Limits of Private Affirmative Action

[Rosenthal, Lawrence]

Weber and Johnson, however, involve extremely stark numbers (a "manifest imbalance") of the kind rarely seen today.  Moreover, these cases do not bless "diversity" as an acceptable ground for affirmative action.  They can be read as permitting no more than voluntary compliance with Title VII without requiring the employer to admit to a prior violation.  That may be the reading our currently textualist Supreme Court majority is likely to take, since it is hard to find any language in Titles VI or VII that permits consideration of race in order to enhance diversity.  Moreover, "business necessity" is considered a defense to disparate impact discrimination; it has never been considered a justification for racial discrimination (note Title VII has no BFOQ defense for discrimination on the basis of race).  And, as Professor Henderson suggests, perhaps Title VII's disparate impact test (and the disparate impact test under the Title VI regulations) is itself vulnerable after Adarand on the ground the disparate impact test is not race-neutral and therefore creates an impermissible racial classification that cannot survive strict scrutiny (something not present in the FMLA, which was gender-neutral, and which would therefore distinguish Hibbs).  If Adarand ultimately narrows or even eliminates the disparate impact approach, then Titles VI and VII might tolerate even less affirmative action for remedial purposes, and perhaps none for purposes of diversity.  So the future of "private" affirmative action is not so clear to me.

Larry Rosenthal
Chapman University School of Law

Message: 6
Date: Sat, 18 Nov 2006 14:41:17 -0500
From: Douglas Laycock <laycockd at umich.edu>
Subject: Re: Limits of private affirmative action
To: conlawprof at lists.ucla.edu
Message-ID: <20061118144117.0apvk09r6s4004sc at web.mail.umich.edu>
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Weber v. Steelworkers has not been overruled.  Hard to believe they
would uphold a hard quota today, but that's the rule for the lower
courts on hiring quotas under Title VII.  The more recent Supreme Court
cases on affirmative action under Title VII are all about layoffs and
promotions.

Quoting Lynne Henderson hendersl at ix.netcom.com:
>
> The Title VII question is an interesting one.  It gets you back to
> what the courts allowed pre-*Ward's Cove*  (Civil rights Act of 1991)
> and the disagreements in *Johnson v. Transportation Agency.*  The
> Court has had a trend of trying to make Title VII = to Equal
> Protection, just as it had done with Title VI in the education
> context. That has yet to have happened, however, and Congress
> repudiated *Ward's Cove* (to some extent)  But there are other list
> members far more expert on the cases since the Civil rights Act of
> 1991 who might know what is going on.
>
>   If affirmative action for diversity/competition in the global
> market/business sense is justified because of *Grutter* and *Gratz,*
> then arguably a  narrowly-tailored program would pass muster under
> the EP and "business necessity" tests.  If *Hibbs* is any guide, then
> Congress could go slightly farther than the Court would, unless the
> Court decides that any racial  consideration outside of remedying
> past intentional discrimination fails strict scrutiny (vs. the
> intermediate scrutiny applicable to FMLA)  Similarly, *UAW v. Johnson
> Controls* upheld the Pregnancy Discrimination Act of 1978, even
> though the Court had held that discrimination in employment on the
> basis of pregnancy violates neither Title VII (*Gilbert*) nor the EP
> clause (*Geduldig*)
>
> Prof. Lynne Henderson
> Boyd School of Law--UNLV
>
> On Nov 18, 2006, at 6:53 AM, Steven Jamar wrote:
>
>> Assuming that the Colbertian race-blindness theory wins the day and
>> even the anemic version of affirmative action in the Michigan case
>> falls (can take race into account), can private entities use
>> race-conscious affirmative action in employment?  If one interprets
>> Title VII that way, and Congress were to pass an amendment to Title
>> VII that excepted affirmative action in favor of those groups
>> historically or economically or statistically disadvantaged, would
>> that be unconstitutional?
>>
>> Can a state school administer privately-funded scholarships for
>> African Americans?  Can the state school accept students who are
>> funded by privately administered scholarships for African
>> Americans?  Is the United Negro College Fund illegal?
>>
>> Where is the constitutional line for statutes that would reach such
>> private conduct?
>>
>> Rick, are you or is any other white person injured by the United
>> Negro College Fund?  Isn't the psychological effect the same whether
>> it is a state school or a private school or a private funding of
>> students for a school?
>>
>> A mind IS a terrible thing to waste.
>>
>> Steve
>>
>> -- 
>> Prof. Steven D. Jamar                               vox:  202-806-8017
>> Howard University School of Law                     fax:  202-806-8567
>> 2900 Van Ness Street NW                   mailto:stevenjamar at gmail.com
>> Washington, DC  20008                           http://iipsj.com/SDJ/
>>
>> 
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