The Nine [116]
The major complication to this doctrine of law emerged in the 1970s, when governments and companies started programs that were supposed to help blacks and other minorities. These affirmative action initiatives included explicitly racial classifications. Should the Court apply strict scrutiny and strike down laws that were supposed to help blacks in the same way it invalidated laws that were supposed to hurt them? Should the law treat “reverse discrimination” against whites the same way it treated old-fashioned discrimination against blacks? Those were the questions that O’Connor had to answer in the Croson case. Specifically, should the Court apply strict scrutiny to the set-aside program that explicitly required a degree of racial balance?
To answer, O’Connor did what came naturally to her. She split the difference. For O’Connor, there was no doubt that the Richmond ordinance contained a racial classification that disadvantaged whites. “The Richmond Plan denies certain citizens the opportunity to compete for a fixed percentage of public contracts based solely upon their race,” she wrote. As such, O’Connor decreed, the plan deserved strict scrutiny from the Court: “The standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefited by a particular classification.” This in itself was a major development; it was the first time that the Court applied strict scrutiny to a law that was intended to help blacks.
Historically, strict scrutiny of a law or government program meant automatic invalidation. Was O’Connor ruling out all race-conscious programs, even if they were designed to help disadvantaged minorities? No, not exactly, because here was where O’Connor hedged. Richmond had put its set-aside plan in place without any research on whether minority subcontractors had been discriminated against in that city. The law was based solely on the general sense that there had been a history of discrimination in the field. To O’Connor, that was an inadequate justification, but she raised the possibility that a city might make findings that did justify a racially conscious set-aside plan. “Nothing we say today precludes a state or local entity from taking action to rectify the effects of identified discrimination within its jurisdiction,” she wrote. “If the city of Richmond had evidence before it that nonminority contractors were systematically excluding minority businesses from subcontracting opportunities, it could take action to end the discriminatory exclusion.”
So the O’Connor position seemed to be that affirmative action was permissible, but only as redress for identifiable discrimination against specific people. Her standard raised as many questions as it settled. What was systematic discrimination? How could it be identified? Did remedies have to go only to the specific victims? Or could the benefits go to a minority community at large? O’Connor never spelled out the answers to all these uncertainties, but she did stick with the same basic ideas in subsequent cases: some affirmative action was permissible—but not too much.
If O’Connor’s position on racial issues remained something of a mystery, those of her colleagues did not. Four of them—Rehnquist, Scalia, Kennedy, and Thomas—believed in a “color-blind” Constitution; they thought all laws that drew distinctions based on race, including those that purported to help minorities, should be struck down. Four others—Stevens, Souter, Ginsburg, and Breyer—believed that for the most part government and businesses could give advantages to racial minorities, either to redress prior discrimination or to foster the goal of diversity. More than on any other issue, the Court was divided four-to-four-to-one.
No school in the nation made a greater commitment to affirmative action than the University of Michigan, especially in admissions. Given the vast size of its undergraduate