Limits of Private Affirmative Action (The constutional lawyers' concensus)

Tue Nov 21 15:46:20 PST 2006

>From the discussion over the past few days on this list, this layperson concludes that the academic constitutional lawyers of the United States believe the following.

All asserted remedies explicitly to reduce the overall disadvantage of African Americans will, over time, be found legally unsustainable, politically unsustainable, administratively unworkable, or ethically objectionable.

Does he misread the consensus?  If he does not misread, then the forecast about the real world should be that O'Connor's 25 years will  run out, but the structural situation will have changed very little.

Matthew Holden, Jr.

-----Original Message-----
From: rosentha at chapman.edu
To: laycockd at umich.edu
Cc: conlawprof at lists.ucla.edu
Sent: Mon, 20 Nov 2006 11:19 AM
Subject: RE: Limits of Private Affirmative Action

As it happens, in Sheet Metal Workers, the district court found that there had 
been both disparate impact and disparate treatment discrimination.  Certainly 
there was no suggestion in either the plurality or Justice Powell's opinion that 
judicial scrutiny of race-conscious remedies varies based on whether the 
plaintiff has proceeded on a disparate treatment or a disparate impact theory. 

When a court awards relief (usually backpay, retroactive seniority, and the 
position for which the plaintiff applied) in a disparate impact case, it does so 
on the basis of race.  Applicants receive relief solely because of their race, 
even if their qualifications are not demonstrably superior to nonminority 
applicants who also did not receive the position (plaintiff classes in such 
cases are generally defined in explicitly racial terms).  Doesn't this require 
strict scrutiny under current doctrine?  

Larry Rosenthal
Chapman University School of Law

________________________________

From: Douglas Laycock [mailto:laycockd at umich.edu]
Sent: Mon 11/20/2006 8:55 AM
To: Rosenthal, Lawrence
Cc: Michael MASINTER; hendersl at ix.netcom.com; conlawprof at lists.ucla.edu
Subject: RE: Limits of Private Affirmative Action

Sheet Metal Workers was a quota calculated out to several decimal places, 
although despite that precision the Court said it was only a goal.  Implicitly 
subjecting that remedy to the compelling interest test does not say much about 
the more usual relief of enjoining use of the criterion that has disparate 
impact.  And while I haven't reread Sheet Metal Workers to see the theory on 
which it was tried, it is hard to believe that the union was not guilty of 
disparate treatment.

Which is not to say that the disparate impact theory has much life or even that 
it makes much sense.  But the Sheet Metal Workers remedy is not really part of 
disparate impact theory -- certainly not an inherent part.

 Quoting "Rosenthal, Lawrence" <rosentha at chapman.edu>:

> As for Professor Masinter's question:  Under Griggs, a court awards 
> relief based on the race of an applicant.  That should trigger strict 
> scrutiny under Adarand and Croson.  Indeed, as early as Local 28, 
> Sheet Metal Workers v. EEOC, it was tolerably clear that 
> court-ordered Title VII relief involving racial preferences must pass 
> strict scrutiny.  Isn't a remedy that requires an employer to hire 
> only African-American applicants instead of nonminorities with 
> equivalent performance on the applicable selection device as a remedy 
> for disparate impact discrimination a racial preference that would 
> trigger strict scrutiny under current doctrine?  And, even assuming 
> that there is a compelling governmental interest in redressing 
> disparate impact discrimination as defined in the 1991 Act, does the 
> current understanding of the narrow tailoring test permit race-based 
> relief?  As the narrow tailoring test has been developed, shouldn't a 
> race-neutral alternative be demanded first (such as using new 
> application procedures that either lack disparate impact or which 
> have a clearer business justification)?  As I see it, our current 
> Supreme Court is likely to construe permissible relief under Griggs 
> (as codified in the 1991 Act) narrowly in order to avoid what it will 
> regard as a serious constitutional problem now that it has held, in 
> Adarand, that Congress has no special section 5 power to authorize 
> race-based affirmative action.
>
> As for Professor Henderson's defense of affirmative action as 
> "originally conceived":  I too was once an advocate of affirmative 
> action.  Since then, during my years in the political world, I was 
> gradually convinced that Derrick Bell was largely right about 
> affirmative action.  It was probably inevitable that affirmative 
> action would pit upwardly mobile blacks and whites against each 
> other, in a fashion not dissimilar to the way in which the Jim Crow 
> laws pitted working class and poor whites and blacks against each 
> other, thereby undermining what might have otherwise been a natural 
> allliance.  And especially when it comes to affirmative action in 
> white collar jobs, contracting, and undergraduate and graduate school 
> admissions, it was probably inevitable that as affirmative action 
> sapped political support for any progressive movement on race, its 
> beneficiaries would be predominantly middle and upper class 
> minorities, while the far more profound and widespread problems of 
> impoverished inner city and rural minorities went essentially 
> unaddressed.  Putting the law aside, pursuing an affirmative action 
> strategy may one day be seen as an enormous political blunder of the 
> civil rights movement.
>
> Larry Rosenthal
> Chapman University School of Law
>
> ________________________________
>
> Why would the Court strike down or greatly limit disparate impact law?
> Although the Kennedy Danforth compromise that became the Civil Rights Act
> of 1991 deliberately left the business necessity defense hazy at its
> margins, it codified the basics of disparate impact law as an exercise of
> both its commerce clause and section five powers.  Is the claim that so
> codified, Griggs violates the equal protection clause?  That seems to be
> quite a stretch since the doctrine does not impose strict liability, but
> shelters employers who can prove that a challenged selection criterion is
> job related and consistent with business necessity?  Or is the claim that
> so codified and applied to states, the doctine exceeds section five
> powers?  That seems an even greater stretch given the history of race and
> sex discrimination in public employment.
>
>
> Michael R. Masinter                     3305 College Avenue
> Professor of Law                        Fort Lauderdale, FL 33314
> Nova Southeastern University            (954) 262-6151 (voice)
> Shepard Broad Law Center                (954) 262-3835 (fax)
> masinter at nova.edu                       Chair, ACLU of Florida Legal Panel
>
>
> ______________________________
>
> I take the point--On Joyce's job, you're right.  But she also had help
> temporary skilled craft positions at a time when women generally
> weren't even allowed to apply.  The discussion I posted was  more
> generally about goals, etc. in Santa Clara County.
>
> I agree that Jonhson and Weber are thin reeds to cling to, but I just
> wanted to note that precedent and habit still suggest private sector
> discrimination will be treated differently.  And there is plenty of
> empirical support for continuing discrimination by the private sector,
> see the extensive work by John Donohue, Ian Ayers, and Vicki Schultz
> among others,   which might lead to more caution on the part of the
> Court.  (Otherwise, Title II of the Civil Rights Act of 1964 could
> easily be held unconstitutional now) Realistically, if you do away with
> disparate impact, you entrench the discriminatory status quo.
>
> As for Bell's thesis--he suggests a "discrimination tax," as an
> alternative,  doesn't he?  And Dr./Prof.  Kenneth Arrow has made strong
> arguments for the need for "market regulation" when it comes to the
> "taste" for discrimination against minorities.  Formalism under the EP
> clause may preclude empiricism, as it did in *Plessy*, but I don't
> think we're there yet.  (Always an optimist)
>
> That said, I have to agree, "affirmative action" has become so
> demonized that it is difficult to sustain.  The legal discourse has
> changed with the appointment and activism of those who condemn it, and
> the political/ economic landscape has changed such that people who
> *could* have made common cause are now individualistic and fragmented
> and "selfish."  As originally conceived, it was a great idea.  It was
> cynically manipulated to pit working and middle class whites against
> each people of color, then, as traditional elites lost their grip on
> access to higher education and resources, to pit upper-middle class
> whites against others.  It's a mess, and it is a tragedy IMHO.  Common
> good and generosity got lost somewhere in my lifetime, and
> "competition", "merit"  resentment took hold (on all sides), before the
> "experiment" that Presidents Eisenhower, Johnson, and Nixon embarked on
> had time to take hold (or Justice O'Connor's  25 years" in *Grutter*
> can pass)  Even the JDL, which steadfastly opposed "quotas" for 40-some
> odd years for good reason, has filed an amicus brief on behalf of the
> school districts in the Seattle School District and Kentucky cases.  (a
> whole other can of worms, I know)
>
> Respectfully,
> Lynne
>
> Prof. Lynne Henderson
> ______________________________
>
> On Sat, 18 Nov 2006, Rosenthal, Lawrence wrote:
>
>> A few points:
>>  1.  In Johnson, none of the 238 workers in the Agency's skilled craft
>> positions were women -- a point the Court stressed.  That's a pretty
>> stark number.  The current Court may conclude that numbers that are
>> less dramatic do not justify affirmative action.  I doubt we can
>> expect the current Court to expand Weber or Johnson one little bit, if
>> they survive at all.  Justice Kennedy, in particular, has shown no
>> enthusiasm for affirmative action.
>>  2.  Even taking Johnson and Weber for all they are worth, nothing in
>> those cases authorizea an affirmative action plan under Title VI or
>> VII that would permit an employer or a university to increase minority
>> representation beyond minority representation in the qualified
>> applicant pool.  Limiting affirmative action to remedying such
>> underrepresentation would itself create a significant restraint on
>> affirmative action in graduate school admissions and in many part of
>> the private sector where the it
>>  3.  Neither Johnson nor Weber considers whether Congress has the
>> constitutional power to enact a statute that authorizes race-conscious
>> affirmative action based on a "manifest imbalance" between the racial
>> composition of the qualified labor pool and the incumbent workforce.
>> Adarand and Croson surely cast some doubt on the power of Congress to
>> create enact a non-racially neutral employment discrimination law in
>> which affirmative action is permitted solely on statistical evidence
>> of underepresentation of minorities.  And if the disparate impact test
>> is ultimately struck down or greatly limited while the racially
>> neutral disparate treatment test stands under Titles VI and VII, then
>> affirmative action undertaken by private schools and employers will
>> become quite vulnerable.
>>  4.  I do not make these points because I welcome the end of
>> affirmative action; although I confess that I am increasingly
>> persuaded by Derrick Bell's view that affirmative action will in the
>> end prove politically unsustainable.  My point is instead that the
>> legal environment is becoming increasingly hostile to affirmative
>> action.  Johnson and Weber are thin reeds that may one day be limited
>> to their facts, if not overruled.  And, as litigation risk increases,
>> lawyers will increasingly advise their nongovernmental clients against
>> affirmative action.
>>
>> Larry Rosenthal
>> Chapman University School of Law

_______________________________________________
To post, send message to Conlawprof at lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.
________________________________________________________________________
Check out the new AOL.  Most comprehensive set of free safety and security tools, free access to millions of high-quality videos from across the web, free AOL Mail and more.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/pipermail/conlawprof/attachments/20061121/a0033283/attachment.html