[SOUND] The third and final question that I want to discuss with regard to racial classifications is how should racial classifications benefiting minorities be treated? This is the enormously controversial subject of affirmative action. At this point, it's possible to summarize the Supreme Court's decisions with regard to affirmative action in four principles. First, racial classifications benefiting minorities must meet strict scrutiny. It doesn't matter whether the racial classification discriminates against minorities or benefits minorities. Strict scrutiny is the test. Now, this is enormously controversial among the just, some of the court has been in great disagreement. Some justices, such as Thurman Marshall and William Brannon, said there's an enormous difference between in which the white majority discriminating against minorities. As opposed to when it's the white minority in light of the history of racism trying to write a benefit to minorities, to compensate for past discrimination. On the other hand, the Supreme Court has said that races are inherently undesirable, that every person should be treated as an individual apart from his or her race. It's too hard to tell, the majority of court have said, what's a beneficial, versus a harmful use of race. And so, since 1989, more than a quarter century, the law has been clear that if the government uses race to benefit minorities the government must meet strict scrutiny. The government has to meet the same burden as using race to disadvantage minorities. Now, it's also worth noting here, that some states have passed state initiatives prohibiting the use of race, and going even further than the United State constitution. For example, California voters passive an initiative in 1996 called Proposition 209, that says, that the state and local governments cannot education contract to employment, discriminate and give preferences, based on race or gender. A number of states have adopted similar laws. And the Supreme Court has upheld them, saying that if a state wants to, it can go further in prohibiting affirmative action than the United States Constitution does. The United States Constitution doesn't ban affirmative action, but it says that all racial classifications benefiting or disadvantaging minorities must meet strict scrutiny. The second point with regard to affirmative action is that numerical set asides are allowed only as a remedy for clearly proven past discrimination. For over a quarter of a century, the Supreme Court is shown that it's very hostile to anything that looks like a quota, or a set aside. Key case here was one in 1989. J.A. Croson v City of Richmond. The City of Richmond was the capital of the old Confederacy. It found that though it was a majority black city, less than 1% public work contracts went to minority owned businesses. And so, it's said, on its own, it is going to require that 30% of its public works contracts go to minority owned businesses. The Supreme Court declared this unconstitutional. The court said Richmond had not proven that this was a necessary remedy for pass discrimination, so this was unconstitutional. Now, the Supreme Court has not said that all set asides are unconstitutional. The court has said if it could be shown that it's a remedy for clearly proven past discrimination, then it would be allowed. The key case here, which has never been overruled, was United States v Paradise in 1986. A federal district judge in Alabama found that the Alabama State Police engaged in intentional race discrimination in higher-end promotion. The judge said as a remedy, every time a white was hired or promoted, an African American would be hired or promoted until the effects of discrimination were alleviated. This was, in essence, a 50% set aside. Nonetheless, the Supreme Court upheld it as constitutional. The Supreme Court said it was allowed, because it was a remedy for clearly proven past discrimination. The third point with regard to affirmative action is that colleges and universities may use race a factor in admissions to benefit minorities and enhance diversity. There have, to this point, been four Supreme Court cases dealing with affirmative action by colleges and universities. I'm going to talk about them individually. And one of them is now back before the Supreme Court, as I am recording this in January of 2016. The first case to come before the Supreme Court was University of California v Bakke. Regents of the University of California versus Bakke involved the University of California Davis Medical School Admissions program, where out of an entering class of 100, 16 slots were set aside for minority students. The University of California Davis Medical School said it wasn't a quota. They would take more than 16 minority students, if they were more qualified. They'd take less than 16 if there weren't 16 who were qualified. Allan Bakke, a white man, brought a challenge to this. It was an interesting split on the Supreme Court. Four justices would have invalidated the entire program, they would have said that it violated Title VI of the 1964 Civil Rights Act that I mentioned a few moments ago. Four of the justices would have upheld the entire program, and they would have used an immediate, not strict scrutiny. Justice Lewis Powell wrote for himself, and he said, strict scrutiny should be used for racial classifications benefiting minorities, like those disadvantaging minorities. And he said that the set aside of 16 slots was unconstitutional. But the colleges, universities have a compelling interest and with diversity of the body. They may use race as one factor of a many in admission's decisions. The court did not return to the issue of affirmative action or higher education for 25 years, until Grutter v Bollinger in 2003. Grutter v Bollinger involved the University of Michigan Law School. It considered many factors in the admission decisions. Race was one among them. A challenge was brought, the Supreme Court in a 5-4 decision upheld the University of Michigan Affirmative Action program. Justice Sandra Day O'Connor wrote for the court, joined by Justices Stevens, Souter, Ginsburg and Breyer. It was O'Connor joined by Stevens, Souter, Ginsburg and Breyer. The dissent was written by Chief Justice Franquez, and there were other dissents. The dissenting justices included Justice Scalia, Kennedy and Thomas. Justice O'Connor writing for the court said colleges and universities have a compelling interest in having a diverse student body. College universities may use race as one factor, among many, to benefit minorities and enhance diversity. The same day, the court decided another case with regard to affirmative action. And that was Gratz v Bollinger. Gratz v Bollinger involved the University of Michigan undergraduate admissions office. It assigned points to various features in applicant's profiles. Additional points were added to those who were from minority races. The Supreme Court, in a 6-3 decision, declared this unconstitutional. The court said adding points to applicants admissions scores was not just using race as one factor among many in admissions decisions, thus violated equal protection. The fourth case in this area was Fisher v University of Texas at Austin in 2013, and it's back before the Supreme Court for decision in 2016. In 2004, the year after Grutter versus Bollinger, the regents of the University of Texas realized that their university was less racially diverse than it had been even eight years earlier in 1993. There were fewer African Americans at the University of Texas in 2004 than in 1996. So, Texas adapted a new admissions program. It said that it would take about 75% of each class by accepting the top 10% from high schools around the state. Texas was sufficiently racially segregated, that this produced some degree of diversity. But then for the other about 25% of the class, they were doing individualized review of each application. For every applicant, a admissions score was calculated. The score was the sum of two numbers. One was the academic achievement index, which was the student's grades and test scores. The other was a personal achievement index. It was arrived at by grading two essays required in the application for admission and looking at six factors. But the student would add the diversity as one of the six factors. The University of Texas felt it was doing exactly what the Supreme Court prescribed in Grutter versus Bollinger, using race as one factor among many in admission of students to benefit minorities. Abigail Fisher, a white woman, applied for the University of Texas in 2008, and she was rejected. She enrolled in Louisiana State University, from which she graduated in 2012. She brought a lawsuit, arguing that Texas' use of race as a factor in admissions decisions denied equal protection. The federal district court ruled in favor of the University of Texas, saying it was complying with Grutters and Bollinger. The United States Court of Appeals were the fifth circuit affirmed. On June 24th, 2013, the supreme court reversed. In a 7-1 decision, Justice Kagan was disqualified, recused from participating, because she had been involved in the case as the Solicitor General of the United States. The Supreme Court, an opinion by Justice Kennedy said, a college or university must prove that there is no race neutral way to achieve diversity. The court said it's not enough that diversity is compelling interest. The college and university has the burden of showing there is no other way to achieve diversity. The court remanded the case to the United States Court of Appeals through the circuit to see if Texas could make such a showing. In the summer of 2014, the fifth circuit, in a two to one decision, ruled in favor of the University of Texas, saying it had demonstrated, there is no race neutral way to achieve diversity. The Supreme Court has granted review again, the case was argued on December 9th, 2015, and it'll be interesting to see what the Supreme Court does. Once more, Justice Kagan is disqualified and recused, so there are only eight justices participating. Will the court further limit affirmative action? Will it require more proof that there is no other way to achieve diversity, might the court even overrule Grutter versus Bollinger? I said I had four principles with regard to affirmative action. The fourth and final is, that in elementary or secondary school system, we use race as a factor in assigning students to schools only if it meets strict scrutiny. And this was the holding of the case I mentioned just a few moments ago. Parents involved with community schools for Seattle School District No 1 in 2007. There's actually two cases that came to the Supreme Court together. One was from Louisville, Kentucky. Louisville was a school system that had been segregated by law. There had been a desegregation plan, but it was then lifted, and the schools were resegregated. So, the school board on its own decided to put it on a place a system for K through 12 where one factor deciding students to schools was racial diversity. The other case involves Seattle, Washington. For high schools, students in Seattle can rank order their preference. When students were assigned to particular schools, a number of factors were considered. The most important factor was if a student had a sibling at the school. But another important factor was racial diversity. The Supreme Court, in a 5-4 decision, declared unconstitutional the Louisville and Seattle programs. Chief Justice Roberts in part wrote for just four justices, and in part wrote for five justices. Justice Kennedy concurred in part of the opinion. But in part, he did what's called concurring in the judgement, agreeing with the conclusion but not the reasoning. Writing for four justices, joined by justices Scalia, Thomas and Alito. Chief Justice Roberts said that the government must be colorblind. He said diversity is not a compelling government interest. He quite famously said the way for the government to stop discriminating is for the government to stop discriminating. Justice Kennedy did not join that part of the opinion. But Chief Justice Roberts, writing from a majority, said if a elementary or high school system is going to use race as a factor in assigning students, it has to prove that no race neutral alternative can achieve diversity. That was for five justices. Justice Breyer wrote for the dissent. Justice Breyer lamented the decision. He talked about the importance of empowering local school boards to achieve diversity. He added to his dissent an appendix, a long list of all of the voluntary desegregation plans that were likely to be invalidated. And as a result, lead to our talk about the re-segregation of schools. So, to this point, those are the four principles that the court has articulated about affirmative action. Strict scrutiny is used, numerical set asides require clear proof of past discrimination, colleges and universities may use race as one factor among many in admission decisions to benefit minorities and enhance diversity. But elementary and secondary schools can use race as a factor, only if they meet strict scrutiny. And that completes my review of race under equal protection.