Affirmative action programs started without congressional approval are particularly vulnerable to legal challenge under a far-reaching Supreme Court ruling, the Justice Department said Wednesday.
In a 37-page legal analysis, Assistant Attorney General Walter Dellinger said that in light of the June 12 ruling, courts “are unlikely to accord federal agencies acting without a congressional mandate the same degree of deference accorded judgments made by Congress itself.”
The high court “hinted that at least where a federal affirmative action program is congressionally mandated, … standards might apply somewhat more loosely,” wrote Dellinger, head of the Office of Legal Counsel. Affirmative action efforts that make race or ethnicity a requirement of eligibility for positions or benefits “are less likely to survive constitutional challenge than programs that merely use race or ethnicity as one factor to be considered,” wrote Dellinger.
The Office of Legal Counsel provides legal advice to the president, the attorney general and executive branch agencies.
The court said federal racial classifications, like those of a state, must serve a compelling governmental interest and must be “narrowly tailored. The impact of the decision is not confined to contracting, but will reach race-based affirmative action in health and education programs, and in federal employment,” Dellinger wrote.
As part of his legal analysis, Dellinger issued 46 questions for the government to use as guidelines in determining whether its affirmative action programs are justified.
Among the questions on the list:
In programs designed to remedy discrimination, is the program justified solely by reference to general societal discrimination, general assertions of discrimination in a particular sector or industry or a statistical under representation of minorities in a sector or industry?
What is the nature of the evidence of discrimination? Are the statistics based on minority under representation in a particular sector or industry compared to the general minority population?