10. Recent developments in the US: has the tide changed?


We may usefully look at recent developments in the field of affirmative action in the United States, since these point up a revisionary trend that will probably severely limit the use of this legal mechanism in coming years. In a case decided in June 1995 (1) the U.S. Supreme Court confirmed a restricting trend first established in 1989 by the Croson case (2); in considering the lawfulness of a federal agency's contract that contained a subcontractor compensation clause, which gave a prime contractor a financial incentive to hire subcontractors certified as small businesses controlled by socially and economically disadvantaged individuals, the Court made use of the strict scrutiny standard. The reason is that every preference based on racial or ethnic criteria must be justified by a compelling governmental interest and be narrowly tailored to furtherance of that interest, since it is prima facie against constitutional provisions establishing the principle of equality (V amendment in case of federal action, and XIV in case of state action), and the proof of so-called "benign" discrimination must be carefully evaluated by courts (3).

By emphasizing the need for strict judicial scrutiny, the court indirectly limited the use of affirmative actions, since fear of inability to satisfy the heavy burden of proof and of liability for heavy damages in case of failure will probably restrain both public and private employers from using this legal device.

Besides, there are further signs that this attitude is expanding in wider legal circles. A panel of the U.S. Court of Appeals for the fifth circuit has unanimously declared the Bakke decision no longer valid law (4), and has struck down a special admission programme to the University of Texas Law School which sought to ensure the presence of racial minorities in their student population (5). The case is not yet finally settled, since the Supreme Court has refused to grant certiorari (6). Nevertheless, this is a clear sign that affirmative actions are under fire not only in the sector of job recruitment and promotion, but even in a sector in which they have been traditionally (even if conditionally) considered lawful, namely university admission programmes (7).


(1) Adarand Constructors v. Pena, 115 S. Ct. 2097 (1995). S. G.S. Janoff, "The Supreme Court requires strict equal protection scrutiny of federal government affirmative action programs. (Case note)", (1995) 69 Tulane L. Rev. 1689-1702; S.M. Ashar, L.F. Opoku, "Justice O'Connor's blind rationalization of affirmative action jurisprudence. (Case note)", (1996) 31 Harv. Civ. Rights-Civ. Liberties L. Rev., 223-240.
(2) Richmond v. Croson, 488 U.S. 469 (1989). S. D.M. O'Brien, Constitutional Law and Politics, vol. II (Civil Rights and Civil Liberties), (New York, 1995), at 1378: "By the end of the 1980s (...) the Rehnquist Court signaled an abrupt shift in analysis and approach toward challanges to affirmative action programs, registering the impact of President Ronald Reagan's appointees to the Court, and in particular Justice Kennedy's appointment in 1988 in the seat previously occupied by Justice Powell".
(3) In Adarand, as in the Johnson case, we find a strong dissenting opinion by Justice Scalia; he agrees with the majority opinion that a strict scrutiny standard is required in evaluating affirmative actions, but he believes that government can never have a compelling interest in discriminating on the basis of race: "In the eyes of government, we are just one race here. It is American" (pp. 1-2). Justice Scalia therefore adheres to a strictly formal meaning of the principle of equality.
(4) Hopwood et al v. State of Texas et al., docket 94-50664, March 18, 1996 (5th cir. 1996). S. New York Times, March 21, 1996, p. A 1; id., March 22, 1996, p. A 26.
(5) The programme, like most plans of this kind, admitted students belonging to racial minorities who attained lower grades and test scores than white applicants; it did not fix rigid quotas, though, and in 1992 8% of black and 10.7% Hispanic candidates were admitted, as opposed to a statewide population respectively of 11.6 % and 25.6%.
(6) Note that in the meantime a seven-year federal investigation had been concluded on the special admission programme of the University of California at Berkeley, and the programme was declared legal. From a political point of view it must be remembered that all three judges that composed the panel of the Court of Appeals were appointed by Presidents Reagan and Bush, while the Education and Justice Department conducting the investigation were under the control of a Democrat administration. In California, a so-called Civil Rights Initiative is seeking to ban affirmative action in state government and state universities, and will probably be on the ballot in the fall of 1996. As for the coming Presidential elections, Clinton has stated that he will allow some preferential policies, while Dole has sponsored legislation to ban them. S. New York Times, March 22, 1996, A 12; id, March 21, 1996, D 24.
(7) "We agree with the plaintiffs that any consideration of race or ethnnicity by the law school for the purpose of achieving a diverse student body is not a compelling interest under the 14th amendment"; s. New York Times, March 21, 1996, D 24. The American newspaper adds some remarks by Laurence Tribe, a leading Harvard professor of constitutional law, who is critical of the extension to university admission of rules elaborated in different fields, like job recruitment.