416 CHAPTER 13|CIVIL RIGHTS
Affi rmative action has been a controversial policy. Many whites view it as
“preferential treatment” and “reverse discrimination.” Polls indicate that minori-
ties are much more supportive of the practice than whites. A majority of whites
support more passive forms of affi rmative action, such as “education programs to
assist minorities in competing for college admissions” but draw the line at prefer-
ences, even when they are intended to make up for past discrimination.^60
The Supreme Court has helped defi ne the boundaries of this policy debate. The
earliest cases concerning affi rmative action in employment upheld preferential
treatment and rigid quotas when the policies were necessary to make up for past dis-
crimination.^61 In each instance there had been a previous pattern of discrimination
and exclusion. Then in 1989 the Court started moving in a “color-blind” direction
concerning “set-aside” programs in government contracting. In 1983 Richmond,
Virginia, began requiring contractors who had won city construction contracts to
subcontract at least 30 percent of the work to minority-owned businesses. After a
white business owner sued, the Court ruled that set-asides were unconstitutional
without evidence of discrimination against minorities and that any such programs
had to be “narrowly tailored to meet a compelling state interest.”^62 The same rea-
soning was applied to federal contracting set-aside programs in 1995.^63
The Court applied a similar line of analysis to an important reverse-
discrimination employment case in 2009. In that case, 17 white fi refi ghters and
one Hispanic fi refi ghter sued the city of New Haven, Connecticut, for throwing out
the results of a test that would have been used to promote them. The city tried to
ignore the test results because no African American fi refi ghters would have quali-
fi ed for promotion and the city feared a “disparate impact” lawsuit. However, the
Court ruled that the exam did appear to be “job related and consistent with busi-
ness necessity” (as required by Section VII of the Civil Rights Act) and that unless
the city could provide a “strong basis in evidence” that it would have been sued, it
had to consider the results of the exam.^64
The landmark decision for affi rmative action in higher education is University
of California Regents v. Bakke (1978).^65 Allan Bakke, a white student, sued when
he was denied admission to medical school at the University of California, Davis,
in successive years. Bakke’s test scores and GPA were signifi cantly higher than
those of some minority students who were admitted under the school’s affi rmative
action program. The Supreme Court agreed with Bakke that rigid racial quotas
were unconstitutional but allowed race to be used in admissions decisions as a
“plus factor” to promote diversity in the student body.
In two 2003 cases from the University of Michigan, the Court’s rulings were
consistent with Bakke, saying that the law school’s “holistic approach” that con-
sidered race as one of the factors in the admission decision was acceptable but
that the University of Michigan’s more rigid approach, which automatically gave
minority students 20 of the 100 points needed to guarantee admission, was unac-
ceptable.^66 Though these two decisions affi rmed Bakke, it was the fi rst time that
a majority of the Court clearly stated that “student body diversity is a compelling
state interest that can justify the use of race in university admissions.”^67MULTICULTURAL ISSUES
Issues involving the multicultural, multiracial nature of American society will
become more important as whites cease to be the majority of the population by
mid-century. Two key issues are English as the offi cial language and immigration.