The Language of Argument

3 6 8

C H A P T E R 1 8 ■ L e g a l R e a s o n i n g

Legal Developments Since Bakke

The legal story of affirmative action gets very complicated after the Bakke

decision. Because of the split within the Court, it was not clear which parts,

if any, of Powell’s opinion had force as precedent. It was also not clear which

kinds of programs were close enough to the Harvard program that Powell

endorsed; and it was not clear how to extend Powell’s emphasis on diversity

in education to other areas, such as employment and government contracts.

As a result, some affirmative action programs were struck down and others

were upheld while commentators scrambled to explain the underlying pat-

tern and rationale for the Court’s decisions.

The year after Bakke, in United Steelworkers of America v. Weber, 445 U.S. 193

(1979), the Supreme Court upheld a preferential treatment quota in employ-

ment. Later, in Richmond v. J. A. Croson Co., 488 U.S. 469 (1989), the Court

struck down a local program that set aside a specified percentage of mu-

nicipal contracts for minority-controlled firms. Then, in Metro Broadcasting

v. FCC, 497 U.S. 547 (1990), the Court allowed a Federal Communications

Commission “distress sale” policy that permitted a broadcaster whose

license or renewal application has been designated for a revocation hearing

to sell the license to a buyer if, but only if, that buyer is at least 50 percent

minority-owned. Of course, the majority opinions gave reasons for each de-

cision, but dissents were common and fierce, and it was hard to see how the

pieces of the puzzle fit together.

The law was somewhat clearer in college admissions. As Justice O’Connor

put it, “Since this Court’s splintered decision in Bakke, Justice Powell’s opin-

ion announcing the judgment of the Court has served as the touchstone for

constitutional analysis of race-conscious admissions policies. Public and

private universities across the nation have modelled their own admissions

programs on Justice Powell’s views on permissible race-conscious poli-

cies.” Still, there was great uncertainty about exactly which kinds of admis-

sions programs were allowed by Powell’s reasoning in Bakke. Some critics

also held that the precedent of Bakke should be overturned or disregarded,

and the Court should hold, instead, that all race-conscious programs are

unconstitutional.

This issue came to a head in 2003, when the Court considered two very

different kinds of admissions programs practiced at the University of Michigan

under its president, Lee Bollinger (hence the names of the following cases).

Michigan’s Law School admissions program was very much like the

Do you agree with Powell or with Brennan in their debate about whether strict

scrutiny should be applied to affirmative actions programs in admissions?

Why?

Discussion Question

97364_ch18_ptg01_351-382.indd 368 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.