Which standard of review should the court use when analyzing race conscious affirmative action programs? Over the last 35 years, the Supreme Court has attempted to answer this question numerous times; each time clarifying certain parts, while leaving other parts intentionally vague and open to interpretation. The result has been various affirmative action plans being called into question to see if they violate the Equal Protection Clause based on a racially conscious motive. And while the court has ultimately decided the standard of review to be strict scrutiny, the language in the plurality and majority decisions of Bakke and Grutter still leaves wide latitude for educational institutions to practice reverse discrimination. By not implementing any scale or numbering system that quantifies the number of unrepresented minorities in a quota or similar grouping, the court finds that race or ethnicity may be used as a plus factor in the admissions process. It is my contention that the court erred in Bakke in their original application of strict scrutiny to racially conscious affirmative action programs and should have applied intermediate scrutiny, as it provides a more realistic approach when analyzing the detriments of affirmative action and eliminates the need to weaken existing precedent.
In Justice Powell’s one-man plurality in Bakke, he begins by proscribing that “only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment” can possibly violate Title VI of the Civil Rights Act of 1964 (Choper, Fallon, Kamisar, & Shiffrin 1375). By doing so, Powell gives credence to the idea that not all forms of racial discrimination are a violation of the constitution, but only those that are prohibited by the Equal Protection Clause or the Fifth Amendment. However, his misguided interpretation of these two laws set the precedent for strict scrutiny to be used in future race-conscious affirmative action programs. It follows from his opinion that Powell believed judicial protection from discrimination was an individual entitlement not restricted to a certain race. Indeed, within the “white population” itself, there are a variety of “minority groups, most of which can lay claim to a history of prior discrimination at the hands of the State and private individuals” (Choper et al., 1375). Therefore, every race should be given the same protection under the law, not simply underrepresented minorities, as all races have been mistreated in some form by the State or a private individual. With Powell’s lone decree the white population became groups of discriminated minorities rather than a single ethnic collective and the court was required to apply strict scrutiny to the case.
With the school having to prove their quota system was both a compelling state interest and narrowly tailored to achieve that interest, the “strict in theory, fatal in fact” mantra held true and the school’s racially conscious...