 |
Abstract
Adarand Constructors, Inc. v. Pena ___ U.S ___ 115
S.Ct. 2097 (1995), held that, federal affirmative action programs are subject
to the same standard of review, strict scrutiny, that City of Richmond v.
J.A. Croson Co., 488 U.S. 469 (1989), applied to state and local
affirmative action measures. However, Congress may be entitled to greater
deference in its affirmative action measures than state and local governments.
Although Adarand involved contracting, it appears that strict scrutiny
will now be applied by the courts in reviewing the federal government's use of
race-based criteria in health, education, hiring, and other programs as well.
The Supreme Court in Adarand dispelled any suggestion that it was
implicitly holding unconstitutional all federal affirmative action measures
utilizing racial or ethnic classifications. A majority of the Justices
rejected the proposition that "strict scrutiny" of affirmative action measures
means "strict in theory, fatal in fact," and agreed that "the unhappy
persistence of both the practice and the lingering effects of racial
discrimination against minority groups in this country is an unfortunate
reality, and government is not disqualified from acting in response to it."
Adarand, 115 S.Ct. at 2117.
Although the Adarand case represents a significant
change in the affirmative action landscape, its immediate effects upon
existing federal affirmative action procurement programs are minimal. The Adarand
case establishes the standard of review under which courts are required to
consider the constitutionality of affirmative action programs. However, the
case did not decide the constitutionality of a single affirmative action
program. Accordingly, the status quo of the federal government's affirmative
action procurement programs will remain unchanged until they are individually
challenged in the federal courts by private citizens or companies, or
reconsidered by the federal government.
According to the Department of Justice, Adarand makes
it necessary to evaluate federal programs that use race or ethnicity as a
basis for decision making to determine whether they comport with the strict
scrutiny standard. No affirmative action program should be suspended prior to
such an evaluation. DOJ Memorandum, p. 34. The information gathered by many
agencies in connection with the President's recent review of affirmative
action programs should prove helpful in this regard. Id
|
|
You must have the free Adobe Acrobat Reader 4.0 (or greater) installed in your
computer in order to view or print this paper. It is available as a free
download from the Adobe Web site. If you do not have Acrobat Reader installed,
click the link to the left to download it. If a menu window opens before the paper, choose the "View"
option.
|
