108 PART onE • THE AmERiCAn sYsTEm
Reverse Discrimination
Discrimination against
individuals who are not
members of a minority
group.
Strict Scrutiny
A judicial standard
for assessing the
constitutionality of a law
or government action
when the law or action
threatens to interfere with
a fundamental right or
potentially discriminates
on the basis of race.Affirmative Action
In 1965, President Lyndon Johnson issued Executive Order 11246, which mandated affir-
mative action policies to remedy the effects of past discrimination. All government agen-
cies, including those of state and local governments, were required to implement such
policies. Additionally, affirmative action requirements were imposed on companies that
sell goods or services to the federal government and on institutions that receive federal
funds, such as universities. Affirmative action policies were also required whenever an
employer had been ordered to develop such a plan by a court or by the Equal Employment
Opportunity Commission because of evidence of past discrimination. Finally, labor unions
that had been found to discriminate against women or minorities in the past were required
to establish and follow affirmative action plans.
Affirmative action programs have been controversial because they allegedly result in
discrimination against “majority” groups, such as white males (or discrimination against
other minority groups that may not be given preferential treatment under a particular affir-
mative action program). At issue in the current debate over affirmative action programs is
whether such programs, because of their discriminatory nature, violate the equal protec-
tion clause of the Fourteenth Amendment to the Constitution.The Bakke Case
The first United States Supreme Court case addressing the constitutionality of affirmative
action examined a program implemented by the University of California at Davis. Allan
Bakke, a white student who had been turned down for medical school at the Davis cam-
pus, discovered that his academic record was better than those of some of the minority
applicants who had been admitted to the program. He sued the University of California
regents, alleging reverse discrimination. The UC Davis Medical School had held sixteen
places out of one hundred for educationally “disadvantaged students” each year, and the
administrators at that campus admitted to using race as a criterion for admission for these
particular slots.
In 1978, the Supreme Court handed down its decision in Regents of the University of
California v. Bakke.^12 The Court did not rule against affirmative action programs. Rather,
it held that Bakke had to be admitted to the UC Davis Medical School because its admis-
sions policy had used race as the sole criterion for the sixteen “minority” positions. Justice
Lewis Powell, speaking for the Court, indicated that while race can be considered “as a
factor” among others in admissions (and presumably hiring) decisions, race cannot be the
sole factor. So affirmative action programs, but not specific quota systems, were upheld as
constitutional.Additional limits on Affirmative Action
A number of cases decided during the 1980s and 1990s placed further limits on affirma-
tive action programs. In a landmark decision in 1995, Adarand Constructors, Inc. v. Peña,^13
the United States Supreme Court held that any federal, state, or local affirmative action
program that uses racial or ethnic classifications as the basis for making decisions is subject
to strict scrutiny by the courts. Under a strict-scrutiny standard, to be constitutional, a
discriminatory law or action must be narrowly tailored to meet a compelling government12. 438 U.S. 265 (1978).
13. 515 U.S. 200 (1995).
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