May the government use racial classifications when it does so to benefit, not discriminate against, racial minorities that have historically been the victims of discrimination? The Supreme Court first considered that question in 1978, in the case of Bakke v. Regents, University of California. Bakke, a white applicant to the UC-Davis Medical School, claimed that he was denied admission even though his test scores and grades were markedly better than minority applicants who were admitted. The Court found that Bakke had been denied equal protection of the laws by UC-Davis's use of a "two-track" admission system, one track for whites and one for non-whites. Even though Bakke won, many people came to view Bakke as a victory for proponents of affirmative action. Justice Powell, providing the critical fifth vote for Bakke, said in his concurring opinion that increasing racial diversity in classrooms was a compelling state interest, and that a more narrowly tailored program--such as one that gave "pluses" to minority applicants rather than putting them into a seperate admission track--would not violate the Constitution. Recently, the Fifth Circuit has predicted, in a case involving a challenge to the affirmative action program at the University of Texas (Hopwood v. Texas), that the Court would not follow Bakke today. The Fifth Circuit found UT's use of race in its admission process to violate the Constitution.
v J. R. Croson considered affirmative action
in the context of government "set-asides":
programs that set aside a specified percentage of
government contract dollars for minority business
enterprises. Rejecting the argument that
racial set-asides might be justified as a remedy
for past societal discrimination, the Court held
that such programs are only justified as a remedy
for past discrimination by the government entity
adopting the set-asides. Croson, and a
subsequent case involving a federal set-aside
program (Adarand Constructors v Pena
(1995)) make clear that all racial classifications
will be subject to the strict scrutiny test
requiring demonstration of a compelling state
interest and use of classifications narrowly
tailored to further that interest.
In 2003, the Court decided two cases challenging affirmative action policies at the University of Michigan--one involving the law school (Grutter v Bollinger) and one involving the undergraduate college (Gratz v Bollinger). The result was a split for Michigan, with the Law School's more individualized consideration of race upheld on a 5 to 4 vote, and the undergraduate school's more blatant heavy weighting of race as a plus factor struck down, 6 to 3. Justice O'Connor's opinion for the Court in Grutter adopted much of Justice Powell's reasoning in Bakke. O'Connor found the Law School's asserted interest in creating a diverse student body to be a compelling justification for its consideration of race, and found the school admission policy appropriately considered race along with many other characteristics or experiences that could contribute to diversity. O'Connor cautioned, however, that affirmative action programs should have some termination point, and she suggested that in another twenty-five years a similarly structured program would be unlikely to stand.
recently, in two 2007 cases (Meredith v Jefferson
County and Parents Involved v Seattle Schools),
the Supreme Court struck down programs in
Louisville and Seattle that used the race of
students as a factor in assigning students to
schools so as to maintain a targeted level of
racial diversity in public schools. Chief
Justice Roberts (joined by Scalia, Thomas, and
Alito) would prohibit all attempts to "racially
balance" public schools outside of the higher
education context, concluding that no compelling
interest exists for such efforts. Justice
Kennedy, providing the fifth vote to strike down
the plans, saw the problem as one of a lack
of narrow tailoring. Kennedy suggested that
attempts to achieve racial balance in public
schools would be constitutional if they focused,
for example, on placement of new schools in
racially integrated neighborhoods--rather than
relying on a "crude" racial classification of
In 2013, the Court announced its decision in Fisher v University of Texas, involving a challenge to the university's use of race as part of a two-pronged effort (the first prong being a "race-blind" policy of automatically admitting students graduating in the top 10% of their Texas high school classes) to increase the number of non-white students. The Court, in a 7 to 1 decision authored by Justice Kennedy, found that the courts below gave too much deference to the university and failed to apply appropriately strict scrutiny. Adopting a tougher standard than either Bakke or Grutter, the Court said, "The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity. If a nonracial approach . . . could promote the substantial interest about as well and at tolerable administrative expense, then the university may not consider race." Justice Ginsburg dissented, finding that Texas satisfied the Grutter/Bakke standard, while Justice Thomas, concurring, would have overruled Grutter and banned all consideration of race in the admissions process. The Court noted that it was not deciding to overrule Grutter because it had not been asked to do so, leaving open that possibility for a future case. The Fisher decision is certain to spawn more lawsuits.
the Court's decision in Grutter upholding
the use of race as a factor in admissions
decisions at the University of Michigan, the
voters of Michigan adopted a constitutional
amendment banning the racial preferences in school
admissions. That amendment was challenged in
2014 by groups that argued that the amendment
violated the Equal Protection Clause by denying
minorities the opportunity to restore racial
preferences in the state legislature, rather than
through the more difficult process of
constitutional amendment (Schuette v Coalition
to Defend Affirmative Action). The
challengers cited a line of cases that suggested,
at a minimum, that state constitutional amendments
enshrining a private right to discriminate are
constitutionally suspect. Voting 6-2,
however, the Court ruled that the voters of
Michigan are free to decide whether or not to
extend racial preferences in admissions.
This was not, the Court made clear, a case where a
constitutional amendment placed obstacles in the
path of minorities seeking equal treatment under
the law or which encouraged private discrimination
in any way.
The Firefighters Case" (Ricci v DeStefano)(2009)
Lewis Powell, author of the key opinion in the Bakke case.
Action in the Schools
Government Interests Asserted in Bakke
2. How should a court evaluate a claim of discrimination by someone complaining of exclusion from a protected class? For example, if a school admission program classified someone with two black grandparents as "black," but someone with one black grandparent as "white," could the student classified as white support a claim of unconstitutional discrimination? What standard of review should apply to such state line-drawing?
3. Which of the various state interests alleged by California in the Bakke case seem the most compelling to you: (1) remedying past societal discrimination, (2) increasing the number of minorities in the legal profession, (3) increasing legal services for underserved populations, or (4) increasing diversity in the classroom? Do you agree with Justice Powell's analysis with respect to whether UC-Davis's classification was a narrowly tailored means of serving the vaious interests alleged?
4. Is Justice Powell's opinion in Bakke "the law"? Why or why not?
5. Should "benign" racial classifications be subject to strict scrutiny or, as the four dissenters in Bakke argued, intermediate scrutiny?
6. Does the Bakke court hold that more qualified applicants have a right to admission ahead of less qualified applicants?
7. Is it the job of a lower court to predict how the Supreme Court might decide a case today, or should it apply existing Supreme Court caselaw even when it thinks the current Court would reject it?
8. Is your view of the correctness of the Court's result in Croson at all affected by the fact that five of the eight city council members voting on the Richmond set-aside program were black--including five of the six "yes" votes?
9. Does Justice Kennedy's concurrence in Parents Involved v Seattle leave school districts with adequate tools to maintain integrated schools, or are school districts in many metropolitan areas bound to slide back towards segregation--albeit the result of housing patterns, rather than de jure segregation?
Supporters of Seattle's efforts to racially balance its schools
10. Does the opinion of Chief Justice Roberts in Parents Involved v Seattle suggest that four members of the Court are ready to overrule Grutter?
11. Both the majority and the dissent in Parents Involved v Seattle claim the mantle of Brown v Board. Which side has the better argument?
12. In Grutter, Justice O'Connor, while upholding the affirmative action program in question, wrote, "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." Can we assume that the Grutter holding has an expiration date of 2028 and no racial preferences will be deemed constitutional after that date?
15. Schuette leave no doubt that states are free to ban affirmative action. How many states are likely to take that path?
Jennifer Gratz (L) and Barbara Grutter (R), plaintiffs in affirmative action suits against the Univ. of Michigan. (CNN)
13. Fisher has every indication of being a compromise decision. Why do you think Justices Breyer and Sotomayor joined the Court's opinion, and why do you think Justice Kennedy pulled back from declaring any individualized consideration of race to be unconstitutional, as he was widely expected to do in the case?
14. If you were university counsel, after Fisher, what advice would you give to campus officials interested in increasing minority enrollment?