Jeremy Moeser

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Debate over affirmative action has dominated recent legislative and court agendas. In November 1996, for example, fifty-four percent of California voters approved a referendum, Proposition 209, which eliminated preference programs in state and local government for minorities and women. Similarly, in 1995 the Board of Regents of the University of California system ended affirmative action in California's public universities. This phenomenon, however, has not limited itself to California. The Court of Appeals for the Fifth Circuit, in Hopwood v. Texas, held that the University of Texas School of Law's admissions program, which gave preference to African-Americans and Mexican- Americans, violated the Fourteenth Amendment's Equal Protection Clause. A year later, the Houston city council also placed a referendum on the ballot to abolish affirmative action in city contracting. Although the voters narrowly defeated this measure, similar proposals have been made in roughly half the states. This increasing presence of affirmative action on the political agenda suggests a growing public skepticism towards it. ...

This Comment examines racial preference programs in four different areas and addresses how the lower federal courts have applied the Supreme Court standards. Specifically, Part II illustrates the evolution of the Court's position in equal protection race cases and its current approach to the use of racial preferences. Part III addresses preference programs in the realm of state and local construction contracting. Part IV looks at affirmative action in the public employment sector in terms of both Title VII and equal protection analyses. Part V addresses preferential treatment programs in school admissions. Part VI examines the Court's approach to race-based legislative districting and distinguishes this from the other preference areas. Finally, Part VII suggests a course the current Supreme Court could take should it choose to hear a case involving preference programs. This Comment's thesis is that the courts are taking an increasingly conservative approach to minority preference programs across the board. It establishes that the standards the Court has promulgated are exceedingly difficult to satisfy.