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AFFIRMATIVE ACTION OR REVERSE DISCRIMINATION: TRICK OR TREAT?
Professor Thomas E. Baker
Drake University Law School
JURIST Guest Columnist

The Justices of the U.S. Supreme Court do not seem to know how to go about answering the question whether affirmative action programs are constitutional. They do not even know how to pick the right case. But deciding which cases to decide is every bit as important as deciding them.

On Halloween, the High Court will hear oral argument in Adarand Constructors, Inc. v. Mineta, No. 00-730. It was brought by a subcontractor who was the lowest bidder but who lost out to a rival subcontractor who was a 泥isadvantaged Business Enterprise, a firm owned and controlled by socially or economically disadvantaged individuals. This marks the third time this case will be argued before the Justices. But it is the wrong case to decide the issue for three reasons.

First, there are procedural problems with this case. The bidding and contracting were way back in 1989 and those statutes and those DOT regulations have been revised by Congress and the Department. Indeed, at one point, the complaining subcontractor was designated a DBE under the new provisions. Furthermore, the lower courts confused the policies that apply when the DOT itself lets a contract to build a federal highway over federal lands-which figured in the original case and represents less than 1 percent of federal highway construction-with the more general policies and procedures that apply when state and local governments use federal funds to build federal highways. Even the Solicitor General admits in his brief for the Government 妬t is not clear that there remains any cognizable controversy before the Court.

Second, the Justices already have had their say about this case. The first time the case was before them, the Court held that all racial classifications imposed by the federal government must satisfy 都trict scrutiny analysis, by which the court determines if the classification is 渡arrowly tailored to serve a 田ompelling governmental interest. Adarand Constructors, Inc. v. Pea, 515 U.S. 200 (1995). Justice O辰onnor痴 opinion for the Court explicitly proclaimed that it was possible for these kind of programs to pass constitutional muster. Now that the Tenth Circuit on a second remand has ruled in favor of the DBE subcontractor preferences, what is left to decide? Just how strict is strict scrutiny? That seems like asking how many Justices can dance on the head of a pin.

Third, and most important: this is the wrong kind of case. In the grand constitutional scheme of things how important is the subcontract to install guardrails on a stretch of highway near West Dolores, Colorado? The Justices really need to decide a case about affirmative action in college admissions. Let痴 face it. Highway guardrails ain稚 college diplomas.

The Justices have been careful to avoid deciding that issue-too careful for too long. In 1974, by a 5-4 vote, the Burger Court dismissed a case as being moot because the law student plaintiff was about to graduate. DeFunis v. Odegaard, 416 U.S. 312 (1974). Critics noted at the time that the Court had no trouble getting around the problem of mootness the year before to reach the merits of the right to an abortion. Roe v. Wade, 410 U.S. 113 (1973). Then in the famous Bakke case they fractured 4-1-4. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978). Justice Powell痴 enigmatic middle-of-the-Court opinion struck down the California-Davis medical school痴 admissions program and seemingly endorsed programs like the one at Harvard University. There followed a series of decisions that tacked back-and-forth on the issue of affirmative action generally, perhaps best exemplified by an 妬t-is-for-us-to-know-and-you-to-find-out opinion penned by Chief Justice Burger explaining that the Justices could not agree on a standard but that the challenged federal program satisfied whatever level of scrutiny and any equal protection test anyone wanted to apply. Fullilove v. Klutznick, 448 U.S. 448 (1980).

The Rehnquist Court certainly has been ducking the issue. They denied review of a Fifth Circuit case that invalidated the admissions program at the University of Texas law school, even going so far as to deny review a second time after the lower courts on remand obviously had tried to set up a grant of certiorari. Hopwood v. Texas, 78 F.3d 932 (5th Cir.), cert. denied, 518 U.S. 1033 (1996); Hopwood v. Texas, 236 F.3d 256 (5th Cir. 2000), cert. denied, 121 S.Ct. 2550 (2001). This year they denied review in a Ninth Circuit case that upheld the admissions program at the University of Washington law school. Smith v. Univ. of Wash. Law School, 233 F.3d 1188 (9th Cir. 2000), cert. denied, 121 S.Ct. 2192 (2001). The next case that will be knocking on the Supreme Court痴 door is an appeal from the Eleventh Circuit striking down the admissions policies at the University of Georgia in August of this year. Johnson v. Bd. of Regents Univ. Ga., 263 F.3d 1234 (11th Cir. 2001).

The Equal Protection Clause cannot have different meanings in different parts of the country-there are no time zones in the Fourteenth Amendment. Sooner or later there will be the necessary four votes to grant certiorari. Indeed, the Justices may find it difficult to dodge a pair of cases heading their way which involve the University of Michigan. In a rare move, the Sixth Circuit has bypassed the usual three-judge panels to consolidate two separate appeals and has scheduled oral argument for the first week in December: in one the district judge ruled the University痴 admissions policies were constitutional but in the other a different district judge ruled that the Law School痴 admissions policies were unconstitutional. Gratz v. Bollinger, 122 F. Supp. 2d 811 (E.D. Mich. (2000) (Duggan, J.) and Grutter v. Bollinger, 137 F. Supp. 2d 821 (E.D. Mich. 2001) (Friedman, J.), en banc hearing granted (6th Cir. Oct. 19, 2001) (Order posted online at http://pacer.ca6.uscourts.gov/notices/main.php).

The Justices should just 泥IG the Adarand case-電ismissed as improvidently granted-and grant one of the college admissions cases. Which of the 80 cases they will decide this year is more important? 展e the People have the right to expect an answer from our highest Court on this important and difficult issue.


Thomas E. Baker is the James Madison Chair in Constitutional Law and the Director of the Constitutional Law Center at Drake University Law School, Des Moines, Iowa. He welcomes comments at JURIST@law.pitt.edu

October 31, 2001

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