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A Legal and Theoretical Defense of Intermediate Scrutiny for Gender-Based Affirmative Action Programs Ajmel Quereshi

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A Legal and Theoretical Defense of Intermediate Scrutiny for Gender-Based Affirmative Action Programs Ajmel Quereshi Journal of Gender, Social Policy & the Law Volume 21 | Issue 4 Article 2 2013 The orF gotten Remedy: A Legal and Theoretical Defense of Intermediate Scrutiny for Gender-Based Affirmative Action Programs Ajmel Quereshi Follow this and additional works at: http://digitalcommons.wcl.american.edu/jgspl Part of the Law Commons Recommended Citation Quereshi, Ajmel. "The orF gotten Remedy: A Legal and Theoretical Defense of Intermediate Scrutiny for Gender-Based Affirmative Action Programs." American University Journal of Gender Social Policy and Law 21, no. 4 (2013): 797-836. This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in Journal of Gender, Social Policy & the Law by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. Quereshi: The Forgotten Remedy: A Legal and Theoretical Defense of Interme THE FORGOTTEN REMEDY: A LEGAL AND THEORETICAL DEFENSE OF INTERMEDIATE SCRUTINY FOR GENDER-BASED AFFIRMATIVE ACTION PROGRAMS AJMEL QUERESHI* Introduction ............................................................................................... 798 I. The Rise and Fall of Gender-Based Affirmative Action: An Examination of the Development and Decline of Intermediate Scrutiny ........................................................................................... 800 A. The Rise of Intermediate Scrutiny: The Development of the Court’s Jurisprudence with Regard to Statutes That Differentiate on the Basis of Gender ....................................... 801 B. The First Step Backwards: The Supreme Court’s Decision in Richmond v. Croson ............................................................ 809 1. The Court’s Pre-Croson Jurisprudence with Regards to Statutes That Differentiate on the Basis of Race ............... 809 2. Richmond v. Croson ............................................................ 811 C. The Decline of Intermediate Scrutiny: The Supreme Court’s and Lower Courts’ Equal Protection Jurisprudence After Croson ..................................................................................... 813 1. The Varied Standards Lower Courts After Croson Have Applied to Gender-Based Affirmative Action Programs ... 813 2. Relevant Supreme Court Jurisprudence After Croson ........ 818 3. Scholarly Criticism of Intermediate Scrutiny ..................... 822 II. A Second Chance: The Continued Legal and Theoretical Viability of Intermediate Scrutiny After Croson ........................................... 823 * Ajmel Quereshi is currently a Staff Attorney at the American Civil Liberties Union’s National Prison Project. At the time of this article’s writing, he was serving as a Visiting Assistant Professor at Howard University School of Law and Acting Director of the School’s Civil Rights Clinic. Quereshi thanks the American University Journal of Gender, Social Policy and the Law editorial board and staff for their careful and concise editing of earlier drafts of this article. 797 Published by Digital Commons @ American University Washington College of Law, 2013 1 Journal of Gender, Social Policy & the Law, Vol. 21, Iss. 4 [2013], Art. 2 798 JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 21:4 A. The Legal Basis: Why Intermediate Scrutiny Remains the Appropriate Standard for Gender-Based Affirmative Action Under the Court’s Precedent ........................................ 823 1. The Supreme Court’s Gender-Based Jurisprudence Makes Clear That Intermediate Scrutiny is the Appropriate Standard. ........................................................ 824 2. When Lower Courts Utilize Strict Scrutiny, It Has Been the Result of Confusion. .................................................... 827 3. Intermediate Scrutiny “Plus” Focuses Incorrectly on a History of Discrimination and not Legislative History and Statutory Scheme. ....................................................... 828 B. The Theoretical Foundation: Responses to Criticisms Concerning the Wisdom of an Intermediate Scrutiny Approach ................................................................................. 829 1. There are Significant Reasons to Believe that Intermediate Scrutiny Can Adequately Protect Women While Remedying Past Discrimination. ............................. 830 2. The Stigma Communicated by Subjecting Gender-Based Affirmative Action Programs to Intermediate Scrutiny Would Be Offset Were the Court to Adopt Increased Scrutiny for Non-Benign Gender-Based Statutes. ............. 835 3. Arguments Stressing the Inconsistency Between the Application of Intermediate Scrutiny for Gender-Based Affirmative Action and Strict Scrutiny for Similar Race-Based Statutes Assume the Correctness of Croson. .............................................................................. 836 Conclusion ................................................................................................. 837 INTRODUCTION Although Caucasian males constitute a minority of the total and, likewise, college-educated workforce, they dominate the upper echelons of virtually every job sector. Males comprise 85.7% of executive officership positions and 82% of directorship positions at Fortune 500 companies.1 Men hold over 90% of leadership positions in the news media and over 90% of all reporters are white.2 Caucasian men constitute over 86% of partnership positions in major law firms. They hold 85% of tenured 1. Updated Datasheet: Alliance for Board Diversity Report, ALLIANCE FOR BOARD DIVERSITY (July 21, 2011), available at http://Theabd.Org/Abd_Datasheet.pdf; Women Executive Officers in the Fortune 500, CATALYST (Last updated Dec. 14, 2011), http://www.catalyst.org/knowledge/women-executive-officers-fortune-500. 2. Id. http://digitalcommons.wcl.american.edu/jgspl/vol21/iss4/2 2 Quereshi: The Forgotten Remedy: A Legal and Theoretical Defense of Interme 2013] THE FORGOTTEN REMEDY 799 college professorships3 and occupy over 80% of managerial positions in advertising, marketing, and public relations.4 In 1992, in the midst of the Supreme Court’s dismantling of state and federal affirmative action programs, the median weekly earnings of white males were 33% higher than those of any group in America.5 Despite significant factual evidence of continued inequality in various employment fields, the last fifteen years have witnessed a remarkable decline in the use of gender-based affirmative action.6 The decision to abandon such programs has been spurred in large part by the Supreme Court’s decision to apply strict scrutiny to all federal and state race-based affirmative action programs in the employment context regardless of existing racial disparity.7 While the Court’s jurisprudence has been confined to race-based programs, lower courts have expanded the approach, without basis in precedent, to gender-based programs. Spurred in large part by the Supreme Court’s decision in Richmond v. Croson,8 federal appeals courts have developed a tripartite split over the appropriate level of scrutiny for gender-based affirmative action programs. In addition to the majority of lower courts that have split between strict scrutiny and intermediate scrutiny, a minority of courts have developed a third approach which, while calling itself intermediate scrutiny, requires a factual predicate demonstrating a history of discrimination on par with that required under strict scrutiny.9 The attack on intermediate scrutiny and, accordingly, gender-based affirmative action, has been buttressed by a subtle theoretical critique of the effectiveness of the standard to guard against discriminatory statutes. The result of this regression has not only been confusion among courts, but an abandonment of gender-based affirmative action programs as various municipalities have chosen to avoid subjecting their programs to sure defeat under strict scrutiny review.10 This paper will serve the dual purposes of defending intermediate scrutiny as the appropriate standard under the Court’s jurisprudence and 3. Id. 4. Id. 5. Id. 6. Patricia Ireland, President, National Organization of Women, Keynote Address at the Florida National Organization of Women Conference (January 15, 2000) (transcript on file with the National Organization for Women) [hereinafter Ireland, Keynote Address]. 7. Id. 8. Richmond v. J. A. Croson Co., 488 U.S. 469 (1989). 9. See, e.g., Danskine v. Metro Dade Cnty. Fire Dep’t, 59 F. Supp. 2d 1252, 1256- 57 (S.D. Fla. 1999) aff’d sub nom. Danskine v. Miami Dade Fire Dep’t, 253 F.3d 1288 (11th Cir. 2001). 10. See Ireland Keynote Address, supra note 6. Published by Digital Commons @ American University Washington College of Law, 2013 3 Journal of Gender, Social Policy & the Law, Vol. 21, Iss. 4 [2013], Art. 2 800 JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 21:4 answering some of the theoretical criticisms of the effectiveness of intermediate scrutiny as a means to protect women from discriminatory statutes. The first half of the paper will survey the progression of the Court’s jurisprudence with regards to statutes that differentiate on the basis of gender, focusing specifically on: (a) the development of the Supreme Court’s gender-based equal protection jurisprudence;11 (b) the Supreme Court’s decision in Richmond v. Croson, which dramatically altered the approaches of a number of lower courts toward gender-based affirmative action;12 and
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