that Congress felt crack was cheaper, stronger, and more dangerous so unless can demonstrate intent rational basis Π Modification and Critique of the Doctrine Argument that is inconsistent with framers intent WRT EPC Davis Broad language is closer to Title VII Argument that is an incorrect application of Clary Arlington Change to require rather than intent Feeney “knowing” “purposeful” Comparison to environmental law where we routinely require the government to justify its actions Affirmative Action Timeline Context Promulgating Majority Level of Case Result (Rationale) Entity Opinion Scrutiny Education Intermediate Program (Rem. & State No (Brennan (1978) Invalidated Div.) op.) Contracting Unarticulated Program Fullilove Federal No (1980) (Remedial) (Burger op.) Upheld Strict Education Program Wygant State No (Powell (1986) (Remedial) Invalidated Plurality) Contracting Program Croson State Yes Strict (1989) (Remedial) Invalidated Broadcasting Program Metro B. Federal Yes Intermediate (1990) (Diversity) Upheld Contracting Program Adarand Federal Yes Strict (1995) (Remedial) Invalidated Education Program Grutter State Yes Strict (2003) (Diversity) Upheld Education Program State Yes Strict (2003) (Diversity) Invalidated Note that between 1990 and 1995 Federal programs didn’t get strict scrutiny because 14.5 gave prerogative to feds to undo discrimination Key distinction here is that anti-classification and anti-subordination cut in opposite directions in these cases Two Government Interests Remedial Interest Remedy past discrimination that has current effects – E.g. Often pops up in contracting cases Diversity Interest Areas where there is significant exchange of ideas – E.g. Education and broadcasting Amar argues that we want to foster robust exchange of Cases
that Congress felt crack was cheaper, stronger, and more dangerous so unless Π can demonstrate intent rational basis Modification and Critique of the Doctrine Argument that Davis is inconsistent with framers intent WRT EPC Broad language is closer to Title VII Argument that Clary is an incorrect application of Arlington Change Feeney to require “knowing” rather than “purposeful” intent Comparison to environmental law where we routinely require the government to justify its actions Affirmative Action Timeline Case Context (Rationale) Promulgating Entity Majority Opinion Level of Scrutiny Result (1978) Education (Rem. & Div.) State No Intermediate (Brennan op.) Program Invalidated Fullilove (1980) Contracting (Remedial) Federal No Unarticulated (Burger op.) Program Upheld Wygant (1986) Education (Remedial) State No Strict (Powell Plurality) Program Invalidated Croson (1989) Contracting (Remedial) State Yes Strict Program Invalidated Metro B. (1990) Broadcasting (Diversity) Federal Yes Intermediate Program Upheld Adarand (1995) Contracting (Remedial) Federal Yes Strict Program Invalidated Grutter (2003) Education (Diversity) State Yes Strict Program Upheld (2003) Education (Diversity) State Yes Strict Program Invalidated Note that between 1990 and 1995 Federal programs didn’t get strict scrutiny because 14.5 gave prerogative to feds to undo discrimination Key distinction here is that anti-classification and anti-subordination cut in opposite directions in these cases Two Government Interests Remedial Interest – Remedy past discrimination that has current effects E.g. Often pops up in contracting cases Diversity Interest – Areas where there is significant exchange of ideas E.g. Education and broadcasting Amar argues that we want to foster robust exchange of Cases
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