Reverse Discrimination and Compensatory Justice: Constitutional and Moral Theory

Reverse Discrimination and Compensatory Justice: Constitutional and Moral Theory

Description

The relationship of moral and legal ideas in constitutional law is currently undergoing a striking and suggestive theoretical re-examination. In contradistinction to Learned Hand’s influential legal positivist indictment of all forms of “natural law” ideas in understanding constitutional law, recent commentary urges “the strength of our natural law inheritance in constitutional adjudication,” which it is “unwise as well as hopeless to resist.” The theoretical focus of this re-examination is a needed “fusion of constitutional and moral theory, a connection that, incredibly, has yet to take place,” without which “[c]onstitutional law can make no genuine advance.” A natural form of this theoretical re-examination is the application of moral theory to the analysis of particular constitutional provisions. Obviously, the relationship between morality and constitutional law is not exact. Nonetheless, a number of provisions of the Constitution presuppose strong substantive moral ideas and conceptions so that the analysis of underlying moral ideas fundamentally clarifies the interpretation of the constitutional provision. Morally informed constitutional provisions differ importantly in their historical relationships to substantive moral ideas. The First Amendment, for example, clearly rests on the substantive moral conception of basic human rights familiar to educated men of that time from the widely read relevant works of Milton and Locke, among others. But the original Constitution did not consistently extend these rights to all moral persons; the institution of slavery, for example, was nowhere condemned, but rather at several points impliedly endorsed. This moral lacuna in the constitutional charter of basic moral rights was only resolved by the Civil War and the constitutional amendments which followed in its wake. Of these amendments, the due process and equal protection clauses of the Fourteenth amendment have been and especially fertile source of the enlargement of constitutional rights. The equal protection clause, for example, has been interpreted to require forms of equal treatment well beyond the original intent to abolish slavery and concomitant state practices. Not only has the due process clause been interpreted to require the application of many of the original amendments comprising the Bill of Rights against the states, it has been viewed as a source of rights not expressly articulated in the Bill of Rights. This gradual evolution in the development of the constitutional conception of moral rights typically rests on constitutional provisions strikingly general in form (“freedom of speech or of the press”; “due process of law”; “equal protection of the law”) and often lacking nay convincing legal history regarding the intended specific application of the provision. A consensus, to the extent it existed, was on the generalities of a political compromise which concealed future divergences of interpretation. Even when there is definitive legal history to the effect that a certain interpretation of a constitutional provision was not contemplated, such legal history is not decisive in the Supreme Court interpretation of those provisions. The Supreme Court has the seminal role in the development of constitutional doctrine in the light of its independent competence and responsibility. Within the framework of such general constitutional provisions, typically ambiguous legal history, and ultimately independent Supreme Court decisional authority for the development of constitutional doctrine, the explanation of underlying moral ideas has a remarkable clarifying force both in the interpretation of general structural features of constitutional adjudication and in the progressive evolution of constitutional doctrine. The purpose of this essay is to elaborate a variation of a theme defended elsewhere: namely, that contractarian moral theory has a peculiar explanatory force in understanding both the structure of constitutional law (as a limitation on majoritarian power) and specific problems in constitutional adjudication. We focus here on the moral interpretation and analysis of the equal protection clause of the Fourteenth Amendment, clearly among the most morally informed provisions of the federal Constitution. As one seminal commentary notes: “It [the equal protection clause] was placed in our Constitution as the culmination of the greatest humanitarian movement in our history. It is rooted deep in our religious and ethical traditions. Is any other clause in the Constitution so eminently suited to be the ultimate haven of human rights?” In particular, we shall examine the vexing problem of the constitutionality under the equal protection clause of programs of reverse discrimination. This problem has elicited sharply conflicting viewpoints regarding the fundamental morality of such programs, which has received natural expression in legal disagreement over the constitutionality of such programs under the equal protection clause of the Fourteenth Amendment. On the one hand, commentators argue that programs of reverse discrimination represent constitutionally forbidden classification by race or ethnic group, abandoning the fundamental moral principle (embodied in the equal protection clause) that person are to be treated as individuals on their own merits, not as members or representatives of groups. On the other, such programs are defended on the ground that they represent a consistent working out of the moral principle underlying the equal protection clause: namely, that disadvantaged minorities should be accorded special protections against majoritarian oppression, or the vestiges thereof. This moral and constitutional controversy most recently was crystallized in litigation in DeFunis v. Odegaard, in which DeFunis argued that the minority preferential program of the University of Washington Law School unconstitutionally deprived him of admission to that school. The DeFunis record revealed that in 1971 the law school had essentially two pools of applicants. The Admissions Committee considered the applications of blacks, Chicanos, American Indians, and Philippine-Americans separately from other applications. Although no minimum quota had been set for applicants who were members of these minorities, thirty of the thirty-seven accepted would probably have been summarily rejected if their records had been treated like those of white applicants, since their “predicted first year grade averages,” base on Law School Aptitude Test scores and college grades, fell below the effective cut-off point for virtually all white applicants. Many white students with substantially higher predicted averages, including DeFunis, were also denied admission. If the law school had treated minority group applications as it treated with applications, none of the eighteen minority students who actually enrolled would have been admitted. In a 5-4 decision, the Supreme Court refused to decide DeFunis on equal protection grounds, concluding in a per curiam opinion that sice DeFunis clearly could complete his legal education, the case was moot. Only Justice Douglas indicated his opinion on the substance of DeFunis’ equal protection claim. In his view, the Constitution compels “The consideration of each application in a racially neutral way,” which would require that each candidate be evaluated individually according to criteria applicable to all, and that race be eliminated as a factor – explicit or implicit – in admissions decisions. The Court in DeFunis clearly only postponed the disposition of the issue of that case: namely, the constitutional permissibility of voluntary preferential admissions programs to professional schools in the absence of evidence of racial discrimination in the past by the professional school. Yet, the general problem of the constitutionality of preferential programs has been a matter of recurrent judicial concern in related contexts. In the classic area of racial imbalance among public schools, the Supreme Court itself has squarely upheld the appropriateness of racial classifications to correct illegal de jure segregation among public schools and has explicitly suggested that states may use racial criteria to correct racial imbalance among such schools even when official practices are not responsible for the original imbalance. Similarly, lower courts have approved racial quotas to correct employment discrimination under Title VII of the Civil Rights Act of 1964, even though some of the present beneficiaries of preference are not the persons who suffered the original discrimination. A similar approach has been adopted by courts concluding that municipalities have engaged in unconstitutional employment policies. Courts sometimes find discrimination in the absence of any intentional disparity in treatment, on the ground of state use of tests on which member of minority groups fare badly or on the absence of positive efforts by the state to recruit members of minority groups. A similar way of thinking underlies the guidelines used by the Department of Health, Education, and Welfare for assuring nondiscrimination in university faculty hiring. Goals are set for minority group and female representation to test whether universities are hiring on a nondiscriminatory basis; in theory a university is required only to hire on an evenhanded basis, but if it falls below H.E.W. goals is may have a difficult time proving non-discrimination. In order to clarify the recurrent constitutional litigation over the permissibility of preferential programs, we must turn to the examination of the moral debate underlying the constitutional disagreement. If this is in substance a moral disagreement, as it clearly seems to be, moral theory may have cogent force in bringing its insights to bear on this problem. We shall begin with a general discussion of the special clarifying role of contractarian moral theory in interpreting constitutional values. Then we shall discuss the general problem of the interpretation of the equal protection clause and the continuing debates among constitutional scholars regarding the proper interpretation of the equal protection principles which outlaw forms of racial discrimination. Finally, we shall discuss the role of contractarian principals in clarifying the constitutional problem of reverse discrimination.

Source Publication

The Value of Justice: Essays on the Theory and Practice of Social Virtue

Source Editors/Authors

Charles A. Kelbley

Publication Date

1979

Reverse Discrimination and Compensatory Justice: Constitutional and Moral Theory

Find @ NYU

Share

COinS