religion, or ethnic background.

The Declaration of Independence proclaimed that Amer-

ica was different from other countries because: “We

hold these truths to be self-evident, that all men are

created equal * * *.” The inscription on the front of

this Court reads: “Equal Justice Under Law.” This is

the principle that as a matter of historical fact has uni-

fied the many minorities that make up our population.

See N. Glazer, Affirmative Discrimination: Ethnic In-

equality and Public Policy 3-32 (1975).

This concept finds binding legal expression in the Equal

Protection Clause of the Fourteenth Amendment: no

state shall “deny to any person within its jurisdiction the

equal protection of the laws.” The Equal Protection

Clause does not mention any of the characteristics that

divide, such as race, religion, or national origin. It sees

only “person[s]” and guarantees to every “person” the

“equal” protection of the laws.

Equality before the law, so magnificent in principle, is

often a difficult and uncomfortable concept in practice.

There have always been and perhaps will always be

voices seeking to carve out special exceptions to this prin-

ciple based on history, prevailing social conditions, tem-

porary need, or expediency. After the era of Reconstruc-

tion, such voices prevailed, and the true meaning of the

Equal Protection Clause was long suppressed. In 1896,

this Court approved the concept of “separate but equal”

facilities for blacks and whites and thus upheld the ar-

rest of Homer A. Plessy for occupying a railroad coach

reserved for whites. Plessy v. Ferguson, 163 U.S. 537

(1896). According to his petition, Plessy was seven-

eighths white and one-eighth black, and “the mixture of

colored blood was not discernible in him” (id. at 541).

Under Louisiana law, he was black, although in other

states he apparently would have been white (see id. at

552). Whether, if living today, he would be regarded as

black or white by the Jackson Board of Education is un-

clear. What is clear is that his Fourteenth Amendment

rights as a person were violated. In one of the most

famous and prescient dissents in the history of this Court,

the first Justice Harlan wrote (163 U.S. at 559):

fo]ur Constitution is color-biind, and neither knows

nor tolerates classes among citizens. In respect of

civil rights, all citizens are equal before the law.

The humblest is the peer of the most powerful. The

law regards man as man, and takes no account of

his surroundings or of his color when his civil rights

as guaranteed by the supreme law of the land are

involved.

This vision became the creed of the Civil Rights Move-

ment ® and eventually the nation.” It has informed and

found expression in numerous decisions of this Court.

See, e.g., Loving v. Virginia, 388 U.S. 1 (1967); Me-

Laughlin v. Florida, 379 U.S. 184, 191-192 (1964) ;

Bolling v. Sharpe, 347 U.S. 497, 498 (1954). Under those

cases, the status of most laws that discriminate on the

basis of race or ethnic origin is perfectly clear. They are

“constitutionally suspect” and subject to the “most rigid

scrutiny.” McLaughlin v. Florida, 379 U.S. at 191-193.

As the Court affirmed only last Term, “to pass constitu-

tional muster, [a racial classification] must be justified

by a compelling governmental interest and must be ‘nec-

essary ... to the accomplishment’ of its legitimate pur-

pose.” Palmore v. Sidoti, No. 82-1734 (Apr. 25, 1984),

slip op. 4. Furthermore, a suspect classification must be

precisely tailored. Dunn v. Blumstein, 405 U.S. 330,

343 (1972); Kramer v. Union Free School District, 395

U.S. 621, 627 (1969); Shapiro v. Thompson, 394 U.S.

618 (1969).

Beginning with the case of DeFunis v. Odegaard, 416

U.S. 312 (1974), this Court opened a new chapter in

® See page 4 & note 8, supra.

10 See, e.g., Special Message to Congress on Civil Rights, 1963

Pub. Papers of President Kennedy 221; Radio and Television Re-

marks Upon Signing the Civil Rights Bill, 1964 Pub. Papers of

President Johnson 842, 843.

the constitutional history of racial and ethnic discrimi-

nation. What purportedly distinguished DeFunis from

previous discrimination cases was that the victim, Marco

DeF unis, Jr., was not a member of a “minority” group,

at least as defined by the University of Washington Law

School, i.e., he was not “black, Chicano, American Indian,

or Filipino” (id. at 320). Thus, discrimination against

DeFunis, a Sephardic Jew from a relatively poor back-

ground,"' was claimed to be “benign” and, in the judg-

ment of the University, DeFunis could justly be called

upon to sacrifice his aspirations for a legal career to serve

the greater public good.

The present case falls into the same pattern. Here,

petitioners lost their jobs as teachers because they are

not “Black, American Indian, Oriental, or of Spanish

descendancy” (Pet. App. la). Those seeking to justify

this discrimination must show either (1) that so-called

“benign” quotas should not be governed by the same con-

stitutional standards that govern other forms of racial

and ethnic discrimination or (2) that measures like the

Jackson lay-off quota can satisfy those tests. We will

address these points in turn.

Il. LAWS THAT DISCRIMINATE IN FAVOR OF

SOME MINORITY GROUPS MUST SATISFY THE

SAME CONSTITUTIONAL STANDARDS AS OTHER

FORMS OF STATE-SPONSORED RACIAL AND

ETHNIC DISCRIMINATION

A. This Court has rendered two decisions concerning

the constitutionality of racial classifications adopted by

governmental entities for the purpose of benefitting mem-

bers of specified minority groups: Regents of the Uni-

versity of California v. Bakke, 438 U.S. 265 (1978) ; and

Fullilove v. Klutznick, 448 U.S. 448 (1980). While nei-

their case produced a majority opinion, a plurality of the

Court appears to have concluded that state action grant-

11J. Fishkin, Justice, Equal Opportunity, and the Family 90

(1983).

ing preferences to minorities must satisfy strict scrutiny

like all other state-sponsored racial classifications.’

We fully endorse this conclusion because we see no valid

justification for more lenient judicial scrutiny of laws

that discriminate in favor of some minorities and against

a residual category of “whites.” The right to the equal

protection of the laws is an “individual,” “personal”

right. Shelley v. Kraemer, 334 U.S. 1, 22 (1948). See

also, e.g., Sweatt v. Painter, 339 U.S. 629 (1950); Mis-

sourt ex rel. Gaines v. Canada, 305 U.S. 337 (1938).

Accordingly, this right applies equally to all persons

“without regard to any differences of race, of color, or

of nationality.” Yick Wo v. Hopkins, 118 U.S. 356, 369

(1886) ; see also Buchanan v. Warley, 245 U.S. 60, 76

(1917). This right “cannot mean one thing when ap-

plied to one individual and something else when applied

to a person of another color.” Bakke, 438 U.S. at

289-290 (opinion of Powell, J.); see also DeFunis Vv.

Odegaard, 416 U.S. at 337 (Douglas, J., dissenting).

12 This standard of review was stated by Justice Powell in Bakke,

438 U.S. at 290-291. Justice White joined this portion of Justice

Powell's opinion (id. at 387 n.7). In Fullilove, Justice Stewart,

joined by Justice Rehnquist, declared that racial and ethnic

classifications are “inherently suspect and presumptively invalid.”

448 U.S. at 523. Justice Powell agreed (id. at 496-497 n.1), and

Justice Stevens declared (id. at 551) that strict scrutiny would

have applied if a state legislature had enacted the Fullilove program.

Neither the Chief Justice nor Justice O’Connor has commented

on the applicable standard of review in this kind of case. In

Bakke, the Chief Justice joined Justices Stevens, Stewart, and

Rehnquist in an opinion that did not reach the constitutional ques-

tion (438 U.S. at 408-421). In Fullilove, his opinion relied on Con-

gress’s unique power to enforce the Fourteenth Amendment (448

U.S. at 472-473, 483).

Several members of the Court have advocated a somewhat less

exacting standard, but they have nevertheless insisted on a “strict

and searching’ judicial inquiry (see Bakke, 488 U.S. at 362)

(opinion of Brennan, White, Marshall, and Blackmun, JJ.) ; Fulli-

love, 448 U.S. at 519 (Marshall, J., concurring in judgment). See

pages 18-19 & note 30, infra. Even this standard is stricter than the

“reasonableness” test applied by the courts below (see Pet. App.

10a, 3la).

Equal Protection is a matter of “fundamental principle”

and not simply “a matter of whose ox is gored.” A.

Bickel, The Morality of Consent 133 (1975).

B. The history of the Fourteenth Amendment does not

support the constitutionality of measures discriminating

against “whites.” The Civil Rights Act of 1866, ch. 31,

14 Stat. 27 et seg., which was enacted by the 39th Con-

gress shortly before it proposed ratification of the Four-

teenth Amendment, sheds initial light on the meaning of

the Equal Protection Clause in view of the common roots

and purposes of these two measures.’* Congress’s un-

equivocal objective in pasing the 1866 Act was to pro-

hibit official racial discrimination against blacks or

whites. Section 1 of the Act (14 Stat. 27) guaranteed

that “citizens, of every race and color, * * * shall have

the same right * * * to full and equal benefit of all laws

and proceedings for the security of person and property.”

Senator Trumbull, the Act’s sponsor, declared that its

object was to “break down all discrimination between

black men and white men” and that it applied “to white

men as well as black men.” Cong. Globe, 39th Cong.,

lst Sess. 599 (1866). As Senator Howard, later a framer

of the Fourteenth Amendment, commented, “|i]n respect

to all civil rights, * * * there is to be hereafter no dis-

tinction between the white race and the black race.” 7d.

at 504.

The purpose and effect of the Equal Protection Clause

were the same. As proposed in the Reconstruction Com-

13 The 39th Congress considered the two measures simultaneously

and enacted the Civil Rights Bill approximately two months before

proposing ratification of the Fourteenth Amendment. One of the

primary purposes of the Fourteenth Amendment was “to incor-

porate the guaranties of the Civil Rights Act of 1866 in the organic

law of the land” and thus insulate them from repeal or invalidation.

Hurd v. Hodge, 334 U.S. 24, 32-33 (1948); see also, e.g., Jones V.

Alfred H. Mayer Co., 392 U.S. 409, 486 (1968). In addition, Sec-

tion 1 of the Act (14 Stat. 27) was a model for the Equal Protection

Clause. Frank & Munro, The Original Understanding of “Equal

Protection of the Laws,” 50 Col. Rev. 131, 140 (1950).

mittee,’* Section 1 of the Fourteenth Amendment pro-

hibited all governmental discrimination “as to the civil

rights of persons because of race, color, or previous con-

dition of servitude.” Although the committee changed

this language, it is apparent that it did not intend to

alter the principle of racial equality before the law.”

This was confirmed in the opening speech by the House

floor leader, Representative Stevens. Section 1, he ex-

plained, guaranteed individuals of both races exactly the

same treatment by the states (Cong. Globe, 39th Cong.,

Ist Sess. 2459 (1866) ):

14 Before Section 1 of the Fourteenth Amendment was cast in its

present form, the 39th Congress considered several proposed

Amendments that expressly and unqualifiedly proscribed racial dis-

crimination. See B. Kendrick, The Journal of the Joint Committee

of Fifteen on Reconstruction 50 (1914); Cong. Globe, 39th Cong.,

lst Sess. 1906 (1866).

15 B. Kendrick, supra, at 83-84.

16 Representative Bingham first sought unsuccessfully to add to

this provision the present language of the Equal Protection Clause

(B. Kendrick, supra, at 85), and Section 1 was adopted as it stood

(by a vote of 10 to 2) (B. Kendrick, supra, at 86-87). Bingham later

succeeded in adding as a new Section 5 all of what is now the

second sentence of Section 1 (again by a vote of 10 to 2) (B. Ken-

drick, supra, at 87), but this was later deleted (B. Kendrick, supra,

at 98-99). Finally, he convinced the committee to substitute this

Section 5 for what was then Section 1. (This time the vote was 10 to

3) (B. Kendrick, supra, at 106). This history—with the committee

voting at various times to adopt the original and ultimate versions

of Section 1 separately and together—strongly suggests that the

express meaning of the original version banning all “discrimina-

tion” by government “because of race [or] color” was regarded as

incorporated within the version finally reported. For accounts of

the committee proceedings, see 6 C. Fairman, History of the Su-

preme Court of the United States—Reconstruction and Reunion

Pt. 1, at 1270-1274, 1281-1283 (1971); J. James, The Framing of

the Fourteenth Amendment 103-116 (1956); H. Flack, The Adop-

tion of the Fourteenth Amendment 65-69 (1965); H. Meyer, The

History and Meaning of the Fourteenth Amendment 71-74 (1977) ;

Bickel, The Original Understanding and the Segregation Decision,

69 Harv. L. Rev. 1, 40-45 (1955).

Whatever law punishes a white man for crime shall

punish the black man precisely in the same way and

to the same degree. Whatever law protects the white

man shall afford “equal’’ protection to the black man.

Whatever means of redress is afforded to one shall

be afforded to all.

Later, he added (id. at 2766) that the Equal Protection

Clause “abolishes all class legislation in the States”

and “protects the black man in his fundamental rights

with the same shield which it throws over the white

man.” In the Senate, the floor leader, Senator Howard,

provided the same unequivocal explanation (Cong. Globe,

39th Cong., lst Sess. 2766 (1866) ).

The deliberations on the Fourteenth Amendment also

show that Congress specifically intended to protect two

groups of whites who were in real danger of deprivation

of civil rights. First, the term “person,” rather than

“citizen,” was used in the Equal Protection Clause to

encompass aliens. Although the earliest draft of Section

1 of the Fourteenth Amendment, introduced in Decem-

ber 1865 by Representative Stevens, applied only to

“citizen[s]” (Cong. Globe, 39th Cong., Ist Sess. 14

(1865) ), by February 1866 the Reconstruction Commit-

tee had approved a different version, offered by Repre-

sentative Bingham, that guaranteed equal protection to

all “person[s].”’* Defending this amendment on the

House floor, Bingham asked on February 28 (Cong.

Globe, 39th Cong., Ist Sess. 1090 (1866)): “Is it not

essential to the unity of the Government and the unity

of the people that all persons, whether citizens or stran-

gers, within this land, shall have equal protection in

every State in this Union in the rights of life and lib-

erty and property?” Nine days later, commenting on the

use of the term “citizen” in Section 1 of the Civil Rights

Act, he stated (Cong. Globe, 39th Cong., 1st Sess, 1292

(1866) ) that discrimination against aliens was “as un-

just as the unjust State legislation” against blacks.'*

17 B. Kendrick, supra, at 62.

18 Earlier, Representative Stevens, the floor manager of the

Fourteenth Amendment, and Representative Conkling, another

In 1866, the overwhelming majority of aliens were

white,” since the first sentence of Section 1 of the Four-

teenth Amendment had confirmed that virtually all freed

slaves were citizens.”°

The other group of whites that Congress specifically

wanted to protect were white Unionists in the South.

When asked if the Amendment’s sole purpose was to

protect black freedmen, Bingham responded (Cong.

Globe, 39th Cong., 1st Sess. 1088 (1866)) that it was

intended “as well to protect the thousands and tens of

thousands and hundreds of thousands of loyal white citi-

zens of the United States whose property, by State legis-

lation, has been rested from them under confiscation,

and protect them also from banishment.” See also id.

at 1090-1091.

Those who argue that the history of the Reconstruc-

tion era supports the constitutionality of preferences for

blacks rely chiefly on laws relating to the Freedmen’s

Bureau.” But whatever light these statutes shed on

the intended meaning of the Equal Protection Clause,

they do not support current measures containing racial

and ethnic preferences. Rather, they are examples of

compensation for actual, identified victims of discrimina-

tion. See Cong. Globe, 39th Cong., 1st Sess. 940 (1866)

(remarks of Sen. Trumbull). They provided assistance,

not to blacks generally, but to “freedmen,” individuals

member of the Reconstruction Committee, had made the same point.

Cong. Globe, 39th Cong., 1st Sess. 359 (1866) (remarks of Rep.

Conkling) ; id. at 537 (remarks of Rep. Stevens).

19 See Bureau of the Census, U.S. Dep’t of Commerce, Historical

Statistics of the United States Pt. 1, at 99, 106, 108 (1975).

20 That provision states that all persons born or naturalized in

the United States and subject to its jurisdiction are citizens. This

applied to virtually all former slaves, since importation of slaves

ended in 1808 (Art. I, §9, Cl. 1).

21 See Br. of NAACP Legal Defense and Education Fund, Inc.

as Amicus Curiae at 10-53 in Regents of the University of Califor-

nia V. Bakke, No. 76-811.

who were the victims of slavery.“ Moreover, these laws

also provided substantial assistance for white refugees;

in fact, figures provided to Congress showed that two-

thirds as many whites as blacks had received rations

from the Bureau. Cong. Globe, 39th Cong., Ist Sess.

940 (1866).* It is thus difficult to discern in these laws

any support for the constitutionality of current measures

granting preferences, regardless of individual circum-

*2 Supporters emphasized that newly freed slaves had special

needs resulting directly from years of bondage. See Cong. Globe,

39th Cong., lst Sess. 939 (1866) (remarks of Sen. Trumbull) ; id.

at 630 (remarks of Rep. Hubbard).

*3 The initial act (Act of Mar. 3, 1865, ch. 90, 13 Stat. 507

et seq.) established for one year a “bureau of refugees, freedmen,

and abandoned lands” (§ 1, 13 Stat. 507), authorized the Secretary

of War to provide aid to “destitute and suffering refugees and

freedmen and their wives and children” (§ 2, 13 Stat. 508), and

permitted abandoned and confiscated lands in the Confederate

states to be set aside for the use of “loyal refugees and freedmen”

(§ 4, 18 Stat. 508).

The second act (Act of July 16, 1866, ch. 200, 14 Stat. 173

et seq.) extended the life of the bureau for two years (§ 1, 14 Stat.

173), continued aid to needy refugees and freedmen (§§ 2, 5, 14

Stat. 174), addressed various administrative matters (§§ 3, 4, 14

Stat. 174; § 15, 14 Stat. 177), confirmed tax sales of certain lands to

blacks (§ 6, 14 Stat. 174), provided for the disposition and adminis-

tration of other confiscated and abandoned land (§$ 7-10, 11, 14

Stat. 175-176), allowed freedmen to continue occupying certain land

under an Army field order until after the harvest and receipt by

them of compensation for any improvements (§ 12, 14 Stat. 176),

and instructed the commissioner to cooperate with benevolent socie-

ties for the aid of freedmen (§ 13, 14 Stat. 176). Finally, Section 14

of the Act (14 Stat. 176), far from granting a racial preference,

guaranteed the rights and immunities of “all citizens” in the

Confederate states “without respect to race or color, or previous

condition of slavery,” and authorized military tribunals to enforce

these rights.

In 1868, the Bureau was continued for an additional year (Act

of July 6, 1868, ch. 135, 15 Stat. 83). In sum, the Freedmen’s

Bureau measures provide no examples of race-conscious relief for

non-victims.

stances, to any black person or, even more remotely, to

any member of other minority groups.**

C. Permissive judicial scrutiny of “benign” discrim-

ination is sometimes defended on the principle that the

courts have a special duty to protect minorities lacking

political power. In the words of Dean John Hart Ely,

a leading proponent of this view:

When the group that controls the decision making

process classifies so as to advantage a minority and

disadvantage itself, the reasons for being unusually

suspicious, and, consequently, employing a stringent

brand of review, are lacking. A White majority is

unlikely to disadvantage itself for reasons of racial

prejudice * * *.

Ely, The Constitutionality of Reverse Racial Discrim-

ination, 41 U. Chi. L. Rev. 723, 735 (1974); see also

J. Ely, Democracy and Distrust 170-172 (1980). This

argument has at least three major defects.

First, it greatly oversimplifies and distorts the mean-

ing of the Equal Protection Clause, making it nothing

more than an enforcement mechanism for one particular

theory of democratic government. There is no evidence

that those who framed, proposed, and ratified the Four-

teenth Amendment had this theory in mind. Instead,

they believed for a variety of reasons—including the fact

that immutable characteristics such as race and ethnicity

are almost never relevant to a legitimate legislative pur-

pose—that racial and ethnic classifications “are by their

very nature odious to a free people whose institutions

are founded upon the doctrine of equality.” Hirabayashi

v. United States, 320 U.S. 81, 100 (1943).

*4 Three other minor Reconstruction-era statutes have been cited

as examples of race-conscious relief. One was a $15,000 appropria-

tion “for the relief of freedmen or destitute colored people in the

District of Columbia” (Res. 3, 15 Stat. 20). The others established

special protective procedures to ensure that black servicemen in

former slave states were not cheated of their pay by claims agents.

It seems safe to assume that virtually everyone aided by these

enactments was a direct victim of slavery or racial oppression.

Second, Ely’s argument is an oversimplification be-

cause it unqualifiedly equates numerical majority with

political power and assumes that minority groups are

politically powerless. In reality, the distribution of polit-

ical power in a democracy is considerably more complex.

Governmental decisionmakers directly or indirectly an-

swerable to the voters are not always responsive to the

majority’s wishes. In addition, interest groups represent-

ing small segments of the population are sometimes able

to influence the enactment of measures favorable to the

group’s members but of doubtful benefit to the electoral

majority.”

Third, this theory assumes the existence of a polity

with a monolithic white majority and black minority. The

United States, however, is a nation of many minorities *

(many of which overlap) and many, many political jur-

isdictions—50 states and nearly 80,000 units of local gov-

ernment.” Racial and ethnie groups are unevenly dis-

tributed among these jurisdictions, causing the terms

“majority” and “minority” to have varying meanings.

In more than 75 counties, blacks exceed 50% of the popu-

lation; in 37 counties, more than 50% of the population

is Hispanic. In eight of the ten largest cities, blacks and

Hispanics constitute a majority.** Asian-Americans sub-

stantially outnumber whites in Hawaii.” In many com-

munities, individuals of other cohesive, traditionally dis-

favored groups constitute substantial voting blocs.

25 See Greenawalt, Judicial Scrutiny of “Benign” Racial Prefer-

‘ence in Law School Admissions, 75 Co!. L. Rev. 557, 573-574 (1975).

26 See United Jewish Organizations v. Carey, 430 U.S. 144, 185

(1977) (Burger, C.J., dissenting) (“the ‘whites’ category consists

of a veritable galaxy of national origins, ethnic backgrounds, and

religious denominations. It simply cannot be assumed that the

* * * interests of all ‘whites’ are even substantially identical’’).

27 Bureau of the Census, U.S. Dep’t of Commerce, Statistical

Abstract of the United States 1985, at 261 (105th ed. 1985).

28 Id. at 25-26.

2° Td. at 31.

Because of these factors, different groups, whether

alone or in coalition, are in the majority in different

jurisdictions. If the standard for constitutional scrutiny

were to depend upon whether a preference benefited a

“minority” or the electoral majority, the meaning of

equal protection would have to vary from place to place

and time to time and would thus acquire an “accordion-

like quality.” DeFunis, 416 U.S. at 343 (Douglas, J.,

dissenting). The courts would also be compelled to make

a sensitive and sophisticated assessment of the real dis-

tribution of political power in each community. This is

an inquiry for which courts are ill-suited.

These problems can be illustrated by attempting to

apply this same theory to gender classifications. Should

measures disadvantaging women be leniently reviewed

because female voters outnumber male voters? Should

measures disadvantaging men be leniently scrutinized

because men occupy most electoral posts? This Court does

not draw such distinctions but instead applies precisely

the same level of judicial review no matter which gender

is disadvantaged. See, e.g., Mississippi University for

Women v. Hogan, 458 U.S. 718, 723-724 & n.9 (1982).

D. Less stringent judicial scrutiny of racial prefer-

ences for blacks and members of some other minority

groups is sometimes defended on the ground that such

measures compensate for past wrongs or for what is

termed “societal” discrimination. But this approach as-

sumes that a measure is compensatory and relaxes scru-

tiny before accurately assessing whether that is so. In

our view, nothing less than strict scrutiny can be trusted

to determine whether a measure is truly compensatory.

The problems inherent in any approach less exacting

than strict scrutiny are illustrated by the intermediate

scrutiny test advocated by several members of this Court

as the appropriate standard for reviewing purportedly

compensatory preferences.” Applying this test, propo-

3° See Fullilove, 448 U.S. at 517-521 (Marshall, J., concurring) ;

Bakke, 438 U.S. at 324-379 (opinion of Brennan, White, Marshall,

and Blackmun, JJ). Under this test, a racial or ethnic classification

nents have approved preferential benefits for individuals

not shown to have suffered from any past discrimina-

tion; *' preferential medical school admissions for mem-

bers of minority groups that were already overrepre-

sented in the student body; ™ and preferential treatment

for minority businessmen whose economic resources and

opportunities clearly exceeded those of the average citi-

zen. Indeed, this test has been found to allow both dis-

crimination in favor of and discrimination against the

very same minority groups—and all in the name of com-

pensation.** These results dramatically illustrate the

“designed to further remedial purposes” mvct “serve important

governmental objectives” and must be “substantially related to the

achievement of those objectives.” Fullilove, 448 U.S. at 519

(Marshall, J., concurring). In addition, there must be some

rational basis for concluding that the preferred groups are more

deserving of compensation than the groups disfavored. (Bakke,

438 U.S. at 359 n.35 (opinion of Brennan, White, Marshall, and

Blackmun, JJ.) ).

31 Bakke, 488 U.S. at 377-378 (opinion of Brennan, White,

Marshall, and Blackmun, JJ.); Fullilove, 448 U.S. at 517-521

(Marshall, J., concurring).

32 This was true of Chinese- and Japanese-American students in

Bakke. See Posner, The Bakke Case and the Future of “Affirmative

Action,” 67 Cal. L. Rev. 171, 185-186 (1979).

33 Compare Fullilove, 448 U.S. at 520-521 (Marshall, J., concur-

ring), with id. at 538-539 (Stevens, J., dissenting).

34 The statute in Fullilove, which some Justices would have tested

and sustained under intermediate scrutiny (448 U.S. at 517-521)

(Marshall, J., concurring)), gave a preference to all Spanish-

speaking citizens (see id. at 459). By contrast, the admissions pro-

gram in Bakke, which was likewise found to pass intermediate scru-

tiny (438 U.S. at 355-379) (opinion of Brennan, White, Marshall, and

Blackmun, JJ.) ), favored only “Chicanos,” i.e., Mexican-Americans,

while all other Hispanics, including such groups as Puerto Ricans,

Cubans, and Central Americans, were required to shoulder part of

the burden of providing compensation (see id. at 274).

Such results are not a quirk of the particular test employed

but are an inevitable consequence of attempting to provide com-

pensation to groups rather than individual victims. Many groups

have suffered substantial discrimination in this country. Put-

ting aside the special case of past discrimination against blacks,

need for strict scrutiny to identify those measures that

are truly remedial and compensatory.

E. A final argument for permissive scrutiny of meas-

ures discriminating in favor of certain minority groups

would justify them in terms of their supposedly benign

symbolism: such classifications, it is asserted, do not stig-

matize or brand the victims as inferior.* This argument

loses sight of the equal protection ideal that individuals

should not be helped or hurt by government on the basis

of race or ethnic background. Instead, this theory incor-

rectly suggests that the Equal Protection Clause is more

concerned with the symbolism than the concrete effects of

racial and ethnic discrimination—loss of money, a job,

education, a place to live, ete.

This argument fails as well even on its own terms. A

defense of racial preferences on “symbolic” grounds is

perilously vague and subjective. See Bakke, 438 U.S. at

294-295 n.34 (opinion of Powell, J.). The symbolism of

benign concern intended by the defenders of such

schemes may not be the symbolism discerned by the

schemes’ beneficiaries and victims or the public at large.

These may rather infer that in our society benefits and

opportunities are not to be obtained by merit but by

successful manipulation of the politics of racial and

group patronage.

Nor does it seem possible to identify any significant

generic differences between the potential symbolic effects

of disabilities and preferences. A disability may be seen

as a brand of inferiority, but a paternalistic preference

it is very difficult to say with any assurance that any of the re-

maining groups suffered greater discrimination than the rest. A

“rational” case can be made that each group is especially deserving;

but it is doubtful that a substantially stronger argument can be

made on behalf of any group. Accordingly, if there must simply be

a rational basis for the choice of groups preferred in an affirmative

action plan, governmental units are apparently free to pick and

choose among minority groups as they wish. If anything more than

a rational basis must be shown, it seems doubtful that any of the

groups noted above can be preferred.

35 See Fullilove v. Klutznick, 448 U.S. at 518 (Marshall, J., con-

curring).

may carry exactly the same symbolic meaning, as many

members of this Court have noted.** A disability may

single out a minority group and thereby endorse and

even encourage public hostility towards its members.

But, again, so may a preference; a preference may arouse

sharp resentment among those who are not preferred.

F. In arguing for a unitary standard of review for

all racial and ethnic classifications, we do not equate or

confuse a measure like the Jackson lay-off quota with the

vicious discrimination of the Jim Crow era. However,

the Equal Protection Clause is not merely a protection

against the most flagrant wrongs. It embodies a broad

principle of equality that is subverted unless applied

equally to all racial and ethnic classifications. A. Bickel,

The Morality of Consent 132-133 (1975).

Laws granting preferences to members of enumer-

ated minority groups are also far from benign in prac-

tical effect. Such preferences inevitably harm innocent

individuals. Whether a Plessy is ejected from a rail-

road coach because he is one-eighth black or laid-off be-

cause he is seven-eighths white, the concrete wrong to

him is much the same. Whether a DeFunis is excluded

from law school because he is Jewish or because he is

not “Black, American Indian, Oriental, or of Spanish

descendancy,” his personal aspirations are equally

thwarted.

Preferences also perpetuate and foster racial and

ethnic divisions. And in a pluralistic and democratic

society such as ours, when preferences are granted to

some groups, there is inevitable pressure for similar

preferences to benefit every group that can mount a claim

of past discrimination.

Racial and ethnic preferences necessarily mar the law

with definitions of racial and ethnic types, laws that are

disquietingly reminiscent of abhorrent measures enacted

in other times and places.** And if preferences are sus-

36 See page 23, infra.

87 See Fullilove, 448 U.S. at 534 n.5 (Stevens, J., dissenting).

tained, a ready-made legal framework is thereby created

for racial and ethnic policies of more malevolent design.

Ill. THE JACKSON LAY-OFF QUOTA CANNOT SAT-

ISFY THE CONSTITUTIONAL STANDARDS AP-

PLICABLE TO MEASURES CONTAINING RACIAL

AND ETHNIC CLASSIFICATIONS

The lay-off quota adopted by the Jackson school board

emphatically flunks the constitutional standards govern-

ing racial classifications.

A. The lower courts justified the Jackson measure in

large part on the theory that it serves to provide “role

models” for minority youths, but this superficially ap-

pealing justification is multiply flawed. In the first place,

we believe that special wariness is appropriate whenever

an attempt is made to justify a racial classification, not

for the purpose of righting past wrongs, but simply be-

cause it is asserted that social institutions would work

better or more smoothly. Variations of this argument

prevailed in Plessy and Hirabayashi, with regrettable

results. However, except for such wrong turns, the Court

has consistently and soundly rejected calls that the equal-

protection rights of individuals be sacrificed to serve some

abstract societal good. See, e.g., Palmore v. Sidoti, No.

82-1734 (Apr. 25, 1984); Lee v. Washington, 390 U.S.

333 (1968); Cooper v. Aaron, 358 U.S. 1, 16 (1958).

For “[t]he Equal Protection Clause commands the elim-

ination of racial barriers, not their creation in order to

satisfy our theory as to how society ought to be organ-

ized.” DeFunis v. Odegaard, 416 U.S. at 342 (Douglas,

J., dissenting) .*

38 The role mdel justification seems clearly inconsistent with

Palmore, which held that a state court, in awarding custody of a

child, could not rely upon the race of the divorced mother’s new

husband. Few would deny that a child’s most important role models

are usually his parents. Thus, if a state’s interest in providing

children with role models of the same race were sufficient to over-

ride the principle of racial equality contained in the Fourteenth

Amendment, it would appear that a state court should at least be

permitted to take the race of the new husband into account in

awarding custody. But Palmore properly prohibited this practice.

In this case, the role-model justification adopted by

the lower courts falls far short of sustaining the Jack-

son lay-off quota. We do not dispute the fact that young

people benefit from positive role models. Nor do we

dispute the fact that minority youths, disheartened by

past and present discrimination, often need minority role-

models. But it is most doubtful that the Jackson lay-off

quota will serve or is needed to serve this goal.

The Jackson measure, like all racial preferences, may

undermine, rather than foster, minority role models.*

See Fullilove v. Klutznick, 448 U.S. at 545, 547 (Stevens,

J., dissenting); id. at 531 (Stewart, J., dissenting) ;

United Jewish Organizations v. Carey, 430 U.S. 144,

173-174 (1977) (Brennan, J., concurring in part);

Regents of the University of California v. Bakke, 438

U.S. at 298 (opinion of Powell, J.) ; DeFunis v. Odegaard,

416 U.S. at 343 (Douglas, J., dissenting); Posner, The

DeFunis Case and the Constitutionality of Preferential

Treatment of Racial Minorities, 1974 Sup. Ct. Rev. 1, 17

& n.35. The most powerful role models are those who

have succeeded without a hint of favoritism. For exam-

ple, Henry Aaron would not be regarded as the all-time

home run king, and he would not be a model for youth,

if the fences had been moved in whenever he came to

the plate.

There are other, better ways for the schools to provide

role models for minority youth. Any discrimination

against minority teaching applicants can and should be

stamped out. Minority group members who have achieved

success in various walks of life can be invited and en-

The invalidity of the role-model justification in the present, weaker

context would appear to follow a fortiori.

38 As Professor Thomas Sowell has written (Black Education,

Myths and Tragedies 292 (1972) (emphasis in original) ) :

What all the arguments and campaigns for quotas are really

saying, loud and clear, is that black people just don’t have it,

and that they will have to be given something in order to have

something. The devastating impact of this message on black

people—particularly black young people—will outweigh any few

extra jobs that may result from this strategy.

couraged to visit the schools and to discuss their careers

and the students’ aspirations. Courses of study can be

developed so as not to overlook the notable contributions

of minorities. The schools can and should ensure that

teachers, of whatever race, are sensitive to the special

needs of minority students. In view of these alternatives,

the Jackson lay-off quota is not necessary to provide mi-

nority role models, and it accordingly cannot be justified

on this ground. Palmore, slip op. 4; Bakke, 438 U.S. at

314-315 (opinion of Powell, J.). At the very least, the

board has failed to carry its burden of showing a com-

pelling educational need for its particular program, which

(a) treats all “minority” and nonminority teachers as

fungible for role model purposes,*® (b) aims for rigid sta-

tistical parity between the percentage of minority stu-

dents and teachers and (c) in the meantime, prohibits

any layoff that would decrease whatever percentage of

minority teachers happens to have been achieved at the

time when lay-offs become necessary.

The role-model justification also beckons down for-

bidden paths. It is an argument for quotas in every pro-

fession and occupation, for minority students - properly

aspire to careers in every walk of life. The logic of the

role-model argument might also serve to justify segre-

gated classrooms. If the educational development of mi-

nority students urgently demands the presence in their

schools of minority teachers to serve as role models—

indeed demands the presence of minority teachers in

mathematical proportion to the racial composition of the

student body—then it is not easy to see why minority

students would not be served best if they were actually

taught by minority teachers. These dangerous implica-

tions are underlined by the fact that the role-model argu-

*° It is far from obvious that a teacher belonging to one of the

preferred minority groups is necessarily any more capable of serv-

ing as a role model for students belonging to another preferred

group than is a teacher belonging to a disfavored group. For

example, is it clear that black students will be more inspired by a

teacher of Chinese or Japanese ancestry than by a teacher of Jewish

or Lebanese heritage?

ment or variants of it have frequently been advanced as

a defense by school boards charged with illegally segregat-

ing minority teachers in predominantly minority schools.*’

For example, in Smith v. Board of Education, 365 F.2d

770 (8th Cir. 1966), the school board argued that it

could legally prefer white teachers to instruct white

pupils because “rapport between teacher and pupil * * *

may be unattainable where they are of different races

and this difference affects attitudes, personal philosophies

and prejudices.” Jd. at 781. The court, in an opinion by

then Judge Blackmun, rejected this argument in unequiv-

ocal terms (id. at 782).

B. The lower courts also justified the Jackson meas-

ure as a cure for “substantial and chronic underrepresen-

tation” of minority teachers. But the use of racial clas-

sifications for the sole purpose of curing statistical under-

representation (or, in plainer terms, imposing quotas) is

proscribed by the Fourteenth Amendment. As Justice

Powell concluded in Bakke (438 U.S. at 307): “Prefer-

ring members of any one group for no reason other than

race or ethnic origin is discrimination for its own sake.

This the Constitution forbids.” *

41 See, e.g., Reed v. Rhodes, 607 F.2d 714 (6th Cir. 1979), cert.

denied, 445 U.S. 935 (1980); United States v. School District, 521

F.2d 530 (8th Cir.), cert. denied, 423 U.S. 946 (1975); Morgan

v. Kerrigan, 509 F.2d 580 ‘1st Cir. 1974), cert. denied, 421 U-S.

963 (1975); Oliver v. Michigan State Board of Education, 508

F.2d 178 (6th Cir. 1974), cert. denied, 421 U.S. 963 (1975);

Arthur v. Nyquist, 415 F. Supp. 904 (W.D.N.Y. 1976), aff’d and

rev'd in part, 573 F.2d 134 (2d Cir.), cert. denied, 439 U.S. 860

(1978).

#2 In relying upon what they viewed as chronic underrepresenta-

tion of minority teachers to justify the Jackson lay-off quota, the

lower courts were apparently confused by United Steelworkers v.

Weber, 443 U.S. 193 (1979), in which the Court held that Title VII

of the Civil Rights Act of 1964 was not violated by a provision in

a private-sector collective bargaining agreement granting racial

preferences in a craft-training program. Weber, however, has no

application in the present case because it did not involve state

action and thus did “not present an alleged violation of the

Equal Protection Clause” (id. at 200). Moreover, even if ap-

C. 1. Finally, the lower courts justified the Jackson

measure as a means to redress “societal discrimination.”

We readily agree that providing a remedy for individual

victims of discrimination is a compelling interest, but

measures granting preferences to all members of a few

minority groups cannot be justified in the name of com-

pensation for “societal discrimination.’”’

In the first place, such measures are compensatory or

remedial in name only. Because the Equal Protection

Clause protects personal not group rights, a measure can-

not be fairly characterized as a remedy for a violation of

equal protection unless it provides relief to an individual

who was personally victimized by discrimination. Nor

can a measure be termed remedial if the benefit con-

ferred is not in some way measured by the nature and

extent of the prior violation. When benefits do not cor-

respond to any identified prior wrong and are not directed

to the victim of such a wrong, they cannot in any mean-

ingful sense be termed compensatory or remedial.

For essentially the same reasons, categorical prefer-

ences can never be regarded as “precisely tailored” to rem-

edy discrimination. Such measures are fatally under-

inclusive because the groups usually singled out for

preferential treatment “are not the only groups that have

been discriminated against in this country.” Posner, The

Bakke Case and the Future of “Affirmative Action,” 67

Cal. L. Rev. 171, 176 (1979). See also J. Fishkin, Jus-

tice, Equal Opportunity, and the Family 98-99 (1983) ; J.

Wilkinson, From Brown to Bakke 278-279 (1979). Cate-

gorical preferences are also impermissibly overinclusive

because “[i]n today’s society, it constitutes far too gross

an over-simplification to assume that every Negro, Span-

ish-speaking citizen, Oriental, [or] Indian * * * suffers

plicable, Weber would not support the lower courts’ decisions in

this case because the record does not show that the percentage of

minority teachers in the work force exceeded the percentage on the

Jackson faculty (compare Weber, 443 U.S. at 198-199). In addition,

in this case, unlike Weber, the racial preference caused the dis-

charge of innocent non-minority employees (compare id. at 208).

from the effects of past or present racial discrimination.”

Fullilove, 448 U.S. at 530 n.12 (Stewart, J., dissenting) ;

see also id. at 537-538, 546 (Stevens, J., dissenting). In-

deed, it is one of the ironies of racial preferences that

those who benefit are seldom the most disadvantaged.

Many minority group members and some minority groups

as a whole have now surpassed the residual category of

“whites” in income, education, and other measures of

success.** Furthermore, many individuals given prefer-

ence under affirmative action plans, while perhaps dis-

advantaged in some respects, are not even the indirect

victims of discrimination in this country. This is often

true of recent immigrants who happen to fall into one

of the preferred groups.

Precise tailoring requires that the remedy fit a proven

violation of law. See, e.g., Dayton Board of Education v.

Brinkman, 433 U.S. 406, 420 (1977) ; Milliken v. Bradley,

418 U.S. 717, 738, 746 (1974) (an equal protection

remedy is “necessarily designed, as all remedies are, to

restore the victims of discriminatory conduct to the posi-

tion they would have occupied in the absence of such con-

duct”). This means, as Justice Stewart stated in

Fullilove (448 U.S. at 530 n.12), that “[e]xcept to make

whole the identified victims of racial discrimination, the

guarantee of equal protection prohibits the government

from taking detrimental action against innocent people

on the basis of the sins of others of their own race.”

Justice Stevens recognized the same principle in Fullilove

when he observed (id. at 541) that the statutory prefer-

ence could not “be justified as a remedial measure” for

firms that had not been “wrongfully excluded from the

market for public contracts.” **

43 This is true, for example, of Chinese- and Japanese-Americans

(see T. Sowell, The Economics and Politics of Race 49, 187 (1983) ),

groups that suffered severe de jure discrimination and are included

among the minorities given preference in the Jackson lay-off quota.

In Fullilove, neither the plurality opinion nor that of Justice

Powell approved the award of benefits to non-victims at the ex-

pense of innocent third parties. In the plurality opinion, the Chief

No other remedial principle is compatible with the

cardinal rule that government may neither favor nor

disadvantage a person solely because of race or ethnicity.

When government provides compensation to individual

victims, government is not itself making or implementing

a racial classification. The victims compensated may all

be members of the same racial or ethnic group, but this

is merely because the guilty party’s unlawful behavior

was defined by race.

Nor does any other remedial principle pay sufficient

heed to the rights of innocent parties. Although a valid

remedy for individual discrimination may require some

sharing of the burden by innocent parties (Fullilove, 448

U.S. at 484 (plurality); Franks v. Bowman Transpor-

tation Co., 424 U.S. 747, 777 (1976); Albemarle Paper

Co. v. Moody, 422 U.S. 405 (1975)), such individuals

will simply be placed in the situation that would have

existed had the discrimination not occurred. But unless

a remedy benefits an actual victim of discrimination,

“the government has [no] greater interest in helping one

Justice stressed (448 U.S. at 486) that the Court was considering

only a facial challenge to the minority set-aside provision and that

equal protection claims arising out of specific awards that “cannot

be justified * * * as a remedy for present effects of identified prior

discrimination * * * must await future cases.” The Chief Justice

also emphasized Congress’s intention that a preference should be

given to only those firms “whose competitive position is impaired

by the effects of disadvantage and discrimination” (id. at 471; see

also id. at 464) and that the administrative process would prevent

misapplications of Congress’s goals (id. at 487-489). The Fullilove

plurality did not suggest that the statute at issue in that case,

which may have “pres[sed] the outer limits of congressional au-

thority” (id. at 490), would have been upheld had it extended

preferences to firms based solely on race rather than their “im-

paired * * * competitive position” resulting from the “present

effects of past discrimination” in government construction con-

tracts. None of these factors is present here. Petitioners were

personally and substantially harmed by the lay-off quota, and no

effort whatsoever was made to inquire whether those preferred at

petitioners’ expense were the actual victims of discrimination or

disadvantage.

individual than in refraining from harming another”

(Bakke, 438 U.S. at 309 (opinion of Powell, J) ).*

2. The Jackson measure cannot be justified as a means

of providing compensation for individual victims of dis-

crimination. Neither the school board nor the courts be-

low found that the board had ever engaged in discrimi-

nation. The absence of such a finding alone requires the

invalidation of the lay-off quota. Bakke, 488 U.S. at 302-

310 (opinion of Powell, J.) ; see also Bushey v. New York

State Civil Service Commission, No. 84-336 (Jan. 7,

1985), slip op. 4 (opinion of Rehnquist, J., Burger, C.J.,

and White, J., dissenting from denial of certiorari).

Furthermore, the board does not have the constitu-

tional competence to make a finding that justifies the use

of a racial classification for remedial purposes. Like the

Regents in Bakke, the Board’s “mission is education, not

the formulation of any legislative policy or the adjudica-

tion of particular claims of illegality.” Bakke, 438 U.S.

at 309 (opinion of Powell, J.). Factfinding by a state or

local entity also cannot be equated with that of Congress

because, among other things, the states are not granted

the enforcement power under Section 5 of the Fourteenth

** The same remedial principle guided the Court in its recent

decision regarding the scope of a federal court’s remedial authority

under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e

et seq. See Firefighters Local Union No. 1784 v. Stotts, No. 82-206

(June 12, 1984). With much the same values and interests at stake,

the Court ruled that the policy behind the remedial provision of

Title VII, Section 706(g), 42 U.S.C. 2000e-5(g), is to “provide

make-whole relief only to those who have been actual victims of

illegal discrimination.” Stotts, slip op. 16-17; see also Teamsters

v. United States, 431 U.S. 324, 367-371 (1977). This holding is

particularly instructive since Title VII has been held to allow

greater leeway for racial preferences than would be permitted for

an entity subject to the Fourteenth Amendment. See United Steel-

workers V. Weber, supra. Justice O’Connor implicitly pointed out

the breadth of this principle when she wrote in Stotts (concurring

slip op. 5 (emphasis added)), citing both Title VII and Four-

teenth Amendment precedent, that “[a] court may use its remedial

powers * * * only to prevent future violations and to compensate

identified victims of unlawful discrimination.”

Amendment that many members of the Court found ira-

portant in upholding the Act of Congress challenged in

Fullilove. See 448 U.S. at 476-478, 483, 490-491 (plu-

rality opinion) ; id. at 499-502 (opinion of Powell, J.) ;

see also Hampton v. Mow Sun Wong, 426 U.S. 88

(1976); Bushey, dissenting slip op. 4.

A court of equity may of course make a finding of

racial discrimination, but no such finding could be made

on the record in this case. The lower courts relied ex-

clusively on statistics showing that there was a differ-

ence between the percentage of minority teachers and

students during a brief span of years more than a decade

ago. This difference, however, might have resulted from

any of numerous innocent causes and unquestionably

does not show the discriminatory intent needed to estab-

lish an Equal Protection Clause violation. Hazelwood

School District v. United States, 433 U.S. 299, 308

(1977); Village of Arlington Heights v. Metropolitan

Housing Development Corp., 429 U.S. 252, 270 (1977);

Washington v. Davis, 426 U.S. 229, 243 (1976): Jano-

wiak v. City of South Bend, 750 F.2d 557, 564 (7th Cir.

1985).

More fundamentally, as we have shown, even a find-

ing that there had been past discrimination against some

individuals would not support a categorical racial and

ethnic preference such as that contained in the Jackson

agreement. No findings, then, can justify the challenged

Jackson measure. Even if the board or lower courts had

found a constitutional violation (and they did not) and

even if they were to find such a violation on remand (and

they could not on the present record) the Jackson quota

could not be supported.

CONCLUSION

For the foregoing reasons, the judgment below should

be reversed.

Respectfully submitted.