Affirmative action redux

[Bill Funk]

Leslie Goldstein wrote:

> as of 1987, s.ct. said in Johnson v. Trans. Agency, which did involve a
> state hiring agency that the rules under Title VII were that (1)
> flexible affirmative consideration in hiring for members of groups
> disfavored in "traditionally segregated job categories" were not
> unlawful so long as they did not "unnecessarily trammel the rights of
> non-minority "applicants.  Court relied on Weber.

Correct me if I'm wrong, but wasn't Johnson a Title VII case?  That is, it did not address the constitutionality of the affirmative action in that case.  In my original response I said that I didn't see how the Court would uphold such a plan as Leslie described under the 14th Amendment.  It is not inconceivable that the Court would say that Title VII allows private employers more leeway in affirmative action than the 14th Amendment allows to government actors.
Again, however, I would love to hear an argument how the Court's current 14th Amendment jurisprudence would allow racially conscious hiring of minorities to avoid a disparate impact of facially neutral hiring policies on minorities.

Bill Funk
Lewis & Clark Law School