Equal Protection IV – Affirmative Action

I.     Historic treatment of special privileges.

A.     English experience.

1.     In the history of the church, the equality principle was embodied in the canon law term, ius commune. That principle became the very foundation of law in England, which was known as the “common law.”

2.     Caveat. But the English law never quite covered everyone. The king and his favorite friends enjoyed special privileges and immunities by the king’s prerogative for political and economic reasons.

a.     Royal prerogatives. Special privileges for the chosen few.

b.     Benefit of Clergy. Historically based on “blending” of church and state, i.e. an established church. Lords spiritual (clergy) were members of Parliament. Entitlements: tax support, and exemptions from civil process. The direct legal heir of the benefit of clergy is the continued exemption (especially in tax laws) granted to religious organizations (especially churches) and clergy in America.

c.     Monopolies. Historical understanding: A legal right to unequal market opportunity granted by the state. Today’s perversion: A factually based unequal market position gained by private action.

B.     The American heritage.

1.     The Declaration of Independence is consistent with the principles of equality set out in lonang. It declares only that the pursuit of happiness is an unalienable right, not the achievement of happiness. Thus, the perspective of the Founders was one disposed towards equal legal opportunity for happiness, not its equal factual attainment.

2.     State constitutions. State after state followed this Declaration with constitutional provisions that eliminated from their legal systems the odious special privileges of the English king, his family and his friends.

a.     Virginia abolished “hereditary” offices.

b.     Delaware eliminated special clerical privileges.

c.     Maryland abolished titles of nobility & monopolies.

d.     Oregon Constitution: “No law shall be passed granting to any citizen or class or citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.”

3.     U.S. Const. 14th Amendment – equal protection of the laws (not equal position).

II.     The Lonang view of remedying wrongs.

A.     A wrong cannot be remedied unless there is a finding of individual fault and an individual injury.

1.     God’s testimony: The system He created was very good. Gen. 1:31.

2.     God’s design for governing:

a.     Identify specific wrongdoers.

b.     Identify specific victims.

c.     Stick to individual cases.

3.     A system can be faulty, but not God’s system. See Genesis 1:31. The law of nature concerning fault, equality and justice were not altered as a result of the Fall. Man’s sin did not change the nature of God’s legal system, only man’s ability to adhere to it.

B.     Man has no authority to do wholesale justice, that is, to fault the whole social system and then require everyone to bear the burden of effecting a remedy.

1.     How to test the fault of a system:

a.     Compliance with God’s order?

b.     Who has jurisdiction to correct?

c.     What is the right remedy?

2.     God’s pattern is to remedy wrongs on an individual basis. See, Deut 24:16. Man is to follow God’s pattern.

C.     In any remedial situation, today’s generation cannot be held responsible for the wrongs of past generations. Each person is accountable only for their own sin. See Ezek 18:20.

1.     Legislatures cannot pass remedial statutes for individual wrongs, because rules of general applicability cannot be limited to cases of individual fault. A remedial statute is essentially an assessment of fault without a trial, in other words, a bill of attainder.

2.     Courts may issue remedial orders in cases of individual fault, but may not frame a rule of general applicability because that is a legislative, not a judicial, function. And if the legislature can’t pass a remedial statute, the courts cannot do it either.

3.     Guess what? Not all wrongs can be corrected by government action. To correct all wrongs, civil government would have to be God – but even God doesn’t do that.

III.     Modern View – Affirmative Action.

A.     Benign Discrimination, Generally.

1.     Remedying Past Discrimination. The government has a compelling interest in remedying past discrimination against a racial or ethnic minority. The past discrimination must have been persistent and readily identifiable. A race-based plan cannot be used to remedy general past societal discrimination.

2.     Where There Was No Past Discrimination. Even where the government has not engaged in past discrimination, it may have a compelling interest in affirmative action. However, the governmental action must be narrowly tailored to that interest. Example: Since the government has a compelling interest in promoting racial diversity in public school bodies and faculties, an educational institution may use race as one factor in admissions or hiring, but quota systems may not be used.

3.     Modern view: Racial preferences are permissible for remedial purposes, so long as they are:

a.     not the exclusive or a mandatory threshold factor;

b.     not a fixed (inflexible) quota; and

c.     “benign.”

4.     State or local action that favors racial or ethnic minorities is subject to the same strict scrutiny standard as government action discrimination against racial or ethnic minorities.

5.     Compare–Congressional Affirmative Action. Congress has more leeway in enacting affirmative action programs. Its plans are only subject to intermediate scrutiny.

B.     Cases.

1.     City of Richmond v. J.A. Croson Co.. Court invalidates city ordinance creating a construction contract set-aside for minority firms.

a.     O’Connor:

(1)     “Benign” discrimination is incapable of proper definition.

(2)     Imposition of remedial measure requires a prior finding of fault.

(3)     §5 of 14th amend requires prior action by Congress.

b.     Stevens (concurring): A finding of fault is not required.

c.     Scalia (concurring):

(1)     Racial preferences available to Congress are not generally available to states.

(2)     Affirmative action laws will inevitably backfire.

d.     Marshall:

(1)     Systemic fault is enough to warrant a remedy.

(2)     Race neutral measures, “while theoretically appealing, have been discredited.”

(3)     Benign discriminations are profoundly different from bad discriminations.

e.     Observation: City ordinance was probably disadvantaged because it was not judicially fashioned.

2.     Metro Broadcasting, Inc. v. F.C.C.. Court upholds FCC program to prefer minority owned companies in the granting of broadcasting licenses.

a.     Brennan:

(1)     Proper standard of review is intermediate scrutiny for “benign” discrimination.

(2)     Affirms systemic fault/systemic remedy approach.

(3)     Federal regulators given more leeway than state regulators.

(4)     No 1st amend. right to an FCC license.

b.     O’Connor:

(1)     No racial classification is “benign.”

(2)     Proper standard of review is strict scrutiny.

(3)     Same legal standard applies to Congress as to the states.

c.     Kennedy:

(1)     Majority opinion is legally similar to Plessy and to South African apartheid.

(2)     “Confidence” cannot define what is “benign.”

(3)     We have moved from “separate but equal” to “unequal but benign.”

d.     Observations:

(1)     F.C.C. regulation is anti-free market.

(2)     F.C.C. regulation entirely presumed upon scarcity of EMR spectrum.

(3)     F.C.C. presumed to have right to regulate broadcasting content.

C.     School Desegregation.

1.     Only intentional segregation violates the Constitution. If school systems and attendance zones are established in a racially neutral manner, there is no violation. Thus, there is no violation if housing patterns result in racial imbalance in schools.

2.     Busing. A court may order a school district to eliminate proven racial discrimination in a school system by busing students. However, a court may order interdistrict busing to achieve racial integration only if it has been proven that both school districts cooperated in a policy to create racial discrimination in their schools.

3.     Swann v. Charlotte-Mecklenburg Bd. of Ed.. Court upheld lower federal court remedial order to desegregate area schools.

a.     Opinion establishes broad federal judicial power to create novel remedies to carry out the “mandate” of Brown to eliminate vestiges of state-imposed segregation.

b.     Court views Brown as imposing an affirmative obligation on schools nationwide.

c.     Virtually any remedy is available to a federal judge.

4.     Regents of U.C.-Davis v. Bakke. S.Ct. strikes down state university set-aside program (for medical school applicants) which was limited to members of racial minorities.

a.     Powell:

(1)     Racial classifications always require strict scrutiny, even when applied against the “majority.”

(2)     Remedial measures require a prior finding of equality violation.

(3)     Race can be among factors, but not a mandatory factor, in remedial programs.

b.     Brennan:

(1)     Remedial measures do not require a prior finding of equality violation.

(2)     Racial classifications are suspect only if directed against minority groups.

c.     All opinions: “Color-blind” standard is rejected. Equality is determined factually (statistically).

d.     Observation: State law was probably disadvantaged because it was not judicially fashioned.

IV.     Evaluation of Affirmative Action programs.

A.     The nature of Affirmative Action programs.

1.     Laws which grant special privileges or preferences to people based on their race or gender are a respecter of persons.

2.     Affirmative action laws presuppose that equality can be measured statistically and that the goal of society is to provide people with an equal factual position or status.

3.     Affirmative action laws reject equality of legal opportunity as an inalienable right and substitute it with a civil right of equal position.

4.     Affirmative action laws do not require a finding of individual wrongdoing (systemic fault is affirmed).

5.     Affirmative action remedies are not limited to individual victims of wrongdoing (systemic remedy is affirmed).

6.     Affirmative action laws presume that government has an interest in eradicating the vestiges of private discrimination (society can perform wholesale justice).

B.     “Affirmative action” laws define and recognize “minorities,” such as “Negroes, Spanish-speaking, Orientals, Indians, Eskimos, and Aleuts.”

1.     Affirmative action laws treat people unequally on the theory that it is right to do so to make up for past unlawful discrimination.

2.     However, affirmative action laws look only to the color of a person’s skin, the language they speak, or their ancestry. In other words, such laws are based on national origin, not citizenship. May civil rulers properly distinguish among people on the basis of national origin for any purpose whatever, whether an ordinary legal right or any civil right?

3.     “Racial” distinctions are per se illegitimate for any purpose even as a remedy for past wrongs under affirmative action programs. A nation’s law must regard “man as man” and be “color-blind” as Justice John Marshall Harlan wrote in dissent in Plessy v. Ferguson. 163 U.S. 537, 559 (1896).