In my comment in the March, 1995 issue of the Tulane Law Review, the aim was to predict how each justice of the Supreme Court would evaluate the affirmative action program at issue in Adarand. The primary question in Adarand is whether intermediate or strict scrutiny should be applied to an affirmative action program created by the federal government. Finally, under the strict scrutiny test, the court examines the disputed provision to determine whether it is narrowly tailored to achieve a compelling governmental interest. When intermediate scrutiny is applied, the court determines whether the law at issue has a substantial relationship to an important governmental interest. When the court applies the rational basis test, the statute will generally be upheld unless there is no rational relationship between the means used and a legitimate legislative objective. In equal protection jurisprudence, there are three tiers of scrutiny: rational basis, intermediate, and strict scrutiny. The threshold issue in determining the constitutionality of affirmative action programs is whether strict or intermediate scrutiny applies to such schemes.

Yet, the state of the law remains unclear. In examining affirmative action programs, this Comment will refer to legislation or judicial decrees that create group remedies by considering characteristics of disadvantage.ĭuring the past quarter-century, the constitutionality of affirmative action remedies has been consistently litigated. In its more narrow sense, affirmative action includes programs which redress past wrongful discrimination and its present effects through the allocation of opportunities on the basis of racial or gender characteristics. A broad definition of affirmative action encompasses any positive steps taken to improve the status of disadvantaged persons. The term “affirmative action” has a variety of connotations. This Comment compares predictions which this author made in the March, 1995 issue of the Tulane Law Review to the June, 1995 decision of the Supreme Court. Predictable changes in the law, which appear to be strongly significant, were announced however, questions as to their actual effect remain. Pena, in which it explained the current status of the law with regards to affirmative action. Subsequently, it conducts a normative study arguing in favour of importing the strict scrutiny standard.On June 14, 1995, the Supreme Court announced its decision in Adarand Constructors, Inc. seeks to operate on two levels: first, it conducts a positive analysis to determine status quo and related problems. In this context, this article attempts to trace the rather uncertain development of this doctrine. To add to the confusion, the Delhi High Court recently provided its own opinion on the matter, leaving the question of applicability of strict scrutiny in India open to academic discussion.

Whilst one school of thought views it as a foreign principle of law incapable of harmonious integration within the existing jurisprudence, the other observes no such disharmony. In a seemingly simple issue, confusion and ambiguity reign prevalent as a result of differing opinions expressed by the Supreme Court. However, in the interest of according enhanced protection to these rights, the Supreme Court has been called upon to subject legislations to a more rigorous evaluation or a heightened level of scrutiny, namely strict judicial scrutiny. With respect to equality analysis, the existing standard is one of reasonableness. Thus, legislative actions seeking to restrict these rights must satisfy certain judicial standards. In the constitutional scheme of matters, this duty falls upon the judiciary. Whilst fundamental rights may not be inalienable, it must be ensured that they remain fundamental.

Intermediate scrutiny test