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Citation:
Alec Anthony Izzo, The Jurisprudence of Affirmative
Action: Equality in Abstraction and Application, 4 St.
Thomas L. Rev. 161 (1992)<script>
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I. INTRODUCTION
1. See Fullilove v. Klutznick, 448 U.S. 448 (1980); Metro Broadcasting v. FCC, 110 S. CL
2997 (1990) (based on the Fifth Amendment's Due Process Clause). See also United States v. Para-
dise, 480 U.S. 149 (1987) (based on the Fourteenth Amendment's Equal Protection Clause). But see
Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978); Wygant v. Jackson Bd. of Educ., 476
U.S. 267 (1986); City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) (based on the Four-
teenth Amendment's Equal Protection Clause).
2. See United Steelworkers of America v. Weber, 443 U.S. 193 (1979); Local 28, Sheet Metal
Workers v. EEOC, 478 U.S. 421 (1986); Local 93, Firefighters v. Cleveland, 478 U.S. 501 (1986);
Johnson v. Transportation Agency, 480 U.S. 616 (1987) (based on Title VII). But see Firefighter's
Local 1784 v. Stotts, 467 U.S. 561 (1984) (based on Title VII).
3. See Weber, 443 U.S. 193 (1979); Sheet Metal Workers, 478 U.S. 421 (1986); Firefighters,
478 U.S. 501 (1986); Johnson, 480 U.S. 616 (1987); Paradise,480 U.S. 149 (1987); Metro, 110 S.
Ct. 2997 (1990).
4. See Bakke, 438 U.S. 265 (1978); Wygant, 476 U.S. 267 (1986).
5. Herman Schwartz, The 1986 and 1987Aff rmative Action Cases It'sAll Over but the Shout-
ing, 86 MICH. L. REv. 524, 526 (1987) (noting that Justice Powell recused himself from the Weber
decision).
6. Justice Burger, see Fullilove, 448 U.S. 448 (1980); Justice Brennan, see Weber, 443 U.S. 193
(1979); Sheet Metal Workers, 478 U.S. 421 (1986); Firefighters, 478 U.S. 501 (1986); Johnson, 480
U.S. 616 (1987); Paradise,480 U.S. 149 (1987); Metro, 110 S. Ct. 2997 (1990).
7. Justice White, see Stotts, 467 U.S. 561 (1984); Justice O'Connor, see Croson, 488 U.S. 469
(1989).
ST. THOMAS LAW REVIEW [Vol. 4:161
A. A Hypothetical
A variation on a well-worn theme may illustrate the tension between
these principles. Unexpectedly, a ship sinks into shark-frenzied waters
during a violent evening storm, hundreds of miles from the coast or any
navigable channels. The ship's twelve passengers include six red women
and six yellow women. None of the women are otherwise distinguish-
able, physically or experientially, nor are they in any way responsible for
the predicament.
The only hope for survival is one lifeboat, which will not support
more than 600 pounds. The lifeboat seats up to six people, but will cap-
size from imbalance unless everyone touching the lifeboat is seated en-
tirely within its perimeter. Each woman weighs 100 pounds, cannot
swim, recognizes all aspects of the predicament, and wants to live. The
twelve women face each other as they sit on the lifeboat's circumference,
which in turn sits on the ship's evenly submerging deck, as all descend
into the sea.
Here, equality at its most abstract becomes meaningless. Assume
that all of the women in this scenario concede equality in terms of dig-
nity, autonomy and respect. Where do we go from here?
A. Equality of Treatment
Applying the equality of treatment postulate to this scenario would
require that, since there is a relative scarcity of shares (seats) to claims,
none of the women shall benefit from a share. This is an untenable posi-
tion unless rigid adherence to the equal treatment principle justifies the
needless death of six women. A group-regarding reading of the equal
treatment principle might allocate three seats to each group, resulting in
the arbitrary death of three red women and three yellow women based
purely on their color. Equal treatment is therefore justifiable, if at all, in
theory alone.
B. Equality of Result
Similarly, the equality of result postulate mandates that all twelve
must live or die, and since only some women may live due to the scarcity
of seats, none shall five. This is an equally untenable position unless rigid
adherence to the equal result principle justifies the needless death of six
women. Scarcity thus renders this position ineffectual and justifies a lim-
ited substitution of the equality of opportunity principle.
C. Equality of Opportunity
Professor Rosenfeld reads Rescher 17 expansively to address this
impasse:
Where equality of result is morally justified... that is, where no mor-
ally relevant differences [between subjects] are found that would justify
inequality of result... [the equal result principle] can nevertheless be
set aside if there is a compelling reason to do so, provided that all those
originally entitled to equality of result have an equal opportunity to
receive the scarce
18
goods to which they would be morally entitled ab-
sent scarcity.
A closer examination of this principle is in order.
Professor Rae subdivides the equality of opportunity postulate into
that which is prospect-regarding and that which is means-regarding. 19
The former focuses on the probability of attaining a scarce good; the
latter on the instruments used in attaining a scarce good. Applied to the
hypothetical, prospect-regarding equality of opportunity would require
only that each of the twelve women have an equal probability of attaining
a scarce seat. This could be achieved by resorting to any fair lottery,
such as rolling dice or drawing straws.
On the other hand, means-regarding equality of opportunity would
require that the twelve women possess the same instruments with which
to attain the scarce seat. At first blush this may seem indistinguishable
from the former variation. Each prospect-regarding opportunist, for ex-
ample, might agree to the use of a six-sided die. Equality of means, how-
i. FormalEquality of Opportunity
Scholars further subdivide the concept of equality of opportunity by
its qualities of formality and fairness. Fullinwinder's formal equality of
opportunity, applied to the scenario, merely requires that no one woman
has a legal or quasi-legal impediment to her equal opportunity to acquire
a scarce seat that is not shared by each of the other women. 20 Suppose
there is an applicable law-of-the-sea treaty, which unconditionally pro-
hibits yellow women from touching red women with oars. The penalty
for violation is death. The principle of formal equality of opportunity, if
used to assess the validity of this law, addresses both prospects and
means.
This formalistic variation on the theme seems to offer little more
protection from de facto inequality than that offered by rigid discrimina-
tory intent requirements, and suffers from limitations similar to those of
the state action doctrine. Further, it shares a kindred, uninformed rigid-
ity with process-based and atomistic theories of review.2 1
27. Justices Stevens, Stewart, Rehnquist, and Chief Justice Burger did not even reach the con-
stitutional issue because they viewed the policy invalid under Title VI, § 601 of the 1964 Civil Rights
Act. Id. at 408-21.
28. Justice Powell reached the constitutional issue, and speaking for the remainder of the
Court, found that Title VI was coextensive with the Constitution, and as such was violated only if
the Constitution was violated. Id at 324.
29. Through negative inference, Davis Medical School defines non-minority as all but
"'Blacks,' 'Chicanos,' 'Asians,' and 'American Indians.'" Id at 274.
30. Civil Rights Act of 1964, § 601, 42 U.S.C. § 1000d (1992), provides: "No person in the
United States shall, on the ground of race, color, or national origin, be excluded from participation
in, be denied the benefits of, or be subjected to discrimination under any program or activity receiv-
ing Federal financial assistance."
31. The Equal Protection Clause of the Fourteenth Amendment provides: "[N]or shall any
State ...deny to any person within its jurisdiction the equal protection of the laws." Note that the
state court based its decision in pertinent part on the California Constitution which read: "No
special privileges or immunities shall ever be granted which may not be altered, revoked, or repealed
by the Legislature; nor shall any citizen, or class of citizens, be granted privileges or immunities
which, upon the same terms, shall not be granted to all citizens." CAL. CONST. art. I, § 21, repealed
by CAL. CONST.art. I, § 7.
32. Bakke, 438 U.S. at 296 n.36.
33. See Fullilove v. Klutznick, 448 U.S. 448, 522-32 (1980).
34. Id. See also iULat 526 (further characterizing its terms as guaranteeing personal rights to
the individual unfairly and arbitrarily discriminated against by race-conscious laws, regardless of her
skin color, the law's purpose or its promulgating body).
35. 476 U.S. 267 (1986). The Court struck down a public employer's voluntary modified layoff
policy, designed to correct societal discrimination while providing minority role models by protect-
ing recently hired black teachers from layoff, seniority notwithstanding, as violative of the Four-
teenth Amendment. Id. Factually, laid-off non-minority teachers alleged that a collective bargaining
agreement between their employer and teachers' union resulted in a layoff policy implemented to
redress the present effects of past societal discrimination. They further alleged that absent a convinc-
ing factual finding of prior discrimination by the governmental unit, the policy impermissibly denied
equal protection. Id. at 273. The agreement had contemplated that since the last hired would be the
first fired, recent affirmative action employment efforts would be thwarted by the application of
traditional seniority based layoff policies. Therefore, a modified layoff policy was implemented
ST. THOMAS LAW REVIEW [Vol. 4:161
whereby the percentage of each teacher's racial group would remain static by laying off the same
proportion of employees within each representative group. Id. at 270-71.
Although Justice Powell's opinion represents only a plurality of result (including Justices Bur-
ger, Rehnquist, O'Connor, and White), a majority agreed that a public employer's race-conscious
remedy for past employment discrimination is not per se unconstitutional. Beyond that, there was
typically little common ground. The plurality framed the issue before the Court in terms which
reflect the standard of review it found appropriate: "whether the layoff provision was supported by a
compelling state purpose, and whether the means chosen to accomplish that purpose were suffi-
ciently narrowly tailored" to their end. Id. at 280, 283.
36. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 407 (1978).
37. Rosenfeld, ConstitutionalEquality, supra note 10, at 1735.
38. Bakke, 438 U.S. at 407 (emphasis added).
39. Id. at 327.
40. 5 ARISTOTLE, NICOMACHEAN ETHics (1). Ross trans., rev. ed. 1980).
41. Although philosophers disagree as to the breadth of Aristotle's public "distributive justice"
and private "corrective justice," here Professor Rosenfeld's reading is respectfully used. See ROsEN-
FELD, AFFIRMATIVE ACTION, supra note 11, at 30.
1992] EQUALITY IN ABSTRACTION AND APPLICATION 169
51. Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 288 (1986).
52. Rosenfeld, ConstitutionalLiberty, supra note 8, at 590 n.32 (emphasis added).
53. 478 U.S. 421 (1986).
54. Id at 452-70. (Marshall, J., Blackmun, J., and Stevens, J., joining). Contra 478 U.S. at 500
(Rehnquist, J., dissenting). A trade union and its apprenticeship committee were found guilty of
engaging in an egregious pattern and practice of discrimination against nonwhites pursuant to Title
VII. Upon noncompliance with an earlier order, the court found the appellants in contempt, or-
dered a fine to be placed in a fund established to remedy the lingering effects of pervasive discrimina-
tion, and increased the earlier affirmative action goal from 29% to 29.23% nonwhite membership.
The increase reflected a change in the percentage of minorities in the relevant New York City labor
pool. Id. at 440-44. The District Court had given the appellants six years to end their discrimina-
tory practices. Id. at 432.
The Court affirmed the District Court's imposition of civil contempt fines, issued in 1982 and
1983 for the disobeyance of a 1975 court order requiring the implementation of an affirmative action
plan to correct the private appellant's discriminatory practices by 1981. Justice Brennan delivered
the Supreme Court's opinion upholding the sanctions as proper remedies for civil contempt, id. at
442-44, further characterizing the race-conscious program as appropriate equitable relief ordered
within the court's discretion under Title VII, Section 706(g). Id. at 445-47.
55. 478 U.S. 501 (1986).
56. Id. at 515.
1992] EQUALITY IN ABSTRACTION AND APPLICATION 171
57. The Court found the voluntary nature of a consent decree its most fundamental characteris-
tic, because the limits otherwise imposed on District Court "orders" by Title VII, § 706(g) become
inapplicable. Sheet Metal, 478 U.S. at 515-24. Title VII § 706(g), 42 U.S.C. § 2000e-5(g) provides:
No order of the court shall require the admission or reinstatement of an individual as a
member of a union, or the hiring, reinstatement, or promotion of an individual as an em-
ployee, or the payment to him [her] of any back pay, if such individual was refused admis-
sion, suspended or expelled, or was refused employment or advancement or was suspended
or discharged for any reason other than discrimination on account of race, color, religion,
sex, or national origin or in violation of section 2000e-3(a) of this title.
The Court was, therefore, not persuaded by the intervening union's argument that a court's limited
remedial post-trial authority under Title VII was implicated by voluntary agreements. Sheet Metal,
478 U.S. at 524-28.
58. Justice Brennan, joined by Justices Marshall, Blackmun, Powell, Stevens, and O'Connor
approved of the District Court's adoption of the four year affirmative minority promotion goals,
voluntarily agreed to by the Vanguards, an organization of Black and Hispanic firefighters, and their
employer, the City of Cleveland.
59. 480 U.S. 149 (1987).
60. Id. at 154-55. This quota was limited only by the availability of qualified Black applicants,
and until such time as the department's work force reflected the relevant labor pool, of which Blacks
constituted 25%. Id.
61. In 1972, the Alabama Department of Public Safety was found to have systematically ex-
cluded all Black applicants from its employ as state troopers over its 37 year history, for which the
District Court ordered the cessation of such discriminatory practices, and a hiring quota. The De-
partment conceded failure in 1979, and entered into a court approved partial consent decree detail-
ing a one year promotional remedy. The Department conceded failure again in 1981, and entered
into a second court approved remedial consent decree. By 1983, the disparate effect of the Depart-
ment's promotional testing left Blacks in roughly the same position. Id. at 154-65.
62. Led again by Justice Brennan, joined by Justices Marshall, Blackmun, Powell and Stevens
(concurring in result), the plurality found the order to survive constitutional attack, even when
arguendo strictly scrutinized, because it was narrowly tailored to serve a compelling governmental
interest in correcting the Department's historical discrimination. The plurality, however, was care-
ful not to be understood as adopting the strict standard of review in affirmative action cases; the issue
was simply moot in the instant case.
Justice Stevens' concurrence reaches the same result under the authority of Swann v. Charlotte-
Mecklenburg, 402 U.S. 1 (1971). He concluded that District Courts are empowered with "broad
and flexible" authority to fashion race-conscious relief where the record discloses such egregiously
discriminatory state action violative of the Fourteenth Amendment. Paradise,480 U.S. at 196-200.
Justice O'Connor's dissent assails the plurality opinion as "standardess," and finds the ordered
quota not "manifestly necessary." Id at 196-97. Notably, Justices Rehnquist and Scalia joined.
Justice White also apparently joined in result. See id at 196 (in typically laconic and quizzical
support of an unspecified portion of Justice O'Connor's dissent).
ST. THOMAS LAW REVIEW [Vol. 4:161
63. 448 U.S. 448 (1980). Private associations of construction contractors and subcontractors
had challenged the constitutionality of a federal spending program that included a 10% set-aside
requirement, designed to remedy the present effects of past discrimination toward the statutorily
enumerated minority business owners, as a condition precedent to federal funding. The petitioners
contested Congress' general power to fashion such a remedy. Specifically, they argued that the stat-
ute's race-conscious scheme was burdensome to "innocent" non-minority firms, and was both under-
inclusive and overinclusive.
64. Id. at 484-85.
65. Id at 482-84.
66. Iad at 485.
67. Id. at 486-89 (acknowledging the statute's potential for abuse, but satisfied by its liberal
waiver provisions contemplating such abuse and insuring against the frustration of its objectives).
68. 42 U.S.C. § 6705(0(2) (1976 & Supp. II) (including businesses at least 50% owned or 51%
controlled by "citizens of the United States who are Negroes, Spanish-speaking, Orientals, Indians,
Eskimos, and Aleuts").
69. Public Works Employment Act of 1977, 42 U.S.C. § 6701 (1992) (amending the Local
Public Works Capital Development and Investment Act of 1976, 42 U.S.C. § 6701 (1988)).
70. "Equal protection analysis in the Fifth Amendment area is the same as that under the
Fourteenth Amendment." Buckley v. Valeo, 424 U.S. 1, 93 (1976).
71. Justices White and Powell joined, and Justices Marshall, Brennan, and Blackmun con-
curred in result under a less strict standard. Justice Marshall reiterated that he and his brothers
Brennan, Blackmun and White had agreed in Bakke, that because "principles outlawing the irrele-
vant or pernicious use of race were inapposite to racial classifications that provide benefits to minori-
ties for the purpose of remedying the present effects of past racial discrimination," the conventional
strict scrutiny standard of review does not attach to the latter. Fullilove, 448 U.S. at 518. Moreover,
the latter need only serve important governmental objectives, to which the classification is substan-
tially related. Id. at 519.
72. The Court recognized the Act's validity as within Congress' Spending Power pursuant to
Article 1, section 8, clause 1, of the United States Constitution "to provide for the . . . general
Welfare." This was considered coextensive with, if not broader than, its regulatory powers to
achieve such objectives. Id. at 475. The Court relied on Katzenbach v. McClung, 379 U.S. 294
(1964) and Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964) (demonstrating Congress'
regulatory power over commerce) (also noting U.S. CONST. art. I, § 8, cl. 3). The Court further
noted its power to implement and "enforce, by appropriate legislation" the Fourteenth Amend-
1992] EQUALITY IN ABSTRACTION AND APPLICATION 173
ment's guarantee of equal opportunity to participate in federal grants to state and local governments,
thus deeming such an exercise properly authorized and sufficient to achieve the instant objectives
within Congress' Spending Power. Ia at 476-79.
73. 480 U.S. 616 (1987).
74. Id at 617. None of the 238 positions in the pertinent "Skilled Craft Worker" classification,
which included the dispatcher position in dispute, was held by a woman. Further, although women
constituted 36% of the relevant labor pool, women constituted less than 10% of the pertinent classi-
fication within the Agency. See generally MELVIN I. URoFsKY, A CONFLICT OF RIGHTS: THE
SUPREME COURT AND AFFIRMATIVE ACTION (1991) (including an excellent historical study of the
Johnson case).
75. A well qualified male employee who was recommended for a promotion to road dispatcher
for the Transportation Agency of Santa Clara County succeeded in a Title VII challenge against his
employer for promoting instead, pursuant to its affirmative action goals, a female employee who was
also deemed well, though arguably less, qualified for the job. Johnson, 480 U.S. at 619.
76. Justices Marshall, Blackmun, Powell, and Stevens joined, and Justices Stevens and
O'Connor concurred in the judgment. Id.
77. Id. at 642. Moreover, the Court characterized the plan as "fully consistent" with the fed-
eral statute because it "embodie[d] the contribution that voluntary employer action can make in
eliminating the vestiges of discrimination in the workplace." Ia
78. See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 518-20, 520-28 (1989) (Kennedy,
J., concurring) (Scalia, J., concurring). Note that these two, fifty-five year old Justices appointed by
President Reagan portend strict color-blindness with references to South African apartheid, laws
condoning separate-but-equal African American railway passenger cars, and laws condoning the
internment of Japanese Americans as historical examples of "benign" race-conscious measures.
Metro Broadcasting v. FCC, 110 S.Ct. 2997, 3044-47 (1990) (Kennedy, J., dissenting).
79. Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 274-78 (1986).
80. Croson, 488 U.S. at 505-08.
ST. THOMAS LAW REVIEW [Vol. 4:161
A. Individualistic Conception
Proponents of the individualistic conception recognize individuals to
be the beneficiaries of constitutional protection. Therefore, fundamental
rights are "personal" rights, and may incidentally inure to the benefit of
groups to the extent that they are constituted by individuals. Personal
rights advocates resist the "sinister implications" of "benign" "separa-
tion[s] of the polity into racial groupings from which individuals cannot
escape."'8 4 They are convinced that "racial balkanization... creates, and
even celebrates, barriers to trade that in the end impoverish the human
race." 8 5 Further, proponents of this perspective do not "iew the exist-
ence of discrimination and social segmentation as a sufficient reason to
8 s6
reproduce these in the coercive apparatus of the state."
Justice Powell represents this perspective, posing in Bakke, "If it is
the individual who is entitled to judicial protection against classifications
based upon his racial or ethnic background because such distinctions im-
pinge upon personal rights, rather than the individual only because of his
membership in a particular group, then constitutional standards may be
applied consistently. '8 7 This position has thus been historically justified
to establish judicially manageable standards. More recently in Metro,
Justice O'Connor reiterated Justice Powell's position88 that "[t]he Con-
stitution does not allocate ... rights to be distributed like bloc grants
within discrete racial groups .... ,,19
B. Collectivistic Conception
Proponents of the collectivistic conception recognize groups to be
the beneficiaries of constitutional protection. Therefore, fundamental
rights are "group" rights, and individuals have thus been described as
constituted by their membership in racial, sexual, ethnic, national, and
religious groups. Proponents of group rights90 do not so liberally distin-
guish between public and private spheres of influence, and are thus char-
acterized as communitarian advocates of this position.
Justices Marshall and Brennan have consistently endorsed this per-
spective. 91 Justice Marshall first articulated his position in Bakke where
he stated:
It is unnecessary in 20th century America to have individual Negroes
demonstrate that they have been victims of racial discrimination; the
racism of our society has been so pervasive that none, regardless of
wealth or position, has managed to escape its impact. The experience
B. Substantive Theories
Substantive theories of judicial review maintain that "judges cannot
avoid using substantive moral and political values (although these values
need not merely reflect the personal predilection of the judge who in-
vokes them) in determining what constitutional equality requires in par-
ticular cases."' 07 Proponents of this theory, including Professor
Rosenfeld, are concerned with the inevitable result of procedural
97. This relatively fatal standard was arguably required by precedent. See Palmore v. Sidoti,
466 U.S. 429, 432 (1984) (any racial classification "must be justified by a compelling governmental
interest"); Korematsu v. United States, 323 U.S. 214 (1944). See also Fullilove v. Klutznick, 448
U.S. 448, 480 (1980) (the challenged means to the government's legitimate ends must be "narrowly
tailored to the achievement of that goal").
98. Richmond had produced neither a quantum nor quality of evidence to satisfy the Court
that there had indeed been a history of specifically identifiable discriminatory practices within the
construction industry. Croson, 488 U.S. at 498-508.
99. The Court further found the plan to be objectionably tailored, noting legislative overinclu-
siveness, and failure to consider lesser restrictive alternatives. Id at 506-07.
100. Id. at 498.
101. Id. at 540.
102. Rosenfeld, ConstitutionalLiberty, supra note 8, at 591 n.35.
103. James O'Fallon, Adjudication and Contested Concepts: The Case of Equal Protection, 54
N.Y.U. L. REv. 19, 51 (1979).
104. Fiss, supra note 8, at 109-12.
105. Kenneth L. Karst, Forward: Equal Citizenship Under the Fourteenth Amendment, 91
HARV. L. REv. 1, 4 (1977).
106. JOHN H. ELY, DEMOCRACY AND DIsTRUsT: A THEORY OF JUDICIAL REVIEW 73-104
(1980) (on representational reinforcement) (interpreting United States v. Carolene Products, 304
U.S. 144, 152-53 n.4 (1938)).
107. Rosenfeld, ConstitutionalLiberty, supra note 8, at 591 n.35.
ST. THOMAS LAW REVIEW [Vol. 4:161
"decontextualization." 108
Moreover, advocates of this theory recognize the Equal Protection
Clause as having been infused with (thus "constitutionalizing") substan-
tive moral values such as equal concern, 10 9 equal respect1 10 and equal
citizenship.11 1 Therefore, any purely procedural theory of review is illu-
sory,11 2 and is summarily characterized as "a function of simply forget-
ting the unspoken consensus on substantive values that remain in the
113
background."
C. Modes of Interpretation
Beyond such theories of review governing the proper judicial role in
legal, specifically constitutional, interpretation lie equally cogent theories
governing the appropriate judicial mode of factual interpretation.
Although the latter seem even more susceptible to dismissal by a legal
realist as the mere pretense of an afterthought, one must consider such
modes theoretically relevant to this discussion.
117. 110 S. Ct. 2997 (1990). The Supreme Court upheld the constitutionality of congressionally
mandated, FCC minority preference policies designed to remedy acute industrial underrepresenta-
tion by promoting minority participation in the broadcast industry. The policies withstood interme-
diate "heightened scrutiny," in a challenge based on the equal protection component of the Fifth
Amendment's Due Process Clause. Id.
The issue before the Court derived from consolidating two cases in the context of comparative
licensing proceedings and distress sales. See Winter Park Communications v. FCC, 873 F.2d 347
(D.C Cir. 1989) (upholding the propriety of awarding an enhancement designed to facilitate the
acquisition of a new television license by a minority owner). See also Shurberg Broadcasting of
Hartford v. FCC, 876 F.2d 902 (D.C Cir. 1989) (striking down a policy enabling broadcast licensees
who may lose their license to sell it to minority buyers meeting certain requirements, at below mar-
ket rates). In each case, a non-minority broadcasting company owner challenged the constitutional-
ity of the FCC's affirmative action policies favoring competing minority broadcasting companies.
The FCC defines minority as "those of Black, Hispanic surnamed, American Eskimo, Aleut,
American Indian, and Asiatic American extraction." Statement of Policy on Minority Ownership of
Broadcasting Facilities, 68 F.C.C. 2d 979, 980 n.8 (1978). See also Commission Policy Regarding
Advancement of Minority Ownership in Broadcasting, 92 F.C.C. 2d 849, n.1 (1982).
118. Metro, 110 S. Ct. at 3037 (doubting a "particularly strong correlation of race and behavior"
which the FCC "assumes").
119. Id. at 3010-12. See also Rosenfeld, ConstitutionalLiberty, supra note 8, at 604-06 (charac-
terizing Justice Brennan's thinly disguised and analyzed, federalism-based result unsatisfactory
where more persuasive justifications existed within the properly applied ecological mode of means to
ends interpretation). The Court's opinion was authored by Justice Brennan in great deference to
Congress. He found that "even if [these congressionally mandated, race-conscious] measures are not
'remedial' in the sense of being designed to compensate victims of past governmental or societal
discrimination ... [they] are constitutionally permissible to the extent that they serve important
governmental objectives [like broadcast diversity] within the power of Congress and are substantially
related to achievement of those objectives." Id. at 3008 (emphasis added).
120. RAE, supra note 14, at 14-15.
180 ST. THOMAS LAW REVIEW [Vol. 4:161
A. Libertarianism
B. Egalitarianism
127. "To award goods [through "reverse discrimination"] ... is not to abolish, but merely to
rearrange, the inequalities of distribution that now prevail. Moreover, since the goods to be awarded
preferentially are themselves instrumental to the procuring of further goods, it is clear that any
inequalities which are perpetuated by reverse discrimination must result in yet further inequalities in
the future." George Sher, Justifying Reverse Discrimination in Employment, in EQUALITY AND
PREFERENTIAL TREATMENT 85 (M. Cohen et al. eds., 1977).
128. RoSENFELD, AFFIRMATIVE ACrION, supra note 11, at 122 (citing J. Thomson, Preferential
Hiring, in EQUALITY AND PREFERENTIAL TREATMENr 31-33 (M. Cohen et al. eds., 1977).
129. Rosenfeld, ConstitutionalLiberty, supra note 8, at 588.
130. N.Y. TimEs, Oct. 13, 1991, § 1, at 49, col. 1. As Justice Marshall's son, Thurgood Mar-
shall Jr., accepted the Franklin D. Roosevelt Four Freedoms Medal on his father's behalf, he read
his father's concern: "evening ha[s] arrived in a continuing struggle for civil rights. Old battles,
fought and won, have become new battles that must be fought - and I hope won - all over again."
IdL
131. By this, I mean departure from "strict adherence to judicial precedent in favor or [sic]
progressive and new social policies which are not always consistent with the restraint expected of
appellate judges." BLACK'S LAW DICTIONARY 847 (6th ed. 1990). This approach is "commonly
marked by decisions calling for social engineering and occasionally these decisions represent intru-
sions into legislative and executive matters." Id. It is noteworthy that what appears to be Justice
Thomas' relatively color-blind social policy, is neither new, nor apt to be characterized as progres-
sive to a true "social engineer" within the meaning of the term contemplated, and pejoratively
deemed by other affirmative action opponents. See Morris B. Abram, Affirmative Action: Fair
Shakers and Social Engineers, 99 HARV. L. REV. 1312 (1986). Yet, this term is also useful to de-
ST THOMAS LAW REVIEW (Vol. 4:161
IX. CONCLUSION
scribe the concern of many constitutional scholars who fear the systematic dismantling of legislative
efforts to effectuate social justice, through their decidedly restrictive judicial interpretation. See
Joint Statement, ConstitutionalScholar'sStatement on Affirmative Action After City of Richmond v.
Croson, 98 YALE L.J. 1711 (1989) (including Judith C. Areen, Barbara A. Black, Philip C. Bobbitt,
Lee C. Bollinger, Paul Brest, Guido Calabresi, Denise Carty-Bennia, Jesse Choper, Peggy C. Davis,
Drew S. Days III, Walter Dellinger, Norman Dorsen, John Hart Ely, Christopher F. Edley, Jr.,
Yale Kamisar, Kenneth L. Karst, Herma Hill Kay, Patricia A. King, Burke Marshall, Frank I.
Michelman, Eleanor Holmes Norton, Robert M. O'Neil, Gerald P. Lopez, Susan W. Prager, Dean
Rusk, John E. Sexton, Geoffrey R. Stone, Cass R. Sunstein, Laurence H, Tribe, and James
Vorenberg).
132. N.Y. TIMEs, Oct. 3, 1991, A25 col. 1.
1992] EQUALITY IN ABSTRACTION AND APPLICATION 183
133. Justices Scalia, Kennedy, O'Connor, Rehnquist, and to some degree White, and former
Justices Powell, Stewart, and Burger.
134. Justices Blackmun and to some-degree Stevens, and former Justices Brennan and Marshall.
135. Note that under federal statutory challenges, the Court has been somewhat predictable in
upholding 80% of the plans challenged. This is, of course, in part due to the absence of a "prima
facie showing of unlawful discrimination" requirement under Title VII. RONALD TURNER, THE
PAST AND FUTURE OF AFFIRMATIVE AcTION 70 (1990). Justice Brennan's plurality-mustering
craftsmanship has also enhanced this predictability, having written for the Court on every occasion
upon which a plan survived statutory attack.
ST THOMAS LAW REVIEW [Vol. 4:161
136. It is not the author's intent to exclude other historically oppressed classes by use of this
reference (which would certainly include white females), but it is beyond the scope of this note to
address the substantive issue adequately or separately.
* J.D., 1991, St. Thomas University School of Law; B.M., 1983, Berklce College of Music.