Affirmative Action and the Court

Both states and the Federal government implemented affirmative action plans, which provided preference in awarding government contracts, in hiring,  and in college admissions to groups such as women and minorities in order to compensate for past discrimination. These plans led to the charges of reverse discrimination from groups not receiving preferential treatment. The Court has been the arbiter of such disputes and has established some guidelines for consideration of discrimination cases.

Only groups specified in these acts are considered "protected classes" under federal law and only discrimination based on race, color, national origin, sex (includes pregnancy-related conditions), religion, age, or disability are covered under the civil rights acts. Federal law does not cover sexual preference as a protected class, although some state laws do.

How should courts review laws or policies that bring up claims of discrimination against protected classes?

The Court has established three classifications for such claims. Certain claims are considered "suspect" and require strict scrutiny. Laws that classify people by race, national origin, and religion or impinge on a fundamental right such as the right to vote or to privacy are assumed unconstitutional. The government has the burden of proving that the laws meet constitutional standards. The laws are subject to very close examination and the government has to demonstrate that it chose the least restrictive means of achieving a compelling governmental interest.

The next level is the intermediate level of scrutiny. It requires that an important, but not compelling, governmental interest is being met and a reasonable justification for the related means of achieving that interest. Gender-based classifications receive intermediate scrutiny.

Most cases under the equal protection clause are subject only to rational basis review. If there is any rationale for the distinction, such as age, income, etc., the Court will support it.

When equal protection cases arise, the Court determines what level of scrutiny is required and applies it in the ruling.