Wygant v. Jackson Board of Education

Wygant v. Jackson Board of Education

The U.S. Supreme Court has held that an employer can grant preferential treatment to racial minorities under a private, voluntary Affirmative Action program. Affirmative action is a concerted effort by an employer to rectify past discrimination against specific classes of individuals by giving temporary preferential treatment to the hiring and promoting of individuals from these classes until such time as true equal opportunity is achieved. The use of affirmative action is based on Title VII of the Civil Rights Act of 1964 (42 U.S.C.A. § 2000e et seq.). It has proved controversial, with many white persons claiming affirmative action is in fact "reverse discrimination."

The case of Wygant v. Jackson Board of Education, 476 U.S. 267, 106 S. Ct. 1842, 90 L. Ed. 2d 260 (1986), involved minority preferences in teacher layoffs. In the face of a budget crisis, the Jackson, Mississippi, Board of Education was forced to cut teaching positions. Under the terms of the contract with the teachers' union, the board laid off more senior white teachers in order to retain less senior minority teachers. The white teachers who were laid off fought the decision, arguing that the minority preference plan unfairly discriminated against them on the basis of race, thus violating Title VII and the equal protection clause of the Fourteenth Amendment to the U.S. Constitution.

Though there was no majority opinion, the Supreme Court agreed that the school board had violated the Constitution. Writing for a plurality, Justice lewis f. powell found that race-based preferences must be subjected to the Strict Scrutiny standard of equal protection review. Strict scrutiny reverses the ordinary presumption of constitutionality, with the government carrying the Burden of Proof that its challenged policy is constitutional. To withstand strict scrutiny, the government must show that its policy is necessary to achieve a compelling state interest. If this is proved, the state must then demonstrate that the legislation is narrowly tailored to achieve the intended result. Strict scrutiny is far more stringent than the traditional Rational Basis Test, which only requires the government to offer a reasonable ground for the legislation.

Applying strict scrutiny, the plurality concluded that the school board had no compelling interest in remedying "societal discrimination" and suggested that prior institutional discrimination supplied the only permissible justification for "race-based remedies." However, even if the school board had discriminated in the past, "the burden that a preferential-layoffs scheme imposes on innocent parties" would be too great to be constitutionally acceptable. Powell noted that while minority hiring goals "impose a diffuse burden, often foreclosing only one of several opportunities, layoffs impose the entire burden of achieving racial equality on particular individuals, often resulting in serious disruption of their lives." That burden was too intrusive and therefore failed the strict scrutiny requirement that a race-based remedy be narrowly tailored to achieve its ends.

The Wygant decision imposed a higher burden on government to justify affirmative action programs, especially when white employees are laid off in order to retain minority employees. The Court left open, however, the possibility that it would find other governmental interests to be sufficiently important or compelling to sustain the use of affirmative action policies.

Further readings

Bernhardt, Herbert N. 1993. "Affirmative Action in Employment: Considering Group Interests While Protecting Individual Rights." Stetson Law Review 23 (fall).

Chang, David. 1991. "Discriminatory Impact, Affirmative Action, and Innocent Victims: Judicial Conservatism or Conservative Justices?" Columbia Law Review 91 (May).

"The Nonperpetuation of Discrimination in Public Contracting: A Justification for State and Local Minority Business Set-asides After Wygant." 1988. Harvard Law Review 101 (June).

Woodside, Steven M., and Jan Howell Marx. 1988. "Walking the Tightrope Between Title VII and Equal Protection: Public Sector Voluntary Affirmative Action After Johnson and Wygant." Urban Lawyer 20 (spring).


Civil Rights; Employment Law; Equal Employment Opportunity Commission; United Steelworkers v. Weber.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.