Also known as: affirmative action program · affirmative action · AA programs
Written by attorneys · grounded in primary & secondary sources — see below
A set of governmental policies that grant preferences based on race or gender to members of historically disadvantaged groups in areas such as education, employment, and contracting. Race-based policies must satisfy strict scrutiny by demonstrating a compelling interest in remedying specific past discrimination and by being narrowly tailored. Gender-based policies are subject to intermediate scrutiny.
Artemis Logistics, a non-minority contractor, bids on a municipal bridge project. The city awards the contract under a twenty-percent minority set-aside justified only by a statistical report showing underrepresentation in ownership. Artemis sues, claiming the program fails strict scrutiny because the city produced no evidence of identified discrimination in local contracting.
Adarand Constructors submits the low bid for a federal highway guardrail subcontract. The prime contractor awards the work to a minority-owned firm to satisfy a federal incentive program that awards extra compensation for using certified disadvantaged businesses. Adarand sues, alleging the race-based presumption lacks the particularized findings required under strict scrutiny.
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Allan Bakke, a white applicant with strong credentials, is denied admission to a state medical school. The school reserves sixteen seats each year exclusively for minority applicants under a separate admissions track. Bakke sues, contending the rigid quota violates equal protection because it prevents individualized consideration of all candidates.
Barbara Grutter, a white applicant, is denied admission to a state law school. The school considers race as one factor among many in a holistic review aimed at achieving a diverse class. Grutter sues, arguing the program is not narrowly tailored because it functions as a disguised quota.
Joe Hogan, a male applicant, is denied admission to a state nursing school that excludes men. The school defends the policy as an affirmative action measure to increase female participation in a traditionally male-dominated field. Hogan sues, claiming the gender classification fails intermediate scrutiny.
The Jackson school board adopts a collective-bargaining provision that requires retention of minority teachers ahead of more senior white teachers during layoffs. Several white teachers receive layoff notices despite greater seniority. They sue, contending the racial preference lacks a compelling interest tied to identified past discrimination.
The program requires a strong basis in evidence of specific past discrimination in the relevant industry and jurisdiction. General societal discrimination does not suffice.
States may eliminate race- or gender-based preferences in education, contracting, or employment without violating the Equal Protection Clause.
An admissions policy that automatically awards substantial points solely on the basis of race is not narrowly tailored and therefore violates equal protection.
All governmental racial classifications, including federal contracting preferences, are subject to strict scrutiny and must be narrowly tailored to a compelling interest supported by particularized findings.
…Report: "In the light of experience of the last several months, the committee came to the conclusion that the requirement of affirmative action by both Houses of the Congress in many thousands of individual cases which are submitted by the Attorney General every year, is not workable and places upon the Congress and particularly on…