Easing the Spring: Strict Scrutiny and Affirmative Action After the Redistricting Cases

Abstract

In Adarand Constructors v. Pena, 515 U.S. 200 (1995), the Supreme Court held that all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny. Since then, the Court has been essentially absent from the battle over affirmative action, but it has decided a series of cases involving race-conscious redistricting that may potentially change the way strict scrutiny actually operates. Faced with the prospect of applying a standard of review that would resegregate state legislatures and congressional delegations, the Supreme Court was unwilling to apply strict scrutiny strictly. First, it constricted the domain in which strict scrutiny comes into play at all, permitting race to be taken into account when it is one factor among many and its inclusion produces districts that do not deviate too greatly from those created for other groups. Second, it broadened the interests that can justify race-conscious redistricting, by holding that compliance with the Voting Rights Act's results and effects tests can serve as a compelling state interest. The understanding of political equality embodied in the Act goes beyond what the Constitution itself demands. It requires states to arrange their electoral institutions to minimize the lingering effects of prior unconstitutional discrimination not otherwise chargeable to them, as well as to mitigate the impact of racially polarized voting that involves otherwise constitutionally protected private choice. In short, the theory of strict scrutiny yielded to the need for an electoral system that is equally open to members of minority groups. Having explored the redistricting cases, this article then turns to the question whether, and how, the Court might translate its doctrinal innovations here into its consideration of affirmative action in higher education. It identifies ways in which the admissions process more closely resembles redistricting, and therefore calls for a softer form of scrutiny, than it resembles the competitive bidding process at issue in cases like Adarand. And it suggests that Title VI-based disparate impact standards may perform a role similar to the Voting Rights Act in defining what counts as a compelling state interest.