Fatal in Fact? Federal Courts' Application of Strict Scrutiny to Racial Preferences in Public Education (2001)

I. Introduction In 1995, the Supreme Court declared in Adarand v. Pena1 that all federal and state racial classifications were subject to scrutiny.2 Along with City of Richmond v. Croson, Adarand settled the debate over the proper judicial scrutiny of discrimination, racial preferences intended to help ethnic groups who have suffered past or present discrimination. Commentators and dissenting justices feared that scrutiny would invalidate all affirmative action programs contributing to ethnic diversity or remedying past discrimination. Justice Stevens, in dissent, declared that [T]here is a danger that the fatal language of `strict scrutiny' will skew the analysis and place well-- crafted benign programs at unnecessary risk.3 In a well-known part of the Court's opinion, Justice O'Connor declared that if the main objection to scrutiny was that it was in name only and automatically invalidates, that objection fails because scrutiny is intended to carefully differentiate between legitimate and illegitimate affirmative action programs.4 Justice O'Connor concluded by declaring that scrutiny was not to be strict in theory, fatal in fact.5 The merits of Justice Stevens' fears could only be tested when lower courts began applying the principles of Adarand and Croson to public affirmative action programs. Of particular interest was the IMAGE FORMULA38 application of Adarand and Croson to the politically controversial issue of affirmative action programs in public education. Adarand and Croson dealt only with government contracts that provided racial and ethnic preferences. It was up to lower courts to apply these cases to other contexts, including education. Justice Stevens' remarks have been proven to be remarkably prescient. Following Adarand, several federal circuits have visited the issue of race-conscious preferences in public education,6 and the results do not bode well for public school affirmative action programs. With few exceptions, courts have invalidated public school affirmative action programs and have greatly narrowed the circumstances in which these programs can be implemented. Until the Supreme Court revisits the issue of racial preferences in education, these decisions will influence public schools' use of racial preferences and other courts' scrutiny of their programs. Education has long been a forum for the debate over the proper public policy towards race. The federal judiciary has occupied a unique position in this dispute, ushering in desegregation with Brown v. Board of Education7 and monitoring schools through desegregation orders and injunctions.8 Commentators credit the judiciary with helping eradicate norms of white supremacy and creating a more equitable society.9 Despite the federal judiciary's importance to desegregation, or perhaps because of it, the judiciary is now at the center of a movement to remove affirmative action programs and preferences from public education, in grades K-12 and in higher education. The Court has yet to directly address racial preferences in education, apart from the 1978 case of Regents of University of California v. Bakke.10 Bakke was a splintered decision that saw only one justice sign the Court's opinion and two equally divided pluralities deciding on significantly different grounds. The tenor of the Supreme Court's then limited approval of racial preferences has changed greatly since Bakke. The Court has since IMAGE FORMULA41 issued opinions relating to affirmative action programs in employment,11 electoral re-districting,12 and government contracting.13 These cases have neither overruled nor followed Bakke.14 Lower courts must struggle with this complex confluence of Supreme Court opinions, pluralities, concurrences, and even dissents in trying to discern the governing law on racial preferences in education. …