Editing Equal Protection Clause (section)

==Affirmative action==
{{See also|Affirmative action in the United States}}
[[Affirmative action]] is the consideration of race, gender, or other factors, to benefit an underrepresented group or to address past injustices done to that group. Individuals who belong to the group are preferred over those who do not belong to the group, for example in educational admissions, hiring, promotions, awarding of contracts, and the like.<ref name="Stanford Encyclopedia of Philosophy">{{cite web
| publisher = Stanford University| title = Affirmative Action| url = http://plato.stanford.edu/entries/affirmative-action/
| access-date = April 6, 2012}}</ref> Such action may be used as a "tie-breaker" if all other factors are inconclusive, or may be achieved through [[racial quota|quota]]s, which allot a certain number of benefits to each group.

During [[Reconstruction era of the United States|Reconstruction]], Congress enacted programs primarily to assist newly freed slaves who had personally been denied many advantages earlier in their lives, based on their former slave status, not necessarily their race or ethnicity. Such legislation was enacted by many of the same people who framed the Equal Protection Clause, though that clause did not apply to such federal legislation, and instead only applied to state legislation.<ref>See {{cite journal |last=Schnapper |first=Eric |year=1985 |title=Affirmative Action and the Legislative History of the Fourteenth Amendment |journal=Virginia Law Review |volume=71 |issue= 5|pages=753–798 |doi=10.2307/1073012 |url=http://www.utexas.edu/vp/irla/Documents/AFFIRM.ACTION.LEGISLATIVE.HISTORY.%20FOURTEENTH%20AMENDMENT.pdf|jstor=1073012 }}</ref> However, now the Equal Protection Clause does apply to private universities and possibly other private businesses (particularly those who accept federal funds), in accordance with ''[[Students for Fair Admissions v. Harvard]]'' (2023).

Several important affirmative action cases to reach the Supreme Court have concerned government [[independent contractor|contractor]]s&mdash;for instance, ''[[Adarand Constructors v. Peña]]'' (1995) and ''[[City of Richmond v. J.A. Croson Co.]]'' (1989). But the most famous cases have dealt with affirmative action as practiced by [[public university|public universities]]: ''[[Regents of the University of California v. Bakke]]'' (1978), and two companion cases decided by the Supreme Court in 2003, ''[[Grutter v. Bollinger]]'' and ''[[Gratz v. Bollinger]]''.

In ''Bakke'', the Court held that racial quotas are unconstitutional, but that educational institutions could legally use race as one of many factors to consider in their [[University and college admissions|admissions]] process. In ''Grutter'' and ''Gratz'', the Court upheld both ''Bakke'' as a precedent and the admissions policy of the [[University of Michigan Law School]]. In ''[[dicta]]'', however, Justice O'Connor, writing for the Court, said she expected that in 25 years, racial preferences would no longer be necessary. In ''Gratz'', the Court invalidated Michigan's undergraduate admissions policy, on the grounds that unlike the law school's policy, which treated race as one of many factors in an admissions process that looked to the individual applicant, the undergraduate policy used a point system that was excessively mechanistic.

In these affirmative action cases, the Supreme Court has employed, or has said it employed, strict scrutiny, since the affirmative action policies challenged by the plaintiffs categorized by race. The policy in ''Grutter'', and a Harvard College admissions policy praised by Justice Powell's opinion in ''Bakke'', passed muster because the Court deemed that they were narrowly tailored to achieve a compelling interest in diversity. On one side, critics have argued—including Justice [[Clarence Thomas]] in his dissent to ''Grutter''—that the scrutiny the Court has applied in some cases is much less searching than true strict scrutiny, and that the Court has acted not as a principled legal institution but as a biased political one.<ref>See {{cite web|url=http://jurist.law.pitt.edu/forum/symposium-aa/schuck.php |title=Reflections on ''Grutter'' |last=Schuck |first=Peter H. |date=September 5, 2003 |work=Jurist  |archive-url=https://web.archive.org/web/20050909065433/http://jurist.law.pitt.edu/forum/symposium-aa/schuck.php |archive-date=2005-09-09 }}</ref> On the other side, it is argued that the purpose of the Equal Protection Clause is to prevent the socio-political subordination of some groups by others, not to prevent classification; since this is so, non-invidious classifications, such as those used by affirmative action programs, should not be subjected to heightened scrutiny.<ref>See {{cite journal |last=Siegel |first=Reva B. |author-link=Reva Siegel |year=2004 |title=Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles over ''Brown'' |journal=[[Harvard Law Review]] |volume=117 |issue= 5|pages=1470–1547 |doi=10.2307/4093259 |jstor= 4093259 |url=http://digitalcommons.law.yale.edu/fss_papers/1102 |type=Submitted manuscript }}; {{cite journal |last=Carter |first=Stephen L. |author-link=Stephen L. Carter |year=1988 |title=When Victims Happen to Be Black |journal=[[Yale Law Journal]] |volume=97 |issue= 3|pages=420&ndash;447 |doi=10.2307/796412 |jstor=796412 |url=https://digitalcommons.law.yale.edu/fss_papers/2236 |url-access=subscription }}</ref>

In ''[[Students for Fair Admissions v. Harvard]]'' (2023), and its companion case '''''Students for Fair Admissions v. University of North Carolina''''' (2023), the Supreme Court held that race and ethnicity cannot be used in admissions decisions. In other words, preferential treatment based on race or ethnicity violates The Equal Protection Clause. Although "nothing in this opinion should be construed as prohibiting universities from considering an applicant's discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise," Chief Justice Roberts made it clear that "universities may not simply establish through application essays or other means the regime we hold unlawful today." Moreover, "what cannot be done directly cannot be done indirectly." These opinions effectively ended affirmative action in schools. Although the scope and reach of these opinions are unknown, it is not uncommon for Supreme Court cases' rationale to be applied to similar or analogous facts or circumstances.{{cn|date=June 2024}}