THE COURT AND AFFIRMATIVE ACTION

Efforts to promote greater employment opportunities for minorities also spawned politically divisive legal issues. Many whites came to view affirmative action programs as a form of “reverse discrimination,” claiming that, in violation of the Fourteenth Amendment’s equal protection clause, they granted minorities special advantages over whites. Even as affirmative action programs quickly spread from blacks to encompass women, Latinos, Asian-Americans, and Native Americans, conservatives demanded that the Supreme Court invalidate all such policies. The justices refused, but they found it difficult to devise a consistent approach to this politically charged issue.

In Griggs v. Duke Power Company (1971), the Court ruled that even racially neutral job requirements such as a written examination were illegal if they operated to exclude a disproportionate number of non-white applicants and were not directly related to job performance. Later in the decade, in United Steelworkers of America v. Weber (1979), it upheld a program devised by the Kaiser Aluminum & Chemical Corporation and its union that set quotas for training and hiring non-white workers in skilled jobs. Since this private, voluntary agreement did not involve government action, the Court ruled, it did not violate the Fourteenth Amendment’s ban on state policies that discriminated among citizens.

Table 26.1 RATE OF DIVORCE: DIVORCES OF EXISTING MARRIAGES PER 1,000 NEW MARRIAGES, 1950-1980

One result of the sexual revolution was a sharp rise in the age at which Americans chose to many, and an increase in the number of divorces.

The justices, however, proved increasingly hostile to governmental affirmative action policies. In Regents of the University of California v. Bakke (1978), the Court overturned an admissions program of the University of California at Davis, a public university, which set aside 16 of 100 places in the entering medical school class for minority students. Justice Lewis F. Powell, a Nixon appointee who cast the deciding vote in the 5-4 decision, rejected the idea of fixed affirmative action quotas. He added, however, that race could be used as one factor among many in admissions decisions, so affirmative action continued at most colleges and universities. During the 1990s, as courts in different parts of the country interpreted Bakke in different ways, the legal status of affirmative action would remain ambiguous. In 2003, a 5-4 majority reaffirmed the Bakke principle that institutions of higher learning may use race as a consideration in admissions decisions.