Class-Based Affirmative Action

Abstract

Alabama Department of Public Safety's 'pervasive, systematic, and obstinate discriminatory conduct' justified a narrowly tailored race-based remedy."' 5 Paradise is the last case proponents of affirmative action would want cited as an example of what passes constitutional muster.As Reagan's Solicitor General Charles Fried has written, the case involved "horrible facts."' 6In 1972, a District Court found that the Alabama Department of Public Safety had "engaged in a blatant and continuous pattern and practice of discrimination," and noted that "in the thirtyseven-year history of the patrol there has never been a black trooper."', 7 When the District Court imposed a hiring and promoting order to remedy past discrimination, the Department engaged in what even the Paradise dissenters termed "reprehensible" recalcitrance in complying with the consent decree. 8(Even then, however, four members of the Court felt the hiring and promoting remedy was not narrowly tailored.) 9 In other words, in the very section of her Adarand opinion where O'Connor seeks to reassure liberals that strict scrutiny is not necessarily fatal, she sends a second signal that such scrutiny usually is deadly, except in rare cases of repeated and egregious discrimination like that found in Paradise.Assistant Attorney General Walter Dellinger downplays O'Connor's citation to Paradise, noting that in applying strict scrutiny to state-sponsored affirmative action following the Court's decision in City of Richmond v. J.A. Croson Co.," 0 a number of lower courts have been satisfied by a predicate of discrimination that does not rise to the level found in Paradise.'But, of course, these lower courts are not the ultimate arbiters of the strict scrutiny standard.As a practical matter, for the moment Justice O'Connor is. 2 And in the Croson case, O'Connor laid out what Justice Marshall called a "daunting standard":' O'Connor said that racial preference schemes would be permissible only "[i]n the extreme case.

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