Private Problem, Public Solution: Affirmative Action in the 21st Century

This Article will explore the origins of the Court’s color-blind interpretation of the Fourteenth Amendment, and the role that this interpretation plays in the development of new barriers against challenges to race-based affirmative action programs. Part II of this Article traces the development and application of the strict scrutiny test to evaluate the constitutionality of both invidious and benign racial classifications. Part III examines Justice Powell’s position that racial classifications used as remedial measures may overcome the presumption of constitutional invalidity associated with the use of race-based classifications. In this context, the Court recognizes that the continued impact of past and present discriminatory practices serves as a barrier to the ability of racial and ethnic minorities to equally participate in the American social, political, and economic process.

Part IV of this Article focuses on whether the strict scrutiny test may be satisfied by implementation of Congressionally mandated race-based remedial programs. By distinguishing the application of the strict scrutiny test used to evaluate municipal and state remedial efforts from the more deferential standard used to evaluate Congressionally mandated programs, I argue that §5 of the Fourteenth Amendment, in concert with the enforcement powers set forth in Title VI of the Civil Rights Act of 1964 (hereinafter referred to as Title VI), authorizes Congress to determine whether discrimination or the effects of past discrimination continue to influence the racial and ethnic composition of educational institutions within the field of higher education. If convincing proof of discrimination is found, Congress may implement remedial racebased programs to increase the number of racial and ethnic minority group members within both public and private educational institutions that receive federal funding.