The Forgotten Remedy: A Legal and Theoretical Defense of Intermediate Scrutiny for Gender-Based Affirmative Action Programs

INTRODUCTIONAlthough Caucasian males constitute a minority of the total and, likewise, college-educated workforce, they dominate the upper echelons of virtually every job sector. Males comprise 85.7% of executive officership positions and 82% of directorship positions at Fortune 500 companies.1 Men hold over 90% of leadership positions in the news media and over 90% of all reporters are white.2 Caucasian men constitute over 86% of partnership positions in major law firms. They hold 85% of tenured college professorships3 and occupy over 80% of managerial positions in advertising, marketing, and public relations.4 In 1992, in the midst of the Supreme Court's dismantling of state and federal affirmative action programs, the median weekly earnings of white males were 33% higher than those of any group in America.5Despite significant factual evidence of continued inequality in various employment fields, the last fifteen years have witnessed a remarkable decline in the use of gender-based affirmative action.6 The decision to abandon such programs has been spurred in large part by the Supreme Court's decision to apply strict scrutiny to all federal and state race-based affirmative action programs in the employment context regardless of existing racial disparity.7 While the Court's jurisprudence has been confined to race-based programs, lower courts have expanded the approach, without basis in precedent, to gender-based programs. Spurred in large part by the Supreme Court's decision in Richmond v. Croson,8 federal appeals courts have developed a tripartite split over the appropriate level of scrutiny for gender-based affirmative action programs. In addition to the majority of lower courts that have split between strict scrutiny and intermediate scrutiny, a minority of courts have developed a third approach which, while calling itself intermediate scrutiny, requires a factual predicate demonstrating a history of discrimination on par with that required under strict scrutiny.9 The attack on intermediate scrutiny and, accordingly, gender-based affirmative action, has been buttressed by a subtle theoretical critique of the effectiveness of the standard to guard against discriminatory statutes. The result of this regression has not only been confusion among courts, but an abandonment of gender-based affirmative action programs as various municipalities have chosen to avoid subjecting their programs to sure defeat under strict scrutiny review.10This paper will serve the dual purposes of defending intermediate scrutiny as the appropriate standard under the Court's jurisprudence and answering some of the theoretical criticisms of the effectiveness of intermediate scrutiny as a means to protect women from discriminatory statutes. The first half of the paper will survey the progression of the Court's jurisprudence with regards to statutes that differentiate on the basis of gender, focusing specifically on: (a) the development of the Supreme Court's gender-based equal protection jurisprudence;11 (b) the Supreme Court's decision in Richmond v. Croson, which dramatically altered the approaches of a number of lower courts toward gender-based affirmative action;12 and (c) the struggles of lower courts to determine the appropriate standard of review for gender-based affirmative action programs post- Croson, including influential jurisprudence involving racially differential statutes.13 The second half of the paper will present a legal and theoretical defense of intermediate scrutiny as the proper standard of review for gender-based affirmative action programs including: (a) the fallacies inherent in lower court decisions applying increased scrutiny based on the Supreme Court's jurisprudence pre and post-Croson,14 and (b) responses to theoretical criticisms of intermediate scrutiny, including the presentation of alternatives to strict scrutiny which, while they may not conclusively answer all criticisms, will provide a sound basis from which to defend the legitimacy of the approach. …