2 WAYNE LAW REVIEW [Vol. 27 have legitimized racial preference and quotas as affirmative action tools in certain contexts.* In future cases, the Court will be called upon to define more clearly under what circumstances and to what extent government and the private sector can allocate opportunities on the basis of race.5 A 4. None of the cases in the trilogy involved quotas or other forms of affirmative action ordered by a court as a remedy in response to judicial findings of discrimination and, to date, the Supreme Court has not expressly addressed the permissibility of racial quotas as a court ordered remedy for past discrimination. But cf. Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 18-20, 23-25 (1971) (use of ratios in school desegregation). For a discussion of Swann by Chief Justice Burger, see Fullilove v. Klutznick, 100 S. Ct. 2758, 2776-77 (1980). The judicial remedies for employment discrimination thus far approved by the Court can fairly be characterized as restitution to identifiable victims of discrimination, rather than racial preference as such. Although cases involving court ordered affirmative action have been drawn upon by the author where relevant, this article focuses principally on affirmative action arising in other contexts. Of course, judicial findings of discrimination can have a significant bearing on the permissible scope of affirmative action whatever its source. See text at note 66 infra. 5. On the same day the Court decided Fullilove, it granted certiorari in Minnick v. Cal. Dept. of Corrections, 95 Cal. App. 3d 506, 157 Cal. Rptr. 260 (1979), cert. granted, 100 S. Ct. 3055 (1980). Minnick involved an affirmative action plan under which females and minorities were given a preference in the promotion and transfer of correctional employees. The program targeted "goals" of 38% women employed and 36% minorities employed by the end of a five-year period. Although the goal for female employees was based on the percentage of women in the California labor force in 1970, the goal for minority employees was aimed at attaining “a level equalling at least 70% of any given 'minority' in the inmate population of the Department." Id. at 513-14, 157 Cal. Rptr. at 264. The trial court struck down the plan as violative of the fourteenth amendment, Title VII of the Civil Rights Act of 1964, and 42 U.S.C. §§ 1981, 1983 (1976), as well as the California Constitution and certain California statutes. Id. at 517, 157 Cal. Rptr. at 266. The California Court of Appeals reversed. Relying on the Bakke decision, it held that the preferences in favor of women and minorities "are necessary to promote the compelling interest of [the] state in the proper management of its correctional system." Id. at 522, 157 Cal. Rptr. at 269. Relying on Weber, it held that the plan was not violative of Title VII: "The fact that the department is a public employer suggests no basis for excluding it from the reach of the congressional intent and objectives analyzed in [Weber]." Id. at 523-24, 157 Cal. Rptr. at 270. On that same day the Court also granted review in Johnson v. Board of Educ., 604 F.2d 504 (7th Cir. 1979), vacated and remanded, 101 S. Ct. 339 (1980). Johnson involved the city of Chicago school board's voluntary desegregation plan which imposed racial quotas on student enrollment at two high schools to prevent de facto segregation resulting from "white flight." Id. 514-15. Since the number of white students seeking admission at each high school was less than the quota set for them and the number of black and hispanic students applying exceeded the quota for those groups, the entire burden of the desegregation plan fell on the latter groups. Id. 512. The district court held the plan to be constitutional. Applying the "strict scrutiny-compelling state interest standard," the Seventh Circuit affirmed, finding "the state interest in promoting integration in these two high schools and communities, while at the same time affording all students residing in these attendance areas a viable opportunity to attend high school in an integrated setting, to be compelling." Id. 516. On October 20, 1980, the judgment of the court of appeals was vacated and the case was remanded to that court for further consideration in view of respondents' suggestion of mootness. Johnson v. Board of Educ., 101 S. Ct. 339 (1980). 1980] AFFIRMATIVE ACTION TRILOGY 3 coherent policy in this highly sensitive and controversial area will require a consensus within the Court as to the appropriate legal standards for balancing race-conscious affirmative action with the principle of nondiscrimination in a way that destroys neither. Such a consensus does not exist today. On the contrary, the affirmative action trilogy reflects sharp differences among the Justices over how to analyze the constitutionality of "benign" racial classifications. Furthermore, there appears to be substantial disagreement as to the extent to which such classifications are permissible under the antidiscrimination laws." This article will attempt to identify the deep divisions within the Court as it moved from a posture of eschewing racial preference and quotas to one in which these traditional instruments of discrimination have been accepted, at least under some circumstances, as a vehicle for social progress. It will also discuss some of the bitter lessons of the past and some standards for the future as we seek to build a more just society. I. THE PRE-BAKKE CASES The Court's initial response to racial quotas and preference was negative. Thirty years ago, in Hughes v. Superior Court of California, the Court confronted the problem of racial quotas in employment. The issue there was whether it was lawful to picket in support of a demand that the proportion of black clerks employed in a grocery store approximate the proportion of black customers. The California Supreme Court sustained an injunction against the picketing, though pursued in a peaceful manner, and stated that “[the 6. The views of the Justices as to the appropriate standard of judicial review under the equal protection clause ranged from "strict scrutiny," amounting to almost per se invalidity of the challenged racial classification, as set forth by Justice Stewart in Fullilove, to an "intermediate" standard under which an articulated purpose of remedying the effects of past societal discrimination would be deemed a sufficiently important governmental objective to pass constitutional muster, as espoused by Justices Brennan, White, Marshall and Blackmun in Bakke. Compare Fullilove v. Klutznick, 100 S. Ct. 2758, 2802-03 (1980) (Stewart, J., dissenting), with Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 359, 362 (1978) (Brennan, White, Marshall & Blackmun, J.J., concurring in part, dissenting in part). Not only was the appropriate equal protection standard in dispute, in these cases there was also disagreement as to whether different standards should be applicable, depending upon the race of those adversely affected by the racial classification. 7. Since the Bakke Court held that Title VI of the Civil Rights Act of 1964 proscribed only those racial classifications that violate the equal protection clause, the uncertainty over the scope of the latter necessarily creates the same uncertainty as to the former. Furthermore, Justice Brennan's majority opinion in Weber expressly refrained from defining the extent to which racial classifications are permissible under Title VII. The deep divisions on this subject become apparent when Justice Powell's views in Bakke, 438 U.S. at 307-09, are compared with those expressed in the opinion of Justices Brennan, White, Marshall and Blackmun, id. 363-66. 8. 339 U.S. 460 (1950). 4 WAYNE LAW REVIEW [Vol. 27 picketers] would, to the extent of the fixed proportion, make the right to work . . . dependent not on fitness for the work nor on an equal right of all, regardless of race, to compete in an open market, but, rather, on membership in a particular race." The United States Supreme Court unanimously affirmed the judgment below, notwithstanding the picketers' contention that their conduct was lawful and that the injunction infringed their constitutional right of free speech. 10 Mr. Justice Frankfurter, delivering the opinion of the Court, stated: California chose to strike at the discrimination inherent in the quota system by means of the equitable remedy of injunction to protect against unwilling submission to such a system. It is not for this Court to deny to California that choice from among all "the various weapons in the armory of the law."11 More recently, the same judicial attitude was expressed in Griggs v. Duke Power Co., 12 a landmark case under Title VII of the Civil Rights Act of 1964. Chief Justice Burger, writing for a unanimous Court, stated that "the Act does not command that any person be hired simply because he was formerly the subject of discrimination, or because he is a member of a minority group. Discriminatory 9. Hughes v. Superior Court, 32 Cal. 2d 850, 856, 198 P.2d 885, 889 (1948), quoted in Hughes v. Superior Court of Cal., 339 U.S. 460, 463-64 (1950). The United States Supreme Court noted that the California Supreme Court expressly distinguished between picketing to promote discrimination, as in Hughes, and picketing against discrimination, suggesting that the latter "would not be for an unlawful objective.' 339 U.S. at 466. 10. Justices Black and Minton concurred on the ground that the case was controlled by the principles announced in Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949), which upheld the right of state courts to enjoin picketing in violation of a valid state law. Justice Reed, also concurring, interpreted the opinion of the California Supreme Court as holding that the pickets sought from their employer, "discrimination in favor of persons of the Negro race, a discrimination unlawful under California law. Such picketing may be barred by a State." 339 U.S. at 469, citing Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949). 11. 339 U.S. at 467, quoting Tigner v. Texas, 310 U.S. 141, 148 (1940). Justice Frankfurter commented upon the problems inherent in picketing to secure proportional employment in a society consisting of racial, ethnic and religious minorities: To deny to California the right to ban picketing in the circumstances of this case would mean that there could be no prohibition of the pressure of picketing to secure proportional employment on ancestral grounds of Hungarians in Cleveland, of Poles in Buffalo, of Germans in Milwaukee, of Portuguese in New Bedford, of Mexicans in San Antonio, of the numerous minority groups in New York, and so on through the whole gamut of racial and religious concentrations in various cities. ... The differences in cultural traditions intead of adding flavor and variety to our common citizenry might well be hardened into hostilities by leave of law. The Constitution does not demand that the element of communication in picketing prevail over the mischief furthered by its uses in these situations. Id. 464. 12. 401 U.S. 424 (1971), construing 42 U.S.C. 2000e-2 (1976). 1980] AFFIRMATIVE ACTION TRILOGY 5 preference for any group, minority or majority, is precisely and only what Congress has proscribed. "13 In DeFunis v. Odegaard, 14 the Court was confronted with a constitutional challenge to a minority admissions program adopted by the University of Washington Law School, a state professional school. 15 Although fully briefed and argued, the Court held that the case was moot because Marco DeFunis, who had been admitted to the school under a court order, was on the eve of graduating. 16 Mr. Justice Douglas wrote a separate dissenting opinion in which he addressed the merits. Finding the "strict scrutiny" standard applicable to the law school's use of a racial classification," Justice Douglas rejected the argument that the objectives of its minority admissions program could constitute a compelling state interest justifying racial preference." A DeFunis who is white is entitled to no advantage by reason of that fact; nor is he subject to any disability, no matter what his race or color. So far as race is concerned, any state-sponsored preference to one race over another is in my view "invidious" and violative of the Equal Protection Clause. 19 He also warned: "If discrimination based on race is constitutionally permissible when those who hold the reins can come up with 'compell 13. Id. 430-31. With the benefit of hindsight, it is apparent that this often repeated dictum did not reflect a consensus within the Court as to the meaning of the phrase "discriminatory preference" in the context of race-conscious affirmative action. 14. 416 U.S. 312 (1974). The law school did not seek to justify its minority admissions program on the basis of past discrimination. On the contrary, it assured the Court that "never in history" had it "been guilty of invidious discrimination on account of race. stead it claimed that its program was designed to remedy de facto segregation. Motion of Dismissal of Appeal or, in the Alternative, Affirmance of the Judgment Below and Statement of Opposition to Certiorari at 18-19, DeFunis v. Odegaard, 416 U.S. 312 (1972), reprinted in 1 DEFUNIS VERSUS ODEGAARD AND THE UNIVERSITY OF WASHINGTON, The Record 38-45 (A. Ginger ed. 1974). 16. 416 U.S. at 319-20. Id. 333. For over a quarter of a century prior to DeFunis, the law appeared well settled that state action involving a racial classification is "constitutionally suspect'... and subject to the 'most rigid scrutiny' . . . and 'in most circumstances irrelevant' to any constitutionally acceptable legislative purpose. . . ." McLaughlin v. Florida, 379 Ú.S. 184, 192 (1964), quoting Bolling v. Sharpe, 347 U.S. 497, 499 (1954). Korematsu v. United States, 323 U.S. 214 (1944), Hirabayashi v. United States, 320 U.S. 81, 100 (1943); see Loving v. Virginia 388 U.S. 1, 11 (1967). It could be justified only by "some overriding statutory purpose" without which the racial classification "is reduced to an invidious discrimination forbidden by the Equal Protection Clause." 379 U.S. at 192-93. 18. 416 U.S. at 341-42. 19. Id. 337, 343-44. 6 WAYNE LAW REVIEW [Vol. 27 ing' reasons to justify it, then constitutional guarantees acquire an accordion-like quality.”20 Justice Douglas was not insensitive to the problems faced by minority applicants. His opinion coupled a rejection of racial preference with a plea for an admissions policy under which objective factors such as grades and test scores would be tempered by subjective factors-motivation, perseverance and prior achievements of an applicant evaluted "in light of the barriers he had to overcome."21 Expressing concern that the law school's program stigmatized those it purported to assist,22 Justice Douglas sought to shift the focus of the selection process from race toward one in which the educationally, culturally and economically disadvantaged, no less than other applicants, are afforded an opportunity for admission commensurate with their ability and potential. Justice Douglas' eloquent plea was not heeded. Instead, his DeFunis dissent became the last hurrah of a vision of equality that never was and may never be. II. BAKKE-STRICT SCRUTINY DILUTED The decision in Regents of the University of California v. Bakke23 was handed down about three and one-half years after the Court's nondecision in DeFunis. By then, the movement toward permitting race-conscious remedies for past and present inequities experienced by minorities had developed a substantial body of law in the lower courts24 and in decisions of the Supreme Court as well.25 The Bakke 20. Id. 343. 21. Id. 331. Given the possibility of cultural bias in the standardized Law School Admission Test, Justice Douglas indicated that it would not be improper for the law school to set minority applications apart for separate processing "lest race be a subtle force in eliminating minority members because of cultural differences." Id. 335. The purpose of such treatment would be to permit a better probe of the "capabilities and potentials" of racial minorities, not to accord preferences to them. Id. 335-36. 22. Id. 343. 23. 438 U.S. 265 (1978). 24. See, e.g., EEOC v. Local 638, 565 F.2d 31 (2d Cir. 1977); NAACP v. Beecher, 504 F.2d 1017 (1st Cir.), cert. denied, 421 U.S. 910 (1974); Rios v. Steam Fitters Local 638, 501 F.2d 622 (2d Cir. 1974); Morrow v. Crisler, 491 F.2d 1053 (5th Cir.) (en banc), cert. denied, 419 U.S. 895 (1974); Associated Gen. Contractors of Mass., Inc. v. Altshuler, 490 F.2d 9 (1st Cir. 1973), cert. denied, 416 U.S. 957 (1974); Contractors Ass'n v. Secretary of Labor, 442 F.2d 159 (3d Cir.), cert. denied, 404 U.S. 854 (1974). 25. For example, in Franks v. Bowman Transp. Co., 424 U.S. 747 (1976), the Court approved relief in the form of retroactive seniority for "identifiable applicants who were denied employment because of race. . . ." Id. 750. In Albermarle Paper Co. v. Moody, 422 U.S. 405 (1975), the Court approved "differential validation" of employment tests under which "data must be generated and results separately reported for minority and nonminority groups wherever technically feasible." Id. 435. And in United Jewish Organizations of Williamsburgh v. Carey, 430 U.S. 144 (1977), |