Lesson 22: Civil Rights and the Courts
In this lesson, we will learn about different standards of judicial review
including strict scrutiny, exacting scrutiny, and rational basis review. We
will also talk about affirmative action, concerns about reverse discrimination,
and recent cases that have redefined when and how affirmative action can be
implemented.
When laws are put in
place or executive actions are
taken, the Federal court has three different ways of reviewing them. Normally,
the law has to be put into action first and then the judicial review process
begins.
The first form of review is Strict Scrutiny,
a judicial standard for assessing the constitutionality of a law or government
action when it threatens to interfere with a fundamental right or potentially
discriminates against members of a suspect classification.
There are three tests for Strict Scrutiny:
Does it have a compelling government interest? Is it tailored to meet that
interest? Is it the least restrictive means in order to meet that interest?
In discrimination cases, a standard had to
be established. Suspect Classification is a classification such as race,
religion, or national origin, that triggers the toughest level of judicial
review. When a law or government action potentially discriminates against
members of a Suspect Classification, that triggers *strict* scrutiny.
However, there is a less rigorous form of review known as Intermediate, or
Exacting, Scrutiny. That is a judicial standard used to determine whether a law
or government action unconstitutionally discriminates against women.
Cases concerning the women's movement of the 1960s resulted in
its own test stating that a government law or action "must further an important
government interest by means that are substantially related to that interest."
Intermediate scrutiny was later adjusted to require an "exceedingly persuasive
justification."
The reasoning for Rational Basis Review comes from the quote of Justice
Thurgood Marshall, "The Constitution does not prohibit legislatures from
enacting stupid laws."
Rational Basis Review is a judicial standard used for assessing a law or
government action when neither strict nor intermediate scrutiny apply.
In other words,
a law has to be at least "rationally related" to
a "legitimate government interest." Gays and lesbians have benefited from the
use of Rational Basis when laws denying them certain rights have been overturned.
Amendments and civil rights acts had effectively ended discrimination in the
Constitution, but in practice, there was a larger problem. Because of
discrimination, minorities and women were behind in education and skills that
would allow them to effectively qualify for jobs.
For these reasons,
Affirmative Action was put into place. Affirmative Action is a policy in
educational admissions or job hiring that gives special attention or treatment
to traditionally disadvantaged groups in an effort to overcome present effects
of past discrimination.
President Johnson implemented an executive order in
1965 that
has had a far-reaching effect. First, affirmative action was mandated for
government agencies. Then, companies doing business with the government were
obligated to put affirmative action policies into place.
The reach kept growing to
include companies that were court-ordered and labor unions that discriminated
against minorities and women. But then, the concern arose that affirmative
action was actually a violation of the equal protection clause of the 14th
Amendment because it resulted in discrimination against the majority.
When Allan Bakke was not admitted into a medical program at the University of
California, he investigated and discovered that he was more qualified than the
minority applicants who were admitted.
That is when the term Reverse Discrimination gained popularity. Reverse
discrimination is discrimination against individuals who are NOT members of a
minority group.
In the case of Regents of the University of California vs. Bakke (1978),
Justice Lewis Powell pointed out that race can be a factor in deciding who to
admit into a program or to hire for a job, but it cannot be the only factor.
Affirmative Action was good while it lasted, but this is where Strict Scrutiny
was about to rear its head. Adarand Constructors, Inc vs. Pena in 1995 put
Affirmative Action to the test. In that case, it was decided that Affirmative
Action could NOT be used to fill quotas with people who are not even qualified
for those positions.
At the University of Michigan,
two different cases went to court in 2003. The first was an admissions policy
that the court struck down because the school was using a point system and
awarding a large amount of points to applicants for being in the minority. The
second case was upheld because the school was only using race as a
consideration when admitting students into its law program.
Some speculate that
the end of Affirmative Action is coming as the Supreme Court strikes down
certain programs and upholds others. Has Affirmative Action served its purpose?