Powell and Brennan

The constitutional issues are raised most directly in the opinions of Powell and Brennan (excerpted below). These opinions differ not only in their con- clusions but also in their interpretations of the equal protection clause. Powell argued that the Davis program and any consideration of race must be subjected to the test of strict scrutiny. He held that the Davis program did not meet the high standards of strict scrutiny, but some other consideration of race might, such as in the Harvard College admissions program, which used race as a “goal” rather than as a “quota” (much like the University of Michi- gan Law School admissions program in the Grutter case below).

In contrast, Brennan argued for a new interpretation of the equal protec- tion clause. On this new interpretation, strict scrutiny would still be applied to most racial classifications, but strict scrutiny need not be passed when the state uses a racial classification to serve a benign, remedial purpose. The pur- pose of a racial classification is benign when it does not stigmatize anyone and was not adopted out of any discriminatory motive, and it is remedial if the state used the racial classification because the state found that, without the racial classification, an underprivileged group would suffer harm or dif- ferential impact because of past discrimination in society at large.

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Powell criticized Brennan’s conditions on the grounds that the notion of stigma is too vague and that it is not groups but individuals who are protected by the equal protection clause. Brennan responded by distinguishing stigma from other harms and by emphasizing the importance of groups. The heart of the controversy was, thus, about the conditions under which to apply strict scrutiny.