CONSTITUTIONAL LAW
W.B. Fisch, Fall 2006
Assignment #35

    E. "Benign" Discrimination: Affirmative Action, Quotas, Preferences Based on Gender or Race

        2. Classifications Advantaging Racial Minorities

CITY OF RICHMOND V. J.A. CROSON CO., p. 839 (1989)

• What government regulation is challenged, and what was its purpose?
• What standard of review is applicable?
• Was the purpose "remedial"?
• if so, whose racial discrimination is to be remedied, and how is it proved?
• who decides whether or not such discrimination exists, and what remedy is appropriate?
• Was the classification adopted necessary to remedy the prior discrimination?
• who are the beneficiaries of the classification?
• are they victims of, or at least related to the discrimination to be remedied?

Fullilove v. Klutznick (1980) (not assigned but discussed in Croson and Adarand)

• Congress requires contractors on federal money to use 10% of it to hire minority-owned businesses as sub-contractors
• what distinguishes Congress from state/local bodies in relation to "benign" racial classifications?
• does it make sense for Congress to use categories of minority beneficiaries who only live in certain areas of the country?
• if so, should the preference for those beneficiaries be explicitly limited by geography?

Metro Broadcasting (1990) (not assigned as such, but discussed in Adarand)

• Congress establishes a preference for minority-owned applicants for the granting of broadcast licenses (not absolute, but a factor which can be dispositive) and the purchasing of existing licensees at a discount (absolute)
• Court applies intermediate scrutiny
• important state interest: diversity of programming
• substantial fit: minority owners more likely to diversify programming
• would the regulation have survived "strict" scrutiny?

ADARAND CONSTRUCTORS, INC. V. PENA, p. 857 (1995)

• what regulation, imposed by what agency, for what purpose?
• what standard of review is applicable?
• should "benign" and "malicious" racial classifications be treated differently?
• should Congress be treated differently from the states?
• what disposition of this case?
• How do you think it should ultimately be decided on the merits?