Also known as: affirmative actions · positive discrimination
Written by attorneys · grounded in primary & secondary sources — see below
A government program granting preferences to members of racial or ethnic minority groups in employment, contracting, or education. The program must be supported by a strong evidentiary basis of specific past discrimination by the governmental entity and must be narrowly tailored to remedy that discrimination.
The City of Franklin adopted a 25 percent set-aside for minority-owned construction firms after a disparity study showed underrepresentation. Apex Builders, a nonminority firm, lost bids on multiple projects and sued. The court applied strict scrutiny and held the ordinance unconstitutional because the study revealed no specific discriminatory acts or barriers in the city's bidding process.
The University of California medical school reserved sixteen spots for minority applicants. Allan Bakke, a white applicant with higher test scores, was rejected twice. The Supreme Court ruled that the rigid quota violated equal protection but that race could be considered as one factor in a holistic admissions process to achieve diversity.
Select any source to read its text and confirm it supports the definition.
The University of Michigan Law School considered race as a plus factor in admissions to achieve a critical mass of minority students. Barbara Grutter, a white applicant, was rejected despite strong credentials. The Sixth Circuit upheld the policy, finding it narrowly tailored to the compelling interest in student body diversity.
The United States sued a trucking company for failing to hire minority drivers. Government data showed that minority applicants were hired at far lower rates than their share of the qualified labor pool. The Supreme Court held that the statistics alone could establish a prima facie case of discrimination supporting an affirmative action remedy.
Congress passed a statute allowing either house to veto an executive decision on deportation. Jagdish Rai Chadha challenged the veto after the House suspended his deportation. The Supreme Court struck down the legislative veto as an unconstitutional exercise of legislative power without bicameral passage and presentment.
Federal narcotics agents searched Webster Bivens's apartment without a warrant and arrested him. Bivens sued the agents for damages under the Fourth Amendment. The Supreme Court recognized an implied cause of action for the constitutional violation even though Congress had not created a statutory remedy.
Strict scrutiny applies to all racial classifications, including those intended to benefit minorities. The government must prove a compelling interest, typically remedying its own identified past discrimination, and must show that the program is narrowly tailored to that interest.
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No. A disparity study showing only statistical underrepresentation is insufficient. The government must produce a strong evidentiary basis of specific past discrimination in the relevant industry and jurisdiction.
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Yes. States are not required to maintain race-based preferences and may repeal them without violating equal protection.
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…Report: "In the light of experience of the last several months, the committee came to the conclusion that the requirement of affirmative action by both Houses of the Congress in many thousands of individual cases which are submitted by the Attorney General every year, is not workable and places upon the Congress and particularly on…