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LANDMARK
SUPREME COURT CASES
ON RACIAL PREFERENCE

Three Supreme Court cases are argued in detail on this website:

  Regents of the University of California v. Bakke, 438 U.S. 265 (1978) United Steelworkers of America v. Weber, 443 U.S. 193 (1979)
Griggs v. Duke Power Company, 401 U.S. 424 (1971).

These are "landmark cases" because they were the first to decide whether (1) racial preference in college admissions, (2) racial preference in employment, or (3) disparate racial impact in employment violates the Civil Rights Act of 1964, or violates the Constitution. Being first, they were not bound by previous statutory or constitutional interpretations. The litigants, their supporters in amicus briefs, and the Justices were pioneers. They could bring to bear the full range of their thought on the requirements of the law and indeed of justice. The arguments about the Constitution resolved little, but the decisions concerning the Act transformed it radically.

In all three cases, the essential facts were uncontested and the applicable statutes were simple: not promising ingredients for historic confrontations. Absent the pressures and partisanship engendered by racial policy, one might have expected open-and-shut cases, quickly resolved at the bottom rung of the judicial ladder.

Bakke, involving racial preference in medical school admissions, is the most complex. At issue was 601 of the 1964 Act, providing that "No person in the United States shall, on the ground of race, color or national origin, be excluded from participation in . . . any program or activity receiving Federal financial assistance." Four Justices found the admissions policy in obvious violation of the statute, and thus had no reason to discuss the Constitution. Five Justices, on the contrary, interpreted the ban on racial preference in 601 to forbid only what the Constitution forbids. But they failed to define the extent of this prohibition: they decided that the Constitution sometimes permits racial preference but could not agree when.

Weber, concerning racial preference in employment, is a straightforward case of statutory interpretation. Section 703 (d) of the 1964 Act forbids an employer "to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training." Justices Brennan and Rehnquist debate whether this clause prohibits racial preference in assigning employees to training programs. Justice Brennan, for the majority, argues that a literal interpretation of the statute blocks its chief purpose: to increase employment opportunities for blacks. Justice Rehnquist, in dissent, counters that the plain language of the statute bars racial preference.

Griggs introduces the concept of unequal racial results (disparate impact) as a form of racial discrimination. The pertinent clause is 703 (a) (2), which forbids an employer "to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities . . . because of such individual's race, color, religion, sex, or national origin." Chief Justice Burger, for a unanimous Court, finds that an employer's selection requirements (graduation from high school, passing an IQ test) are barred by the statute when (1) they are not necessary for business and (2) blacks fail them at a higher rate than whites. Curtis Crawford's rebuttal contends that the decision rewrites the statute.

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