3 6 7T h e L a w o f D i s c r i m i n a t i o nindividuals may be asked to suffer otherwise impermissible burdens in or-
der to enhance the societal standing of their ethnic groups. Second, preferen-
tial programs may only reinforce common stereotypes holding that certain
groups are unable to achieve success without special protection based on a
factor having no relationship to individual worth.... Third, there is a meas-
ure of inequity in forcing innocent persons in respondent’s position to bear
the burdens of redressing grievances not of their making.
Petitioner contends that on several occasions this Court has approved
preferential classifications without applying the most exacting scrutiny.
Most of the cases upon which petitioner relies are drawn from three areas:
school desegregation, employment discrimination, and sex discrimination.
Each of the cases cited presented a situation materially different from the
facts of this case.... [W]e have never approved preferential classifications
in the absence of proven constitutional or statutory violations.... When a
classification denies an individual opportunities or benefits enjoyed by oth-
ers solely because of his race or ethnic background, it must be regarded as
suspect....Excerpts from Justice Brennan’s opinion:... Unquestionably we have held that a government practice or statute
which restricts “fundamental rights” or which contains “suspect classifica-
tions” is to be subjected to “strict scrutiny” and can be justified only if it
furthers a compelling government purpose and, even then, only if no less
restrictive alternative is available.... But no fundamental right is involved
here.... Nor do whites as a class have any of the “traditional indicia of sus-
pectness: the class is not saddled with such disabilities, or subjected to such
a history of purposeful unequal treatment, or relegated to such a position
of political powerlessness as to command extraordinary protection from the
majoritarian political process.”...
[The] fact that this case does not fit neatly into our prior analytic frame-
work for race cases does not mean that it should be analyzed by applying
the very loose rational-basis standard of review that is the very least that is
always applied in equal protection cases....
[B]ecause of the significant risk that racial classifications established
for ostensibly benign purposes can be misused, causing effects not unlike
those created by invidious classifications, it is inappropriate to inquire only
whether there is any conceivable basis that might sustain such a classifica-
tion. Instead, to justify such a classification an important and articulated
purpose for its use must be shown. In addition, any statute must be stricken
that stigmatizes any group or that singles out those least well represented in
the political process to bear the brunt of a benign program. Thus our review
under the Fourteenth Amendment should be strict—not “‘strict’ in theory
and fatal in fact,” because it is stigma that causes fatality—but strict and
searching nonetheless....
97364_ch18_ptg01_351-382.indd 367 15/11/13 11:38 AM
some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materiallyCopyright 201^3 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights,
affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it.