Moving Away From a Strict Scrutiny Standard for Affirmative Action

This article addresses the concept of strict scrutiny, the burden of persuasion test used by the courts to determine the constitutionality of affirmative action. Through a systematic analysis of U.S. Supreme Court decisions, it illustrates that strict scrutiny has been applied in an inconsistent, arbitrary manner and, therefore, should not serve as the basis for judicial review of affirmative action programs. It shows that the rule of law established under the Civil Rights Act provides an equally if not more compelling basis for judging the legality of affirmative action programs. Relying on the legal standards advanced by the courts under civil rights statutes provides managers with greater flexibility in developing and implementing affirmative action programs. In effect, the ability of governments to promote diversity of their workforces is greatly enhanced.