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 THE JURISPRUDENCE OF AFFIRMATIVE
ACTION: EQUALITY IN ABSTRACTION
AND APPLICATION

I. INTRODUCTION

Analyzing the results in affirmative action cases decided in the last

fourteen years tends to invite specious observations. For example, it is
true that only 50% of the affirmative action plans reviewed by the
Supreme Court withstand constitutional attack,' while 80% withstand
federal statutory attack. 2 Additionally, more than half of the Court's
affirmative action opinions have been authored by Justice Brennan and in
each case the challenged plan has been approved. 3 Further, two cases
evaluating the constitutional merits of affirmative action were written by
Justice Powell, whose opinions resulted in findings of unconstitutionality,
and whose language echoes long beyond his voice from the bench
through the Court's subsequent conservative decisions. 4 Moreover, Jus-
tice Powell was on the "winning side" of every affirmative action case in
which he participated. 5 Finally, all of the Supreme Court's authors who
have spoken for the Court in approval of affirmative action have stepped
7
down, 6 while most of those disapproving remain.

1. See Fullilove v. Klutznick, 448 U.S. 448 (1980); Metro Broadcasting v. FCC, 110 S. CL
2997 (1990) (based on the Fifth Amendment's Due Process Clause). See also United States v. Para-
dise, 480 U.S. 149 (1987) (based on the Fourteenth Amendment's Equal Protection Clause). But see
Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978); Wygant v. Jackson Bd. of Educ., 476
U.S. 267 (1986); City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) (based on the Four-
teenth Amendment's Equal Protection Clause).
2. See United Steelworkers of America v. Weber, 443 U.S. 193 (1979); Local 28, Sheet Metal
Workers v. EEOC, 478 U.S. 421 (1986); Local 93, Firefighters v. Cleveland, 478 U.S. 501 (1986);
Johnson v. Transportation Agency, 480 U.S. 616 (1987) (based on Title VII). But see Firefighter's
Local 1784 v. Stotts, 467 U.S. 561 (1984) (based on Title VII).
3. See Weber, 443 U.S. 193 (1979); Sheet Metal Workers, 478 U.S. 421 (1986); Firefighters,
478 U.S. 501 (1986); Johnson, 480 U.S. 616 (1987); Paradise,480 U.S. 149 (1987); Metro, 110 S.
Ct. 2997 (1990).
4. See Bakke, 438 U.S. 265 (1978); Wygant, 476 U.S. 267 (1986).
5. Herman Schwartz, The 1986 and 1987Aff rmative Action Cases It'sAll Over but the Shout-
ing, 86 MICH. L. REv. 524, 526 (1987) (noting that Justice Powell recused himself from the Weber
decision).
6. Justice Burger, see Fullilove, 448 U.S. 448 (1980); Justice Brennan, see Weber, 443 U.S. 193
(1979); Sheet Metal Workers, 478 U.S. 421 (1986); Firefighters, 478 U.S. 501 (1986); Johnson, 480
U.S. 616 (1987); Paradise,480 U.S. 149 (1987); Metro, 110 S. Ct. 2997 (1990).
7. Justice White, see Stotts, 467 U.S. 561 (1984); Justice O'Connor, see Croson, 488 U.S. 469
(1989).
 ST. THOMAS LAW REVIEW [Vol. 4:161

To fully appreciate the effect of these pronouncements, however, it

is imperative to examine their jurisprudential underpinnings. Therefore,
specific reference to the basic concepts of equality and justice employed
by the Court becomes critical to such understanding. The language used
by the Court in discussing equality and justice is at once innocuous and
common, while profoundly multifaceted. It becomes a fascinating, if
problematic, point of departure from rhetoric into values expressed al-
most inadvertently. Somehow, despite the language, we must attempt to
glean the real ideology hiding behind this chameleonic body of law; such
is the intent of this note.

II. A CONCEPT OF CONSTITUTIONAL EQUALITY AND ITS

APPLICATION

"[T]he failure to integrate successfully the various mediating steps

connecting [1] particular doctrinal pronouncements with [2] the concept
of constitutional equality at the highest levels of abstraction" attributes
to the general incoherence in affirmative action jurisprudence. 8 Presup-
posing the reader's familiarity with the former, it is helpful to first estab-
lish that the seven Justices who remain on the bench since their decision
in City of Richmond v. JA. Croson Co. 9 concur in the broad meaning of
the latter. They regard the Fourteenth Amendment's Equal Protection
Clause as "designed to uphold the equal worth, dignity, and respect of
every individual, regardless of race or ethnic origin." 10
Less unity is revealed, however, in the Court's application of this
highly abstracted principle of equality. The result is a fundamental di-
vergence as to what constitutional equality requires at an "intermediate
level of abstraction," equal treatment or equal results.11 Since scarcity
12
often renders the "direct allocation of shares to claims.., infeasible,"
instances arise where theoretical polarization leads to inapplicable and

8. Michel Rosenfeld, Metro Broadcasting v. FCC: Affirmative Action at the Crossroadsof

ConstitutionalLiberty and Equality, 38 UCLA L. REv. 583, 588 (1991) [hereinafter Rosenfeld, Con-
stitutionalLiberty]. Mediating steps involve the application of artificial principles which "stand be-
tween the courts and the Constitution," give textual provisions "meaning as a guide for decision,"
and are "open to reevaluation and redefinition in a way that the text of the Constitution is not."
Owen Fiss, Groups and the Equal Protection Clause, 5 PHIL. & PuB. AFF. 107, 109 (1976).
9. Croson, 488 U.S. 469 (1989). The seven include Justices Blackmun, Rehnquist, White,
Stevens, O'Connor, Scalia, and Kennedy.
10. Rosenfeld, ConstitutionalLiberty, supranote 8, at 588. See also Croson, 488 U.S. at 494-95,
511, 522-28, 548; Michel Rosenfeld, Decoding Richmond: Affirmative Action and the Elusive Mean-
ing of ConstitutionalEquality, 87 MICH. L. REv. 1729 (1989) [hereinafter Rosenfeld, Constitutional
Equality].
11. MICHEL ROSENFELD, AFFIRMATIVE ACTION AND JUSTICE 22 (1991) [hereinafter ROSEN-
FELD, AFFIRMATIVE ACTION]; Rosenfeld, ConstitutionalLiberty, supra note 8, at 588.
12. NICOLAS RESCHER, DISTRIBUTIVE JUSTICE 64 (1966).
1992] EQUALITY IN ABSTRACTION AND APPLICATION 163

abstract indulgences. 13 Thus, in cases of scarcity the limited substitution

of the equality of opportunity principle becomes a justifiable compro-
mise, arguably chromaticizing a continuum between treatment and
results.
Scholars recognize that applying the equality of opportunity princi-
ple often leads to different results.14 Dworkin characterizes this distinc-
tion as the difference between equal treatment and treatment as an
equal.15 Professor Michel Rosenfeld summarizes this position succinctly:
"[E]quality of opportunity may not result in equal treatment, but it does
respect every person's right to treatment as an equal." 16

A. A Hypothetical
A variation on a well-worn theme may illustrate the tension between
these principles. Unexpectedly, a ship sinks into shark-frenzied waters
during a violent evening storm, hundreds of miles from the coast or any
navigable channels. The ship's twelve passengers include six red women
and six yellow women. None of the women are otherwise distinguish-
able, physically or experientially, nor are they in any way responsible for
the predicament.
The only hope for survival is one lifeboat, which will not support
more than 600 pounds. The lifeboat seats up to six people, but will cap-
size from imbalance unless everyone touching the lifeboat is seated en-
tirely within its perimeter. Each woman weighs 100 pounds, cannot
swim, recognizes all aspects of the predicament, and wants to live. The
twelve women face each other as they sit on the lifeboat's circumference,
which in turn sits on the ship's evenly submerging deck, as all descend
into the sea.
Here, equality at its most abstract becomes meaningless. Assume
that all of the women in this scenario concede equality in terms of dig-
nity, autonomy and respect. Where do we go from here?

III. MEDIATING PRINCIPLES APPLIED

A. Equality of Treatment
Applying the equality of treatment postulate to this scenario would
require that, since there is a relative scarcity of shares (seats) to claims,
none of the women shall benefit from a share. This is an untenable posi-

13. See Hypothetical, infra.

14. D.D. RAE, EQUALrrIES 64 (1981) ("opportunities of power, right, and acquisition are to be
equal: power, right, and acquisition themselves are not").
15. RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 22 (1977).
16. ROSENFELD, AFFIRMATIVE ACTION, supra note 11, at 24.
 ST. THOMAS LAW REVIEW [Vol. 4:161

tion unless rigid adherence to the equal treatment principle justifies the
needless death of six women. A group-regarding reading of the equal
treatment principle might allocate three seats to each group, resulting in
the arbitrary death of three red women and three yellow women based
purely on their color. Equal treatment is therefore justifiable, if at all, in
theory alone.

B. Equality of Result
Similarly, the equality of result postulate mandates that all twelve
must live or die, and since only some women may live due to the scarcity
of seats, none shall five. This is an equally untenable position unless rigid
adherence to the equal result principle justifies the needless death of six
women. Scarcity thus renders this position ineffectual and justifies a lim-
ited substitution of the equality of opportunity principle.

C. Equality of Opportunity
Professor Rosenfeld reads Rescher 17 expansively to address this
impasse:
Where equality of result is morally justified... that is, where no mor-
ally relevant differences [between subjects] are found that would justify
inequality of result... [the equal result principle] can nevertheless be
set aside if there is a compelling reason to do so, provided that all those
originally entitled to equality of result have an equal opportunity to
receive the scarce
18
goods to which they would be morally entitled ab-
sent scarcity.
A closer examination of this principle is in order.
Professor Rae subdivides the equality of opportunity postulate into
that which is prospect-regarding and that which is means-regarding. 19
The former focuses on the probability of attaining a scarce good; the
latter on the instruments used in attaining a scarce good. Applied to the
hypothetical, prospect-regarding equality of opportunity would require
only that each of the twelve women have an equal probability of attaining
a scarce seat. This could be achieved by resorting to any fair lottery,
such as rolling dice or drawing straws.
On the other hand, means-regarding equality of opportunity would
require that the twelve women possess the same instruments with which
to attain the scarce seat. At first blush this may seem indistinguishable
from the former variation. Each prospect-regarding opportunist, for ex-
ample, might agree to the use of a six-sided die. Equality of means, how-

17. See supra note 12 and accompanying text.

18. ROSENFELD, AFFIRMATIVE AcION, supra note 11, at 24.
19. RAE, supra note 14, at 65-66.
1992] EQUALITY IN ABSTRACTION AND APPLICATION 165

ever, contemplates each woman's prospective success if the twelve agree

to a competition for the scarce seats where oars are used to push oppo-
nents overboard.
Oars not identical in composition, length, weight, and shape would
certainly frustrate each woman's prospect for gaining a seat. To further
abuse the analogy, the lines between these variations continue to blur
where the prospect of jousting a competitor overboard for a scarce object
(a seat) is influenced by pre-existing environmental factors such as the
fortuity of having the wind at one's back, which may alter the relative
value of otherwise equal means.

i. FormalEquality of Opportunity
Scholars further subdivide the concept of equality of opportunity by
its qualities of formality and fairness. Fullinwinder's formal equality of
opportunity, applied to the scenario, merely requires that no one woman
has a legal or quasi-legal impediment to her equal opportunity to acquire
a scarce seat that is not shared by each of the other women. 20 Suppose
there is an applicable law-of-the-sea treaty, which unconditionally pro-
hibits yellow women from touching red women with oars. The penalty
for violation is death. The principle of formal equality of opportunity, if
used to assess the validity of this law, addresses both prospects and
means.
This formalistic variation on the theme seems to offer little more
protection from de facto inequality than that offered by rigid discrimina-
tory intent requirements, and suffers from limitations similar to those of
the state action doctrine. Further, it shares a kindred, uninformed rigid-
ity with process-based and atomistic theories of review.2 1

ii. FairEquality of Opportunity

Rawls and some of his contemporaries distinguish the fair equality
of opportunity as yet another means-regarding hybrid, which contem-
plates nature and nurture.2 2 Though phrased in different terms, these
scholars share a common concern for the inequities of otherwise equal

20. ROBERT FULLINWINDER, THE REVERSE DISCRIMINATION CONTROVERSY 101 (1980).

21. See infra notes 100-114 and accompanying text.
22. "In all sectors of society there should be roughly equal prospects of culture and achieve-
ment for everyone similarly motivated and endowed. The expectations of those with the same abili-
ties and aspirations should not be affected by their social class." JOHN RAWLS, A THEORY OF
JUSTICE 73 (1971). Since "the pervasive and continuing influence of our initial place in society and
of our native endowments, and of the fact that the social order is one system, is what characterizes
the problem ofjstie... [wle must not be enticed ... into pretending that the contingencies of
men's social positions and the asymmetries of their situations somehow evens out in the end." Id. at
171. See also ALAN H. GOLDMAN, JUSTICE AND REVERSE DISCRIMINATION 171 (1979).
 ST THOMAS LAW REVIEW [Vol. 4:161

prospects enhanced by extrinsic or socialized values. To continue with

the previous scenario, we must depart from the women's total common-
ality, and supply them with cohesive and discrete histories.
Assume that the red women have worked in olive fields all of their
lives, while the yellow women have studied the fine arts in the most ex-
clusive conservatories and are decidedly expert in fencing. Arguably the
fencing skills possessed by the yellow women enhance their prospects of
acquiring the scarce seats, by means of the oars, over the red women.
Further, there is reason to believe the yellow women cultivated their
skills partially due to their relatively privileged social position. If so, fair
equality of opportunity is questionable to the degree that the value of
otherwise equal means is relatively enhanced by inorganic and socialized
advantages. Thus, a principled analysis of the scenario involving the for-
tuity of wind at one's back must include the source of any such relative
extrinsic advantage.

IV. MARGINAL AND GLOBAL EQUALITY

It becomes necessary to further define the different conceptions of

equality and justice through which those more abstract aspirations are
realized. To this end marginal equality is defined with respect to
"changes from the status quo, with the changes being equal in magnitude
for all," and global equality with respect to "holdings above zero, with
their amounts or end states being equal."' 23 The greatest distinction be-
tween these conceptions lies in the significance of any attendant dissimi-
larity of situation between those affected by their application.
Justice Powell has been characterized as the "architect of the margi-
nal equality position." 24 He interprets the Constitution to require equal
treatment, regardless of race, and takes the position that marginal equal-
ity insures such treatment. 25 Since his seminal opinion in Regents of the
University of Californiav. Bakke, 2 6 his rhetoric can be found (where his
position cannot readily) echoed by subsequent pluralities faced with the

23. RAE, supra note 14, at 51.

24. Rosenfeld, ConstitutionalEquality,supra note 10, at 1761.
25. See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 289-320 (1978).
26. 438 U.S. 265 (1978). In a five to four decision, the Supreme Court held Davis Medical
School's affirmative action special admissions policy violative of the Fourteenth Amendment's Equal
Protection Clause. Id. at 272 n.l. A white male applicant had been denied admission twice, and
alleged that the Davis plan's consideration of race, specifically the reservation of 16 seats for enumer-
ated disadvantaged minority students, impermissibly discriminated under the state and federal con-
stitutions and under federal statute. The California Supreme Court agreed, and based on the
Fourteenth Amendment, ordered the plaintiff's admission and enjoined the school from considering
race a factor in future admission decisions.
1992] EQUALITY IN ABSTRACTION AND APPLICATION 167

substantive question. A brief examination of the origins of Justice Pow-

ell's conceptual "architecture" is, therefore, in order.
Because no majority opinion emerged from the Bakke Court, 27 Jus-
tice Powell became the swing vote on a bitterly divided bench. 28 The
Court affirmed a non-minority 2 9 student's admission into medical school.
Although the racially based quota plan failed to pass statutory 30 or con-
stitutiona 31 muster, the Court approved the consideration of race as a
"plus" factor in admission decisions. 32
Two years later, Justices Stewart and Rehnquist surfaced as com-
mitted marginalists, 33 finding "nothing in this language [regarding the
Equal Protection Clause of the Fourteenth Amendment which] singles
out some 'persons' for more 'equal' treatment than others." 34 On one
other occasion before stepping down from the bench, Justice Powell
wrote the Court's opinion on the constitutional merits of an affirmative
35
action plan in Wygant v. Jackson Board of Education.

27. Justices Stevens, Stewart, Rehnquist, and Chief Justice Burger did not even reach the con-
stitutional issue because they viewed the policy invalid under Title VI, § 601 of the 1964 Civil Rights
Act. Id. at 408-21.
28. Justice Powell reached the constitutional issue, and speaking for the remainder of the
Court, found that Title VI was coextensive with the Constitution, and as such was violated only if
the Constitution was violated. Id at 324.
29. Through negative inference, Davis Medical School defines non-minority as all but
"'Blacks,' 'Chicanos,' 'Asians,' and 'American Indians.'" Id at 274.
30. Civil Rights Act of 1964, § 601, 42 U.S.C. § 1000d (1992), provides: "No person in the
United States shall, on the ground of race, color, or national origin, be excluded from participation
in, be denied the benefits of, or be subjected to discrimination under any program or activity receiv-
ing Federal financial assistance."
31. The Equal Protection Clause of the Fourteenth Amendment provides: "[N]or shall any
State ...deny to any person within its jurisdiction the equal protection of the laws." Note that the
state court based its decision in pertinent part on the California Constitution which read: "No
special privileges or immunities shall ever be granted which may not be altered, revoked, or repealed
by the Legislature; nor shall any citizen, or class of citizens, be granted privileges or immunities
which, upon the same terms, shall not be granted to all citizens." CAL. CONST. art. I, § 21, repealed
by CAL. CONST.art. I, § 7.
32. Bakke, 438 U.S. at 296 n.36.
33. See Fullilove v. Klutznick, 448 U.S. 448, 522-32 (1980).
34. Id. See also iULat 526 (further characterizing its terms as guaranteeing personal rights to
the individual unfairly and arbitrarily discriminated against by race-conscious laws, regardless of her
skin color, the law's purpose or its promulgating body).
35. 476 U.S. 267 (1986). The Court struck down a public employer's voluntary modified layoff
policy, designed to correct societal discrimination while providing minority role models by protect-
ing recently hired black teachers from layoff, seniority notwithstanding, as violative of the Four-
teenth Amendment. Id. Factually, laid-off non-minority teachers alleged that a collective bargaining
agreement between their employer and teachers' union resulted in a layoff policy implemented to
redress the present effects of past societal discrimination. They further alleged that absent a convinc-
ing factual finding of prior discrimination by the governmental unit, the policy impermissibly denied
equal protection. Id. at 273. The agreement had contemplated that since the last hired would be the
first fired, recent affirmative action employment efforts would be thwarted by the application of
traditional seniority based layoff policies. Therefore, a modified layoff policy was implemented
 ST. THOMAS LAW REVIEW [Vol. 4:161

On the other hand, Justice Blackmun interprets the Constitution to

require equal results, taking the position that global equality insures such
treatment 36 "even if that requires imposing or tolerating marginal ine-
qualities."' 37 The hallmark of this position is its consideration of, and
degree of accountability to the aforementioned situational dissimilarity of
those affected by its application. If not the most representative, the most
often quoted phrase emerging from the"global position may be found in
Justice Blackmun's separate Bakke opinion: "In order to get beyond ra-
cism, we must first take account of race. There is no other way. And in
order to treat some persons equally, we must treat them differently. We
cannot - we dare not - let the Equal Protection Clause perpetuate
'38
racial supremacy."
Probably more representative of the color-consciousness characteris-
tic of the global position, and certainly less double-edged, is Justice Bren-
nan's caveat, "we cannot... let color blindness become myopia which
masks the reality that many 'created equal' have been treated within our
'39
lifetimes as inferior both by the law and by their fellow citizens." It
becomes evident that the Court's multifarious pronouncements within
the context of its affirmative action jurisprudence reflect a profound di-
vergence as to the nature of justice and the equality required by the
Constitution.

V. COMPENSATORY AND DISTRIBUTIVE JUSTICE

Professor Rosenfeld has used Aristotelian distinctions between com-

pensatory and distributive conceptions of justice4° to illuminate the juris-
prudential bases from which these different positions emanate. 4 1
Compensatory justice refers to "the voluntary or involuntary exchange of
equivalents designed to restore the equilibrium between two agents who

whereby the percentage of each teacher's racial group would remain static by laying off the same
proportion of employees within each representative group. Id. at 270-71.
Although Justice Powell's opinion represents only a plurality of result (including Justices Bur-
ger, Rehnquist, O'Connor, and White), a majority agreed that a public employer's race-conscious
remedy for past employment discrimination is not per se unconstitutional. Beyond that, there was
typically little common ground. The plurality framed the issue before the Court in terms which
reflect the standard of review it found appropriate: "whether the layoff provision was supported by a
compelling state purpose, and whether the means chosen to accomplish that purpose were suffi-
ciently narrowly tailored" to their end. Id. at 280, 283.
36. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 407 (1978).
37. Rosenfeld, ConstitutionalEquality, supra note 10, at 1735.
38. Bakke, 438 U.S. at 407 (emphasis added).
39. Id. at 327.
40. 5 ARISTOTLE, NICOMACHEAN ETHics (1). Ross trans., rev. ed. 1980).
41. Although philosophers disagree as to the breadth of Aristotle's public "distributive justice"
and private "corrective justice," here Professor Rosenfeld's reading is respectfully used. See ROsEN-
FELD, AFFIRMATIVE ACTION, supra note 11, at 30.
 1992] EQUALITY IN ABSTRACTION AND APPLICATION 169

have voluntarily or involuntarily become engaged in some transaction."

Distributive justice refers to "the fair division and distribution of benefits
and burdens among members of a society." 42
Theoretical distinctions are often made between compensatory jus-
tice, which is always purely "backward-looking" as it aspires to remedy
the effects of past misconduct, 43 and distributive justice which is "for-
ward-looking," though not exclusively so.44 Global theorists have per-
suasively argued that "looking forward does not forget the sins of
'discrimination; it just sees them as less in need of remedy than
45
redemption."
Justice Stevens has most recently espoused the distributive prescrip-
tion in Metro Broadcastingv. FCC,46 by "drawing on the proposals" 47 of
Tribe, Sullivan, and Dworkin.4 8 This position is not unprecedented as
Justice Powell theorized in Bakke that purely forward-looking, distribu-
tive racial diversity could be the constitutional objective of a flexible af-
firmative action admissions program. 4 9 At this point Justice Powell
resists the bright lines drawn by marginal/global analyses. Justice
O'Connor's position is more representative of purely marginal values in
that she rejects the legitimacy of distributive goals such as racial and
51
broadcast diversity,50 or minority role models.

42. Michel Rosenfeld, Affirmative Action, Justice, andEqualities: A Philosophicaland Constitu-

tionalAppraisal, 46 OHIO ST. L.J. 845, 860 (1985). See also Rosenfeld, ConstitutionalEquality,
supra note 10, at 1730 n.9.
43. Michel Rosenfeld, Deconstruction and Legal Interpretation: Conflic Indeterminacy, and
the Temptations of New Legal Formalism, 11 CARDozo L. REv. 1221, 1252, 1259, 1264 (1990).
44. Id. (considering past events and conditions, for example, as relevant to the equitable distri-
bution of future benefits). See ROSENFELD, AFFIRMATIVE ACTIoN, supra note 11, at 202 ("distribu-
tion of certain economic benefits may be predicated on demonstrating past chronic poverty,
involving no wrongdoing and hence no compensatory claims").
45. Kathleen M. Sullivan, Sins of Discrimination:Last Term's Affirmative Action Cases, 100
HARV. L. REv. 78, 98 (1986).
46. 110 S.Ct. 2997, 3028 (1990) (involving the purely distributive objective of broadcast diver-
sity). "Today the Court squarely rejects the proposition that a governmental decision that rests on
racial classification is never permissible except as a remedy for a past wrong. I endorse this focus on
the future benefit, rather than the remedial justification, of such decisions." Id See also Wygant v.
Jackson Bd. of Educ., 476 U.S. 267, 313-17 (1986) (involving the partly distributive objective of
providing African American role models); Fullilove v. Klutznick, 448 U.S. 448, 542-43, 552 (1980)
(beyond remedy, set-asides might be a justifiable means of "facilitating and encouraging the partici-
pation by [Minority Business Enterprises] in the economy").
47. Charles Fried, Metro Broadcasting v. FCC: Two Concepts of Equality, 104 HARV. L. REv.
107, 125-26 (1990).
48. See LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 16-22, at 1537-39, 1543-
44 (2d ed. 1988); Sullivan, supra note 45, at 80-81, 96-98; RONALD DWORKIN, TAKING RIGHTS
SERIOUSLY 223-39 (1977); see generally Fried, supra note 47.
49. 438 U.S. 265, 314-19 (1978). Beyond remedy, racial medical student diversity "may bring
... experiences, outlooks, and ideas that enrich the training of its student body ...." Id. at 314.
50. Metro, 110 S.Ct. at 3035.
 ST THOMAS LAW REVIEW [Vol. 4:161

A. The Paradigm of Compensation

Professor Rosenfeld's "paradigm of compensation" lends a useful
standard to which affirmative action must be restricted by those seeking
equal treatment through strictly marginal, narrowly compensatory
justice:
In the paradigm of compensation, the unjust gain of the wrong-
doer is equivalent to the unjust loss of the victim, and compensation
simultaneously wipes out the unjust gain and the unjust loss. Devia-
tions from this paradigm occur on the side of the wrongdoer when a
nonwrongdoer compensates a victim, and on the side of the victim
when a wrongdoer compensates a nonvictim. Since official toleration
of wrongdoing would undermine the victim's equal treatment rights,
compensation in the paradigm case can be viewed
52
as a necessary tool
in the preservation of equal treatment rights.
It is noteworthy that the Court has allowed such deviation on the
side of the victims (when nonvictims are compensated) in Local 28, Sheet
Metal Workers v. EEOC,5 3 where it interpreted Title VII not to preclude
"class based" race-conscious relief to those not proven to be victims of
discrimination, even if this "might incidentally benefit individuals who
'5 4
were not the actual victims of discrimination.
The Court has also expressly condoned victim deviation from the
paradigm in Local 93, Firefightersv. Cleveland,55 where Justice Brennan
reiterated from the Sheet Metal Workers decision in which he had spoken
for the Court that day, that "courts may, in appropriate cases, provide
relief under Title VII that benefits individuals who were not the actual
victims of a defendant's discriminatory practices."'5 6 Here, the Court in a

51. Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 288 (1986).
52. Rosenfeld, ConstitutionalLiberty, supra note 8, at 590 n.32 (emphasis added).
53. 478 U.S. 421 (1986).
54. Id at 452-70. (Marshall, J., Blackmun, J., and Stevens, J., joining). Contra 478 U.S. at 500
(Rehnquist, J., dissenting). A trade union and its apprenticeship committee were found guilty of
engaging in an egregious pattern and practice of discrimination against nonwhites pursuant to Title
VII. Upon noncompliance with an earlier order, the court found the appellants in contempt, or-
dered a fine to be placed in a fund established to remedy the lingering effects of pervasive discrimina-
tion, and increased the earlier affirmative action goal from 29% to 29.23% nonwhite membership.
The increase reflected a change in the percentage of minorities in the relevant New York City labor
pool. Id. at 440-44. The District Court had given the appellants six years to end their discrimina-
tory practices. Id. at 432.
The Court affirmed the District Court's imposition of civil contempt fines, issued in 1982 and
1983 for the disobeyance of a 1975 court order requiring the implementation of an affirmative action
plan to correct the private appellant's discriminatory practices by 1981. Justice Brennan delivered
the Supreme Court's opinion upholding the sanctions as proper remedies for civil contempt, id. at
442-44, further characterizing the race-conscious program as appropriate equitable relief ordered
within the court's discretion under Title VII, Section 706(g). Id. at 445-47.
55. 478 U.S. 501 (1986).
56. Id. at 515.
1992] EQUALITY IN ABSTRACTION AND APPLICATION 171

six to three decision validated a voluntary consent decree5 7 that provided

for race conscious promotional goals between minority employees and
their municipal employer as the preferred means of achieving Title VII's
objectives.5 8 Likewise, in United States v. Paradise5 9 the Supreme Court
again allowed victim deviation. It declared constitutional a District
Court order requiring a one-black-for-one-white promotional proce-
dure6 O to be implemented by a public employer 61 proven to have discrim-
62
inated against black state troopers.
The Court has even allowed for deviation from the paradigm of
compensation on the side of the wrongdoers (when nonwrongdoers com-

57. The Court found the voluntary nature of a consent decree its most fundamental characteris-
tic, because the limits otherwise imposed on District Court "orders" by Title VII, § 706(g) become
inapplicable. Sheet Metal, 478 U.S. at 515-24. Title VII § 706(g), 42 U.S.C. § 2000e-5(g) provides:
No order of the court shall require the admission or reinstatement of an individual as a
member of a union, or the hiring, reinstatement, or promotion of an individual as an em-
ployee, or the payment to him [her] of any back pay, if such individual was refused admis-
sion, suspended or expelled, or was refused employment or advancement or was suspended
or discharged for any reason other than discrimination on account of race, color, religion,
sex, or national origin or in violation of section 2000e-3(a) of this title.
The Court was, therefore, not persuaded by the intervening union's argument that a court's limited
remedial post-trial authority under Title VII was implicated by voluntary agreements. Sheet Metal,
478 U.S. at 524-28.
58. Justice Brennan, joined by Justices Marshall, Blackmun, Powell, Stevens, and O'Connor
approved of the District Court's adoption of the four year affirmative minority promotion goals,
voluntarily agreed to by the Vanguards, an organization of Black and Hispanic firefighters, and their
employer, the City of Cleveland.
59. 480 U.S. 149 (1987).
60. Id. at 154-55. This quota was limited only by the availability of qualified Black applicants,
and until such time as the department's work force reflected the relevant labor pool, of which Blacks
constituted 25%. Id.
61. In 1972, the Alabama Department of Public Safety was found to have systematically ex-
cluded all Black applicants from its employ as state troopers over its 37 year history, for which the
District Court ordered the cessation of such discriminatory practices, and a hiring quota. The De-
partment conceded failure in 1979, and entered into a court approved partial consent decree detail-
ing a one year promotional remedy. The Department conceded failure again in 1981, and entered
into a second court approved remedial consent decree. By 1983, the disparate effect of the Depart-
ment's promotional testing left Blacks in roughly the same position. Id. at 154-65.
62. Led again by Justice Brennan, joined by Justices Marshall, Blackmun, Powell and Stevens
(concurring in result), the plurality found the order to survive constitutional attack, even when
arguendo strictly scrutinized, because it was narrowly tailored to serve a compelling governmental
interest in correcting the Department's historical discrimination. The plurality, however, was care-
ful not to be understood as adopting the strict standard of review in affirmative action cases; the issue
was simply moot in the instant case.
Justice Stevens' concurrence reaches the same result under the authority of Swann v. Charlotte-
Mecklenburg, 402 U.S. 1 (1971). He concluded that District Courts are empowered with "broad
and flexible" authority to fashion race-conscious relief where the record discloses such egregiously
discriminatory state action violative of the Fourteenth Amendment. Paradise,480 U.S. at 196-200.
Justice O'Connor's dissent assails the plurality opinion as "standardess," and finds the ordered
quota not "manifestly necessary." Id at 196-97. Notably, Justices Rehnquist and Scalia joined.
Justice White also apparently joined in result. See id at 196 (in typically laconic and quizzical
support of an unspecified portion of Justice O'Connor's dissent).
 ST. THOMAS LAW REVIEW [Vol. 4:161

pensate) in Fullilove v. Klutznick 63 which would be unjustifiable under

the marginal equality position. Here, the Court faced claims that a fed-
eral statute failed because it inequitably distributed remedial burdens to
those "innocent" of prior discrimination," and because it was not color-
blind. 65 The plaintiffs further claimed the statute failed as being underin-
clusive because it did not enumerate all disadvantaged businesses,66 and
as being overinclusive because it potentially provided benefits to non-vic-
tims. 67 In a six to three decision, the Fullilove Court upheld the constitu-
tionality of a congressionally mandated set-aside program for bona-fide
Minority Business Enterprises (MBEs) 68 in federally funded local public
works projects, 69 under the equal protection component of the Fifth
Amendment's Due Process Clause.70 Chief Justice Burger found the
government's means to be "narrowly tailored" to its ends, and an-
nounced the Supreme Court's judgment 7t which characteristically lacked
72
unity.

63. 448 U.S. 448 (1980). Private associations of construction contractors and subcontractors
had challenged the constitutionality of a federal spending program that included a 10% set-aside
requirement, designed to remedy the present effects of past discrimination toward the statutorily
enumerated minority business owners, as a condition precedent to federal funding. The petitioners
contested Congress' general power to fashion such a remedy. Specifically, they argued that the stat-
ute's race-conscious scheme was burdensome to "innocent" non-minority firms, and was both under-
inclusive and overinclusive.
64. Id. at 484-85.
65. Id at 482-84.
66. Iad at 485.
67. Id. at 486-89 (acknowledging the statute's potential for abuse, but satisfied by its liberal
waiver provisions contemplating such abuse and insuring against the frustration of its objectives).
68. 42 U.S.C. § 6705(0(2) (1976 & Supp. II) (including businesses at least 50% owned or 51%
controlled by "citizens of the United States who are Negroes, Spanish-speaking, Orientals, Indians,
Eskimos, and Aleuts").
69. Public Works Employment Act of 1977, 42 U.S.C. § 6701 (1992) (amending the Local
Public Works Capital Development and Investment Act of 1976, 42 U.S.C. § 6701 (1988)).
70. "Equal protection analysis in the Fifth Amendment area is the same as that under the
Fourteenth Amendment." Buckley v. Valeo, 424 U.S. 1, 93 (1976).
71. Justices White and Powell joined, and Justices Marshall, Brennan, and Blackmun con-
curred in result under a less strict standard. Justice Marshall reiterated that he and his brothers
Brennan, Blackmun and White had agreed in Bakke, that because "principles outlawing the irrele-
vant or pernicious use of race were inapposite to racial classifications that provide benefits to minori-
ties for the purpose of remedying the present effects of past racial discrimination," the conventional
strict scrutiny standard of review does not attach to the latter. Fullilove, 448 U.S. at 518. Moreover,
the latter need only serve important governmental objectives, to which the classification is substan-
tially related. Id. at 519.
72. The Court recognized the Act's validity as within Congress' Spending Power pursuant to
Article 1, section 8, clause 1, of the United States Constitution "to provide for the . . . general
Welfare." This was considered coextensive with, if not broader than, its regulatory powers to
achieve such objectives. Id. at 475. The Court relied on Katzenbach v. McClung, 379 U.S. 294
(1964) and Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964) (demonstrating Congress'
regulatory power over commerce) (also noting U.S. CONST. art. I, § 8, cl. 3). The Court further
noted its power to implement and "enforce, by appropriate legislation" the Fourteenth Amend-
1992] EQUALITY IN ABSTRACTION AND APPLICATION 173

The Court has further deviated beyond prescriptive marginal equal-

ity and Professor Rosenfeld's paradigm, by approving a nonwrongdoer's
voluntary plan benefitting nonvictims, in Johnson v. Transportation
Agency. 73 The Court there was faced with a public employer's volunta-
rily adopted affmative action plan, implemented in part to remedy a
"manifest imbalance" that reflected the under-representation of women
in "traditionally segregated job categories." 74 The Court upheld the plan
75
for hiring and promoting women and minorities against an employee's
Title VII attack. In a six to three decision, Justice Brennan wrote for the
majority 76 holding that because the public employer's voluntary plan
represented a "moderate, flexible, case-by-case approach to effecting a
gradual improvement in the representation of minorities and women in
the Agency's work force," it was not inappropriate to consider sex a fac-
77
tor in promotion.
The narrowly compensatory model represented by the paradigm,
most rigidly adhered to by Justices Scalia and Kennedy, 7 8 and generally
adhered to by the Court's other proponents of marginal equality, is not
without exception. Justice Powell allows deviation on the side of the vic-
tim (when nonvictims are compensated); 79 Justice O'Connor deviates on
the side of the wrongdoer (when nonwrongdoers compensate). 80

ment's guarantee of equal opportunity to participate in federal grants to state and local governments,
thus deeming such an exercise properly authorized and sufficient to achieve the instant objectives
within Congress' Spending Power. Ia at 476-79.
73. 480 U.S. 616 (1987).
74. Id at 617. None of the 238 positions in the pertinent "Skilled Craft Worker" classification,
which included the dispatcher position in dispute, was held by a woman. Further, although women
constituted 36% of the relevant labor pool, women constituted less than 10% of the pertinent classi-
fication within the Agency. See generally MELVIN I. URoFsKY, A CONFLICT OF RIGHTS: THE
SUPREME COURT AND AFFIRMATIVE ACTION (1991) (including an excellent historical study of the
Johnson case).
75. A well qualified male employee who was recommended for a promotion to road dispatcher
for the Transportation Agency of Santa Clara County succeeded in a Title VII challenge against his
employer for promoting instead, pursuant to its affirmative action goals, a female employee who was
also deemed well, though arguably less, qualified for the job. Johnson, 480 U.S. at 619.
76. Justices Marshall, Blackmun, Powell, and Stevens joined, and Justices Stevens and
O'Connor concurred in the judgment. Id.
77. Id. at 642. Moreover, the Court characterized the plan as "fully consistent" with the fed-
eral statute because it "embodie[d] the contribution that voluntary employer action can make in
eliminating the vestiges of discrimination in the workplace." Ia
78. See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 518-20, 520-28 (1989) (Kennedy,
J., concurring) (Scalia, J., concurring). Note that these two, fifty-five year old Justices appointed by
President Reagan portend strict color-blindness with references to South African apartheid, laws
condoning separate-but-equal African American railway passenger cars, and laws condoning the
internment of Japanese Americans as historical examples of "benign" race-conscious measures.
Metro Broadcasting v. FCC, 110 S.Ct. 2997, 3044-47 (1990) (Kennedy, J., dissenting).
79. Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 274-78 (1986).
80. Croson, 488 U.S. at 505-08.
 ST. THOMAS LAW REVIEW [Vol. 4:161

Although it can be found in the Court's Wygant 81 and Croson 82 opin-

ions, which these two justices respectively authored, such tolerance may
be seen as somewhat gratuitous since it was ineffectual in each case. No
such paradigmatic standard necessarily restricts those who seek equal re-
sults through concepts of global, broadly distributive justice.
Practically, proponents of marginal equality seek equal treatment,
governed by principles of compensatory justice. Those who adhere to
this conception of justice consequently subject affirmative action's nar-
rowly compensatory purposes to strict scrutiny. The relationship be-
tween the application of such a standard and preservation of the status
quo is hardly incidental. On the other hand, proponents of global equal-
ity seek equal results governed by principles of distributive justice. Those
adhering to this conception of justice consequently subject affirmative ac-
tion's broadly distributive and often compensatory purposes to interme-
3
diate scrutiny

VI. OBJECTS OF EQUAL PROTECTION

Despite the oversimplification that such a schematic overview sug-

gests, bright lines can be drawn between individual and group-regarding
conceptions of equal protection. The perspective adopted by the Court
is, not surprisingly, divided and we must again turn to dicta to discover
the fundamental (if oft unspoken) premises upon which the Court makes
its pronouncements.

A. Individualistic Conception
Proponents of the individualistic conception recognize individuals to
be the beneficiaries of constitutional protection. Therefore, fundamental
rights are "personal" rights, and may incidentally inure to the benefit of
groups to the extent that they are constituted by individuals. Personal
rights advocates resist the "sinister implications" of "benign" "separa-

81. 476 U.S. 267 (1986).

82. 488 U.S. 469 (1989).
83. Justices Brennan, Marshall, Blackmun, and even Justice White have opined since Bakke
that although remedial racial classifications may disadvantage some non-minorities, since they as a
class lack the "traditional indicia of suspectness" characterizing the discrete and insular, such non-
minorities are not entitled (in this context) to the protection the strict standard provides. Regents of
the Univ. of Cal. v. Bakke, 438 U.S. 265, 357 (1978). Further, because it is possible to craft a
remedial racial classification that does not stigmatize, affirmative action programs should not be
subject to the highest scrutiny, which is "strict in theory, fatal in fact." Id. at 362. This group has
clarified that since such programs may be susceptible to misuse, the minimally rigorous rational-
basis standard is inappropriate. Id at 358. Therefore, the proper inquiry should be whether racial
classifications designed to further remedial purposes "serve important governmental objectives, and
...[are] substantially related to the achievement of those objectives." Id. at 359.
1992] EQUALITY IN ABSTRACTION AND APPLICATION 175

tion[s] of the polity into racial groupings from which individuals cannot
escape."'8 4 They are convinced that "racial balkanization... creates, and
even celebrates, barriers to trade that in the end impoverish the human
race." 8 5 Further, proponents of this perspective do not "iew the exist-
ence of discrimination and social segmentation as a sufficient reason to
8 s6
reproduce these in the coercive apparatus of the state."
Justice Powell represents this perspective, posing in Bakke, "If it is
the individual who is entitled to judicial protection against classifications
based upon his racial or ethnic background because such distinctions im-
pinge upon personal rights, rather than the individual only because of his
membership in a particular group, then constitutional standards may be
applied consistently. '8 7 This position has thus been historically justified
to establish judicially manageable standards. More recently in Metro,
Justice O'Connor reiterated Justice Powell's position88 that "[t]he Con-
stitution does not allocate ... rights to be distributed like bloc grants
within discrete racial groups .... ,,19

B. Collectivistic Conception
Proponents of the collectivistic conception recognize groups to be
the beneficiaries of constitutional protection. Therefore, fundamental
rights are "group" rights, and individuals have thus been described as
constituted by their membership in racial, sexual, ethnic, national, and
religious groups. Proponents of group rights90 do not so liberally distin-
guish between public and private spheres of influence, and are thus char-
acterized as communitarian advocates of this position.
Justices Marshall and Brennan have consistently endorsed this per-
spective. 91 Justice Marshall first articulated his position in Bakke where
he stated:
It is unnecessary in 20th century America to have individual Negroes
demonstrate that they have been victims of racial discrimination; the
racism of our society has been so pervasive that none, regardless of
wealth or position, has managed to escape its impact. The experience

84. Fried, supra note 47, at 108-09, 109 n.l1.

85. Id. at 109. "That some degree of separation exists naturally in society is no justification for
perpetuating or strengthening it through government policy." Id.
86. Id.
87. Bakke, 438 U.S. at 299.
88. See Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 281 n.8 (1986).
89. Metro Broadcasting v. FCC, 110 S. Ct. 2997, 3028 (1990).
90. DERRICK BELL, AND WE ARE NOT SAVED (1987); Fiss, supra note 8; Charles Lawrence
III, The Id, the Ego, andEqual Protection: Reckoning with UnconsciousRacism, 39 STAN. L. REV.
317 (1987). See the excellent contrast between these positions in Fried, supra note 47, at 108-10.
91. See Wygant, 476 U.S. at 295; Bakke, 438 U.S. at 324, 400 (Brennan, J., dissenting) (Mar-
shall, J., dissenting).
 ST THOMAS LAW REVIEW [Vol. 4:161

of Negroes in America has been 92different in kind, not just in degree,

from that of other racial groups.
Although Justice Marshall refers here specifically to the African
American group, he does not limit his position to those for whom the
Equal Protection Clause has a unique historical preference. Nor does
Justice Brennan's position exclude other groups because he does not
"ground affirmative action doctrine in a particular historical context. ' 93
Indeed, each have agreed that the Equal Protection Clause has a special
significance for those classes which bear "traditional indicia of
'94
suspectness.

VII. JUDICIAL REVIEW

The Court's approach in assessing the constitutionality of affirma-

tive action is also critical, and a particularly provocative source of mod-
em constitutional theory. The applicability of the strict scrutiny test to
affirmative action cases commanded its first majority in Croson,95 and
with it the Court assumed a formalistic role supported by a process-based
theory of judicial review.
Justice O'Connor announced the Court's Croson decision, speaking
for the majority for the first time on one point regarding state legislation,
that all race-conscious remedial classifications shall be subjected to the
strict scrutiny standard applied to all other racial classifications. 96 Thus,
although all nine Justices acknowledged the constitutionality of race-
based preferences, the majority adopted the most exacting scrutiny as the

92. Bakke, 438 U.S. at 400.

93. Fried, supra note 47, at 126 n.108.
94. Bakke, 438 U.S. at 357 (the class is not saddled with such disabilities, or subjected to such a
history of purposeful unequal treatment, or relegated to such a position of political powerlessness as
to command extraordinary protection from the majoritarian political process).
95. 488 U.S. 469 (1989). The Court applied strict scrutiny in assessing the constitutionality of a
city ordinance mandating set-aside requirements for bona fide MBEs in city construction contracts,
and found the requirement violated the Equal Protection Clause of the Fourteenth Amendment.
Factually, a non-minority prime contractor was denied a waiver for failing to show that "every
feasible attempt" was made to comply with a construction contract, and for failing to demonstrate
that "sufficient, relevant, qualified MBEs" were "unavailable, or unwilling to participate in the con-
tract to enable meeting the 30% MBE goal." Id. at 478-79. Consequently, the contractor lost a bid,
and challenged the constitutionality ofthe "onerous" city ordinance. The ordinance was designed to
remedy the present effects of past discrimination toward statutorily enumerated minority business
owners, by "promoting wider participation by MBEs in the construction of public projects." RICH-
MOND, VA., CriY CODE § 12-156(a) (1985) (requiring contractors to subcontract no less than 30%
of their bid on any city construction contract, as a condition subsequent to an award, to businesses at
least 51% owned or controlled by "citizens of the United States who are Blacks, Spanish-speaking,
Orientals, Indians, Eskimos, or Aleuts").
96. Croson, 488 U.S. at 493-98.
1992] EQUALITY IN ABSTRACTION AND APPLICATION 177

standard required for their validification. 97 By these terms, the Court

concluded that Richmond's set-aside plan did not satisfy a compelling
governmental objective, 98 nor was it narrowly tailored to serve such an
objective. 99 The Court reiterated that remedying general societal dis-
crimination is not a compelling governmental objective,'0 ° unless inci-
dent to remedying a specifically identified discriminatory history. 10 1

A. Process Based Theories

Process based theories "share the belief that judges can decide equal
protection claims without relying on their own substantive moral or
political values."10 2 Such theories range from the purely formal 03 appli-
cation of a value neutral antidiscrimination principle in assessing means
to ends relationships'0 4 in cases invoking an Equal Protection Clause de-
void of substantive content, 0 5 to permitting limited judicial efforts to-
ward compensating discreet and insular minorities for breakdowns in the
10 6
majoritarian democratic political process.

B. Substantive Theories
Substantive theories of judicial review maintain that "judges cannot
avoid using substantive moral and political values (although these values
need not merely reflect the personal predilection of the judge who in-
vokes them) in determining what constitutional equality requires in par-
ticular cases."' 07 Proponents of this theory, including Professor
Rosenfeld, are concerned with the inevitable result of procedural
97. This relatively fatal standard was arguably required by precedent. See Palmore v. Sidoti,
466 U.S. 429, 432 (1984) (any racial classification "must be justified by a compelling governmental
interest"); Korematsu v. United States, 323 U.S. 214 (1944). See also Fullilove v. Klutznick, 448
U.S. 448, 480 (1980) (the challenged means to the government's legitimate ends must be "narrowly
tailored to the achievement of that goal").
98. Richmond had produced neither a quantum nor quality of evidence to satisfy the Court
that there had indeed been a history of specifically identifiable discriminatory practices within the
construction industry. Croson, 488 U.S. at 498-508.
99. The Court further found the plan to be objectionably tailored, noting legislative overinclu-
siveness, and failure to consider lesser restrictive alternatives. Id at 506-07.
100. Id. at 498.
101. Id. at 540.
102. Rosenfeld, ConstitutionalLiberty, supra note 8, at 591 n.35.
103. James O'Fallon, Adjudication and Contested Concepts: The Case of Equal Protection, 54
N.Y.U. L. REv. 19, 51 (1979).
104. Fiss, supra note 8, at 109-12.
105. Kenneth L. Karst, Forward: Equal Citizenship Under the Fourteenth Amendment, 91
HARV. L. REv. 1, 4 (1977).
106. JOHN H. ELY, DEMOCRACY AND DIsTRUsT: A THEORY OF JUDICIAL REVIEW 73-104
(1980) (on representational reinforcement) (interpreting United States v. Carolene Products, 304
U.S. 144, 152-53 n.4 (1938)).
107. Rosenfeld, ConstitutionalLiberty, supra note 8, at 591 n.35.
 ST. THOMAS LAW REVIEW [Vol. 4:161

"decontextualization." 108
Moreover, advocates of this theory recognize the Equal Protection
Clause as having been infused with (thus "constitutionalizing") substan-
tive moral values such as equal concern, 10 9 equal respect1 10 and equal
citizenship.11 1 Therefore, any purely procedural theory of review is illu-
sory,11 2 and is summarily characterized as "a function of simply forget-
ting the unspoken consensus on substantive values that remain in the
113
background."

C. Modes of Interpretation
Beyond such theories of review governing the proper judicial role in
legal, specifically constitutional, interpretation lie equally cogent theories
governing the appropriate judicial mode of factual interpretation.
Although the latter seem even more susceptible to dismissal by a legal
realist as the mere pretense of an afterthought, one must consider such
modes theoretically relevant to this discussion.

L Atomistic and Ecological Theories

Professor Rosenfeld distinguishes between the relatively discrete
and mechanical "atomistic," 1 14 and the holistic and systemic "ecologi-
cal" 115 modes of interpretation, as critical in establishing or negating the
existence of means to ends nexi. The former requires a "direct and lin-
ear" causal link, the latter allows "indirect and multi-faceted" links, "as
they are shaped by the historical sequence of adaptations and disruptions
that characterize the interactions between human actors and their inter-
subjective environment." 11 6 Legal realism may suggest that proximate
causation theory is thus manipulated to justify, or disclaim the propriety
of judicial intervention and consequent policy judgments.

108. Rosenfeld, ConstitutionalEquality,supra note 10, at 1733.

109. RONALD DWORKIN, LAW'S EMPIRE 381 (1986).
110. C.E. Baker, Outcome Equality or Equality of Respect: The Substantive Content of Equal
Protection, 131 U. PA. L. REv. 933, 938 n.15 (1983).
111. Karst, supra note 105, at 5.
112. Paul Brest, The Substance of Proces. 42 OHIo ST. L.J. 131 (1981); Laurence Tribe, The
Puzzling Persistence of Process-Based Constitutional Theories, 89 YALE L.J. 1063 (1980); Bruce A.
Ackerman, Beyond CaroleneProducts, 98 HARV. L. REv. 713, 716 n.4 (1985).
113. Rosenfeld, ConstitutionalEquality, supra note 10, at 1742.
114. ROSENFELD, AFFRMATIVE ACTIoN, supra note 11, at 211 ("relying on the disconnection
of facts from the context in which they are embedded and on the recombination of such disconnected
facts into mechanistic causal chains made up of direct and linear links").
115. Id ("approaching social facts and events in terms of the interaction between individuals,
groups, and their social, political, and historical environment").
116. Id.
1992] EQUALITY IN ABSTRACTION AND APPLICATION 179

This distinction becomes useful in assessing the significance of the

Court's differing conclusions regarding the substantiality of relations be-
tween the FCC's means of preferring minority ownership in broadcasting
and its ends, to achieve greater viewpoint diversity, in Metro.1 17 Justice
O'Connor has adopted the atomistic mode of interpretation, in failing to
recognize a substantial means to ends nexus, unrelated to market de-
mands.11 8 Justice Brennan has on the other hand, adopted the ecological
mode of interpretation, in deferring to Congress' finding that broadcast
diversity "is not purely market driven."' 119

VIII. POLITICAL THEORIES AND MEDIATING PRINCIPLES

An examination of the legitimacy of affirmative action under liberta-

rian and egalitarian political theories of prescriptive equality illustrates
the antagonism that develops through the application of a structural
"grammar of equality"120 mediating theory and practice. Professor Ro-
senfeld demonstrates that different sociopolitical systems must employ
different mediating principles to arrive at the same abstract goal.

117. 110 S. Ct. 2997 (1990). The Supreme Court upheld the constitutionality of congressionally
mandated, FCC minority preference policies designed to remedy acute industrial underrepresenta-
tion by promoting minority participation in the broadcast industry. The policies withstood interme-
diate "heightened scrutiny," in a challenge based on the equal protection component of the Fifth
Amendment's Due Process Clause. Id.
The issue before the Court derived from consolidating two cases in the context of comparative
licensing proceedings and distress sales. See Winter Park Communications v. FCC, 873 F.2d 347
(D.C Cir. 1989) (upholding the propriety of awarding an enhancement designed to facilitate the
acquisition of a new television license by a minority owner). See also Shurberg Broadcasting of
Hartford v. FCC, 876 F.2d 902 (D.C Cir. 1989) (striking down a policy enabling broadcast licensees
who may lose their license to sell it to minority buyers meeting certain requirements, at below mar-
ket rates). In each case, a non-minority broadcasting company owner challenged the constitutional-
ity of the FCC's affirmative action policies favoring competing minority broadcasting companies.
The FCC defines minority as "those of Black, Hispanic surnamed, American Eskimo, Aleut,
American Indian, and Asiatic American extraction." Statement of Policy on Minority Ownership of
Broadcasting Facilities, 68 F.C.C. 2d 979, 980 n.8 (1978). See also Commission Policy Regarding
Advancement of Minority Ownership in Broadcasting, 92 F.C.C. 2d 849, n.1 (1982).
118. Metro, 110 S. Ct. at 3037 (doubting a "particularly strong correlation of race and behavior"
which the FCC "assumes").
119. Id. at 3010-12. See also Rosenfeld, ConstitutionalLiberty, supra note 8, at 604-06 (charac-
terizing Justice Brennan's thinly disguised and analyzed, federalism-based result unsatisfactory
where more persuasive justifications existed within the properly applied ecological mode of means to
ends interpretation). The Court's opinion was authored by Justice Brennan in great deference to
Congress. He found that "even if [these congressionally mandated, race-conscious] measures are not
'remedial' in the sense of being designed to compensate victims of past governmental or societal
discrimination ... [they] are constitutionally permissible to the extent that they serve important
governmental objectives [like broadcast diversity] within the power of Congress and are substantially
related to achievement of those objectives." Id. at 3008 (emphasis added).
120. RAE, supra note 14, at 14-15.
180 ST. THOMAS LAW REVIEW [Vol. 4:161

A. Libertarianism

Libertarian justice assumes that "the achievement of individual au-

tonomy and dignity is dependent on the dispensation of purely formal
equality so as to minimize interference with individual liberty. ' 12 1 This
Lockean theory 122 defines the function of society as protection of individ-
ual property rights. The function of government is to act as society's
123
trustee as it is constituted; thereafter, the majority rules.

B. Egalitarianism

Egalitarian justice assumes that the achievement of "individual dig-

nity requires redistribution of certain goods to achieve equality of result,
at least with respect to certain fundamental human needs." 124 Nagel de-
scribes the theory as presupposing a moral equality among persons,
which requires society's hierarchical prioritization of relatively urgent
needs to improve the welfare of its disadvantaged members. 12 5 There-
fore, the equality value pursued by egalitarians is clearly that of result,
and not of treatment or opportunity, because the latter can lead to ine-
quality of outcome, unsatisfactory to society's urgent needs. 126 The egal-
itarian argument against affirmative action is that it perpetuates, if not

121. Rosenfeld, ConstitutionalLiberty, supra note 8, at 590 n.31.

122. JOHN LOCKE, THE SEcoND TREATISE OF GOVERNMENT 6,44, 87, 123, 173, 247, 373, 375,
424 (Paul Laslett ed., 1960). Contemporary proponents of libertarianism emphasize individual au-
tonomy, property rights, and a "minimal state" whose basic function is merely to provide police
protection to its citizens' lives and property, and contractual enforcement. ROSENFELD, AFFIRMA-
TIVE ACTION, supra note 11, at 52, 60 (1991) (interpreting ROBERT NozICK, ANARCHY, STATE
AND UTOPIA 26, 49 (1974)).
123. Although affirmative action finds no support in this theory's traditional literature, Professor
Rosenfeld construes a limited but plausible argument of compensatory justice based on Nozick's
principle of rectification. ROSENFELD, AFFIRMATIVE ACTION, supra note 11, at 61-64 (1991). Sim-
ply put, through the free market people find themselves in possession of "holdings" through volun-
tary or other exchanges, the propriety of which is based on the historical circumstances of
acquisition. When a holder is not entitled to her holding, compensation for a past injustice is in
order, and ideally, rectification would constitute a return to the status quo ante, once again free from
unjust interference as a negative duty of the minimal state.
124. Rosenfeld, ConstitutionalLiberty, supra note 8, at 590 n.31.
125. THOMAS NAGEL, MORTAL QUESTIONS 111-13 (1979).
126. Under this theory, there is no justification for affirmative action where equality of result is
feasible. Precisely because scarcity renders equality of result infeasible, however, affirmative action
may be justifiable with respect to the redistribution of goods critical to the welfare of an egalitarian
group's disadvantaged members, where general claims to such goods outnumber shares. Still, affirm-
ative action is difficult to justify under the precepts of this theory. Professor Rosenfeld characterizes
Nagel's hybrid egalitarian/utilitarian argument (that "it is not necessarily unjust under limited cir-
cumstances," where affirmative action "neither materially increases existing injustices nor does it
render more difficult the pursuit of greater justice," NAGEL, supra note 125, at 101), as both "weak
and narrowly circumscribed." ROSENFELD, AFFIRMATIVE ACTION, supra note 11, at 128-32.
1992] EQUALITY IN ABSTRACTION AND APPLICATION 181
128
promotes 127 inequality of result, even while it redresses past injury.
This illustrates that the achievement of a common equality value at
its highest level of abstraction might require a libertarian to adopt margi-
nal equality theory, while requiring an egalitarian to adopt global equal-
ity theory. 129 But the question remains whether any legitimate and
philosophically cogent theory arises from this conceptual framework
which might be used by the Supreme Court to justify affirmative action.
The answer does seem inextricably related to the sociopolitical ideology
embraced by the Court's majority.
Having not yet heard from Justices Souter or Thomas, a survey of
those remaining on the bench indicates that Justices Scalia, Kennedy,
O'Connor, Rehnquist, and White adhere in degrees of rigidity to princi-
ples of marginal equality, and only eighty-two year old Justice Blackmun
and seventy-one year old Justice Stevens remain as proponents of global
equality. Indeed, frustrated by the increasingly "marginal" Court's con-
servative, if not parsimonious, exercise of its authority to order affirma-
tive action, it is telling that an eighty-three year old Justice Marshall
formally stepped down from the bench on October 1, 1991, convinced
that "the most effective avenue for attaining social justice lies now in the
130
legislative arena."
On October 15, 1991, forty-three year old Justice Thomas brought
another perspective to the Court; one involving significantly less faith
and portending judicial activism. 13 1 Marginalism notwithstanding, this

127. "To award goods [through "reverse discrimination"] ... is not to abolish, but merely to
rearrange, the inequalities of distribution that now prevail. Moreover, since the goods to be awarded
preferentially are themselves instrumental to the procuring of further goods, it is clear that any
inequalities which are perpetuated by reverse discrimination must result in yet further inequalities in
the future." George Sher, Justifying Reverse Discrimination in Employment, in EQUALITY AND
PREFERENTIAL TREATMENT 85 (M. Cohen et al. eds., 1977).
128. RoSENFELD, AFFIRMATIVE ACrION, supra note 11, at 122 (citing J. Thomson, Preferential
Hiring, in EQUALITY AND PREFERENTIAL TREATMENr 31-33 (M. Cohen et al. eds., 1977).
129. Rosenfeld, ConstitutionalLiberty, supra note 8, at 588.
130. N.Y. TimEs, Oct. 13, 1991, § 1, at 49, col. 1. As Justice Marshall's son, Thurgood Mar-
shall Jr., accepted the Franklin D. Roosevelt Four Freedoms Medal on his father's behalf, he read
his father's concern: "evening ha[s] arrived in a continuing struggle for civil rights. Old battles,
fought and won, have become new battles that must be fought - and I hope won - all over again."
IdL
131. By this, I mean departure from "strict adherence to judicial precedent in favor or [sic]
progressive and new social policies which are not always consistent with the restraint expected of
appellate judges." BLACK'S LAW DICTIONARY 847 (6th ed. 1990). This approach is "commonly
marked by decisions calling for social engineering and occasionally these decisions represent intru-
sions into legislative and executive matters." Id. It is noteworthy that what appears to be Justice
Thomas' relatively color-blind social policy, is neither new, nor apt to be characterized as progres-
sive to a true "social engineer" within the meaning of the term contemplated, and pejoratively
deemed by other affirmative action opponents. See Morris B. Abram, Affirmative Action: Fair
Shakers and Social Engineers, 99 HARV. L. REV. 1312 (1986). Yet, this term is also useful to de-
 ST THOMAS LAW REVIEW (Vol. 4:161

announced opponent/beneficiary of affirmative action has been quoted as

having characterized Congress as an irresponsible institution of "little
deliberation and even less wisdom" that "no longer deliberates or legis-
lates in a meaningful manner" and is "out of control."1 32 Since the Anita
Hill hearings are not likely to have "lightened-up" Justice Thomas' atti-
tude toward Congress, time will tell how the new Court will define its
role. If Justice Marshall's caveat suggests the Supreme Court's unwill-
ingness to affirmatively interpret meaningful equal opportunity provi-
sions, the Court may be described as "actively inactive" regarding its
willingness to tamper with the status quo, however inequitable.

IX. CONCLUSION

This note sought to examine the philosophical underpinnings of af-

firmative action jurisprudence. It was thus necessary to trace its judicial
history from its ideological origin to its present status. Having estab-
lished the constitutionalization of equal worth, dignity, and respect, the
inquiry's focus becomes how this highly abstracted value is implemented.
The Court has relied on mediating principles designed to assist in
evaluating the constitutionality (and statutory propriety) of race and gen-
der based preferences, primarily in the areas of education and employ-
ment. Although the application of mediating principles animate the
Court's subscription to a noumenal "common" value, their results sug-
gest fundamental divergence as to the nature of equality and justice. At
the risk of oversimplification, it is helpful to represent the conceptual
schemes manipulated by the Court's authors, within which the prescrip-
tion of abstract equality is comprehensible, or even justifiable.
It is apparent that at least two broad antagonistic, if not antithetical
positions emerge from the bench in contemplating constitutional equal-
ity. The first is to construe it to require only formal marginal equality of
treatment, rarely allowing any deviation from the paradigm of compen-
sation, unless narrowly compensatory justice requires preferential treat-
ment inuring to the benefit of any individual victim who suffers from the

scribe the concern of many constitutional scholars who fear the systematic dismantling of legislative
efforts to effectuate social justice, through their decidedly restrictive judicial interpretation. See
Joint Statement, ConstitutionalScholar'sStatement on Affirmative Action After City of Richmond v.
Croson, 98 YALE L.J. 1711 (1989) (including Judith C. Areen, Barbara A. Black, Philip C. Bobbitt,
Lee C. Bollinger, Paul Brest, Guido Calabresi, Denise Carty-Bennia, Jesse Choper, Peggy C. Davis,
Drew S. Days III, Walter Dellinger, Norman Dorsen, John Hart Ely, Christopher F. Edley, Jr.,
Yale Kamisar, Kenneth L. Karst, Herma Hill Kay, Patricia A. King, Burke Marshall, Frank I.
Michelman, Eleanor Holmes Norton, Robert M. O'Neil, Gerald P. Lopez, Susan W. Prager, Dean
Rusk, John E. Sexton, Geoffrey R. Stone, Cass R. Sunstein, Laurence H, Tribe, and James
Vorenberg).
132. N.Y. TIMEs, Oct. 3, 1991, A25 col. 1.
1992] EQUALITY IN ABSTRACTION AND APPLICATION 183

present effects of past discrimination of a wrongdoer. Proponents of this

position 133 tend to employ process based theories of judicial review and
atomistic modes of causal interpretation, while subjecting affirmative ac-
tion plans to strict scrutiny. Such review, which requires the plans to be
narrowly tailored and to serve compelling governmental objectives, tends
to be strict in theory and fatal in fact.
Advocates of the second position construe constitutional equality to
require global equality of result, which is ascertained in cases of scarcity
through fair, means-regarding equality of opportunity. This allows both
deviation from the paradigm of compensation when compensatory or dis-
tributive justice requires preferential treatment inuring to the benefit of
groups who suffer from the present effects of past discrimination, and for
the enhancement of racial diversity. Proponents of this position 134 tend
to employ substantive theories of judicial review and ecological modes of
causal interpretation, while subjecting affirmative action plans to inter-
mediate scrutiny. Such review, which requires the plans to be substan-
tially related to an important governmental objective, tends to be
genuinely strict and searching though not always fatal in fact. The rela-
tive underrepresentation of this position on the current bench is (at best)
likely to enhance the predictability of the Court's opinion regarding fu-
135
ture equal protection challenges to affirmative action plans.
Professor Rosenfeld's excellent and exhaustive efforts to arrive at
principled justifications for affirmative action under the present circum-
stances have developed a language and dialectic, echoed by this note.
Significant departure from such a compelling and comprehensive concep-
tual framework is unlikely. Still, more emphasis might be placed on that
aspect featured by the paradigm of compensation which is concerned
with the burden of affirmative action borne by nonwrongdoers. The "in-
nocent white male" is a central concern for both opponents and propo-
nents of affirmative action alike.
It is this author's position that the "innocent white male" is an ab-
stract noun to which the law must permit society to aspire. However, the
innocent white male does not, indeed cannot, exist in a reality so colored
by the malingering present effects of past discrimination. Until society

133. Justices Scalia, Kennedy, O'Connor, Rehnquist, and to some degree White, and former
Justices Powell, Stewart, and Burger.
134. Justices Blackmun and to some-degree Stevens, and former Justices Brennan and Marshall.
135. Note that under federal statutory challenges, the Court has been somewhat predictable in
upholding 80% of the plans challenged. This is, of course, in part due to the absence of a "prima
facie showing of unlawful discrimination" requirement under Title VII. RONALD TURNER, THE
PAST AND FUTURE OF AFFIRMATIVE AcTION 70 (1990). Justice Brennan's plurality-mustering
craftsmanship has also enhanced this predictability, having written for the Court on every occasion
upon which a plan survived statutory attack.
 ST THOMAS LAW REVIEW [Vol. 4:161

no longer denies meaningful equality of opportunity to non-whites, 36

nor the present effect of its past denial to and by our ancestry, there can
be no innocence among white males. Until remedial efforts successfully
sever such present causal effects, all white males will continue to benefit
from a socially generated competitive advantage.
The birth of a truly innocent white male will thus reflect his soci-
ety's value commitment to the welfare of all people. Until such time, a
paradigmatic model for social compensation, readily manipulated by
those who characterize burdened white male non-wrongdoers as "inno-
cent", must focus on the victim and not the perpetrator/perpetuator of
lingering past discrimination.

Alec Anthony Izzo*

136. It is not the author's intent to exclude other historically oppressed classes by use of this
reference (which would certainly include white females), but it is beyond the scope of this note to
address the substantive issue adequately or separately.
* J.D., 1991, St. Thomas University School of Law; B.M., 1983, Berklce College of Music.