Excerpts from Justice Brennan’s Opinion

Petitioner contends that on several occasions this Court has approved preferential classifications without applying the most exacting scrutiny. Most of the cases upon which petitioner relies are drawn from three areas: school desegregation, employment discrimination, and sex discrimination. Each of the cases cited presented a situation materially different from the facts of this case. . . . [W]e have never approved preferential classifications in the absence of proven constitutional or statutory violations. . . . When a classification denies an individual opportunities or benefits enjoyed by oth- ers solely because of his race or ethnic background, it must be regarded as suspect. . . .

. . . Unquestionably we have held that a government practice or statute which restricts “fundamental rights” or which contains “suspect classifica- tions” is to be subjected to “strict scrutiny” and can be justified only if it furthers a compelling government purpose and, even then, only if no less restrictive alternative is available. . . . But no fundamental right is involved here. . . . Nor do whites as a class have any of the “traditional indicia of sus- pectness: the class is not saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.” . . .

[The] fact that this case does not fit neatly into our prior analytic frame- work for race cases does not mean that it should be analyzed by applying the very loose rational-basis standard of review that is the very least that is always applied in equal protection cases. . . .

[B]ecause of the significant risk that racial classifications established for ostensibly benign purposes can be misused, causing effects not unlike those created by invidious classifications, it is inappropriate to inquire only whether there is any conceivable basis that might sustain such a classifica- tion. Instead, to justify such a classification an important and articulated purpose for its use must be shown. In addition, any statute must be stricken that stigmatizes any group or that singles out those least well represented in the political process to bear the brunt of a benign program. Thus our review under the Fourteenth Amendment should be strict—not “‘strict’ in theory and fatal in fact,” because it is stigma that causes fatality—but strict and searching nonetheless. . . .

Do you agree with Powell or with Brennan in their debate about whether strict scrutiny should be applied to affirmative actions programs in admissions? Why?