First, this Article argues that affirmative action is right and necessary in certain circumstances. Second, it examines whether affirmative action has survived under current case law. Part II.A reviews the Supreme Court decisions that define the test of strict scrutiny in the public employment context. Part II.B discusses the current focus of the Court's debate on affirmative action. Part III looks at how strict scrutiny analysis and the Supreme Court's precedents are being applied by the lower federal courts. Part IV concludes that more guidance is needed from the Supreme Court on the first prong of the strict scrutiny analysis as to when a compelling government interest exists. Last, this Article suggests that the Supreme Court firmly establish an "inferential standard" for proving past discrimination by a public employer sufficient to warrant current affirmative action.
H L. Sarokin, Jane K. Babin & Allison H. Goddard,
Has Affirmative Action Been Negated? A Closer Look at Public Employment,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol37/iss3/2