In considering the reasoning behind the Court's upholding of the highly debated principle, the rationale was that to remedy past discrimination, a program that is race-based must be put into effect. Clearly, the Court was concerned with becoming intertwined in the daily administration of academic programs, and the same would have likely held true for the workplace. The Bakke case had two primary effects in the workplace. It gave the employers the power to enact programs that it felt were necessary in order to promote diversity in the workplace without the risk of being sued for discrimination or having their program being declared invalid by the courts. One interesting observation regarding the history of affirmative action programs in the workplace was that the traditionally government enforced programs and were not applicable against private employers under the U.S. Constitution and the Civil Rights Act. What this meant at that time and for employers today is that affirmative action policies under the Civil Rights Act of 1964 did not mandate participation from private companies.

As such, private companies were not required to promote diversity Still, the question remains that if private employers were and are not bound by the affirmative action policies does this truly benefit the company? In other words, does the benefit of having freedom in the hiring process outweigh the burden of promoting diversity in the workplace.

This issue will be addressed in detail later in this essay.

The second effect that the Bakke case had was that it gave minorities and women opportunities to obtain employment in the workplace in positions that they had traditionally been denied as a result of past discrimination. Undeniably, the history of oppression in United States history has resulted in institutionalized discrimination against minorities and women and therefore, affirmative action's goal was to remedy subjugation of such and of women (Almanac of Policy, 1995). The holding in the Bakke case gave employers and minority and women employees confidence that these effects could be remedied. Once the Bakke case was decided and affirmative action programs went into full affect, the discrimination that permeated the workplaces began to diminish as the following examples demonstrate.

In the State of Alabama case above, the district court ordered that one qualified black trooper or support staff member be hired for every white trooper until 25% of the force was comprised of blacks (Almanac of Policy, 1995). By 1974, 25 black troopers and 80 black support personnel had been hired (Id).

In the San Francisco Police Department case, an affirmative action program was ordered as judgment in a lawsuit, and by 1985 the number of women new hires had increased to 14.5% (Id).

In addition, a federal court review of the San Francisco Fire Department in 1987 resulted in the implementation of an affirmative action program that increase the number of African-Americans from 7 to 31, the number of Hispanic-Americans from 12 to 55, the number of Asian-Americans from 0 to 10, and women were hired as firefighters for the first time by the Department under this program (Id). As these examples demonstrate, affirmative action programs yielded substantial results in the workplace not only for racial minorities, but also for women and almost any program during this period was upheld by the courts. While these results appeared to be positive in that they promoted diversity and resulted in additional employment opportunities for ethnic minorities and women, the reality of the situation which has been the persistent challenge of affirmative action has been the reverse discrimination argument -- while affirmative action alleviated discrimination against ethnic minorities and women, it accomplishes this by discriminating against white Americans. Affirmative action was challenged under this principle in the Bakke case and was continuously challenged in the decades of the 1980s and 1990's under the same principle. As the challenges came, the courts moved further away from its decision in Bakke as a 2009 ruling by the Court demonstrates. "The Court ruled in 5-4 decision that the federal [Civil Rights Act of 1964] law could be used to ban discrimination against whites" (Kirkland 2010).

The Current Status of Affirmative Action

The case of Grutter v. Bollinger was heard by the Supreme Court in 2003 and after years of upholding affirmative action programs, and the Court once again upheld affirmative action as a practice in as a method of remedying past discrimination. The petitioner in the case had applied to the University of Michigan Law School (Grutter, 2003). The Law School sought as part of its admissions requirements "a mix of students with varying backgrounds and experiences...

Still the policy made clear that high academic scores did not guarantee admission to law school, nor did low scores automatically disqualify an applicant (Id.). The policy required admission committee to look beyond grades and test scores to other criteria that were important in achieving the Law School's objectives (Id.).
The petitioner was a white female applicant to the Law School

who alleged that her application was being denied because the school uses race as a predominant factor in its admissions process under the Fourteenth Amendment (Id.). The Supreme Court in reaching its decision once again deferred to the academicians of the Law School in implementing their academic programs within constitutional proscribed limits, and held that the Law School has a compelling interest in promoting student diversity as within its institutional mission (Id.). The Court held that a race conscious program in itself does not operate as a quota and that the race conscious program "adequately insures that all factors that may contribute to a student body diversity are meaningfully considered alongside race in the admissions decision" (Id.). Still the Court considered the future of affirmative action as a temporary policy by holding, "We expect that 25 years from now the use of racial preferences will no longer be necessary to further the interest approved today" (Id.).

With the decision in Grutter, the Court once again ruled that affirmative action was necessary to remedy the effects of past discrimination. What this means for public workplaces that programs discussed earlier in this report will are able to be used in the hiring process for government and public employers. Still, in light of the Supreme Court's ruling challenges on affirmative action are more frequent than before and these challenges have resulted in several states banning affirmative action, in spite of the Supreme Court decision.

In 2008, five states -- Arizona, Colorado, Missouri, Nebraska, and Oklahoma -- voted to ban affirmative action in government funded projects and public schools (Lindy, 2008). On November 7, 2006, the state of Michigan voted to ban affirmative action in the selection process in public universities (O'Connor, 2007). Part of the concern expressed by the administrators who voted for the ban was the perceived inferiority complex that it projects on African-Americans and Latino-Americans in that it presumes that they cannot compete with Asian-American and White American students (O'Connor, 2007). With this movement by the states, more and more states are disfavoring affirmative action which could result in the movement that the Supreme Court referred to in Grutter -- " We expect that 25 years from now the use of racial preferences will no longer be necessary." As mentioned previously, five states -- California, Michigan, Nebraska, and Washington state have banned affirmative action (Kirkland 2010).

In December 2010, U.S. District Judge Samuel Conti, upheld the state of California's Proposition 209 which bars racial, ethnic, and gender preferences in public education, employment, and contracting (Chea 2010). Before Judge Conti upheld Proposition 209, the Supreme Court of California had upheld Proposition 209 in August 2010 (Elias, 2010). The California Supreme Court voted 6-1 to uphold the Proposition 209 considering it a measure that protects everyone regardless of background (Elias, 2010). As it stands today, the United States Supreme Court has yet to overrule affirmative action, but several states have. Based on the doctrine of pre-emption, if these cases ever come before the Supreme Court, the Court can overrule them; or it can opt to overrule itself and end affirmative action in the nation. Until then, the debate and controversy remains current and ongoing.

The Balancing Test: Does the Benefit of Freedom in the Hiring Process Outweigh the Burden of Promoting Diversity Through Affirmative Action

With the above discussion in mind consider the following factual scenario.

Nona Pritchard was promoted to Senior Vice President of Human Resources for the Glanesville Police Department in September 2010. Her predecessor retired after 42 years of service. The Police Department is comprised of 78 officers and 93 support staff members. Its town is a small rural town. Of the 78 officers, there…