Wygant v. Jackson Board of Education Brief Amicus Curiae

    *r

IN THE SUPREME COURT OF THE UNITED STATES 

0CT03ER TERM, 1984

No. 84-1340

WENDY WYGANT, ET A L ., PETITIONERS

v .

JACKSON 30ARD OF EDUCATION, ET A L .

ON WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR THE 

SIXTH CIRCUIT

3RIEF FOR THE UNITED STATES AS AMICUS CURIAE

INTEREST OF THE UNITED STATES

The government has the responsibility for enforcing numerous 

statutes prohibiting discrimination on account of race or 

national origin _/ and, accordingly, has frequently participated 

in this Court, both as a party and as amicus curiae, in cases 

presenting constitutional and statutory claims of racial 

discrimination. /

_/ See, e .2 •, 42 U.S.C. 2000h-2; 42 U.S.C. 2000e-5(f) (1); and 
Executive Order No. 1225Q, 42 U.S.C. 2000d-l note.

/ E.g., Firef iqhters Local Union No. 1784 v. Stotts,
No. 82-206 (June 12, 1934); Fullilove v. Kiutznick, 443 U. 
(19 80) ; United Steelworkers v . Weber, 443 U .S . 193 (1979); 
Reqents of the University of California v. Sakke, 438 U.S.

S .

(1978).
265



5 r

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STATEMENT

This case concerns the validity under the Equal Protection 

Clause of the lay-off provision in the collective bargaining 

agreement between the board of education and teachers association 

of Jackson, Michigan.
Before the 1972-1973 school year, the Jackson collective 

bargaining agreement called for lay-offs on a strict seniority 

basis (Pet. Ad d . 21a). _/ In 1972, however, the board signed a

new pact requiring lay-offs on a racial and ethnic basis. 

Specifically, it agreed that "at no time will there be a greater 

percentage of minority personnel laid off than the current 

percentage of minority personnel employed at the time of che 

layoff" (id. at 3a, 23a). The goal of this system was "to have 

•at least the same percentage of minority racial representation on 

each individual staff as is represented by the student population 

of the Jackson Public Schools" (id. at 13a, 22a, 32a). The 

agreement defined "minority group personnel" as those "who are 

Black, American Indian, Oriental, or of Spanish descendancy"

(Pet. A d d . la).
Petitioners are Jackson teachers who were laid off in *

accordance with this provision while "minority" teachers with 

less seniority were retained. Petitioners brought suit in the 

United States District Court for the Eastern District of 

Michigan, claiming that the lay-offs violated the Equal 

Protection Clause; Title VII of the Civil Rights Act of 1964, 42 

U.S.C. 2000e et seq.; other federal civil rights statutes (42 

U.S.C. 1981, 1983, and 1935); and various state laws. On cross- 

motions for summary judgment, the court dismissed all of 

petitioners’ claims.

/ A d o 11 of the teachers revealed that 96% favored retention 
of this svstem and oDoosed a freeze offering special protection 
against: lay-offs to minority group members (Pet. Ad d . 2ia).



\

Addressing the teachers' Fourteenth Amendment claim, the 

court first held that a finding of discrimination was not a 

Drerecuisite for the racial and ethnic preterences granted by the 

collective bargaining agreement (Pet. A p p . 25a-27a). Instead, 

the court held (id. at 28a-31a) that the Equal Protection Clause 

was satisfied if (1) " ’there is a sound basis for concluding that 

minority underrepresentation is substantial and chronic, and that 

the handicap of past discrimination is impeding access [and 

promotion] of minorities'" and (2) the affirmative action plan 

meets a test of "reasonableness," _i.e. , is "'substantially 

related' to the objectives of remedying past discrimination and 

correcting ’substantial' and 'chronic' underrepresentation" (id. 

at 28a, 31a), quoting Detroit Police Officers' Association v. 

Young, 608 F.2d 671, 694, 696 (6th Cir. 1979), cert, denied, 452 

U.S. 938 (1981) ) .

Apolying this test, the court found "substantial and chronic 

underrepresentation" solely because the percentage or minority 

students exceeded the percentage of minority teachers (Pet. App. 

29a). The court reasoned (ibid.) that "minority teachers are 

role-models for minority students." The court then held (id. at 

3ia-34a) that the lay-off quota met the test of "reasonableness"

(id. at 31a).

The court ruled that petitioners' claims under 42 U.S.C. 

1981, 1983, and 1985 failed because the lay-off provision was 

constitutional / (Pet. App. 34a-35a); that petitioners 

had not satisfied the administrative prerequisites for suit under

- 3 -

_/ The court also held (Pet. App. 36a) 
Section 1985(3) was defective for failur

that the claim under 
to allege a conspiracy.



r

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Title VII _/ (Pet. Ad d . 34a), and that dismissal of all the 

federal claims necessitated dismissal of the pendent state claims 

as well (i_d. at 36a).
The court of appeals affi rmed (Pet. App. 2a-19a) in an 

ODinion that adopted the district court's reasoning and

extensively quoted from the district court's opinion (id. at 4a—>
10a). _/

INTRODUCTION AND SUMMARY OF ARGUMENT 

As amicus curiae in 3rown v. Board of Education, 347 U.S.

483 (1954), the United States argued that the Fourteenth 

Amendment "established the broad constitutional principle of full 

and complete equality of all persons under the law, and that it 

forbade all legal distinctions based on race or color." _/ The 

schoolchildren and their parents and guardians took the same 

Dosition, contending that "the Fourteent.n Amendment prohibits a 

state from making racial distinctions in the exercise of 

governmental power." / We make the same argument in the 

present case.

/ Petitioners were barred from suing under Title VII because 
they had not filed administrative claims with the Equal 
Employment Opportunity Commission. 42 U.S.C. 2000e-5(f ) (1) . 
Petitioners did not appeal the district court's dismissal of 
their Title VII claims. Moreover, at the time of dismissal, the 
statute of limitations for filing administrative claims (42 
U.S.C. 2000e-5(e)) had already run. Accordingly, petitioners are 
now relegated to those claims grounded upon the Fourteenth 
Amendment.

_/ Judge Wei ifora concurred, but expressed disagreement with 
"the majority's view that underrepresentation of minorities could 
be established by comparing the proportion of minority teachers 
to minority students rather than to minority representation in 
the relevant labor market (Pet. App. 15a-19a). He believed, 
however, that petitioners, as plaintiffs below, bore the burden 
of proving "the percentage of qualified minority teachers in the 
relevant labor market (Pet. App. 17a)."

/ Supp. B r . for the Gov't on Reargument at 115; see also id. 
at 22, 65 (Equal Protection Clause requires government to be 
color blind.).

_/ Br. for Appellants in Nos. 1, 2, and 4 and Resp. m  No. i O 
on Reargument at 21.



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In this case, petitioners were laid off from their jobs as 

school teachers for the sole reason that they are white and the 

respondent school board, a governmental agency subject to the 

Fourteenth Amendment, had bound itself in a collective bargaining 

agreement to an absolute lay-off preference for "employees who 

are Black, American Indian, Oriental, or of Spanish descendancy 

(Pet. App. la)." There was no finding by the school board, the 

courts below, or anyone else, that members of some or all of 

these groups had been the victims of discrimination by the school 

board, by the City of Jackson, or by the State of Michigan.

There was no inquiry into the reasons for whatever disparities 

existed between the representation of these groups in the 

teaching and the student bodies. All there is by way of 

justification for the racially based misfortune visited upon 

petitioners are references by the district court and the court of 

appeals to a history of "societal discrimination" (Pet. App. 4a, 

25a), "underrepresentation" of minority teachers (id. at 5a-9a, 

28a-31a), and the need to supply "role-models" tor minority 

students (id. at 8a, 29a-30a). So casual a waving aside of the 

fundamental Fourteenth Amendment principle of equal treatment for 

all persons regardless of race and of our republic's basic moral 

vision of the unity of all mankind cannot be coun-.ena.-ced.

First, the courts below drew a wholly unwarranted connection 

between the general history of racial discrimination in this 

country, and the statistical underrepresentation of minority 

group members in the teaching corps relative to the student body- 

-without even the semblance or an attempt to re.a.e t.-a-. 

disparity to some pattern or practice of conduct by the school 

board. Second, there is the further step of using this 

s u d d o s iticus discrimination to justify a remedy which fu. _..er 

undoes the connection between wrongdoer and victim to allow a 

oerson, sav of Asian descent whose ancestors su-._ered



7

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discrimination in the early history of California, to attain -or 

that reason a concrete advantage over petitioners in Jackson, 

Michigan, in 1982.
The third and final step in the shambling logic of this 

enterprise would justify the explicitly racialiy based lay-off of 

petitioners on the ground that this is necessary to provide 

"role-models” for minority group students. Stripped or its 

veneer of unsupoorted psychological and sociological conjecture, 

this justification can only mean one of two things. it may mean 

that black, Hispanic or Asian students learn better if they are 

taught by black, Hispanic or Asian teachers. Or it may mean chat 

such students, conscious of the injustices done to the groups of 

which they are members, will draw encouragement and a practical 

moral lesson from seeing members of their own (or some other) 

minority grouo in positions of authority anc respect. As to t..e 

first of these justifications, no evidence for such an empirical 

effect was ever suggested, let alone examined and subjected .o 

criticism and refutation. As to the.second, the moral 

conclusions it teaches beg the question at issue. For one must 

assume that these students whom it is sought to encourage and 

morally instruct will be aware of the very system or racial 

Dreference which delivers role modeis in supposedly sufficient 

numbers. Hut what is the moral lesson that such a system

ly not that ours is a society in which each pe r sen

a resu It of his or her own work and talent.. On

cn.e mav likelier suppose that su ch a system ( its

actual working laid bare) will teach a different and more 

sinister lesson: that one hundred and twenty years after the end 

of slavery government may still advance some and suppress others 

not as individuals but because of the color of their skin.

In this brief the United States shall argue, rirst, tr.a. <-h 

Fourteenth Amendment was intended to assure tne equality before



7

the law of all persons, of whatever race or group; second, that 

therefore any governmental action based on race or national 

origin bears the heaviest possible burden of justification; 

third, that racial quotas cannot lighten much less discharge this 

burden of justification by claiming to favor blacks or other 

disadvantaged groups and therefore claiming to be benign; fourth, 

that comDensating the victims of discrimination is consistent 

with these principles as the compensation is directed to those 

who have actually suffered discrimination and that that 

justification fails when those who have not been wronged are given 

advantages— at the expense of identified innocent persons—  merely 

because those Dreferred belong to the same racial or ethnic group 

as others who have suffered from discrimination. Adherence to 

these constitutional principles is perfectly consistent with a 

benevolent social policy designed to provide fair opportunity and 

a sense of real equality to all persons.

ARGUMENT

THE JACKSON LAY-OFF QUOTA VIOLATES 
EQUAL PROTECTION

I . Equality 3efore the Law Is A Foundational Principle Of 
American Government

The United States' population is the most diverse in the 

world— indeed, probably in the history of the world. If present 

trends of immigration and population growth continue, racial and 

ethnic diversity will significantly increase in the remaining 

years of this century.

This diversity, potentially divisive and enervating, has 

proved to be a source of strength and cultural richness, a 

concrete manifestation of the universality or the principles on 

which this country was founded. Central among those principles 

is the equality of all persons before the law, regardless or 

race, religion, or ethnic background. The Declaration or



8

Independence proclaimed that America was different from other 

countries because: "We hold these truths to be self-evident,

that all men are created equal * * The inscription on the

front of this Court reads: "Equal Justice Under Law." This is

the principle that as a matter of historical fact has unified the 

many minorities that make up our population. See N. Glazer, 

Affirmative Discrimination: Ethnic Inequality and Public Policy

3-32 (1975).

This concept finds binding legal expression in the Equal 

Protection Clause of the Fourteenth Amendment: no state shall 

"deny to any person within its jurisdiction the equal protection 

of the laws." The Equal Protection Clause does not mention any 

of the characteristics that divide, such as race, religion, or 

national origin. It sees only "person(s]" and guarantees to 

every "person" the "equal" protection of the laws. This language 

means whac it says: the Clause does not permit a state to treat

some persons as "more equal" than others.

Equality before the law, so magnificent in principle, is 

often a difficult and uncomfortable concept in practice. There 

have always been and perhaps will always be voices seeking to 

carve out soecial exceptions to this principle based on history, 

orevailing social conditions, temporary need, or expediency.

After the era of Reconstruction, such voices prevailed, and the 

true meaning of the Equal Protection Clause was _ong 

suDoressed. In 1895, this Court approved the concept of 

"separate but equal" facilities for blacks and whites and thus 

upheld the arrest of Homer A. Piessy for occupying a railroad 

coach reserved for whites. P1essy v. Ferguson, 153 U.S. 537 

(1895). According to his petition, Plessy was seven-eighths 

white and one-eighth black, and "the mixture cr colored blood was 

net discernible in him" (_ic. st 541). Under Louisiana law, he 

was black, although in other states he apparently would have been



*

9

white (see id. at 552). Whether, if living today, he would be

regarded as black or white by the Jackson Board of Education is

unclear. What is clear is that his Fourteenth Amendment rights

as a person were violated. In one of the most famous and

prescient dissents in the history of this Court, the first

Justice Harlan wrote (153 U.S. a: 559):

(ojur Constitution is color-blind, and 
neither knows nor tolerates classes among 
citizens. In respect of civil rights, 
all citizens are equal before the law.
The humblest is the peer of the most 
powerful. The law regards man as man, 
and takes no account of his surroundings 
or of his color when his civil rights as 
guaranteed by the supreme law or the land 
are involved.

This vision became the creed of the Civil Rights Movement _/ 

and eventually the nation. _/ It has informed and found 

expression in numerous decisions of this Court. See, e.g.,

Loving v . Virginia, 388 U.S. 1 (1967); McLauchlin v . ilorica, 3 7 9 

U.S. 184, 191-192 (1964); 3olling v . Sharpe, 347 U.S. 497, 498 

(1954). Under those cases, the status of most laws that 

discriminate on the basis of race or ethnic origin is perfectly

clear. They are "constitutionally suspect" and subject to 

"most rigid scrutiny." McLaughlin v. Florida, 379 U.S. at 

193. As the Court affirmed only last Term,-"to pass const

the

191-

t u t i o r. a 1

muster, [a racial classification] must be justified by a compel

governmental interest and must be 'necessary . . .  to the 

accomplishment' of its legitimate purpose." Palmo r e v. Sido 1 1 , 

No. 82-1734 (Apr. 25, 1984), slip op. 4. Furthermore, a suspect 

classification must be oreciselv "tailored." Dunn v. 3 .urnstern, 40

_/ See page & note , supra.

/ See, e.g. , Scecial Message to Congress on Civil Rights, 1963
Pub. Paters of President Kennedv 221; Radio and Television
Rema rxs UDcn Sicninc the Civil Rights Bill, 1964 Pub. Papers or
Lyndon 3. Johnson 842, 343.



v

-  1 0  -

U.S. 330, 343 (1972); Kramer v . Union Free School District, 395 U .S . 

621, 627 (1969); Shapiro v . Thompson, 394 U.S. 618 (1969).

Beginning with the case of DeFunis v. Odeqaard, 416 U.S. 312 

(1974), this Court opened a new chapter in the constitutional 

history of racial and ethnic discrimination. What purportedly 

distinguished DeFunis from previous discrimination cases was that 

the victim, Marco DeFunis, Jr., was not a member of a "minority 

group, at least as defined by the University of Washington Law 

School, i.e., he was not "black, Chicano, American Indian, or 

Filipino (id. at 320)." Thus, discrimination against DeFunis, a 

Sephardic Jew from a relatively poor background, _/ was claimed 

to be "benign" and, in the judgment of the University, DeFunis 

could justly be called upon to sacrirics his aspirations tor a 

legal career to serve the greater public good.

The present case fails into the same pattern. Here, 

petitioners lest their jobs as teachers because they are not 

"31ack, American Indian, Oriental, or of Spanish descer.dancy"

(Pet. Ad d . la). Those seeking to justify such a departure from 

one of our most vital and precious constitutional principles must 

show either (1) that so-called "benign" quotas should not be 

governed by the same constitutional standards tnat govern other 

forms of racial and ethnic discrimination or (2) that measures 

like the Jackson lay-off quota can satisfy those tests. We will 

address these points in turn.

II. Laws That Discriminate In Favor Or Some Minority 
Groups Must Satisfy The Same Constitutional Standards As Other 
Forms Of State-Sponsored Racial And Ethnic Discrimination

A. This Court has rendered two decisions concerning the 

constitutionality of racial classifications adoptee by 

governmental entities for the purpose of ber.efittmg members o~

_/ A . S
(1978 ) .

ler, 3akke, DeFunis, and Minority Acm sic ns 38-39



II

specified minority groups: Regents of the University of

California v. 3akke, 438 U.S. 265 (1978); and Fu H i  love v. 

Klutznick, 448 U.S. 448 (1980). While neither case produced a 

majority opinion, a plurality of the Court appears to nave 

concluded that state action granting preferences to minorities 

must satisfy strict scrutiny like all other state-sponsored 

racial classifications. _/
We fully endorse this conclusion because we see no valid 

justification for more lenient judicial scrutiny of la*«s uhai. 

discriminate in favor of some minorities and against a residual 

category of "whites.” The right to the equal protection of the 

laws is an "individual," "personal" right. Sheiley v. K .aemer, 

334 U.S. 1 , 22 ( 1948 ). See also, e.£., Sweatt v. Painter, 339 

U.S. 629 (1950); Laurin v . Oklahoma State Regents, 332 U.S. 631 

(1948); Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (j.933). 

Accordingly, this right applies equally to all persons "without 

regard to any differences or race, of coior, or or nationality. 

Yick Wo v. Hook ins, 118 U.S. 356 , 369 ( 1886 ); see also Buchanan v 

War lev, 245 U.S. 60 , 76 (1917). This right "cannot mean one

/ This standard of review was stated by justice Powell in 
Hakke, 438 U.S. a: 290-291. Justice White joined this portionof 
Justice Powell's opinion (id. at 387 n.7). In Fullilove, Justice 
Stewart, joined by Justice Rehnquist, declared that racial ana_ 
ethnic classifications are "inherently suspect and presumptively 
invalid." 443 U.S. at 521. Justice Powell agreed (id. at 496- 
497 n.l), and Justice Stevens declared (id. at 551) that strict 
scrutiny would apply if a state legislature hac enacted -he 
Fullilove program.

Neither the Chief Justice nor Justice O'Connor has commen 
on the aDolicable standard of review in this kind or case. i.n 
Sakke, the Chief Justice joined Justices Stevens, Stewart, ana 
Rehnauist in an opinion that did not reach the constitutional 
question, 438 U.S. at 408-421. In Fullilove, his opinion r e u  
on Congress's unique power to enforce the Fourteenth Amendment 
448 U.S. at 472-47*3 , 483 .

ted

ec

Several members of the Court have advocated a somewhat less 
exacting standard, but they have nevertheless ins-s-ec on a 
"strict and searching" judicial inquiry (see Bakke, r -q4 3 8 U.S. 3 t
362) ( opinion of Ersnnsn ̂ Whits Ms r s h 3 i 1 / 3 n<3 313 c k mu p. /  ̂̂  • ) ' 
Fullilove, 448 U.S. at 519 (Marshall, J ., concurring judgment).
See pages 
" reascnabler.es 
10a, 31a).

tes
ra. Even this standard is stricter than 

d i e d  bv the courts below (see Pet. Act



No. 84-1340

IN THE SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1984

WENDY WYGANT, ET A L ., PETITIONERS

v .

JACKSON BOARD OF EDUCATION, ET A L .

ON WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR THE 

SIXTH CIRCUIT

3RIEF FOR THE UNITED STATES AS AMICUS CURIAE

CHARLES FRIED
Actino Solicitor General

WM. BRADFORD REYNOLDS
Assistant Attorney General

CHARLES J. COOPER
Deputy Assistant Attorney General

SAMUEL A. ALITO, JR.
Assistant to the Solicitor Genera.

WALTER W. BARNETT 
DAVID K. FLYNN 
MICHAEL CARVIN 

Attorneys

Department of Justice 
Washington, D.C. 20530 
(202) 533-2217



12

thing when applied to one individual and something else when 

aDDlied to a person of another color." Bakke, 438 U.S. at 289- 

290 (opinion of Powell, J.); see also DeFur.is v. Odeaaard, 416 

U.S. at 337 (Douglas, J., dissenting). Equal Protection is a 

matter of "fundamental principle" and not simply "a matter of 

whose ox is gored." A Bickel, The Morality or Consent 133

( 1975) .
B. The history of the Fourteenth Amendment dees not support 

the constitutionality of measures discriminating against 

"whites." Without doubt, an immediate and pressing purpose of 

the Amendment was to abolish the legal disabilities imposed on 

recently freed slaves. See Slaughter-House Cases, 3j J .S . (16

Wall.) 36, 37-71 (1872). But its broader purpose was to 

proscribe all state-sponsored racial discrimination.

The Civil Rights Act of 1866, ch. 31, 14 Stat. 27 et sea., 

which was enacted by the 39th Congress shortly before it proposes 

ratification of the Fourteenth Amendment, sheds initial light on 

the meaning of the Equal Protection Clause in view of the common

roots and purposes of these two measures. _/ Congress's 

unequivocal objective,in passing the 1866 Act was to prohibit 

official racial discrimination against blacks or whites. Section 

1 of the Act guaranteed that "citizens," of every race and color, 

* * * shall have the same right * * * to full and equal benefit 

of ail laws and oroceedings for the security or person and 

Drooertv." Senator Trumbull, the Act's sponsor, declared that 

its object was to "break down all discrimination between black

/ The 39th Congress considered the two measures simultar.eo 
and enacted the Civil Rights Bill approximately two months be 
proposing ratification of the Fourteenth Amendment. One of t 

ourooses of the Fourteenth Amendment was "to incorporprimary p 
the guarar

u s - y
£ c 0
he
ate

.ie s o: the Civil Rights Act of 1866 in the organic is'-
of the land" and thus insulate them from repeal or invalicati: 
Hurd v. Hodge, 334 U.S. 24, 32-33 (1948); see also, e.c.,
Jor.e s v . Alfred H. Maver C o ., 392 U.S. 409, 436 (1958). In 
addition, Section 1 of the .Act was a model for tne Equal 
Protection Clause. Frank & Munro, The Original Understanding 
"Ecual Protection of the Laws 50 Col. Rev. 13! 140 (1950 ) .



13

men and white men" and that it applied "to white men as well as 

black men." Cong. Globe, 39th Cone., 1st Sess. 599 (1866). As 

Senator Howard, later a framer of the Fourteenth Amendment, 

commented, "[i ]n respect to all civil rights, there is to be 

hereafter no distinction between the white race and the black 

race . " Id . at 504 .
The purpose and effect of the Equal Protection Clause were

the same. As proposed in the Reconstruction Committee, _/

Section 1 of the Fourteenth Amendment provided:

No discrimination shall be made by any 
state, nor by the United States, as to 
civil rights of persons because of race, 
color, or previous condition of 
servitude. [ /]

/ Before Section 1 of the Fourteenth Amendment was cast m  
present form, the 39th Congress considered several proposed 
Amendments that spoke directly to the ecua 
before the law 
Committee on Reconstruc*

its

ty of the races
One of the alternatives recommended to the - 

'.on by Senator Fessenden stated that
provisions in the Constitution or laws of any State, wnereby a±

r civil rights or privileges, 
r, shall be inoperative and 
he Joint Committee of Fifteen

all
i

distinction is mace in political o 
on account of race, creed or cole 
void." Kendrick, The Journal of t 
on Reconstruction 50 (1914). Late
amendment provicing: 
because of race, color 
in civil rights or 
Globe, 39th Cong.,

Senator Stewart offeree an 
All discriminations among the people 
or previous condition of servitude, eith« 

the right of suffrage are prohibited." Cong 
1st Sess. 1906 (1866).

Kendrick, suora, 83-34.



4

Although the committee changed this language, it is apparent that 

it did not intend to alter the principle of racial equality 

before the law. _/
This was confirmed in the opening speech by the House floor 

leader, Representative Stevens. Section 1, he explained,

guaranteed individuals of both races exactly the same treatment 

by the states (Cong. Globe, 39th Cong., 1st Sess. 2459):

Whatever law punishes a white man for 
crime shall punish the black man 
precisely in the same way and to the same 
degree. Whatever law protects the white 
man shall afford "equal" protection to 
the black man. Whatever means of redress 
is afforded to one shall be afforded to 
all.

Later,-he added (id. 

"abolishes all class

at 2766) that the Equal Protection Clause

of legislation in the States" and "protects

the black man in his fundamental rights with the same shield

which it throws over the white man." 

leader, Senator Howard, provided the

In the Senate, the floe 

same unequivocal explana ion

(Cong. Globe, 39th Cong., 1st Sess. 2765 (1356)).

The deliberations on the Fourteenth Amendment also show that 

Congress specifically intended to protect two groups of whites

add/ Representative Bingham first sought unsuccessfully 
this provision the present language of the Equal Protection 
Clause (Kendrick, sutra, at 85), and Section 1 was adopted as it 
stood (by a vote of 10 to 2) (Kendrick, supra, at 86-37) .
Bingham later succeeded in adding as a new Section 5 all of wha 
is new the second sentence of Section 1 (again by a vote of 10
2) (Kendrick, supra, at 37), but 
(Kendrick, suora, at 98-99). Finally, he

this was later deleted 
convinced

to substitute this Section 5 for what was then Sect 
time the vote was 10 to 3) (Kendrick, supra, 
history--with the committee voting at

.06).
various times

r 0 ccmmi ttee
on 1. (This
. This
to adept the

and
together— strongly suggests that the express meaning of the 
original version— banning all "discrimination" by government 
"because of race [or] color" was regarded as incorporated wi 
the version finally reported. For accounts of the committee 
proceecincs, see History of the Supreme Court or tne Lnited 
States ( vo 1. 6, o t . 1 — Re-const ruct ion

thin

and Reunio DV
at 1270-1274, 1231-1283 (19 71)); J . J ames, __
Fourteenth Amendment 103-115 (1956); H. Flack

65-59 (1965); H. 
i Amendment 71-74 
:d the Secrecation

C . Fair ma n 
The Framinq of the

The Ad< ition
:ine Fourteenth Amendment
Mear.ina of : h e F o i . 0 0 n t
Oricinal Understanomc 
Rev. 1 , 40-45 ( 1955 ) .

Meyer , 
(1977 ) ;' 
Dec i s i:

r. e History and 
3ickei, Tne 
m  59 Harv. L.O 3

rt
 r

r



. 3 “

who were in real danger of deprivation of civil rights. First,

the term "Derson," rather than "citizen," was used in the Equai

Protection Clause to encompass aliens. Although the earliest

draft of Section 1 of the Fourteenth Amendment, introduced in

December 1865 by Representative Stevens, applied only to

"citizen[sj" (Cong. Globe, 39th Cong., 1st Sess. 14 (1865)), by

February 1866 the Reconstruction Committee had approved a

different version, offered by Representative Bingham, that

guaranteed equal protection to all "person!s i." _/ Defending

this amendment on the House floor, Bingham asked on February 28

(Cong. Globe, 39th Cong., 1st Sess. 1090 (1866)): "Is it not

essential to the unity of the Government and the people that all

persons, whether citizens or strangers, within this land, shall

have ecual Drotection m  every State in this Union in the rights

of life and liberty and property?" Nine days later, commenting

on the use of the term "citizen" in Section 1 of tne Civil Rights

Act, he stated (39th Cong., 1st Sess. 1292 (1366)):

The alien is nor a citizen. You propose 
to enact this law, you say, in the 
interests of the freedmen. But do you 
propose to allow these discriminations to 
be made in States against the alien and 
stranger? Can such legislation be 
sustained by reason or conscience?
* * * * Is it not as unjust as the 
unjust State legislation you seek to 
remedy? C_/1

_/ Kendrick, supra, 62.

/ Earlier, Representative Stevens, the floor manager of the 
Fourteenth Amendment, and Reoresentative Conkling, another member 
of the Reconstruction Committee, had made the same point. Cong. 
Globe, 39th Cong., 1st Sess. 359 (1866) (remarks of Rep. 
Conkling); id. at 537 (remarks or Rep. Stevens).



\
\ \

- 16 -

In 1866, the overwhelming majority of aliens were white, _/ since 

the first sentence of Section 1 of the rourteenth Amendment had 

confirmed that virtually all freed siaves were citizens. _/

The other group of whites that Congress specifically wanted 

to protect were white Unionists in the South. When asked if the 

Amendment's sole purpose was to protect black freedmen, Bingham 

responded (Cong. Globe, 39th Cong., 1st Sess. 1088 (1866) that it 

was intended "as well to protect the thousands and tens of 

thousands and hundreds of thousands of loyal white citizens o. 

the United States whose property, by State legislation, r.as beer, 

rested from them under confiscation, and protect them a-so from 

banishment." See also id. at 1090-1091.

Those who argue that the history of the Reconstruction era 

supports the constitutionality of prererences for blacks rely 

chiefly on laws relating to the Freedmen's Bureau. _/ But 

whatever light these statutes shed on the intended meaning of the 

Equal Protection Clause, they do not support current measures 

containing racial and ethnic preferences. Rather, they are 

examples of compensation for actual, identified victims o_ 

d i sc r imi na t ion . See Cong. Glebe, 39th Cong., j.st Sess. 9-,0 

(1886) (remarks of Sen. Trumbull). They provided assistance, not 

to blacks generally, but to "freedmen," individuals who were the 

victims of slavery. _/ Moreover, these laws aiso provided 

substantial assistance for white refugees; in fact, figures

/ See 1 Bureau of the Census, 
United States 99, 106, 108 (1975

Histor :al St ;istic s ol

/ That prevision states that ail persons born or r.aturc-izec 
in the United States and subject to its jurisdiction are 
citizens. This aoolied to virtually ail former sisvsa, s_nce 
imDO rtation of slaves ended i n 1808 (Art. I , § 9, Co., i).

/ See 3 r . of NA_AC? legal Defense and Education Fund, Inc. as 
Amicus Curiae in Bakke, Mo. 76-811, at 10-53.

/ Supporters emphasized that newly freec s.aves nac special^ 
needs resulting directly from years of bondage. See Cong. G_obe, 
39th Cong., 1st Sess. 939 (1866) (remarks of Sen Trumbull); id. 
at 630 (remarks of Rep. Hubbard).



provided to Congress showed that two-thirds as many whites as

blacks had received rations f rom the 3ureau. Cong. Globe, 39th

Cong. , 1st Sess. 940 (1866 ) ,. _/ It is thus difficult to discern

in these laws any support for the constitutionality of current 

measures granting preferences, regardless of individual 

circumstances, to any black person or, even more remotely, to any 

member of other minority groups. _/

C. Permissive judicial scrutiny of "benign" discrimination 

is sometimes defended on the principle that the courts have a 

SDecial duty to protect minorities lacking political power. In 

the words of Dean John Hart Ely, a leading proponent of this 

view:

/ The initial act (Act of Mar. 3, 1865, ch. 90, 13 Stat. 507 
Tl865 )) established for one year a "bureau of refugees, freedmen, 
and abandoned lands" (sec. 1), authorized the Secretary of War to 
provide aid to "destitute and suffering refugees and freedmen and 
their wives and children" (sec. 2), and permitted abandoned and 
confiscated lands in the Conrederate stares to be set aside for 
the use of "loyal refugees and freedmen" (sec. 4).

The second act (Act of July 16, 1366, ch. 200, 14 Stat. 173 
et sec. extended the life of the bureau for two years (§ 1), 
continued aid to needy refugees and freedmen (§ 2, 5, 14 Stat. 
114), addressed various administrative matters (§ 3, 4, 14 Stat. 
174), confirmed tax sales of certain lands to blacks (§ 6, 14 
Stat. 174), orovided for the disposition and administration or 
other confiscated and abandoned land (§ 7-10, 11, 14 Stat. 175- 
176), allowed freedmen to continue occupying certain land under 
an Army field order until after the harvest and receipt by them 
of compensation for any improvements (§ 12, 14 Stat. 1/6), and 
instructed the commissioner to cooperate with benevolent 
societies for the aid of treedmen (§ 13, 14 Stat. 176). Finally, 
section 14 of the Act (14 Stat. 176), far from granting a racial 
Dreferer.ee, guaranteed tine rights and immunities or all 
citizens" in the Confederate states "without respect to race or 
color, or Drevious condition of slavery," and authorizec n i n t a r y  
tribunals to enforce these rights.

In 1868, the Bureau was continued for an additional year 
(Act of July 6, 1868, ch. 135, 15 Star. 33). in sum, the 
Freedmen's 3ureau measures provide no examples or race-conscious 
relief for non-victims.
/ Three other minor Reconstruction-era statutes have oee.n 

cited as examoles of race-conscious relief. One was a S j-5,000 
appropriation*"for the relief of freedmen or destitute colored 
people in the District of Columbia" (Res. of Mar. 15, 1367, ^14 
Stat. 20). The others established special protective procedures 
to ensure that black servicemen in former slave states were not 
cheated of their pay by claims agents. It seems sate to assu...e 
that virtually everyone aided by these enactments was a direct 
victim of slavery or racial oppression.



18

When the group that controls the decision 
making process classifies so as to 
advantage a minority and disadvantage 
itself, the reasons for being unusually 
suspicious, and, consequently, employing 
a stringent brand of review, are 
lacking I A White majority is unlikely to 
disadvantage icself for reasons of racial 
prejudice * * *.

Ely, The Constitutionality of Reverse Racial Discrimination, 41 

U. Chi. L. Rev. 723, 735 (1974); see also J. Ely, Democracy and 

Distrust 170-172 (1980). This argument has at least three major 

defects .
First, it greatly oversimplifies and distorts the meaning of 

the Ecual Protection Clause, making it nothing more than an 

enforcement mechanism for one particular theory of democratic 

government. There is no evidence that those who framed, proposed, 

and ratified the Fourteenth Amendment had this theory in mind. 

Instead, they believed for a variety of reasons including the fact 

that immutable characteristics such as race and ethnicity are almos 

never relevant to a legitimate legislative purpcse--that racial and 

ethnic classifications "are by their very nature odious to a free 

people whose institutions are founded upon the doctrine of 

eaualitv." Hirabavashi v. United States, 320 U.S. 81, 100

( 1942 ) .
Second, Ely's argument is an oversimplification because it 

unqualifiedly equates numerical majority with political power and 

assumes that minority groups are politically powerless. In 

reality, the distribution of political power in a democracy is 

considerably more complex. Governmental decisionmakers directly 

or indirectly answerable to the voters are not always responsive 

to the majority's wishes. In addition, interest groups 

representing small segments or the population are sometimes aoie

Preference in Law 
(Continued)

favorable to the g r

electoral majority.

of "Benic n" Racial
i Col. L . Rev. 557,



\
\

Third, this theory assumes the existence of a polity with a 

monolithic white majority and black minority. The United States, 

however, is a nation of many minorities _/ (many of which . 

overlao) and many, many political jurisdictions--50 spates and 

nearly 80,000 units of local government. _/ Racial and ethnic 

groups are unevenly distributed among these jurisdictions, 

causing the terms "majority" and "minority" to have varying 

meanings. In more than 75 counties, blacks exceed 50% of the 

population; in 37 counties, more than 50% of the population is 

Hispanic. In eight of the ten largest cities, blacks and 

Hispanics constitute a majority. _/ Asian-Americans 

substantially outnumber whites in Hawaii. _/ in many 

communities, individuals of other cohesive, traditionally 

disfavored grouDS constitute substantial voting Dices.
Because of these factors, different groups, whether alone or 

in coalition, are in the majority in different jurisdictions. if 

the standard for constitutional scrutiny were to depend upon 

whether a preference benefited a "minority" or the electoral 

majority, the meaning of equal protection would have to vary from 

oiace to d a c e  and time to time and wou-d thus acquire an 

"accordion-like quality." Per unis, 416 U.S. at 343 (Douglas, J., 

dissenting). The courts would also be compelled to make a 

sensitive and sophisticated assessment of the real distribution 

of political power in each community. This is an inquiry for 

which courts are ili-suitec. These problems can be illustrated

- 19 -

(1975).
/ See United Jewish Organizations v. Carey, 430 U.S. 144, i85 

11977) (3urger, C.J., dissenting) ("the 'whites' category
consists of veritable galaxy of national origins, ethnic 
backgrounds, and religious denominations. It simp_v cannot oe 
assumed that the * * * interests or all whites are even 
substantially identical").

/ Bureau of the Census, County and City Data Book 1983 (-933)

/ Statistical Abstract at 25-25.

Statistical Abstract 11



20

by attempting to apply this same theory to cender classifications. 

Should measures disadvantaging women be leniently reviewed 

because female voters outnumber male voters? Should measures 

disadvantaging men be leniently scrutinized because men occupy 

most electoral posts? This Court has not drawn such distinctions 

but instead applies precisely the same level of judicial review 

no matter which gender is disadvantaged. See, e . a Mississippi 

University for Women v . Hogan, 458 U.S. 718, 723 S> n.9 (1982).

D. Permissive judicial scrutiny of racial preferences for 

blacks and members of some other minority groups is sometimes 

defended on the ground that such measures compensate for past 

wronas or for what is termed "societal" discrimination. We 

disagree with this approach because it assumes compensation and 

relaxes scrutiny before accurately assessing whether a measure is 

truly compensatory. In our view, nothing less than strict 

scrutiny can be trusted to determine whether a measure is truly

compensatory.
The problems inherent in any aoorcacn less exacting than 

strict scrutiny are illustrated by the intermediate scrutiny test 

advocated bv several members of this Court as the apropriate 

standard for reviewing purportedly compensatory preferences. _/ 

Applying this test, proponents have approved preferential benefits 

for inaividuals not shown to have suffered from any past

_/ See Fullilove, 443 U.S. at 517-521 (Marshall, J., 
concurring) Bakke, 438 U.S. at 324-379 (opinion of Brennan, 
White, Marshall, and Blackmun, JJ). Under this test, a racia 
ethnic classification "designed to further remedial purposes" 
must "serve important governmental objectives" and must be 
"substantially* related to the achievement of those objectives 
Fullilove, 448 U.S. at 519 (Marshall, J., concurring) . _ In 
addition, there must be some rational oasis tor concluding th 
the preferred groups are mere deserving of compensation than 
groups disfavored. (3akke, 4 3 8 U.S. at 359 n .35 (opinion or 
Brennan, White, Marshall, and Blackmun, J J . )).

or

it



21

\

discrimination; / preferential medical school admissions for 

members of minority groups that were already over represented in 

the student body; / and preferential treatment for minority 

businessmen whose economic resources and opportunities clearly 

exceeded those of the average citizen. _/ Indeed, this test has 

been found to allow both discrimination in favor of and 

discrimination against the very same minority groups and ail in 

the name of compensation. _/ This dramatically illustrates the 

need for strict scrutiny to identify those measures that are 

truly remedial and compensatory.

/ Bakke, 438 U.S. at 377-378 (opinion of Brennan, White,^ 
Marshall, and Blackmun, JJ.); Fullilove, 448 U.S. at 517-522 
(Marshall, J., concurring).
/ This was true of Chinese— and Japanese—American students in 

Bakke. See Posner, The Bakke Case and the Future of "Affirmative 
Action," 57 Cal. L. Rev. 171, 185-186 (1979).

/ Compare Fullilove, 448 U.S. at 520-521 (Marshall,_J., 
concurring), with id. at 538-539 (Stevens, J., dissenting).

/ The stature in Fullilove, which some juscicsa would h g v e 
tested and sustained under intermediate scrutiny (443 U.S. a^^ 
517-522) (Marshall, J., concurring)), gave a preference to all 
Spanish-SDeaking citizens (see id. at 459). By contrast, the 
admission's program in Bakke, which likewise passed intermediate 
scrutiny (438 U.S. at 355-379) (opinion of Brennan, White, 
Marshall, and Blackmun, J J . )), favored only "Chicanos," l .e. ,
Mexican-Amer icans , while all other Hispamcs, including such 
grouos as Puerto Ricans, Cubans, and Central Americans, were 
reauired to shoulder part of the burden or providing compensation 
(see id. at 274)..

Such absurd results are not a quirk of the particular >.esw 
employed but are an inevitable consequence or attempting to 
orovide compensation to groups rather than individual^ victims. 
Many grouos have suffered substantial discrimination in this^ 
country. Putting aside the special case of past discrimination 
against blacks, it is very dirficult to say with any assurance 
that any of the remaining groups suffered greater discrimination 
than the rest. A "rational" case can be made that each group is 
especially deserving; but it is doubtful that a substantially 
stronger argument can be made on behalf or any group. 
Accordingly, if there must simply be a rational basis for 
choice of groups preferred in an affirmative action plan. 
Government is aooarently free to pick and choose a.iicr.'M minority 
groups as it wishes. (The intermediate scrutiny test advocated 
by members of this Court, contrary to its name, requires only a 

basis for the choice ofV' m -

the
the

rational basis for the choice or groups to be preferred (see 
note , supra)), and thus has predictably been found to permit
compensatory discrimination in raver or and against the same 
groups). If anything more than a rational basis must oe 
it seems doubtful that any of the croups noted above can 
oreferrec.

sne
be



22

E. A final argument for permissive scrutiny of measures 

discriminating in favor of certain minority groups would justify 

them in terms of their supposedly benign symbolism: such 

classifications do not stigmatize or brand the victims as 

inferior. _/ This argument is wrong'as well. It loses sight of 

the equal protection ideal that each individual should be free to 

achieve his or her place in society without being disabled by 

government on the basis of race or ethnic background. Instead of 

focusing on the simple command of the Equal Protection Clause, 

this theory suggests that the Clause is more concerned with tne 

symbolism than with the concrete effects of racial and ethnic 

discrimination. But surely the immediate effects of 

discrimination —  loss of money, a job, education, a place to live, 

etc.— are no less important than any accompanying symbolism.

This argument fails as well even on its own terms. A 

defense of racial preferences concretely disadvantaging and 

benefiting persons who are neither the proven beneficiaries nor 

victims of discrimination on "symbolic" groucs is perilously 

vague and subjective. See Bak k e , 433 U.S. at 294-295 n . 3 4 

(opinion of Powell, J). The symbolism of benign concern intended 

bv the defenders of such schemes may not■be the symbolism 

discerned by the schemes' beneficiares and victims or the public 

at large. These may rather infer that in our society benefits 

and opportunities are not to be obtained by merit but by 

successful manipulation of the politics or racial and group 

patronage.

Nor dees it seem possible to identify any significant 

Generic differences between the potential symoolic erfects of 

disabilities and preferences. A disability may be seen as a 

brand of inferiority, but a paternalistic preference may carry 

exactly the same symbolic meaning as many members of this Court

/ See Fullilove v . Klutz nick, 443 U.S. 518 (Marshall, J., 
concurring).



23

have noted. _/ A disability may single out a minority group and 

thereby endorse and even encourage public hostility towards its 

members. 3ut, again, so may a preference; a preference may 

arouse sharo resentment among those who are not preferred.

F. In arguing for a unitary standard of review for all 

racial and ethnic classifications, we do not equate or confuse a 

measure like the Jackson lay-otf quota with the vicious 

discrimination of the Jim Crow era; neither the motivation nor 

the macnitude of the societal harm is comparable. However, the 

Equal Protection Clause is not merely a protection against the 

most flagrant wrongs. It embodies a broad principle of equality 

that is subverted unless applied equally to all racial and ethnic 

classifications. A. Bickel, The Morality of Consent 132-133

(1975 ) .
Laws Granting preferences to members of enumerated minority 

grcuos are also far from benign in practical effect. Such 

preferences inevitably harm innocent individuals. Whether a 

Plessv is ejected from a railroad coach because he is one—eighth 

black or laid-off because he is seven-eighths white, the concrete 

wrong to him is much the same. Whether a DeFunis is excluded 

from law school because he is Jewish or because he is not "3lack, 

American Indian, Oriental, or of Spanish cescendancy, his 

personal aspirations are equally thwarted.

Preferences also perpetuate and fester racial and ethnic 

divisions. And in a pluralistic and democratic society such as

ours, when preferen ces are gran ted to some groups, there is

inevitable pressure for similar preferences to benefit every

arouD that can incur.t a claim of past discrimination.

Racial and ethnic preferences necessarily mar the law with 

definitions of racial and ethnic types, laws that are 

ciscuieting 1 v reminiscent or abhorrent measures enactec m  otr.e

See Posner, suor 20 .



2

times and places. / And if preferences are sustained, a ready­

made legal framework is thereby created for racial and ethnic 

policies of more malevolent design.

III. The Jackson Lay-Off Quota Cannot Satisfy The 
Constitutional Standards Applicable To Measures Containing 
Racial And Ethnic Classifications

The lay-off quota adopted by the Jackson school board 

emphatically flunks the constitutional standards governing racial 

classifications.

A. The lower courts justified the Jackson measure in large 

part on the theory that it serves to provide "role models" for 

minority youths, but this superficially appealing justification 

is multiply flawed. In the first place, we believe that special 

wariness is aDpropriate whenever an attempt is made to justify a 

racial classification, not for the purpose or rig.nting past 

wrongs, but simply because it is asserted that social 

institutions would work better or more smoothly. Variations or 

this arcument prevailed in ?1essy and Hirabavasri, with 

regrettable results. .However, except for such wrong turns, the 

Court has consistently and soundly rejected calls that the equal- 

protection rights of individuals be sacrificed to serve some 

abstract societal good. See, e.c., ?aImore v. Sidoti , No. 82- 

17 3 4 (Apr. 25, 1984); Lee v . Washington, 390 'J. S . 333 (1963); 

Cooser v. Aaron, 353 U.S. 1, 16 (1958); "[t]he Equal Protection

Clause commands thi elimination of racial barriers, not their

creaticrn i p o rder to satisfy our theory of how society

See Fullilove, 443 U.S. at 534 n.5 (Stevens
dissenting



25

should be organized." DeFunis v. Odegaard, 416 U.S. at 342

(Douglas, J., dissenting). _/

In this case, the role-model justification adopted by the 

lower courts falls far short of sustaining the jackson l^y of- 

quota. We do not dispute the fact that young people benefit from 

Dositive role models. Nor do we dispute the fact that minority 

youths, disheartened by past and present discrimination, often 

need minority role—models. 3ut it is most doubtful that -he 

Jackson lay-off cuota will serve or is needed to serve this goa-.

The Jackson measure, like all racial preferences, may 

undermine, rather than foster, minority role models. _/

See Full!love v. Klutznick, 448 U.S. at 545, 547 (Stevens, J., 

dissenting); United Jewish Organizations v. Carey, 430 U.S. 144, 

173-174 (1977) (Brennan, J., concurring in part); Regents of the 

University o f California v . Bakke, 438 U.S. at 2 9 o (opinion of

/ The role model justification seem clearly inconsistent with 
Palmore, which held that a state court, m  awarding custody of a 
child, could not rely upon the race of the divorced mother's new 
husband. Few would deny that a child's most important role 
models are usually his parents. Thus, if a state's interest in 
providing children with role models of the same race were 
sufficient to override the principle or racial equality contained 
in the Fourteenth Amendment, it would appear that a state court 
should at least be permitted to 
into account in awarding custody. ___
prohibited this practice. The invalidity of the role-model 
justification in the present, weaker context would appear to 
follow a fortiori.

take the race of the new husband 
But Palmore properly

/ As Professor Thomas Sowell has written (Black Fcucaticn, 
Myths and Tragedies 29 2 (197 2) (empbasis m  original)):

What all the arguments and campaigns for 
quotas are really saying, loud and clear, 
is that black people just don't have it, 
and that they will have to be giver. 
something in order to have something.
The devastating impact of this message on 
black people--particularly black young 
people--will outweigh any few extra jobs 
that may result from this strategy. Those 
black pecole who are already competent, and 
who could be instrumental in producing more 
competence among the rising generation, will 
be completely undermined, as c-ack becomes 
synonymous —  in the minds or black and white 
alike--with incompetence, and black 
achievement becomes synonymous with cnarity 
or payoffs.



25

Powell, J.); 448 U.S. at 531 (Stewart, J., dissenting); DeFunis v. 

Odecaard, 416 U.S. at 343 (Douglas, J., dissenting); Posner,

The DeFunis Case and the Constitutionality of Preferential . 

Treatment of Racial Minorities, 1974 Sup. Ct. Rev. 1, 17 & 

n.35. The most powerful role models are those who have succeeded 

without a hint of favoritism. Henry Aaron would not be regarded 

as the all-time home run king, and he would not be a model for 

vouth, if the fences had been moved in whenever he came to the 

plate.

There are ether, better ways for the schools to provide role 

models for minority youth. Any discrimination against minority 

teaching applicants can and should be stamped out. Minority 

group members who have achieved success in various walks of life 

can be invited and encouraged to visit the schools and to discuss 

their careers and the students' aspirations. Courses of study 

can be developed so as not to overlook the notable contributions 

of minorities. The schools can and should ensure that teachers, 

of whatever race, are sensitive to the special needs of minority 

students. In view of these alternatives, the Jackson lay-off 

quota is net necessary to provide minority role models, and it 

accordingly cannot be justified on this ground. Palmore, slip 

cp. 4; Bakke, 438 U.S. at 314-315 (opinion of Powell, J.). At 

the very least, the beard has failed to carry its burden of 

showing a compelling educational neec for its particular program, 

which (a) treats all "minority" and nonminority teachers as 

fungible for role model purposes _/, (b) aims for statistical

paritv between the percentage of minority students ana teachers 

and (c ) in the meantime, prohibits any lay-off that would

_/ It is far from obvious that a teacher be 
the preferred minority groups is necessarily 
serving as a role model for students belongin 
preferred group than is a teacher belonging t 
group. Fcr example, is it clear that black s 
inspired .by a teacher of Chinese or Japanese 
teacher of Jewish or Lebanese heritage?

longing to one of 
any more capable of 
g to another 
o a disfavored 
tudents will be more 
ar.cestrv than by a



27

decrease whatever percentage of minority teachers happens to have

been achieved at the time when lay offs become necessa.y.

The roie-mocel justification also beckons down forbidden 

paths. It is an argument for quotas in every profession and 

occupation, for minority students properly aspire to careers in 

every walk of life. Indeed, the logic of the role-model argument 

might serve to justify segregated classrooms. If the educational 

development of minority students urgently demands the presence in 

their schools of minority teachers to serve as role models indeed 

demands the presence of minority teachers in mathematical proportion 

to the racial composition of the student body then it is not easy 

to see why minority students would not be served best if they 

were actually taught by minority teachers. These dangerous 

implications are underlined by the fact that the role-mocel 

argument or variants of it have frequently been advanced as a 

defense bv school boards charged with illegally segregating 

minority teachers in predominantly minority schcois. _/ -'Or 

example, in Smith v . Board of education, 365 : . 2d 770 (3th Cir . 

1966), the school board argued that it could legally prerer white 

teachers to instruct white pupils because "rapport between

teacher and oupii * * * may be unattainable wr.ere they a^e of

different races and this diff erer.ce a£ £ects attitudes, personal

philosophies and prejudices." Id. at 781. The court, m  an 

opinion by then Judge Elackmun, rejected this argument in 

unequivocal terms (id. at 782).
3 . The lower courts also justified the Jackson measure as a

cure for "subs tantial and chronic underrepresentat

/ See, e .a ., Reed v. Rhodes, 607 F . 2d 714 (6 th
cert . denied, 445 U.S. 935 (1980); United States v
D 1st rict, 521 F . 2d 530 (8th Cir.), cert, denied, 4
( 19 7 5) ; Morcan v. Kerrigan, 509 F.2d 580 (1st Cir. 1974 ), cer.. 
denied, 421 U.S. 963 (1975); 01 iver v . Micnican Sta^e Bos.c 
Zcucat ion, 508 F .2d 173 (6th Cir. 1974), cert, denied, 421_U,.S. 
963 (1975); Arthur v . Nyquist, 415 F . Supp. 904 (W.D.N.T. 1976), 
aff'c in part and rev'a in part, 573 F.2c i34 (2c Cir.), cert, 
denied, 439 U.S. 860 (1378).



2 3

minority teachers. But the use of racial classifications for the 

sole purpose of curing statistical underrepresentation (or, in 

Dlainer terms, imposing quotas) is proscribed by the Fourteenth 

Amendment. As Justice Powell concluded in Bakke (438 U.S. at 

307): "Preferring members of any one group for no reason other

than race or ethnic origin is discrimination for its own sake. 

This the Constitution forbids." _/

C. 1. Finally, the lower courts justified the Jackson 

measure as a means to redress "societal discrimination." We 

readily agree that providing a remedy for individual victims of 

discrimination is a compelling interest, but measures granting 

preferences' to ail members of a few minority groups cannot be 

justified in the name of compensation of "societal 

discrimination."

In the first place, such measures are compensatory or 

remedial in name only. Because the Equal Protection Clause 

orctects oersonal not group rights, a measure cannot oe fairly 

characterized as a remedy for a violation of equal protection 

unless it provides relief to an individual who was personally 

victimized by discrimination. Nor can a measure oe termed 

remedial if the benefit conferred is not m  some way measured by 

the nature and extent of the prior violation. When benefits do 

not corresoond to any identified prior wrong and are not directed

/ In relying upon what they viewed as chronic underrepre­
sentation of minority teachers to justify the Jackson lay-ofr 
cucta, the lower courts were apparently confused by Jr. i tec 
Steelworkers v. Weber, 443 U.S. 193 (1979), m  which tr.e Court

Riants Act of 1964 was notneia mac ’itle VII of the Civ:
violated bv a orovisior. in a private-sector collective bargaining 

granting racial preferences in a craft-training 
Weber, by its own terms, however, has no application in

ag reei.e 
prcgra

involve state action ana thus 
ed violation of the Equal Protection 

Moreover, even if applicable, Weber would 
s' decisions in this case because the 
he oercer.tage of minority teachers m  

the work force exceeded the percer.tace on the Jackson faculty 
(compare Weber , 44 3 U.S. at 193-199). In addition, m  t m s  case,

1 acial preference caused the discharge of 
.tv emolevees

the present case because
did "not or 0 5 0 r. u an alleg
Clause" (id . a Z 200). Mo
not support the lower cou
record cces ’■nr show that

un11xe *eo 
i nnocen t r. in-mino: comoare id. at 203).



to the victim of such a wrong, they cannot in any meaningful 

sense be termed compensatory or remedial.

For essentially the same reasons, categorical preferences 

can never be regarded as precisely tailored to remedy 

discrimination. Such measures are fatally under inclusive because 

the grouDS usually singled out for preferential treatment are 

not the only groups that have been discriminated against in this 

country." Posner, The Bakke Case and the Future of "Affirmative 

Action," 67 Cal. L. Rev. 171, 176 (1979). See also J. Fishkm, 

Justice, Equal Opportunity and the Family 9S-99 (1983); J. 

Wilkinson, From Brown to 3akke 278-279 (1979). Categorical 

preferences are also impermissibly over inclusive because "[i]n 

today's society, it constitutes far too gross an over­

simplification to assume that every Negro, Spanish-speaking 

citizen, Oriental, [or] Indian * * * suffers from the effects of 

oast or present racial discrimination." Fullilove, 443 U.S. at 

530 n.12 (Stewart, J., dissenting); see also id. at 537-538, 546 

(Stevens, J., dissenting). Indeed, it is one of the ironies of 

racial oreferer.ces that these who benefit are se_dcm the mest 

disadvantaged. Many minority group members and some minority 

grouDS as a whole have now surpassed the residual category c_ 

"whites" in income, education, and ether measures of success. _/ 

Furthermore, many individuals given preference under affirmative 

action plans, while perhaps disadvantaged in some respects, are 

not even the indirect victims of discrimination in this 

country. This is often true of recent immigrants who happen to 

fail into one of the preferred groups.

Precise tailorino r ecu ires that the remedy fit a proven 

violation of law. See, e.o., Davtcna Board of education v .

- 29 -

_/ This is true, for 
Americans, groups that 
are included among the 
lay-off cuota. See T. 
49 , 187 (*1983).

examoie, of Chinese- and Japanese- 
suffered severe de jure discriminat 
minorities given preference in the 
Sowell, The economics and Politics

:<s:



30

Brinkman, 433 U.S. 406, 420 (1977); Milliken v . 3radlev, 41S U . S . 

717, 738, 746 (1974). (An equal protection remedy is 

"necessarily designed * * * to restore the victims or 

discriminatory conduct to the position they would have occupied 

in the absence of such conduct"). This means, as Justice Stewart 

stated in Fullilove (448 U.S. at 530 n.12), that ”[e]xcept to 

make whole the identified victims of racial discrimination, the 

guarantee of equal protection prohibits the government from 

taking detrimental action against innocent people on the basis of 

the sins of others of their own race." Justice Stevens 

recognized the same principle in Fulli] 

at 541) that the statutory preference '

■e whe n he observed (id

.nnot be justified as a

been "wrongfully

acts . /excluded from the market for public contracts." _/

No other remedial principle is compatible with the cardinal 

rule that Government may neither favor nor disadvantage a person 

solelv because of race or ethnicity. When government provides 

comoer.sation to individual victims, government is not itse_r 

making or implementing a racial classification. The ciass of

/ In Fullilove, neither the piura., e

:he Co 
;et-

.ity opinion nor tha 
justice Powell approved the award of benefits to ncn-vic 
the exoer.se of innocent third parties. In the plurality 
the Chief Justice stressed (443 U.S. at 436) that 
considering only a facial challenge to the minority 
orovision and that equal protection claims arising out o 
specific awards that "cannot be justified * * * as a rem 
present effects of identified prior discrimination * * * 
await future cases." The Chief Justice also emphasized

that a preference should be given tCcnaress's mtentic
loose firms "whose comoetitive oositu imoairerpr!

t ims 
cpi 

urt
a s i a 
*-
edy 1 
mu s i

o on' 
he

nion,
was
e

effects of disadvantage and discrimination" (id. at 471; see also 
id. at 464) and that the administrative process would prevent 
misaopiications of Congress's goals (id. at 437-489). Tne 
Fullilove plurality did not suggest that the statute at issue in 
that case, which may have ”pres[sed] the outer limits cf 
cong r es s icr.a 1 authority" ( id. at 490), would have been upheld had 
it extended ©references to firms based solely on race rather tnan 
their "impaired * * * competitive position" resulting from the 
"□resent effects of past discrimination" in government 
construction contracts. None cf these factors is present 
here. Petitioners were personally and substantially harmed oy 
the lay-off ouota, and no effort whatsoever was made to inquire 
whether these ©referred at petitioners' expense were the actual 
victims cf discrimination or disadvantage.



31

victims compensated may all be members of the same racial or 

ethnic group, but this is merely because the guilty party's 

unlawful behavior was defined by race.

Nor does any other remedial principle pay sufficient heed to 

the rights of innocent parties. Although a valid remedy for 

individual discrimination may require some sharing of the burden 

bv innocent parties Fullilove, 448 U.S. at 484 (plurality),

(Franks v . Bowman Transportation C o ., 424 U.S. 747, 777 (i976); 

Albemarle PaDer Co. v. Moody, 422 U.S. 405 (1975) ) , such 

individuals will simply be placed in the situation that would 

have existed had the discrimination not occurred. 3ut un.ess a 

remedy benefits an actual victim of discrimination, the 

government has [no] greater interest m  helping one individua- 

than in refraining f corn harming another" ( 3 a k k e , 438 U.S. a u 309 

(opinion of Powell, J)). _/
2. The Jackson measure cannot be justified as a means or 

orovidi.oa comoensstion for individual victims or discrimination. 

Neither the school board nor the courts bsicw found that the 

beard had ever engaged in discrimination. The absence cl such a 

finding alone requires the invalidation of the lay-off quota. 

Bakke, 438 U.S. at 302-310 (opinion of Powell, J.); see a*so 

Bushev v. New York State Civil Service Ccmmiss ion, No. 8^-3 36

/ The same remedial principle guiced the Court in its rscer.i. 
decision regarding the scope of a federal court's remedial 
authority under Title VII of the Civil Rights Act of 196-,, ^2 
U.S.C. 2000e et sec. See Firefighters Local Union No. 1784 v. 
Stotts, No. 82-206 (June 12, 1984). With much the same values 
and interests at stake, the Court ruled that the pc.icy bemr.d 
the remedial orovision of Title VII, Section 706(g), 42 U.S.C. 
2000e-5(g), is to "provide make-whole relief only to tnose who 
have been actual victims of discrimination." Stotts, s±ip^op. 
16-17; see also Teams t e r s v . United States, 431 U.S. 324, 367-371 
(1977). This holding is particularly instructive since Title VIi 
hes been held to allow greater leeway for racial preferences than 
would be permittee for an entity subject to tr.e Fou r •_ ee n t h ̂
Ajti encment. See United Steel'workers v • Weber r suers . j us t ics 
O ’Conner implicitly pointed out the
when she wrote in Stotts (concurrina slio o c . at 5 (emonasis

precedent, that "[a] court may u 
to prevent future violations and 
of unlawful discrimination."

the breacth ■
L. slip op
no Fourteent
s 0 its remed
to comoensa

• — -k k k



32

(Jan. 8, 1985) (opinion of Rehnquist, J . ,  3urger , C.J., and 

White, J., dissenting from denial of certiorari), at 4.

Furthermore, the board does not have the constitutional 

competence to make a finding that justifies the use of a racia. 

classification for remedial purposes. Like the Regents in Bakke, 

the 3oard's "mission is education, not the formulation of any 

legislative policy or the adjudication of particular claims of 

illegality." Bakke, supra, 438 U.S. at 309 (opinion of Powell, 

J.). Factfinding by a state or local entity also cannot be 

equated with that of Congress because, among other things, the 

states are not granted the enforcement pcwer under Section 5 or 

the Fourteenth Amendment that many members of the Court found 

important in upholding the Act of Congress challenged m  

Fullilove. See 443 U.S. at 476-478, 483, 490-491 (plurality 

o d inion; id. at 499-502 (opinion of Powell, J.); see also 

Hampton v. Mow Sun Wonc, 426 U.S. 88 (1976); 3ushey, dissenting 

slip op. at 4.

A court of equity may of course make a finding of racial 

discrimination, but no such finding could be made on the record 

in this case. The lower courts relied exclusively on statistics 

showing that there was a difference between the percentage of 

minority teachers and students during a brief span of years more 

than a decade ago. This difference, however, might have resulted

from any of numerous innocent causes and unquestionably does not 

show the discriminatory intent needed to establish an ocual 

Protection Clause violation. Hazelwood School District v. United 

States, 433 U.S. at 299, 308 (1977); Village of Arlington Heights 

Metropolitan Housing Development Core., 429 U.S. 252, 270 (1977); 

Washington v . Dav i s , 426 U.S. 229, 243 (1976); Jancwiak v .

City of South Bend, 750 F.2c 557, 564 (7th Cir. 1985).

More fundamentally, as we have shown, even a finding that 

there had been oast discrimination against some individuals would

not suooert a ca t rricai racial and ethnic oreferer.ee such as



33

that contained in the Jackson agreement. No findings/ then, can 

justify the challenged Jackson measure. Even if the board or 

lower courts had found a constitutional violation (and they did 

not) and even if they were to find such a violation on remand 

(and they could not on the present record) the Jackson quota 

could not be supported. A clear ruling by the Court on this 

issue would avoid pointless proceedings on remand and provide 

much needed guidance to lower courts struggling with similar 

problems.

CONCLUSION

For the foregoing reasons, the judgment below should be 

reversed.

Respectfully submitted.

CHARLES FRIED
Acting Solicitor General

WM. BRADFORD REYNOLDS
Assistant Attorney General

CHARLES J. COOPER
DeDutv Assistant Attorney General

SAMUEL A. ALITO, JR.
Assistant to the Solicitor General

WALTER W. 3ARNETT 
DAVID K. FLYNN 
MICHAEL CARVIN 

Attorneys

JUNE :935