Jody Feder
Legislative Attorney
More than three decades after the Supreme Court ruling in Regents of the University of California
Legislative Attorney
More than three decades after the Supreme Court ruling in Regents of the University of California
v. Bakke,
the diversity rationale for
affirmative
action in public education
remains a topic of
political and legal controversy.
Many colleges and
universities have implemented affirmative action
policies not
only to remedy past
discrimination, but also to
achieve a racially and
ethnically diverse
student body or faculty.
Justice Powell,
in his opinion for the Bakke
Court, stated that the
attainment
of
a diverse student body is “a
constitutionally permissible goal for an
institution of higher education,” noting that “[t]he atmosphere of ‘speculation,
experiment, and creation’ so
essential to the quality of
higher
education is
widely believed to
be promoted by a diverse student body.”
In subsequent years, however, federal
courts
began to question the
Powell rationale, unsettling expectations about whether diversity-based affirmative action in
educational admissions and faculty hiring is constitutional under the equal
protection clause of the Fourteenth Amendment.
After
a series of
conflicting lower court rulings
were
issued regarding the
use of race to promote
a diverse student
body, the Supreme Court agreed to review the
race-conscious admissions policies
used by the undergraduate and
law school admissions programs
at the University of
Michigan.
In Grutter v. Bollinger, a 5 to 4 majority of the Justices held that the University Law School had a “compelling” interest in the “educational benefits that flow from a diverse student body,”
which justified its race-based
efforts to assemble a
“critical mass” of
“underrepresented” minority
students. But in the companion decision,
Gratz v. Bollinger, six Justices
decided that the University’s policy of
awarding “racial bonus
points” to minority
applicants was
not “narrowly tailored” enough
to pass constitutional scrutiny. The decisions resolved,
for the time being,
the doctrinal muddle left in Bakke’s wake. And because the Court’s constitutional holdings translate to the
private sector under
the federal civil rights laws, nonpublic schools, colleges,
and universities are
likewise affected.
However, the
Grutter and Gratz decisions did not address
whether diversity is a
permissible
goal
in the elementary
and secondary educational setting. To resolve this
question, the
Supreme Court agreed to review two
cases that involved the
use of race to maintain racially diverse
public schools and to avoid
racial segregation. In
a consolidated 2007 ruling in Parents Involved in
Community Schools v. Seattle School
District
No. 1, the Court struck down
the Seattle and Louisville school
plans at issue,
holding that they violated the equal protection
guarantee of the
Fourteenth Amendment.
More recently,
the Court has
once again taken up the issue
of
affirmative action in higher education in two
separate cases.
In its 2013 ruling in
Fisher v. University of Texas at Austin, the Court reaffirmed
its holding in Grutter, but nevertheless
struck down
a race-conscious undergraduate admissions plan at the University of Texas
at
Austin. Meanwhile, the Court
is poised to consider a different question involving racial preferences in higher education during the
upcoming 2013-2014 term when it hears arguments
in Schuette v. Coalition to Defend Affirmative Action. In
Schuette, the Court will determine
whether Michigan’s
Proposal 2, which
prohibits
the
use of racial
preferences
in
higher education, is
constitutional.
Date of Report: August 9, 2013
Number of Pages: 33
Order Number: RL30410
Price: $29.95
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