US LAW : In the USA, public sector affirmative action programmes are measured by the constitutional right to equal protection under the law. In Metro Broadcasting v FCC, the challenged programmes were designed to encourage participation by racial minorities in the broadcasting industry. The purpose was not to compensate for past discrimination, but to promote diversification in programming. The Supreme Court

doi:10.4324/9781843145585-118

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ABSTRACT

In the USA, public sector affirmative action programmes are measured by the constitutional right to equal protection under the law. In Metro Broadcasting v FCC,42

the challenged programmes were designed to encourage participation by racial minorities in the broadcasting industry. The purpose was not to compensate for past discrimination, but to promote diversification in programming. The Supreme Court held that as it served an ‘important governmental objective’, it was constitutional. However, in Adarand Constructors v Pena, the Court went back on this, holding that to be constitutional, an affirmative action programme had to be ‘narrowly tailored’ to serve a compelling governmental objective. In other words, it should be subjected to a ‘strict scrutiny’. Adarand represents the current approach to affirmative action in the US. This was confirmed in the recent ‘University of Michigan’ cases, Grutter and Gratz.