Remedial Purpose and Affirmative Action: False Limits and Real Harms

Abstract

The platitude that government-sponsored, race-related affirmative action must have a remedial purpose to withstand challenge based on the Equal Protection Clause is at risk of becoming legal doctrine. In City of Richmond v. J.A. Croson Co., a majority of the Supreme Court held that strict scrutiny applies to state-sponsored affirmative action programs, and a plurality of the Supreme Court held that remedial purpose-and only remedial purpose-can satisfy the compelling interest prong of that strict scrutiny. Last year, two circuit courts addressed directly the issue of remedial purpose as the sole permissible basis for affirmative action and reached different conclusions. The Supreme Court was set to hear a case challenging the use of affirmative action to promote diversity, but it settled on the eve of argument.