Affirmative Action Goes to Court Again

The United States Supreme Court has agreed to take up the case of Abigail Fisher, a white student who was denied admission to the University of Texas because of race-based admissions policies. The Court is unlikely to speak with one voice on this case, which will probably revolve around whether the Texas system exceeded the conditions for the use of race in decisions established by the 2003 Grutter decision. That earlier decision, like others, was a narrow 5-4 in favor of allowing racial considerations.  From the time that the Court began hearing affirmative action cases, differing interpretations of equal protection and freedom from discrimination have prevented unanimity of views. Majorities have consistently allowed race-based decisions in educational admissions and employment, but have agreed that these decisions must be subject to strict scrutiny. Especially in education cases, the tendency has been to accept affirmative action as a means of pursuing a compelling national interest of diversity, rather than as a means of compensating individuals or groups for past discrimination.

Regents of Univ. Cal. v. Bakke, 438 U.S. 265 was the most critical Supreme Court case regarding affirmative action in education. The case originated in 1973 when Allen Bakke, a white man, applied for admission to the University of California-Davis Medical School. Under its affirmative action program, the school had reserved 16 of 100 seats for minority or socioeconomically disadvantaged applicants, who were judged by a committee separate from the one that judged regular applicants and who could be admitted with lower grade point averages (GPAs) and Medical College Admissions Test (MCAT) scores than regular applicants. After Bakke was denied admission, he wrote to the chairman of the admissions committee complaining because he had not been considered for a reserved seat for the disadvantaged and because no whites received these reserved seats.  Bakke applied again in 1974, this time with a substantially higher MCAT score and was again denied admission, although minority applicants were with lower scores and GPAs than his own were admitted through the separate special admissions process. Bakke sued in the California Superior Court, maintaining that he had experienced discrimination, in violation of the Equal Protection Clause and Title VI of the Civil Rights Act of 1964, as well as the California Constitution. The case went before the California Supreme Court, which decided in Bakke’s favor by eight to one. The university then appealed to the Supreme Court.

The University of California maintained that it was justified in using race as a factor in admissions and that its separate admissions program was a legitimate way of doing so. Bakke maintained, again, that reserving places violated his right to equal treatment and subjected him to discrimination. Justices William Brennan, Byron White, Thurgood Marshall, and Harry Blackmun supported the use of race in admissions to educational programs in order to provide a remedy to minorities for the present-day consequences of past discrimination and racial prejudice. Chief Justice Warren Burger, Potter Stewart, John Paul Stevens, and William Rehnquist, opined that the admissions policy at Davis violated Bakke’s rights under the Equal Protection Clause and the Civil Rights Act. Justice Lewis Powell argued that treating individuals differently on the basis of race requires a compelling state interest. That compelling state interest seen was the achievement of a heterogeneous student body.

Justice Powell wrote the opinion of the Court, in which the four justices who favored race conscious admissions joined in part. A special admissions quota, such as the one employed by UC-Davis, could not be used because it constituted discrimination. Race could be treated as a factor, but was subject to strict scrutiny. Bakke was ordered admitted and the most important Court decision on educational affirmative action entered history as a split decision in which no other Justice agreed entirely with Powell’s opinion for the Court. The Bakke decision therefore meant that educational institutions could continue to seek to increase their admissions of members of racial minorities or other represented groups but only to increase diversity, not to compensate for past discrimination.  Moreover, membership in an underrepresented group could be only one of many factors in an admissions decision.

However, during the 1970s, the Court also found that whites, as well as minority members, were constitutionally protected as individuals from racial discrimination. In McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273 (1976), in a rare unanimous decision on this topic, the Court held that Title VII of the 1964 Civil Rights Act prohibited discrimination against whites, as well as non-whites. This placed the Court in a complicated position. On the one hand, Bakke allowed deciding (i.e., discriminating) on the basis of race to achieve perceived larger national ends. On the other hand, the Court also seemed to find against just this kind of discrimination.

Some members of the Court attempted to juggle this apparent contradiction through advancing the concept of "national interest" as a counterweight to individual rights and by subjecting race-based decisions to "strict scrutiny," meaning that racial decisions had to be (or present themselves as) narrowly tailored to address the specific goals of national interest. The two critical college admissions cases of the early twenty-first century were based on this juggling.

In the case of Grutter v. Bollinger 539 U.S. 306 (2003), In 1996, Barbara Grutter had been denied admission to the University of Michigan Law School, despite a 3.8 grade point average and a score of 161 on the Law School Admissions Test. The Law School maintained a policy that gave special consideration to members of minority groups, and Grutter’s attorneys argued that this policy had denied her a place and therefore constituted discrimination against her under the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act. At the same time, the Court considered the case of two white applicants to the University of Michigan’s undergraduate program in Gratz v. Bollinger 539 U.S. 244 (2003).  Jennifer Gratz had been classified as “well-qualified” when she applied in 1995 and Patrick Hamacher as “qualified” when he applied in 1997, but both were rejected. The university maintained an undergraduate admissions policy that automatically gave 20 points to underrepresented racial minorities.  Gratz had actually been rejected before the point system had been enacted, raising questions about whether she had standing to bring suit, but the Court ruled that she did.

Ultimately, the Court ruled that the Law School’s policy was acceptable, because it served the compelling national interest of diversity and simply took race into consideration, while the undergraduate admissions policy was not, because the point system was too inflexible and was not narrowly tailored to promote diversity. Grutter v. Bollinger was narrowly decided by a 5-4 majority, with an opinion written by O’Connor and joined by Stevens, Souter, Ginsberg, and Breyer, with Ginsberg writing a concurrence. Justice O’Connor argued that narrowly tailored race-based decisions for the sake of diversity were Constitutional. However, she also suggested that affirmative action could not be permanent in character and suggested that twenty-five years later it would no longer be necessary to consider race.  Justices Rehnquist, Scalia, Kennedy and Thomas all disagreed and wrote dissents, with Thomas strongly suggested that the Court should not wait twenty-five years to find the practice unconstitutional.

In Gratz v. Bollinger, Chief Justice Rehnquist wrote the 6-3 opinion, in which he was joined by O’Connor, Scalia, Kennedy, and Thomas. Justice O’Connor wrote a concurrence in which she was joined by Breyer, who also wrote a concurrence. The majority decided that the automatic point system was unconstitutional because it did not bring race into consideration on a flexible, individual basis. Justices Stevens, Souter, and Ginsberg all wrote dissents. Justice Ginsberg and Souter both said that the university should not be penalized for the openness and honesty of its affirmative action program.

The Fisher case is unlikely to end affirmative action in admissions altogether, but it does have the potential to restrict this type of policy. Its main issue will probably be whether the racial admissions policies of the University of Texas were necessary to achieve the supposedly compelling national interests. Since Texas already attempts to promote minority enrollments through a 10% plan (admitting the top 10% of each class, therefore taking in disproportionate numbers of students from mainly minority schools, regardless of the overall level of school performance), the defense will probably argue that Texas already has a system of preferences aimed at increasing minority enrollments. The good news for those who would like to see racial preferences diminished is that Elena Kagan has recused herself because she argued in favor of racial preferences in Texas when she was U.S. solicitor general. However, three justices (Sonia Sotomayor, Steven G. Breyer, and Ruth Bader Ginsburg) will probably support the use of racial preferences in Texas and elsewhere. Four (Chief John G. Roberts, Samuel Alito, Antonin Scalia, and Clarence Thomas) will probably try to restrict these preferences further.  This makes Justice Kennedy, who earlier opposed racial preferences in both Grutter and Gratz the swing voter, who could make the vote a tie (thus leaving in place a lower court decision in favor of race-based admissions) or join the other four in striking down the Texas policy. Even if the latter comes to pass though, there will still be the issue of whether the Court writes its decision narrowly, directed specifically toward the Texas case, or more broadly, establishing a usable precedent for further diminishing race-based policies around the country.