Affirmative action redux

[Lynne Henderson]

I have always taught *Johnson* with an eye on O'Connor's concurrence and
Scalia's dissent.  Title VII  overall had been *more* protective  of
minorities and white women (see the disparate impact cases) than the Court
had been in the EP area (eg, *Arlington Heights,* Washington v. Davis*)
O'Connor suggests she's moving towards convergence of Title VII and the EP
clause, and Scalia would treat them exactly the same way for affirmative
action. These opinions suggested a route that lead to *Crosson* later, I
think.
BTW, the Court made much of Santa Clara county's "voluntary" program in
*Johnson*.  It didn't come out of the blue--they were about to be hit with a
bunch of Title VII lawsuits. The so-called "test" scores were a joke--there
was no objective test used for civil service hiring then, it was schmoozing
with supervisors, who then gave you a "score",  and there was plenty of
discrimination against women in various departments.  It's always surprised
me that no one picked this up. . .
Best
Lynne
-----Original Message-----
From: Discussion list for con law professors
[mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of Scarberry, Mark
Sent: Monday, March 05, 2001 11:53 AM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Affirmative action redux


Here is footnote 2 from Johnson (480 US at 620 n. 2):


"No constitutional issue was either raised or addressed in the litigation
below. See 770 F.2d 752, 754, n. 1 (1985). We therefore decide in this case
only the issue of the prohibitory scope of Title VII. Of course, where the
issue is properly raised, public employers must justify the adoption and
implementation of a voluntary affirmative action plan under the Equal
Protection Clause. See Wygant v. Jackson Board of Education, 476 U.S. 267,
106 S.Ct. 1842, 90 L.Ed.2d 260 (1986)."

It seems Johnson (and Weber) were solely Title VII cases, as Bill Funk
suggests.

Mark S. Scarberry
Pepperdine University School of Law
mark.scarberry at pepperdine.edu