Although thirty years have passed since the onset of affirmative action programs, the debate remains as to their fairness and effectiveness in ensuring equality throughout the nation. The fate of affirmative action is being questioned, as voters and legislatures have begun to act on these concerns. While the issue remains unresolved, the court has taken steps which may determine the future of affirmative action. In a recent court case, the Supreme Court adopted a strict scrutiny standard of review for all affirmative action cases, whether imposed by federal, state, or local governments. This decision, which could prove fatal for affirmative action programs throughout the nation, incorrectly adopts a principle of congruence between federal and state equal protection guarantees, and consequently disregards the important distinctions between federal and state authorities in remedial race-conscious legislation. My examinations of the text of the Fifth and Fourteenth Amendments’ equal protection guarantees, the intentions of the framers of these amendments, the Constitutional grants of power to Congress, and the prior case law of federal affirmative action, convinced me that the court’s decision is constitutionally incorrect. My examination disputes the court’s theory of congruence by clarifying the distinction between federal and state powers and responsibilities regarding affirmative action, and asserts the role of the federal government as the primary defender of civil rights. The Supreme Court should respect the fundamental incongruence in our constitutional system and allow the affirmative action debate to proceed in the appropriate forum: the National Legislature.
Gina Cesaretti, ’99
Sponsor: Craig Allin