35 UCLA L. Rev. 467 (1987-1988)
Affirmative Action under the Constitution and Title VII: From Confusion to Convergence

handle is hein.journals/uclalr35 and id is 481 raw text is: AFFIRMATIVE ACTION UNDER THE
George Rutherglen*
and Daniel R. Ortiz**
Before 1984, the Supreme Court's decisions on affirma-
tive action were as notable for what they failed to decide as
for what they did decide. The Court had reviewed only a
handful of cases,' it had reached the merits in less than half
of these, and it had been able to muster a majority for an
opinion of the Court in only one.2 The Court had been re-
luctant, or unable, to engage in any systematic exposition of
the law of affirmative action. According to some scholars,
the divisions among the justices reflect the divisions within
American society over affirmative action, making any imme-
* Professor of Law, University of Virginia.
** Assistant Professor of Law, University of Virginia.
The authors would like to thank Lynn Baker, Hal Krent, and Bill Stuntz who
offered comments on an earlier draft of this article. One of the authors, George
Rutherglen, assisted in preparing the oral argument for the respondents in United
States v. Paradise, 107 S. Ct. 1053 (1987). The views expressed in this article,
however, are the authors' own.
1. Boston Firefighters Union, Local 718 v. Boston Chapter, NAACP, 461
U.S. 477 (1983); Minnick v. California Dep't of Corrections, 452 U.S. 105 (1981);
Fullilove v. Klutznick, 448 U.S. 448 (1980); United Steelworkers v. Weber, 443
U.S. 193 (1979); Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978);
DeFunis v. Odegaard, 416 U.S. 312 (1974)
2. United Steelworkers v. Weber, 443 U.S. 193 (1979).
This enumeration does not count cases upholding preferences in favor of In-
dians, which the Court has treated as discrimination in favor of quasi-sovereign
tribes, even if the preference benefits only Indians defined by ancestry. Morton v.
Mancari, 417 U.S. 535, 553-54 & n.24 (1974). These decisions are explicable, if
not justifiable, on the grounds that they often arise in geographical isolation, on
or near Indian reservations, and that Indians are a relatively small minority, which
comprised less than three percent of the population in 1980. U.S. BUREAU OF THE


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