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.
J. R. Croson
considered affirmative action in the context of government
programs that set aside a specified percentage of government contract
for minority business enterprises. Rejecting the argument that
set-asides might be justified as a remedy for past societal
the Court held that such programs are only justified as a remedy for
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
will be subject to the strict scrutiny test requiring demonstration of
a compelling state interest and use of classifications narrowly
to further that interest.
decisions reflect the Court's new skepticism about affirmative
action. In 2003, the Court in Gratz v Bollinger struck down the
University of Michigan's heavy weighting of race as a plus factor in
undergraduate admission decisions (while at the same time upholding, 5
to 4 with Justice O'Connor providing the key vote, a more
closely-tailored law school admission program).
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 students.
2012, the Court announced it intends to revisit the issue of
affirmative action in college admissions. Accepting a case
challenging racial preferences used in the admission process at the
University of Texas (Fisher v
University of Texas), the Court signalled that the end might be
near for affirmative action. With Justice Alito, a strong
opponent of affirmative action, having replaced Justice O'Connor, who
provided the fifth vote to uphold the affirmative action program at
issue in the 2003 case of Grutter v
Bollinger, most commentators speculated that the Texas program,
which included race as one factor in the process used by its admission
officers, would likely be declared unconstitutional in the Court's
Government Interests Asserted in Bakke
Lewis Powell, author of the key opinion in the Bakke case.
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?