Affirmative Action: Justice O'Connor's Opinions

CRS Report for Congress
Affirmative Action: Justice O’Connor’s
Opinions
Charles V. Dale
Legislative Attorney
American Law Division
Summary
An examination of Justice O’Connor’s opinions reveals a gradual shift in
perspective regarding the legal and constitutional standards to be applied in evaluating
governmental affirmative action efforts, and the manner of their application in various
legal and factual settings. This report briefly surveys decisions of retiring Justice Sandra
Day O’Connor in affirmative action cases, an area where her opinions have frequently
determined the outcome.
An examination of Justice O’Connor’s opinions reveals a gradual shift in
perspective regarding the legal and constitutional standards to be applied in evaluating
governmental affirmative action efforts, and the manner of their application in various
legal and factual settings. Early on, Justice O’Connor was notably in dissent from a series
of rulings in 1986 and 1987 which narrowly approved of remedial hiring preferences for
minorities and women in statutory Title VII employment discrimination cases. These
measures were deemed by a majority of the Justices to be a proper remedy for “manifest
racial imbalance” in “traditionally segregated” job categories, if voluntarily adopted by
private employers,¹ or for entrenched patterns of “egregious and longstanding”
discrimination by the employer, if imposed by judicial decree.² In either circumstance,
however, the Court required proof of remedial justification rooted in the employer’s own
past discrimination and its persistent workplace effects. Of equal importance, all racial
preferences in employment were to be judged in terms of their adverse impact on
“identifiable” non-minority group members. But affirmative action preferences had to be
sufficiently flexible, temporary in duration, and “narrowly tailored” to avoid becoming
rigid “quotas.”³

¹ United Steelworkers v. Weber, 443 U.S. 193 (1979).
² Local 28 Sheet Metal Workers v. EEOC, 478 U.S. 421 (1986).
³ United States v. Paradise, 480 U.S. 149 (1987); Johnson v. Transportation Agency, 480 U.S.
(continued...)
Congressional Research Service ˜ The Library of Congress

The five Justice majority in those cases — Justices Brennan, Marshall, Blackmun,
Powell, and Stevens — were opposed by a minority consisting of Chief Justice Rehnquist
and Justices White and Scalia. Justice O’Connor occupied a middle ground arguably less
tolerant of affirmative action than the Brennan-Powell majority and closer to the
Rehnquist minority.⁴ Thus, she was part of a five-Justice majority, concurring in the
judgment in Wygant v. Jackson Board of Education,⁵ which struck down as an equal
protection violation a term in the contract between a local school board and its teachers
that provided protection from layoff in reverse order of seniority for minority staff newly
hired under a board-inspired affirmative action policy. Initially, Justice O’Connor’s
concurrence searched for common ground among the conflicting views of her brethren.
“In the final analysis,” she concluded, “the diverse formulations and the number of
separate writings put forth by various Members of the Court in these difficult cases do not
necessarily reflect an intractable fragmentation in opinion with respect to certain core
principles.”⁶ Ultimately, however, Justice O’Connor aligned herself with the plurality
view that “societal discrimination” will not justify voluntary affirmative action remedies
and that the layoff plan was infirm because it was overbroad and not “narrowly tailored”
to the school board’s past discrimination.
Not until 1989 did a majority of the Justices resolve the proper constitutional
standard for review of governmental classifications by race enacted for a remedial or other
“benign” legislative purpose. Disputes prior to City of Richmond v. J.A. Croson⁷ yielded
divergent views as to whether state affirmative action measures for the benefit of racial
minorities were subject to the same “strict scrutiny” as applied to “invidious” racial
discrimination under the Equal Protection Clause, an “intermediate” standard resembling
the test for gender-based classifications, or simple rationality. In Croson, an O’Connor-
led 5 to 4 majority settled on strict scrutiny to invalidate a 30% set-aside of city contracts
for minority-owned businesses (MBEs) because the program was not “narrowly tailored”
to a “compelling” governmental interest. While “race-conscious” remedies could be
legislated in response to proven past discrimination by the affected governmental entities,
“racial balancing” untailored to “specific” and “identified” evidence of minority exclusion
was impermissible.
Justice O’Connor’s opinion stressed several factors that collectively condemned the
Richmond MBE set-aside program. First, there was no specific evidence of past
discrimination, “public or private,” as it relates to the exclusion of qualified MBEs willing
to perform city contracts, and the 30% benchmark reflected a “completely unrealistic”
assumption that MBE participation in a particular trade will mirror minority
representation in the community. Second, the Richmond ordinance was flawed by “gross
overinclusiveness” in that it applied not only to blacks but also to various other groups,

³ (...continued)

616 (1987).

⁴ See Selig, Joel L., Affirmative Action in Employment: The Legacy of a Supreme Court
Majority, 63 Ind. L.J. 301, 305 n. 15 (1987) (table of voting patterns of justices).
⁵ 476 U.S. 267 (1986).
⁶ Id. at 292.
⁷ 488 U.S. 469 (1989).

Eskimos and Aleuts for example, as to whom “there was absolutely no evidence of past
discrimination.”⁸ Third, the Richmond City Council failed to “consider any alternatives
to a race-based quota” to eliminate barriers to minority participation in public contracts.
Finally, the focus on MBE availability with regard to whether a minority applicant had
actually suffered from past discrimination rendered the plan’s “waiver” provision
deficient.
Croson suggested, however, that because of its unique equal protection enforcement
authority, a constitutional standard more tolerant of racial line-drawing may apply to
Congress. This conclusion was reinforced a year later when, in Metro Broadcasting, Inc.
v. FCC,⁹ the Court upheld certain preferences for minorities in broadcast licensing
proceedings, approved by Congress not as a remedy for past discrimination but to promote
the “important” governmental interest in “broadcast diversity.” Prophetically, however,
Justice O’Connor dissented from Justice Brennan’s adoption of this more lenient
“intermediate” standard for federal affirmative action. She argued that strict scrutiny
should be applied to any race-conscious program, including those promulgated under
federal law, and that diversity as an end in itself was not a compelling governmental
interest.¹⁰
At least in formal terms, the two-tiered approach to equal protection analysis of
affirmative action did indeed prove to be short-lived. In Adarand Constructors, Inc. v.
Pena,¹¹ the Court applied “strict scrutiny” to a federal transportation program of financial
incentives for prime contractors who subcontracted to firms owned by “socially and
economically disadvantaged individuals,” defined so as to prefer members of designated
racial minorities. Although the Court refrained from deciding the constitutional merits
of the particular program before it, and remanded for further proceedings below, it
determined that all “racial classifications” by government at any level must be justified
by a “compelling governmental interest” and “narrowly tailored” to that end. But the
majority opinion, by Justice O’Connor, sought to “dispel the notion” that “strict scrutiny
is ‘strict in theory, but fatal in fact,’” by acknowledging a role for Congress as architect
of remedies for discrimination nationwide. “The unhappy persistence of both the
practices and lingering effects of racial discrimination against minorities in this country
is an unfortunate reality, and the government is not disqualified from acting in response
to it.” No further guidance is provided, however, as to the scope of remedial power
remaining in congressional hands, or of the conditions required for its exercise. The
lower federal courts continue to grapple with these unresolved issues. Bottom line,
Adarand suggests that racial preferences in federal law or policy are a remedy of last
resort, which must be adequately justified and narrowly drawn to pass constitutional
muster.
The latest chapter in the High Court’s affirmative action jurisprudence was written
at the conclusion of the 2002-03 term with rulings in the Michigan higher education

⁸ Emphasis in original.
⁹ 497 U.S. 547 (1990).
¹⁰ Id. at 607-08 (O’Connor, J., dissenting).
¹¹ 515 U.S. 200 (1995).

cases. In Grutter v. Bollinger,¹² a 5 to 4 majority of the Justices, led by Justice O’Connor,
held that the University’s Law School had a “compelling” interest in the “educational
benefits that flow from a diverse student body,” which justified its consideration of race
in admissions to assemble a “critical mass” of “underrepresented” minority students.
But in a companion decision, Gratz v. Bollinger,¹³ six Justices decided that the
University’s undergraduate policy of awarding “racial bonus points” to minority
applicants was not “narrowly tailored” enough to pass constitutional muster.
The discrepant outcomes turned on Justice O’Connor’s application of the narrow
tailoring standard, which differed from the dissenters. In Grutter, Justice O’Connor
determined that the law school program was not a quota system because its was based on
an individualized, “holistic” review of each applicant’s file, which considered race as one
of many — but not the “sole” or “exclusive” — factor in the admissions process. This
was so despite the fact that the goal was to admit a “critical mass” of minority students
— with at least one eye on the numbers — and race may be a determinative factor in some
admission decisions. In this regard, Justice O’Connor found the Law School Program
quite different from the undergraduate admissions program in Gratz, which “[did] not
provide for a meaningful individualized review of applicants” but instead “assign[ed]
every underrepresented minority applicant the same, automatic 20-point bonus without
consideration of the particular background, experiences, or qualities of each individual
applicant.”¹⁴ Accordingly, Justice O’Connor joined Chief Justice Rehnquist’s opinion for
the Court in Gratz, which held, for the same reasons as that stated in Justice O’Connor’s
concurrence, that the undergraduate program “[was] not narrowly tailored to achieve the
[asserted] interest in educational diversity.”¹⁵
The Grutter opinion in the law school case was key, however, because it enshrined
in law a much debated principle first articulated by the late Justice Lewis Powell (but
joined by no other Justice) in the 1978 Bakke case¹⁶ that state institutions of higher
learning have a “compelling” interest in enrolling a “diverse” student body that justified
nonexclusive consideration of race in admissions. Justice O’Connor had earlier hinted
at the same proposition when, in Wygant,¹⁷ she noted that “although its precise contours
are uncertain, a state interest in the promotion of racial diversity [in a student body] has
been found sufficiently ‘compelling,’ at least in the context of higher education, to
support the use of racial considerations in furthering that interest.”¹⁸ Access to education
and cross-cultural understanding among the races is critical, Justice O’Connor argued, as
is the judicial “tradition of giving a degree of deference to a university’s academic
decisions.” Moreover, Justice O’Connor stressed the role of higher education in
providing diverse, well-trained graduates for business, the military, and other
governmental institutions. “Effective participation by members of all racial and ethnic

¹² 539 U.S. 506 (2003).
¹³ 539 U.S. 244 (2003).
¹⁴ Id. at 276-77 (O’Connor, J., concurring).
¹⁵ Id. at 278.
¹⁶ Regents of the University of California v. Bakke, 438 U.S. 265 (1978)
¹⁷ Supra n. 5.
¹⁸ Citing Bakke, 438 U.S. at 311 - 15 (opinion of Powell, J.).

groups in the civic life of our nation is essential if the dream of one nation, indivisible,
is to be realized.”¹⁹ Nonetheless, the benefits of race-based affirmative action were not
without limit:
It has been 25 years since Justice Powell first approved the use of race to further an
interest in student body diversity in the context of public higher education. Since that
time, the number of minority applicants with high grades and test scores has indeed
increased. We expect that in 25 years from now, the use of racial preferences will no²⁰
longer be necessary to further the principle approved today.
Justice O’Connor’s opinion was joined by Justices Stevens, Souter, Ginsburg, and Breyer.
The O’Connor legacy for the law of affirmative action thus appears noteworthy in
two major particulars. First, with respect to constitutional norms to be applied in judging
differential classifications by race in governmental policy, Justice O’Connor was in the
vanguard of Justices — indeed, led the charge — that ultimately held that all
governmental consideration of race be subjected to the most unforgiving of judicial tests
— the strict scrutiny standard. Perhaps as important, however, as the legal concept itself
were her views as to how strict scrutiny is to be applied in various social and economic
contexts. As her jurisprudence has developed, Justice O’Connor has repeatedly
recognized since her 1995 Adarand opinion:
Strict scrutiny is not ‘strict in theory, but fatal in fact.’ . . . When race-based action is
necessary to further a compelling governmental interest, such action does not violate
the constitutional guarantee of equal protection so long as the narrow tailoring²¹
requirement is also satisfied.
But any possibly implied leniency has not necessarily led to a similar degree of tolerance
for all forms of racial line-drawing by governmental action, even for “benign” or remedial
purposes. Rather than general principle, each case appears to rest heavily on judicial
inquiry into the fact-specific setting from which the legal dispute arises. Contextual
differences, including the particular kind of governmental activity being challenged, can
be significant in evaluating the constitutionality of race-conscious affirmative action
among, for example, the areas of public employment, government contracting, admission²²
to public institutions of higher education, and election redistricting.

¹⁹ Grutter, 539 U.S. at 332.
²⁰ Id. at 343.
²¹ Id. at 326-27 (quoting Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 237 (1995).
²² See, e.g., Shaw v. Reno, 509 U.S. 630, 642 (5-4 decision) (O’Connor, J.) (held racial
gerrymandering to create majority-African-American district may violate the equal protection
clause); Bush v.Vera, 517 U.S. 952, 957 (1996) (5-4 decision) (plurality opinion) (O’Connor, J.)
(stating that racially gerrymandered redistricting creating majority-African-American and
majority-Hispanic districts violated the equal protection clause); Shaw v. Hunt, 517 U.S. 899,
901-02 (1996) (5-4 decision) (O’Connor, J., voted with majority) (holding racially gerrymandered
redistricting creating majority-African-American district violated the equal protection clause);
and Miller v. Johnson, 515 U.S. 900, 920-21 (1995) (5-4 decision) (O’Connor, J., voted with
majority) (holding racially gerrymandered redistricting creating majority-African-American
district violated the equal protection clause).

Arguably, one standout area where Justice O’Connor has perhaps most influenced
the development of affirmative action law is in higher education. Justice Powell in Bakke,
and Justice O’Connor concurring in Wygant, had earlier noted the possibility of
recognizing diversity as a compelling interest in higher education. But it was Justice
O’Connor, writing for the five Justice majority in Grutter, who first held that (even in the
absence of past discrimination) institutions of higher learning have a compelling interest
in the educational benefits that flow from assembling a racially diverse student body. But,
here too, it appears that “means” may frequently trump “ends” so that, as noted by Justice
Scalia, the Court’s “split double-header” in the Michigan cases leaves many dispositive
issues open for future consideration on a case-by-case basis. Not until the seminal
decisions in the Michigan case have had sufficient time to spawn caselaw progeny —
presumably well beyond the tenure of Justice O’Connor — will the full import of these
rulings become more predictable.