AN EXAMINATION OF THE LAW CONCERNING RACE-BASED ADMISSIONS
POLICIES IN STATE FUNDED INSTITUTIONS OF HIGHER EDUCATION
by
STEPHEN GERMAINE BLACK
(Under the Direction of C. Thomas Holmes)
ABSTRACT
Affirmative action refers to “the employment programs required by federal statutes
and regulations designed to remedy discriminatory practices in hiring minority group
members; i.e. positive steps designed to eliminate existing and continuing discrimination, to
remedy lingering effects of past discrimination, and to create systems and procedures to
prevent future discrimination; commonly based on population percentages of minority groups
in a particular area.” Factors considered are race color, sex, creed and age. It application has
expanded to include programs and policies designed to increase the number of minorities and
women admitted into colleges and universities. Affirmative action is an attempt at a logical
response to those who had long been denied their rights to participate equitably in American
society.
Affirmative action in the college admissions process has become an ethical
issue rather than a legal one. In other words, affirmative action regulations are the federal
government’s only tools to legislate morality. Most colleges and universities have a long
history of granting preferential treatment to targeted minority applicants. As long as the
decision process does not employ strict racial allocations, colleges can choose to accept
whomever they want.
With the rise of state legislation to end affirmative action, there will be a
corresponding drop in enrollment of minorities. Affirmative action is not about quotas, nor is
it truly about preferential treatment. It is about making admission to college even among all
American students. However, advocates of affirmative action believe that the playing field is
not yet level and that granting unpretentious recompense to minorities and women is more
than fair, given hundreds of years of discrimination that has profited White men.
INDEX WORDS:
Legal Issues, Affirmative Action, Admissions, and Higher Education
AN EXAMINATION OF THE LAW CONCERNING RACE-BASED ADMISSIONS
POLICIES IN STATE FUNDED INSTITUTIONS OF HIGHER EDUCATION
by
STEPHEN GERMAINE BLACK
Bachelor of Science, Florida State University, 1995
Mater of Education, University of Georgia, 1996
Specialist in Education, University of Georgia, 1997
A Dissertation Submitted to the Graduate Faculty of The University of Georgia in Partial
Fulfillment of the Requirements for the Degree
of
DOCTOR OF EDUCATION
ATHENS, GEORGIA
2007
© 2007
Stephen Germaine Black
All Rights Reserved
AN EXAMINATION OF THE LAW CONCERNING RACE-BASED ADMISSIONS
POLICIES IN STATE FUNDED INSTITUTIONS OF HIGHER EDUCATION
by
STEPHEN GERMAINE BLACK
Electronic Version Approved:
Maureen Grasso
Dean of the Graduate School
The University of Georgia
May 2007
Major Professor:
C. Thomas Holmes
Committee:
John Dayton
C. Kenneth Tanner
TABLE OF CONTENTS
Page
CHAPTER
1
Executive Order 11246 ..................................................................................................1
Affirmative Action and Title VII ..............................................................................6
The Case for Preferential Treatment .......................................................................10
Legal History...........................................................................................................15
2
Historical Litigation .....................................................................................................23
3
The Current Status of Affirmative Action Policy Within Higher Education...............61
4
Conclusion and Recommendations..............................................................................64
REFERENCES ..............................................................................................................................68
iv
CHAPTER 1: EXECUTIVE ORDER 11246
Executive Order 11246 was signed in 1964 by President Johnson directing federal
agencies to ensure the inclusion of qualified minorities when hiring. In lay terms, Executive
Order 11246 is the genesis of affirmative action. Even though President Johnson signed the
order in 1964, President Kennedy issued the original executive order instructing federal
contractors to “at least make sure” that everyone got a “fair chance” in 1961 (Cahn, 1993).
President Johnson’s executive order mandating affirmative action attempted to address the
twin heritages of slavery and Jim Crow segregation; the historical and contemporary racial
oppression, which kept African Americans, mired in poverty and despair (Executive Order
No. 11246, 1965).
Affirmative action refers to “the employment programs required by federal statutes
and regulations designed to remedy discriminatory practices in hiring minority group
members; i.e. positive steps designed to eliminate existing and continuing discrimination, to
remedy lingering effects of past discrimination, and to create systems and procedures to
prevent future discrimination; commonly based on population percentages of minority groups
in a particular area.” Factors considered are race color, sex, creed and age (Black’s Law
Dictionary, 1999). Its application has expanded to include programs and policies designed to
increase the number of minorities and women admitted into colleges and universities.
Affirmative action is an attempt at a logical response to those who had long been denied their
rights to participate equitably in American society. As prescribed in the Fourteenth
1
Amendment of the United States Constitution:
All persons born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the state wherein they reside. No state
shall make or enforce any law that shall abridge the privileges or immunities of
citizens of the United States; nor shall any state deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction
the equal protection of the laws (University of Cornell Law School, 2002).
To emphasize the importance of this sweeping order President Johnson invoked a metaphor
that was first uttered by Dr. Martin Luther King Jr. in 1963. “It is obvious that if a man
enters the starting line of a race three hundred years after another man, the first would have to
perform some incredible feat in order to catch up.” President Johnson concurred and
elaborated further in a speech given at Howard University’s commencement address in 1965.
You do not take a person who, for years, has been hobbled by chains and liberate
him, bring him to the staring line of a race and then say, ‘you are free to complete
with all the others,’ and still justly believe that you have been completely fair.
(President Johnson, 1965, ¶ 10,).
The chained person after a period of time builds deficiencies that can not be over come
unless, special, systematic, corrective actions are implemented to compensate for the
accumulate disadvantages (Allen, 2005). Johnson’s Executive Order further addressed the
laissez-faire attitude of government agencies and institutions of “come if you want (or must)
that was entrenched and legitimated by policy and law.” He ordered, “Vigorous, proactive
steps (affirmative action) to broaden and increase access to previously excluded,
unrepresented groups” (p. 19).
The language of Section One of the Fourteenth Amendment does not allow
discrimination of a citizen’s inalienable rights without due process, nor does it allow said
citizen to be denied justice due to race. The equal protection clause is a cornerstone in the
2
argument over affirmative action. In essence, it provides equal rights to everyone, race
notwithstanding. Some feel that the concept of affirmative action is in direct violation of the
14th Amendment’s equal protection clause. Preferential treatment of any group without
regards to others contravenes the 14th Amendment in its entirety (Wise, 2005).
Kennedy (1986), in his article Persuasion and Distrust: The Affirmative Action
Debate, asserts the claim that affirmative action programs violate the 14th Amendment. He
cites the constitutional argument against said programs:
All governmental distinctions based on race are presumed to be illegal and can only
escape that presumption by meeting the exacting requirements of ‘strict scrutiny.’
Because the typical affirmative action program cannot meet these requirements, most
such programs are unconstitutional. (p. 55)
This theory implies that the government should never consider skin color in its
treatment of individuals and that benefits and burdens should be given to both Blacks and
Whites according to the same criteria, no matter what. There are those who believe that this
theory provides a lucid imperative that compels reliable judicial applications. Kennedy
makes note that this “colorblind” theory is just that — A theory; and that it is one of a
number of theories that seek to explain the Fourteenth Amendment’s equal protection clause.
He believes that this view is “too abstract and ahistorical” (p. 56).
In the forties, fifties and sixties, against the backdrop of laws that used racial
distinctions to exclude Blacks from opportunities available to White citizens, it
seemed that racial subjugation could be overcome by mandating the application of
race-blind law. In retrospect, however, it appears that the concept of race-blindness
was simply a proxy for the fundamental demand that racial subjugation be
eradicated…The opponents of affirmative action have stripped the historical context
from the demand for race-blind law. They have fashioned this demand into a new
totem and insist on deference to it no matter what its effects on the very group the
Fourteenth Amendment was created to protect. Brown and its progeny do not stand
for the abstract principle that governmental distinctions based on race are
3
unconstitutional. Rather…[they] stand for the proposition that the Constitution
prohibits any arrangements imposing racial subjugation—whether such arrangements
are ostensibly race neutral or ostensibly race blind (p. 57).
The first objection to this claim is constitutional injury done to a White person whose
chance for getting a rare opportunity is diminished because of a race-based allotment system
is legally impossible to differentiate from that suffered by a Black victim of racial exclusion.
The second objection is that affirmative discrimination based on racial distinctions cannot be
satisfactorily differentiated from racial suppression minus controversial judgments that are
unsuitable to the judicial role. For the first objection, the injury incurred by a White victim
of affirmative action does not give rise to a valid constitutional claim because the damage
does not come from a prejudiced schema (p. 57; Wise, 2005).
Kennedy believed that this occurrence is “an incidental consequence of addressing a
compelling societal need: undoing the subjugation of African Americans” (p. 57). Whites
who are denied admittance to professional schools are not excluded simply because of skin
color; rather they are deprived of admission because it only seems fair after countless years
of racial discrimination to use the restricted resources in the most socially advantageous
method possible (p. 70).
With the second objection, differences between benign and malign discrimination
cannot be made in the absence of sociological judgments. There is not a judicial method that
is wholly independent of such judgment. Every judicial decision has its basis in social
reality, so the premise is in what context of sociological judgment a court will make a
decision (p. 58). Proof of the difficulty, if not impossibility, of reaching constitutionally and
4
morally “correct” solutions via affirmative action programs is provided by Justice Blackmun
in Regents of the University of California v. Bakke [438 U.S. 265 (1978)].
I suspect it would be impossible to arrange an affirmative-action program in a racially
neutral way and have it successful. To ask that this be so is to demand the
impossible. In order to get beyond racism, we must first take account of race. There
is no other way. And in order to treat some persons equally, we must treat them
differently. We cannot—we dare not—let the Equal Protection Clause perpetuate
racial supremacy.
As it stands, affirmative action has been and still is a frequently debated topic. The
opposition asserts that affirmative action is a quota system that leads to unfair preferences for
members of particular groups. Instead of helping, affirmative action programs harm
minorities, and they violate the Fourteenth Amendment. Some would also argue that
affirmative action programs do not assist in abolishing racial practices; an individual must
decide that to have a non-racist social environment would require a firm obligation never to
tolerate differential treatment of human beings because of their race (Kennedy, 1986).
Supporters of affirmative action believe it works and insist that the need for it is still
great. Affirmative action programs have enabled minorities to attain occupational and
educational advancement in large numbers at a pace that would otherwise have been
improbable. What this advancement has allowed for minorities, especially African
Americans, is an opportunity to gain valuable experience and a legacy of tangible advantages
for generations to come, while eradicating negative stereotypes. The repercussions of
affirmative action programs have benefited not only minorities but also the nation as a whole
(p. 51).
5
Simon, R. L. (1983), in his article Affirmative Action and the University distinguishes
between three kinds of affirmative action: procedural, regulatory and preferential. He defines
them as such:
In its least controversial sense, affirmative action refers to positive procedural
requirements which…admissions officers must meet to ensure that their pool of
candidates is representative of some larger body, such as the overall pool of qualified
[students] in the region. Let us call this the procedural form of affirmative action.
Affirmative action policies of a different sort require…admissions officers to make
numerical projections specifying the number of member of designated groups who
would be appointed under a fair, open, and proper selection procedure. These
projections are called goals…the professed intent of this form of affirmative action is
not to actually prefer members of designated groups to non-members, but to set up a
reasonable numerical projection of what results a proper search would provide. Let
us call this the regulatory form of affirmative action. Sometimes, affirmative action
is thought of as a form of preferential selection…this is the preferential form…,
which of course is the most controversial (p. 50).
The preferential form of affirmative action, where applicants from selected group are
favored over non-members of said set, is the most debated mode. Another name for reverse
discrimination would be preferential selection.
AFFIRMATIVE ACTION AND TITLE VII
To enforce the constitutional right to vote, to confer jurisdiction upon the district
courts of the United States to provide injunctive relief against discrimination in public
accommodations, to authorize the Attorney General to institute suits to protect
constitutional rights in public facilities and public education, to extend the
Commission on Civil Rights, to prevent discrimination in federally assisted programs,
to establish a Commission on Equal Employment Opportunity, and for other purposes
(The U.S. equal Employment Opportunity Commission, 2002).
Title VII of the Civil Rights Act of 1964 disallows discrimination on the grounds of
race, color, sex, religion, or national origin. It applies to all public facilities and institutions
of higher education, whether public or private, that have at least fifteen employees. The
Constitution prohibits state action in violation of the equal protection of the laws and applies
6
to all public colleges and universities. Title VII and the Constitution together establish what
is mandatory and permitted with respect to affirmative action in higher education (Francis,
1993).
Title VII is a statute, enacted by Congress’ ability to regulate commerce. Like any
statute, its limitations lie in the Constitution. The Constitution is used to set outside
restrictions to what the national government and the state government may do willingly
(Francis, 18). State colleges and universities are therefore prohibited by current clarification
of the Constitution from imposing affirmative action objectives on appointments unless they
are doing what is compulsory to repair their own discrimination. The constitutional
principles that apply to state universities and colleges are more rigorous than the Title VII
standards that apply to both public and private institutions (p. 19).
In Title VII litigation, affirmative action has covered a varied range of counteractive
orders from courts. In higher education, affirmative action has been largely deliberate, but
has followed many of the court-ordered strategies. Forms of affirmative action in this setting
would be letters urging applications from minorities and women, and individual efforts to
recognize and interview women and minority candidates in recruiting practices (Francis, 17).
The realm of higher education is not exempt from discrimination and the requirement
of affirmative action policies. College and university applications commonly include
statements of non-bias, such as the following: “(This University) is an equal opportunity
institution.” This is required to maintain the premise that admissions are made without
reference to ethnic background. Recruiting committees are expected to make sure their
activities comply with federal affirmative action protocol.
7
University affirmative action admissions policies are regularly updated and
systematically reviewed by the government to ensure compliance, and if compliance is not
met, the school may lose federal funding. Therefore, it is of extreme importance that
colleges and universities maintain proper goals in student admissions. Hook (1978) says in
his introduction to
The University and the State:
All universities must be even more concerned with trends in the educational policies
formulated by government if they wish to preserve the relative autonomy of their
academic mission. Unless one regards the university purely as a business proposition
or as a service appendage to a governmental bureau, what happens to its academic
mission is of far greater importance than whether it survives or not (p. 2).
Hurtado and Navia (1997), attend to the issue of misconceptions in affirmative action
in collegiate admissions in their article Reconciling College Access and the Affirmative
Action Debate. In the article, they address several questions about university admissions
practices. Almost every form, shape, or substance of an affirmative action program that is
geared toward improving the educational opportunity for minorities and women has endured
public examination. Most of the attention is focused on admissions and financial aid awards,
supposedly because of an apparent predisposition against White students (p. 106).
Although conservative politicians have perpetuated misconceptions about affirmative
action, perhaps a major part of the problem is that higher education institutions have
not effectively communicated their educational goals and related admissions practices
to the general public. Individual institutions have lost legal challenges to affirmative
action practices in admissions and the awarding of scholarships because they have
failed to communicate how these practices are tailored to remedy past discrimination
(p. 107; Wise, 2005).
The issue of whether affirmative action is consistent with the way secondary
education functions comes into play with the notion that affirmative action programs fly in
8
the face of historical precedent. In other words, some feel that it is wrong to allow a student
access to a college or a university based on credentials other than academic qualifications,
which violate the principle of admittance based on merit (p. 107; Wise, 69-70). Hurtado and
Navia imply that academic credentials played a minor role in historical precedence of college
admissions:
However, access to higher education has never been based exclusively on academic
merit; rather colleges have historically favored those with the most financial
resources. Institutions of higher education were often created to serve the very
distinct social classes, namely the sons of wealthy donors and businessmen, the
clergy, and educators for a growing population. As a result, wealth and status became
one of the preconditions for gaining access to college. Therefore, the role of higher
education was to maintain the social order. (p. 108).
Even though college admissions have switched to a meritorious ideal in the twentieth
century, wealth still influences college access. Those who can invest more in their
children’s education do so, and admissions offices at elite universities give preferential
treatment to children of wealthy alumni (p. 108; Wise, 45). Within higher education
admissions, White’s have long benefited in a system that rewarded those whose families
could afford to contribute to their university or college of choice to ensure a particular
students admittance, and to maintain the generational caste system created by the founding
fathers and other political leaders (Wise, 2005). Wise further states that:
Contrary to common perceptions that education is meant to be the “great equalizer,”
allowing individuals to rise to the level of their abilities, schooling in the United
States has always been constructed to maintain existing hierarchies and divisions with
regard to not only race but also class status. It was Thomas Jefferson who advocated
three years of compulsory schooling for all, to “rake a few geniuses from rubbish,”
and it was Woodrow Wilson who, as President of Princeton University, once
explained “We want one class of persons, very much larger class of necessity in every
society, to forgo the privilege of a liberal education and fit themselves to perform
specific difficult manual tasks.”
9
The class advantages of Whites overall equate to massive advantages for their children
within higher education that are passed on to subsequent generations.
THE CASE FOR PREFERENTIAL TREATMENT
Proponents of affirmative action concerning institutions of higher learning believe
that diversity on America’s college campuses is beneficial to the academic environment and
to society as a whole. This is the essence of Supreme Court Justice Lewis Powell’s opinion
in University of California Regents v. Bakke, 438 U.S. 265 (1978). Colleges and
universities should meet the requirements for diversity. However, this has proved to be
quite difficult without ruffling a few feathers. The Supreme Court declared the idea of pure
numbers, or quotas, for public colleges and universities unconstitutional. As such, colleges
seeking to increase diversity have devised other strategies in order to comply with
affirmative action mandates. While private universities have more freedom in their
admissions decisions, they generally find that other affirmative action policies are a better
way of achieving diversity than quotas because they allow for greater flexibility and more
fairness (http://www.soyouwanna.com/site/pros_cons/affaction/affaction.html).
Opponents of affirmative action often say that it makes it easier for members of some
groups to get into college. However, the purpose of affirmative action is to increase the
admissions of minorities that are under represented in America's university system (Allen,
2005). This under representation is attributed to various social factors. Students from
families where few people have pursued higher education are less likely to excel in high
school. Children who come from communities where English is not the native language face
10
a large literate shortcoming, and students from lower socioeconomic school districts with
lower funding tend to perform poorly on standardized tests. Affirmative action in
admissions does not make it easier for students from a disadvantaged background to get into
college; rather, it is intended to mitigate the injury suffered by minorities due to the
lingering effects of past discrimination
(http://www.soyouwanna.com/site/pros_cons/affaction/affaction.html; Wise, 2005).
While affirmative action may lower admission norms for certain minorities, its
primary purpose is to offset academic disadvantages rooted in past and present racial
discrimination. Individuals who benefit from affirmative action must attain academic
distinction relative to others with similar backgrounds. Affirmative action consequently
creates a student body that has remarkable academic aptitude
(http://www.soyouwanna.com/site/pros_cons/affaction/affaction.html).
College is a challenging intellectual environment and schools should choose applicants based
on their ability to thrive in spite of (or because of) their origins. Lowering admissions
standards for certain minorities perpetuates the stereotype that members of minority groups
are less intelligent; without assistance, a minority is incapable of meritorious acceptance.
Stereotyping supports the perception that minorities are inferior, thus supporting the very
prejudice that affirmative action seeks to eradicate.
Affirmative action in the college admissions process has become an ethical issue
rather than a legal one. In other words, affirmative action regulations are the federal
government’s only tools to legislate morality. Most colleges and universities have a long
history of granting preferential treatment to targeted minority applicants. As long as the
11
decision process does not employ strict racial allocations, colleges can choose to accept
whomever they want (Boddie, 2005). As far as the question being one of ethics, the bulk of
the disagreement is over whether affirmative action increases equality in the admissions
process. Additionally, the debate over affirmative action raises the subject of what role
diversity in student bodies plays in both the academic mission of a university and in the
quality of life on campus
(http://www.soyouwanna.com/site/pros_cons/affaction/affaction.html).
There are many instances where a college or university has modified its admissions
criteria to allow minorities to enroll, but at the same time, someone else is denied admission
due to the ceiling effect. D’Souza, a researcher and fellow, describes such a situation in his
book Illiberal Education: The Politics of Race & Sex on Campus. An Asian student who
had top test scores, grades and an overall exemplary high school record was denied
admission to Berkeley. The student discovered that his academic performance was
considerably better than half of Berkeley’s incoming freshman class. The student found out
that if he were of any other race, his admission to Berkeley would have been assured. “[The
student’s] rejection at Berkeley did not seem accidental; rather, it appeared to result from a
conscious plan by the university to treat applicants differently, based on their ethnic group”
(p. 25).
Diversity is a central principle of the Berkeley admissions process. Prodded by the
state legislature, the university seeks to achieve this goal by shaping its student body
to roughly approximate the proportions of Blacks, Hispanics, Whites, Asians
Americans, and other groups in the general population. The university regards
“proportional representation” as a just distribution of educational opportunities in a
democratic society, where each group is entitled to its share of seats in the freshman
class (p. 26).
12
Apparently, the young Asians American was simply one too many for that particular
freshman class at Berkeley. He was refused on the grounds of his race. “University
officials admit that this denial is regrettable, but argue that they [the student’s family]
should understand that Berkeley is attempting a grand project to secure racial justice and
multicultural diversity in America” (p. 26).
The problem at Berkeley, as at any selective university, is that admissions policies
have in the past been based on principles of merit or achievement. Universities
generally attach primary importance to such indices of academic preparation as grade
point averages and test scores, although most also weigh extracurricular activities
such as sports, arts and music, work experience, and community service. Berkeley
discovered, however, that under these conventional measurements, racial groups fared
very differently, with Asians typically scoring the highest, Whites in the middle, and
Blacks and Hispanics markedly lower. In short, Berkeley found the principle of merit
admissions in sharp conflict with that of proportional representation of diversity (p.
26).
This is the justification for Berkeley’s chancellor to adjust the “cultural quotient” on
campus. Under his direction, Berkeley began to downgrade the significance of merit criteria
in admissions. Such decisive factors would only be used to measure variations in academic
preparation within groups. This yielded an insistent minority preferential treatment
program. However, not all minorities would benefit. Some would be “more equal than
others” (p. 27).
Asians Americans at Berkeley were over represented. “What many Asians saw…was
an unjust irony: affirmative action quotas established to increase the number of Blacks and
Hispanics at Berkeley now seemed to be restricting the number of Asians Americans. A
preferential treatment program instituted to help minorities appeared to be hurting a
minority group that could scarcely be blamed for the past injuries and deprivations inflicted
13
on indigenous American minorities…Quotas which were intended as instruments of
inclusion now seemed to function as instruments of exclusion” (p. 29).
D’Souza says programs similar to Berkeley’s have been introduced at a number of
large elite universities. It is important for colleges and universities to be diverse in their
student bodies. “Universities are a microcosm of society. However, they are more than a
reflection or mirror; they are a leading indicator. In universities…cultural differences come
together in the closest way possible” (p. 14).
Hacker, a political science professor, discusses the same problem in his article
Education: Ethnicity & Achievement:
If more Asians are admitted, then fewer Whites, Blacks, or Hispanics can be let in.
Most Asians say that they have no quarrel with affirmative action for those who need
it. For their own part, however, they would rather be judged by regular admissions
criteria, which end up pitting them against Whites. Moreover, that has been
happening at not only Berkeley and UCLA. Yale and Harvard, which draw on
national pools, now have entering classes, which are 13 and 15 percent respectively.
At Stanford, the figure is close to 20 percent, while at MIT it is close to a quarter (p.
220).
The situation arises that affirmative action can do some students a disservice by
inserting them into universities for which they are not appropriately prepared. Some schools
have offered cash grants for mediocre averages, and others tend to recruit from upper middleclass neighborhoods so that “there is better adjustment and less desperate alienation” (p.
222). Why bother if that certain pool of students cannot keep up with their brethren? Hacker
poses this frank answer: “Many professors and quite a few students regard the paucity of
Black faces on their campuses as cause for shame. To raise the minority presence eases a lot
of academic guilt” (p. 222).
14
In spite of granting preferential treatment to minorities, colleges and universities
continue to fall short of their objectives of increased minority enrollment and preservation,
and elimination of wide gaps in minority graduation rates. Until these programs take into
consideration the lagging academic performance of minority high school graduates, and its
unfavorable effects on their achievement in college, efforts to attain race and ethnic diversity
will continue to be thwarted. Why is it that “Students of color” are implicitly and explicitly
identified as threats to academic quality?
LEGAL HISTORY
Since its inception, affirmative action has been challenged in courts all over the
country. Flaws inherent in affirmative action strategies began to show themselves in the
mid 1970s. The Supreme Court and the appellate courts have ruled in a number of these
cases. The justices have been divided in their opinions not only because of contrasting
political system of belief, but also because the issue is so diverse. The Court has approached
most of the cases in a gradual manner, focusing on constricted portions of guiding principle
rather than tackling the whole.
There are several significant affirmative action cases that establish and challenge
precedent. They are listed here. A brief summary of each case is given, and a more detailed
description will follow in the body of this paper.
Plessy v. Ferguson, 163 U.S. 537 (1896). On June 7, 1892, Homer Plessy, a 30-yearold shoemaker, boarded a passenger train of the East Louisiana Railway and took a seat in
the railcar for White citizens. When he refused a conductor's orders to move to the railcar for
colored citizens, Mr. Plessy was forcibly removed and jailed. Plessy argued that the
15
Louisiana statute violated the Fourteenth Amendment to the Constitution. After the state
courts found the railcar statute to be constitutional, Plessy petitioned the United States
Supreme Court, which upheld the lower court rulings. Here, the mandate of “separate but
equal” had its genesis.
Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938). The University of Missouri
refused to admit Lloyd Gaines to its law school because it believed the school was only for
Whites. It was common for the state to send Black students to neighboring states for courses
of study not offered in the Black schools. Since Missouri did not have a separate and equal
law school for African Americans, the U.S. Supreme Court ruled Gaines must be allowed to
attend the University of Missouri Law School.
Brown v. Board of Education 347 U.S. 483 (1954). In Topeka, Kansas, a Black child
named Linda Brown had to walk through a railroad switchyard to get to her elementary
school, even though a White elementary school was only seven blocks away. The NAACP
was eager to assist Brown’s parents, as it had long wanted to challenge segregation in public
schools. In 1951, the NAACP requested an injunction that would forbid the segregation of
Topeka's public schools.
The Board of Education's defense was that, because segregation in Topeka and
elsewhere encompass many other aspects of life, segregated schools simply prepared Black
children for the segregation they would face during adulthood. The board also argued that
segregated schools were not harmful to Black children. The Supreme Court struck down the
"separate but equal" doctrine of Plessy for public education, ruled in favor of the plaintiffs,
and required the desegregation of schools across America.
16
University of California Regents v. Bakke, 438 U.S. 265 (1978). This landmark case
imposed restrictions on affirmative action to ensure that providing better opportunities for
minorities did not come at the expense of the rights of the majority. In other words,
affirmative action was unfair if it led to “reverse discrimination.” The case involved the
University of California at Davis Medical School, which had two separate admissions pools,
one for typical applicants, and one for minority applicants. The school reserved 16 of its 100
places for the latter. Allan Bakke, a White applicant, was rejected twice even though there
were some minority applicants admitted with considerably lower scores than his was. Bakke
maintained that judging him based on his race was a violation of the Equal Protection
Clause of the Fourteenth Amendment. The Supreme Court ruled that while race was a
legitimate factor in school admissions, the use of such inflexible quotas as the medical
school had set aside was not.
United States v. Fordice, 505 U.S. 717 (1992). Despite this Court's decisions in
Brown I and Brown II, Mississippi continued its policy of de jure segregation in its public
university system, maintaining five almost completely White and three almost exclusively
Black universities. Private petitioners initiated this lawsuit in 1975, and the United States
intervened, charging that state officials had failed to satisfy their obligation under the Equal
Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964
to dismantle the dual system.
When, by the mid-1980's, the student bodies at the White universities were still
predominantly White, and the racial composition at the Black institutions remained largely
Black, the suit proceeded to trial. After evidence was presented on a full range of
17
educational issues, the District Court entered extensive findings of fact on admissions
requirements, institutional classification and missions assignments, duplication of programs,
and funding. Its conclusions of law included rulings that the confirmatory duty to
desegregate in the higher education context does not consider either restricting student
choice or the achievement of any degree of racial balance. In affirming, the Court of
Appeals left undisturbed the lower court's findings and conclusions.
Cheryl Hopwood v. University of Texas, 861 F. Supp. 551 (5th Cir. 1996). This case
involved Cheryl Hopwood and three other White law-school applicants at the University of
Texas who challenged the school's affirmative action program, asserting that they were
rejected because of unfair preferences toward less qualified minority applicants. As a result,
the 5th U.S. Court of Appeals suspended the university's affirmative action admissions
program and ruled that the 1978 Bakke decision was invalid. Hopwood, however, rejected
the legitimacy of diversity as a goal, asserting, "Educational diversity is not recognized as a
compelling state interest." The Supreme Court allowed the ruling to stand.
Smith v. University of Washington 2000 WL 1770045 (9th Cir. 2000). The trial
before Judge Thomas Zilly marks the conclusion of a five-year legal battle by rejected
White applicants Katuria Smith, Angela Rock, and Michael Pyle, who sued the Law School
after being subjected to more rigorous admissions standards than were applied to minority
applicants. The three plaintiffs attempted to prove at trial that the resulting discrimination
was a violation of their rights under both the Constitution and the 1964 Civil Rights Act.
18
The University did not deny that it treated minority applicants preferentially.
However, unlike the other U.S. Courts of Appeal to address the issue, the Ninth Circuit
ruled in the Smith case that Powell's standard in Bakke was the governing law.
Johnson v. Board of Regents of the University System of Georgia; 106 F. Supp. 2d.
1362 ( 11th Cir. 2001). This case is a challenge to the University of Georgia's freshman
admissions policy. The plaintiffs are White females who applied unsuccessfully for
admission to the University's fall 1999 class. Plaintiffs allege that the University's admissions
policy awarded a fixed numerical bonus to non-White and male applicants that it did not give
to White and female applicants. The district court found the policy unlawful and entered
summary judgment in Plaintiffs' favor. Defendants did appeal the ruling regarding the
University's preferential treatment of non-Whites.
According to the Defendants, the University's freshman admissions policy does not
unlawfully discriminate based on race because the policy is narrowly tailored to serve a
compelling interest in ensuring a diverse student body. Plaintiff’s cross-appealed on several
matters, including the denial of prospective injunctive relief. After careful review of the
record and the parties' arguments, the 11th circuit court affirmed the entirety of the district
court's ruling. The district court disagreed with Georgia’s stated reason for using race and
gender in admissions: not because diversity could never be a compelling interest, but because
Georgia could not articulate why diversity was important in its educational setting or how its
admissions program was narrowly tailored to reach its stated goal of diversity. The district
court noted that remedying the effects of an institution’s own past discrimination was a
compelling interest sufficient to withstand constitutional attack.
19
Wooden v. Board of Regents of the University System of Georgia, 32 F.Supp.2d 1370
(S.D. Ga. 1999); U.S. 11th Circuit Court of Appeals (2001). Black students intervened in a
suit that not only challenged affirmative action in admissions in state institutions, but also in
essence sought to require Georgia's historically Black institutions to adopt the same
admissions standards as those at the state's flagship, the University of Georgia at Athens.
White applicants, without a legacy of discrimination to overcome, wanted the standards
raised at historically Black institutions because they thought that would improve their odds in
gaining admission.
Lawyers for the minority students introduced much of the crucial evidence that
conclusively demonstrated that White plaintiffs were not denied admission in consequence of
affirmative action, but because they simply were not well qualified. Although the districtcourt judge was evidently hostile to Georgia's affirmative-action efforts, he was compelled to
dismiss the case.
Grutter v. Bollinger, 2002 FED App. 0170P (6th Cir. May 14, 2002). After a White
applicant to the University of Michigan’s law school was rejected, she filed suit. She alleged
that the school’s use of race in its admissions process violated her rights under Equal
Protection Clause of the Fourteenth Amendment and Title VI. The Federal District Court for
the Eastern District of Michigan Friedman held that Bakke did not recognize the achievement
of racial diversity as a compelling state interest. The court also found that even if diversity
was a compelling state interest, the law school’s policy was not narrowly tailored to achieve
the school’s goal of racial diversity.
20
In an en banc decision, the Sixth Circuit Court of Appeals reversed the judgment of
the district court. As a result, the court rejected the district court’s conclusion and held that
the law school has a compelling interest in achieving a diverse student body.
Gratz v. Bollinger, 6th Circuit Court of Appeals. Gratz is a companion case to
Grutter. The case, involving the University of Michigan and the University of Michigan
Law School, questioned the constitutionality of giving students extra consideration for
admission to the university based on their race. This is an appeal of a March 2001 ruling
where a federal judge ruled that the race-conscious admissions system of the University of
Michigan's law school is unconstitutional, contradicting. It contradicted a December 2000
ruling in a parallel case that upheld the university's affirmative action policy for
undergraduate admissions. The Michigan ruling came in the midst of the admissions process
for the fall semester, throwing a wrench into the existing procedure, which did consider
applicants' race. U.S. District Judge Bernard Friedman ruled that Michigan could not admit
students using race as a factor.
With the rise of state legislation to end affirmative action, there will be a
corresponding drop in enrollment of minorities. Affirmative action is not about quotas, nor is
it truly about preferential treatment. It is about making admission to college even among all
American students. However, advocates of affirmative action believed that the playing field
is not yet level and that granting modest reward to minorities and women is more than fair,
given hundreds of years of discrimination that has profited White men
(http://www.aclu.org/library/affirmative_action99.pdf).
21
This dissertion is broken down into four chapters. Chapter one has provided a
general introduction. Chapter two of this paper will focus on a formal review of the
aforementioned cases. The review will provide background particulars of the cases and
explicit explanations of the judicial decisions that were ordered. Chapter three will provide a
detailed extrapolation and elucidation of the current status of affirmative action litigation,
and Chapter Four will provide a summary, conclusion and recommendations for further legal
research.
22
CHAPTER TWO: HISTORICAL LITIGATION
Plessy v. Ferguson, 163 U.S. 537 (1896)
According to Lively, in Landmark Supreme Court Decisions (1999), after
Reconstruction, segregation based on race was a defining characteristic of life in the southern
states. Jim Crow laws were used to separate people based on skin color and maintained
White benefit in all societal realms. The national government adopted segregationist policies
to avoid conflict with the South. In 1887, Florida’s legislation passed a law that required
racially separate transportation. Even though segregationist law had its origins in northern
states, it spread quickly throughout the South (p. 98).
The speedy propagation of laws that established inclusive systems of racial separation
eventually triggered challenges to their constitutionality. The critical moment on this front
occurred when a Louisiana law that required separate rail cars for Blacks and Whites was
challenged on grounds that it violated the 13th and 14th Amendments. The law afforded that
railway corporations must provide separate equivalent accommodations for White and
colored races by providing two or more passenger coaches for each commuter train, or by
dividing the passenger coaches using a partition so as to acquire separate spaces
Homer
Plessy, a man described as “one-eighth Black and seven-eighths White…whose mixture of
colored blood was not discernible” (p. 98), was sitting in the passenger cars designated for
Whites and refused to vacate his seat. He was arrested for violating the Louisiana statute.
Mr. Plessy sued, his plea was denied and he appealed to the Supreme Court.
In an 8-1 decision, with Justice John Harlan, Sr. dissenting, Justice Henry Brown
authored the court’s opinion. The Court extended the 13th Amendment’s role to encompass
23
slavery and its most direct consequences. In regards to the 14th Amendment, the Court
acknowledged that the purpose of said amendment was “to enforce the absolute equality of
the two races before the law” but the amendment did not “intend to abolish distinctions based
upon color, or to enforce social, as distinguished from political equality, or a commingling of
the two races upon terms unsatisfactory to either” (p. 99).
From the Court’s standpoint, official segregation did not imply inadequacy. Rather,
segregation reflected the practical exercise of a state’s police powers to promote the
municipal good. The Court concluded that segregation was a reasonable process of
maintaining the established usages, customs, and traditions of the people for the promotion of
their comfort, and the preservation of the public peace and good order (p. 99).
Having determined that official segregation did not violate the Constitution, the Court
further observed that legislative policy or judicial review that favored racial
commingling would be unwise and futile. It accordingly noted, “legislation is
powerless to eradicate social instincts or to abolish distinctions based upon physical
differences.” Attempts to do so, as the Court saw it, would be counterproductive.
Although civil and political equality may be constitutionally required, the Court
stressed that the Constitution cannot elevate a racially inferior group to the level of
what it viewed as a superior group (p. 99).
Justice Harlan’s lone dissent warned that the majority opinion’s decision would prove
to be as pernicious as the opinion in Dred Scott v. Sanford, 60 U.S. 393 (1856). 1 He believed
that the purpose of segregation was to exclude Black people from occupying coaches
assigned to White people. Justice Harlan reasoned, “the destinies of the two races…are
dissolubly link[ed] together, and the interests of both require that the common government of
1
The opinion of the Court, written by Chief Justice Roger B. Taney, ruled that Blacks were non-citizens,
without constitutional rights that are associated with citizenship. The decision and its aftermath contributed to
the outbreak of the Civil War; it was overturned by the ratification of the Fourteenth Amendment.
24
all shall not permit the seeds of race hate to be planted under the sanction of law (p. 100).
Harlan further argued
Laws that assumed “that colored citizens are so inferior and degraded that they cannot
be allowed to sit in public coaches occupied by White citizens…there is in this
country no superior, dominant, ruling class of citizens exacerbated racial hatred and
distrust… [and] no caste.” On the contrary, our constitution is color-blind (p. 100).
On paper, all separate conditions had to be equal, but in reality, attention to equality
was pretentious. Over the next fifty years, judicial review reaffirmed the “separate but
equal” doctrine established in Plessy. Challenges to dominant racial attitudes were viewed as
futile. Constitutional law for the former half of the twentieth century largely reflected the
philosophy of White preeminence and protected its schema (p. 101).
Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938)
Lloyd Gaines, a Black man, was an A-student who applied to the School of Law of
the State University of Missouri. Mr. S. W. Canada, the registrar, found out that Mr. Gaines
was a Black man and denied him admission to the law school. Mr. Canada instructed Mr.
Gaines to further his legal education at the all-Black Lincoln University, from where he had
graduated. Lincoln University did not have a law school. The State of Missouri had a law
barring Blacks from attending all-White educational facilities:
Pending the full development of the Lincoln University, the board of curators shall
have the authority to arrange for the attendance of Negro residents of the state of
Missouri at the university of any adjacent state to take any course or to study any
subjects provided for at the state university of Missouri, and which are not taught at
the Lincoln University and to pay the reasonable tuition fees for such attendance;
provided that whenever the board of curators deem it advisable they shall have the
power to open any necessary school or department. Missouri would pay the
difference in tuition if Mr. Gaines decided to attend law school in another state.
25
At the time of Mr. Gaines’ desire to attend law school, Lincoln University did not
have an accredited law school. Charles Houston, the attorney representing Mr. Gaines, felt
that the focus of the case was on Missouri’s failure to provide a “separate but equal” law
school for Black students. Houston filed an injunction asking Mr. Canada to admit Mr.
Gaines, but the school rejected his application. There were available law schools in
neighboring states, but Mr. Gaines did not want to leave Missouri
(http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/gainesT.html).
Upon review of current statutes, the state court deemed that the legislation was clear
in that it intended to bring Lincoln University up to standard with the University of Missouri
so that Black people and White people would have an equal opportunity for higher education,
but at separate schools. The Plessy decision was not even relevant because there was no
equivalent law school for Blacks at the time Mr. Gaines wanted to attend
(http://www.nps.gov/brvb/pages/related.htm).
Furthermore, the state court ruled that until Lincoln University was brought up to par,
Black students could attend the university of any other neighboring state and their tuition
would be paid. The statute did not intend for both White and Black students to attend the
same university, and the University of Missouri acted in accordance with the legislation in
denying Mr. Gaines admission to its School of Law
(http://www.nps.gov/brvb/pages/related.htm).
The Supreme Court’s 7-2 decision, written by Chief Justice Hughes, overturned the
lower court’s ruling. The policy of establishing a law school at Lincoln University had not
yet turned into an actual facility, and the Court believed that a mere declaration of purpose
26
was not enough. “The provision for legal education at Lincoln is at present entirely lacking”
(http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&
vol=305&inv). The language of the statute authorized the board of curators to establish a law
school at Lincoln University whenever they deemed practical. The opinion of the court
emphasized the curators’ discretion:
The statute was enacted in 1921. Since its enactment, no Negro, not even appellant,
has applied to Lincoln University for a law education. This fact demonstrates the
wisdom of the Legislature in leaving it to the judgment of the board of curators to
determine when it would be necessary or practicable to establish a law school for
Negroes at Lincoln University. Pending that time, adequate provision is made for the
legal education of Negroes in the university of some adjacent State, as heretofore
pointed out (113 S.W. 2d, p. 791).
The Court further stated:
We do not find that the decision of the state court turns on any procedural
question…But, as we have said, the state court did not rule that it would have been
the duty of the curators were entitled under the state law to grant such an application,
but on the contrary took the view, as we understand it, that the curators were entitled
under state law to refuse such an application and in its stead to provide for
petitioner’s tuition in an adjacent state. That conclusion presented the federal
question as to the constitutional adequacy of such a provision while equal opportunity
for legal training within the State was not furnished, and this federal question the state
court entertained and passed upon. We must conclude that in so doing, the court
denied the federal right, which petitioner set up and the question as to the correctness
of that decision is before us. We are of the opinion that the ruling was in error, and
that petitioner was entitled to be admitted to the law school of the State University in
the absence of other and proper provision for his legal training within the state
(http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=305&invol=337, ¶
13).
In short, because the state of Missouri did not have a separate but equal law school
for Mr. Gaines to attend, the Court believed he should have been admitted to the University
of Missouri’s School of Law. The Court reversed the decision of the Missouri Supreme
Court and remanded the case for further proceedings consistent with their opinion.
27
Justice McReynolds and Justice Butler dissented under the premise that Missouri was
doing what was best for everyone by keeping separate White and Black students, and under
the majority opinion of the Court, might irrevocably damage both races. Missouri should not
be excessively hindered through theorization ineffectually restrained by occurrence
(http://www.nps.gov/brvb/pages/related.htm).
Brown v. Board of Education, 347 U.S. 483 (1954)
In the mid-1950’s, segregation in public schools was the standard across the country.
Even though the schools in a given region were supposed to be equal, most Black schools
were inferior to their White counterparts. The true nature of the “separate but equal” doctrine
established in Plessy v. Ferguson, 163 U.S. 537 (1896) was better exemplified in actuality
than in rhetoric. By 1954, funding for Black schools had increased, but spending for White
schools was still 40% more (Lively, 1999).
In Topeka, Kansas, a Black third-grader named Linda Brown had to walk a mile
through a railroad switchyard to get to her elementary school, even though a White
elementary school was located only seven blocks away. Linda's father, Oliver Brown, tried to
enroll her in the White school, but the principal of the school refused Linda admission. Mr.
Brown went to Topeka's branch of the National Association for the Advancement of Colored
People (NAACP) and asked for help (http://www.watson.org/~lisa/Blackhistory/earlycivilrights/brown.html).
In 1951, the NAACP requested an injunction that would forbid the segregation of
Topeka's public schools. At the trial, the NAACP argued that segregated schools sent the
28
message to Black children that they were inferior to Whites; therefore, the schools were
inherently unequal (¶ 3).
One of the main considerations for the Warren Court 2 was whether official
segregation was consistent with the expectations of the framers of the 14th Amendment. The
Court was aware that public education was neither insidious nor well developed at the time
of the 14th Amendment’s framing and ratification. Because public education had become so
critical to economic opportunity and personal development since that time, the Warren Court
concluded that the original intent of the framers and ratifiers was ambiguous. Therefore, the
Court rested its decision upon the role education plays in determining individual opportunity
and development (347 U.S. 483, p. 107).
Another consideration was whether segregation unfavorably affected educational
quality. The NAACP produced studies that made use of empirical data, which supported the
conclusion that segregation of students creates an inferiority complex. The Court noted that
Segregation of White and Colored children in public schools has a detrimental effect
upon the Colored children. The impact is greater when it has the sanction of the law;
for the policy of separating the races is usually interpreted and denoting the inferiority
of the Negro group. A sense of inferiority affects the motivation of a child to learn.
Segregation with the sanction of the law, therefore, has a tendency to [retard] the
educational and mental development of Negro children and to deprive them of some
of the benefits they would receive in a racial[ly] integrated school system (p. 108).
The Warren Court abandoned the idea that segregation did not cause racial
stigmatization. In a unanimous decision authored by Chief Justice Earl Warren, the Court
overturned the “separate but equal” doctrine established in Plessy v. Ferguson. In fact, the
Court concluded, “‘separate but equal’ has no place in public education” (p. 108). Further,
2
The Chief Justice at the time was Earl Warren.
29
the Court ruled, “separate educational facilities are inherently unequal” (p. 108). The ruling
thus determined that racially segregated schools violated the equal protection clause
guaranteed by the 14th Amendment.
According to Cushman, in Leading Constitutional Decisions, (1987) the Warren
Court was well aware of the significance of the Brown case:
Three things in the present case indicate the high sense of responsibility felt by the
justices of the Supreme Court in deciding a case of such vital national importance.
First, the Court was unanimous. Second, one opinion was written and not half a
dozen. Third, the Court set for argument in the fall of 1954 the problem of the nature
of the decree by which its decision that segregation is invalid might best be given
effect. Disagreement in the Court on the decision, or disagreement on the reasons for
the decision, would have aided those who resented the Court’s ruling and have sought
to thwart it (p. 330).
It was imperative that the Court reverse the Plessy decision and establish precedence
with the ruling in Brown. However, overturning the “separate but equal” canon was easier
said than done. The Warren Court waited until the next term to figure out how to implement
integration of public schools. In Brown v. Board of Education, 349 U.S. 294 (1955), or
Brown II, the Court assigned to federal district courts the liability for ensuring a good faith
effort to desegregate. It was up to the lower courts to eradicate impediments to desegregation
in a methodical fashion to achieve compliance with the ruling in Brown. The Warren Court
urged schools to desegregate “with all deliberate speed” (Lively, 1999).
The hope was that if the states were left to their own framing and execution of
integration policies, they would be more likely to cooperate with the Supreme Court’s
decision. In the aftermath of the Brown II decision, “deliberate speed” meant “very slowly”.
30
Eventually, realization of the basic objectives of desegregation was met by efforts from
Congress (p. 109).
University of California Regents v. Bakke 438 U.S. 265 (1978)
According to Howard Ball, author of The Bakke Case, Alan Bakke was a wellrounded mechanical engineer with military experience and a tour of duty in Vietnam under
his belt when he applied to the medical school at the University of California at Davis in
1972 (p. 47). Mr. Bakke had concerns about his age; he was in his early thirties when he first
applied to medical school. He was rejected twice and sought legal counsel to help him gain
admittance into the school (p. 47).
The University of California at Davis Medical School had a preferential admissions
policy. Out of one hundred seats, sixteen of them were reserved for minority applicants.
There were two subcommittees who reviewed applications: one reviewed White applicants
and the other reviewed minority applicants under special circumstances (p. 48).
When the medical school opened in 1966, it had few, if any, minority students
studying medicine. There was no preferential admissions program. Because of the lack of
diversity, the administration established such a program in 1970. By the time Mr. Bakke
applied, there were 132 candidates selected by the special admissions committee (p. 50).
Under the regular admissions process, the applicant had to have a GPA greater than 2.50,
have a solid score on the Medical College Admission Test (MCAT), letters of
recommendation, extracurricular activity history, and successfully interview with the
members of the admissions committee. Each of five committee members rate the applicant,
31
give them a score out of 100, average the scores to yield a “benchmark score” which was a
maximum score of 500 (p. 50).
Under the special admissions process, the applicant had to be “economically and/or
educationally disadvantaged” (p. 51). At the time of Mr. Bakke’s first application, UCD had
adopted a standard form that asked if the student wished to be considered as a minority. If
so, that application went to the special admissions committee. Then the committee had to
decide if the applicant was indeed disadvantaged. If the applicant was determined not to be
destitute, the application was sent to the regular admissions committee (p. 51).
When Mr. Bakke applied again in 1974, there was a new standard application form.
It now asked if the applicant wished to be considered as an “economically and/or
educationally disadvantaged person in one of four specified minority groups” (p. 51). Up to
that time, no White applicants had been accepted under the special admissions process.
Many had applied under the special circumstances, but none of them had been reviewed by
the special committee (p. 51).
The major difference in the applicant evaluation process between the two admissions
processes was that with the special process, there was no minimum GPA requirement. There
was also no assessment of the cohort admitted in the regular process with the cohort
recommended under special admissions (p. 52). UCD acknowledged the skewed quantitative
statistics between White and minority applicants by stating that the MCAT was biased
against disadvantaged applicants (p. 52).
Mr. Bakke’s application packet was considerably better than most of the applicants
under both processes that year. His counsel argued that it was unconstitutional for sixteen
32
seats to be set-aside for minority applicants. That was a quota, which violated the Equal
Protection Clause. The medical school’s counsel argued that Mr. Bakke had no standing to
sue because his scores fell below the benchmark score for admission to the school (p. 54).
At the state Supreme Court level, UCD’s special admissions process was ruled
unconstitutional because it was considered a racial quota, and the case was one of racial
discrimination. The decision at the state court was a 6-1 ruling, with the lone dissenter
insisting that the special admissions policy did not violate the Constitution.
The case was
remanded back to the lower court to determine if Mr. Bakke would have qualified for
medical school under either process. The school could not provide the necessary data to back
up its assertion that Mr. Bakke did not qualify. The California Supreme Court amended its
ruling and ordered that Mr. Bakke be admitted into the medical school. However, that
decision was stayed because the school’s counsel sent the case to the United States Supreme
Court for a review on the merits because the school needed to know if its admissions
practices were unconstitutional (p. 61).
In 1978, the Supreme Court issued a 5-4 bifurcated ruling consisting of six separate
opinions. The opinion authored by Justice Lewis Powell both affirmed in part and reversed
in part the California Supreme Court’s decision. Justice Powell rendered the Supreme
Court’s judgment with Justices Stewart, Rehnquist, Stevens, and Chief Justice Warren
Burger concurring and Justices Brennan, White, Marshall and Blackmun dissenting. One of
the questions the court considered was whether it should adopt the strict scrutiny standard of
33
review that it had used in prior cases 3 where racial classification was a factor. Justice Powell
asserted that “any racial classification, even if it was designed to benefit traditionally
disadvantaged minorities, should be subject to searching judicial inquiry” (Lively, 1999).
Justice Powell wrote that universities and colleges could develop an admissions
formula that considered race, as long as race was not the sole determining criterion for
diversification (p. 135). UCD could use race as a factor in the admissions process, and this
portion of the lower court’s ruling was summarily reversed. Justices Brennan, White,
Marshall and Blackmun concurred in this portion of the decision.
Another question that was considered was if UCD’s special admissions process
violated the 14th Amendment’s Equal Protection Clause. In regard to the school’s interest in
creating places for minorities, Justice Powell maintained that racial quotas were invalid.
It may be assumed that the reservation of a specified number of seats in each class for
individuals from the preferred ethnic groups would contribute to the attainment of
considerable ethnic diversity in the student body. However, petitioner’s argument
that this is the only effective means of serving the interest of diversity is seriously
flawed. In a most fundamental sense, the argument misconceives the nature of the
state interest that would justify consideration of race or ethnic background. It is not
an interest in simple ethnic diversity, in which a specified percentage of the student
body is in effect guaranteed to be members of selected ethnic groups, with the
remaining percentage an undifferentiated aggregation of students. The diversity that
furthers a compelling state interest encompasses a far broader array of qualifications
and characteristics of which racial or ethnic origin is but a single though important
element. Petitioner’s special admissions program, focused solely on ethnic diversity,
would hinder rather than further attainment of genuine diversity (Cushman, 1987).
3
In Korematsu v. United States, 323 U.S. 214 (1944), the strict scrutiny test was used for the first time. The
strict scrutiny standard assumes that the law is unconstitutional when it includes a suspect classification, such as
race, religion and national origin. The Korematsu case was about citizens of Japanese ancestry having to
relocate to military internment camps, or concentration camps, following the bombing of Pearl Harbor in 1941.
The majority of the Japanese-American citizens were loyal to the U.S., and Korematsu was brought to the
Supreme Court challenging the right of the government to override the civil rights of those citizens. In a 6-3
decision authored by Justice Hugo Black, the Court ruled that the government had the right to force the
relocation of the Japanese-American citizens during wartime.
34
Powell further states,
The fatal flaw in petitioner’s preferential program is its disregard of individual rights
as guaranteed by the 14th Amendment…such rights are not absolute. However, when
a state’s distribution of benefits or imposition of burdens hinges on the color of a
person’s skin or ancestry, that individual is entitled to a demonstration that the
challenged classification is necessary to promote a substantial state interest.
Petitioner has failed to carry this burden. For this reason, that portion of the
California court’s judgment holding petitioner’s special admissions program invalid
under the 14th Amendment must be affirmed (p. 344).
The Court upheld the portion of the California Supreme Court’s ruling that racial
quotas violated the Equal Protection Clause, and that Mr. Bakke be admitted into the
medical school. Chief Justice Burger and Justices Stewart, Rehnquist, and Stevens
concurred in this portion of the judgment.
The Bakke case was landmark because the ruling established a historical precedent:
Race is a legitimate factor in school admissions but the use of quotas is not.
United States v. Fordice, 505 U.S. 717 (1992)
Even after the rulings in Brown v. Board of Education I and Brown v. Board of
Education II in 1954 and 1955 respectively, the State of Mississippi maintained a policy of
de jure segregation at the collegiate level. There were five majority White colleges and three
majority Black colleges.
Mississippi began its public university system in 1848 when it established the
University of Mississippi, a facility dedicated to the higher education of Whites. Alcorn
State University opened in 1871, and it was geared as an agricultural college specifically for
Blacks. Four more exclusively White universities were created afterwards: Mississippi State
in 1880, Mississippi University for Women in 1885, the University of Southern Mississippi
in 1912, and Delta State University in 1925
(http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=505&invol=717).
35
In 1940 and 1950, Mississippi created two more solely Black universities: Jackson
State, which was charged with preparation of Black public school teachers, and Mississippi
Valley State, whose primary function was to train Black teachers for rural schools and
provide vocational instruction to Black students (¶ 18).
The first Black student was not admitted to the University of Mississippi until 1962,
and then by court order 4 . For twelve years after that, the segregated university system
remained intact. In 1975, private petitioners initiated the instant lawsuit and the United
States intervened, charging that state officials had failed to satisfy their obligation under the
Equal Protection Clause and Title VI of the Civil Rights Act of 1964 (¶ 22). Title VI of the
Civil Rights Act of 1964 prohibits discrimination based on race, color or national origins in
programs and activities that receive federal financial assistance.
The lower court ruled that the affirmative duty to desegregate in the higher education
realm does not consider either restricting student choice or the achievement of any degree of
racial balance, and that current state policies and practices should be examined to ensure
compliance and good faith execution. Mississippi’s current actions demonstrate that the
State is fulfilling its affirmative duty to disestablish the segregated system. The Court of
Appeals affirmed the lower court’s ruling (¶ 26).
Upon granting certerie, the Supreme Court decided that the primary issue at hand was
whether Mississippi met its confirmatory duty to dismantle the dual system. Because the
4
Meredith v. Fair, 306 F.2d 374. James Meredith was denied admission to the University of Mississippi
because he was Black. Meredith filed a claim against the chairman of the trustee board, Donald Fair, because
the school enjoined the practice of limiting admissions to White students. In an en banc decision, Judge
Wisdom concluded that Meredith should be allowed to go to whatever school he chooses. Meredith was
subsequently enrolled (www.law.stetson.edu/courses/casedigests.htm).
36
appellate court believed that students seeking a higher education had the right to choose
wherever they wanted to go, the state did not have to do anything more in regards to
implementation of race-neutral policies. Since colleges and universities are essentially
different from primary educational institutions, that conclusion was justified (¶ 27).
The Supreme Court agreed with the appellate court in that a student’s decision to get
a higher education was a matter of personal choice. However, the Court disagreed with the
Court of Appeals by stating that the adoption and execution of unbiased racial policies alone
do not merit that the State has completely deserted its dual university system (¶ 36).
If the State perpetuates policies and practices traceable to its prior system that
continue to have segregative effects-whether by influencing student enrollment
decisions or by fostering segregation in other facets of the university system-and such
policies are without sound educational justification and can be practicably eliminated,
the State has not satisfied its burden of proving that it has dismantled its prior system.
Such policies conflict with the Equal Protection Clause (¶ 55).
Hopwood v. Texas, 861 F. Supp. 551 (5th Cir. 1996)
The University of Texas School of Law is one of the nation's leading law schools,
consistently ranking in the top twenty. Admission to the law school is highly competitive,
with thousands of applicants a year contending to be among the approximately 900-offered
admission to achieve an entering class of about 500 students. Many of these applicants have
some of the highest grades and test scores in the country
(http://www.nacua.org/documents/hopwoodVsStateofTexas.html).
In the early 1990's, the law school largely based its initial admissions decisions upon an
applicant's so-called Texas Index number, which is a composite of undergraduate GPA and
Law School Aptitude Test (LSAT) score. The law school used this number as a matter of
37
administrative expediency in order to position candidates and to predict one's probability of
success in law school. Moreover, the law school relied heavily upon such numbers to
estimate the number of offers of admission it needed to make in order to fill its first-year
class (¶ 11).
The law school did not rely upon numbers alone. The admissions office exercised
judgment in interpreting the individual scores of applicants, taking into consideration factors
such as the strength of a student's undergraduate education, the difficulty of his major and
significant trends in his own grades and the undergraduate grades at his respective college.
Admissions personnel also considered what qualities each applicant might bring to his law
school class. Thus, the law school could consider an applicant's background, life experiences,
and outlook. These unquantifiable factors were especially significant for marginal candidates
(¶ 13).
Because of the large number of applicants and potential admissions factors, the Texas
Index's administrative usefulness was its ability to sort candidates. For the class entering in
1992--the admissions group at issue in the instant case--the law school placed the typical
applicant in one of three categories according to his TI scores: "presumptive admit,"
"presumptive deny," or a middle "discretionary zone." An applicant's TI category determined
how extensive a review his application would receive (¶ 14).
Most, but not all, applicants in the presumptive admit category received offers of
admission with little review. The chairperson of the Admissions Committee, or the Assistant
Dean for Admissions, reviewed these files and downgraded only five to ten percent to the
38
discretionary zone because of weaknesses in their applications, generally a non-competitive
major or a weak undergraduate education (¶12).
Applicants in the presumptive denial category also received little consideration.
Similarly, one or two professors who could upgrade them if they believed that the TI score
did not adequately reflect potential to compete at the law school would review their files.
Otherwise, the applicant was rejected (¶12).
Applications in the middle range were subjected to the most extensive scrutiny. For
all applicants other than Blacks and Hispanics, the files were bundled into stacks of thirty,
which were given to admissions subcommittees consisting of three members of the full
admissions committee. Each subcommittee member, in reviewing the thirty files, could cast a
number of votes among the thirty files. Subject to the chairperson’s veto, if a candidate
received two or three votes, he received an offer; if he garnered one vote, he was put on the
waiting list; those with no votes were denied admission (¶ 15).
According to testimony presented, Black and Hispanic applicants were treated
differently from other candidates. Compared to Whites and non-preferred minorities, the TI
ranges that were used to place them into the three admissions categories were lowered to
allow the law school to consider and admit more of them. In March 1992, the presumptive
TI admission score for resident Whites and non-preferred minorities was 199. Hispanic
students and Black students needed a TI of only 189 to be presumptively admitted. The
difference in the presumptive-deny ranges is even more striking. The presumptive denial
score for non-minorities was 192; the same score for Black applicants and Hispanic
applicants was 179 (¶ 18).
39
The stated purpose of this lowering of standards was to meet an aspiration of
admitting a class consisting of 10% Hispanic and 5% Black, proportions roughly comparable
to the percentages of those races graduating from Texas colleges. The law school found
meeting these goals difficult, because of uncertain acceptance rates and the variable quality
of the applicant pool. In 1992, for example, the entering class contained 41 Blacks and 55
Mexican Americans, respectively 8% and 10.7% of the class.
In addition to maintaining separate presumptive TI levels for minorities and Whites,
the law school ran a segregated application evaluation process. Upon receiving an application
form, the school color-coded it according to race. If a candidate failed to designate his race,
he was presumed to be in a non-preferential category. Thus, race was always an overt part of
the review of any applicant's file (¶ 18).
The law school reviewed minority candidates within the applicable discretionary
range differently from Whites. Instead of being evaluated and compared by one of the
various discretionary zone subcommittees, Black and Hispanic applicants' files were
reviewed by a minority subcommittee of three, which would meet and discuss every minority
candidate. Thus, each of these candidates' files could get extensive review and discussion. In
addition, while the minority subcommittee reported summaries of files to the admissions
committee as a whole, the minority subcommittee's decisions were practically final (¶ 17).
Finally, the law school maintained segregated waiting lists, dividing applicants by
race and residence. Thus, even many of those minority applicants who were not admitted
could be set aside in minority-only waiting lists. Such separate lists apparently helped the law
school maintain a pool of potentially acceptable, marginal minority candidates.
40
Cheryl Hopwood, Douglas Carvell, Kenneth Elliott, and David Rogers applied for
admission to the 1992 entering law school class. All four were White residents of Texas and
were rejected.
The plaintiffs were considered as discretionary zone candidates. Hopwood, with a
GPA of 3.8 and an LSAT of 39 (equivalent to a three-digit LSAT of 160), had a TI of 199, a
score barely within the presumptive-admit category for resident Whites, which was 199 and
up. She was dropped into the discretionary zone for resident Whites (193 to 198), however,
because the chairperson decided her educational background overstated the strength of her
GPA. Carvell, Elliott, and Rogers had TIs of 197, at the top end of that discretionary zone.
Admissions subcommittees reviewed their applications, and each received one or no vote (¶
19-22).
The plaintiffs sued primarily under the Equal Protection Clause of the Fourteenth
Amendment. Their central claim was that they were subjected to unconstitutional racial
discrimination by the law school's evaluation of their admissions applications. They sought
injunctive and declaratory relief and compensatory and punitive damages.
After a bench trial, the district court held that the school had violated the plaintiffs'
equal protection rights. The court refused to enjoin the law school from using race in
admissions decisions or to grant damages beyond a one-dollar ostensible award to each
plaintiff. The district court, however, did grant declaratory relief and ordered that the
plaintiffs be allowed to reapply without paying the mandatory fee
(http://www.faculty.piercelaw.edu/redfield/library/case-hopwood-n.htm).
41
The Fifth Circuit Court accepted the case on appeal. It upheld that the district court
employed the correct standard in deciding the case: the strict scrutiny test.
As it was undisputed that the school had treated applicants disparately based upon the
color of their skin, the court asked whether the law school process (1) served a
compelling government interest and (2) was narrowly tailored to the achievement of
that goal. Under the first prong of the test, the court held that two of the law school's
five proffered reasons met constitutional muster: (1) obtaining the educational
benefits that flow from a racially and ethnically diverse student body and (2) "the
objective of overcoming past effects of discrimination. Significantly, on the second
justification, the court rejected the plaintiffs' argument that the analysis of past
discrimination should be limited to that of the law school; instead, the court held that
the State of Texas's "institutions of higher education are inextricably linked to the
primary and secondary schools in the system
(http://faculty-staff.ou.edu/K/Thomas.M.Keck-1/Cases/HopwoodvTexas1996.htm).
Accordingly, the court found that Texas's long history of racially discriminatory
practices in its primary and secondary schools in its not-too-distant past had the following
present effects at UT law: "the law school's lingering reputation in the minority community,
particularly with prospective students, as a 'White' school; an under representation of
minorities in the student body; and some perception that the law school is a hostile
environment for minorities. The court also noted that "were the Court to limit its review to
the University of Texas, the Court would still find a 'strong evidentiary basis for concluding
that remedial action is necessary” (http://www.faculty.piercelaw.edu/redfield/library/casehopwood-n.htm).
The court next evaluated whether the Texas program was narrowly tailored to further
these goals. Applying a four-factor test devised by the Supreme Court, the court held only
part of the 1992 admissions scheme unconstitutional. Those parts that gave minorities a
42
bonus; the component of the admissions program that treated candidates' TI scores
differently based upon race, was upheld (¶ 39).
Moreover, the court held that the plaintiffs were not entitled to prospective injunctive
relief, because "of the law school's voluntary change to a procedure, which on paper and
from the testimony, appears to remedy the defects the Court has found in the 1992
procedure." To pass muster under the court's reasoning, the law school simply had to have
one committee that at one time during the process reviewed all applications and did not
establish separate TI numbers to define the presumptive denial categories. In other words, if
the law school applied the same academic standards, but had commingled the minority
review in the discretionary zone with the review of Whites, its program would not have been
struck down. The same admissions result would occur, but the process would be "fair" (¶ 46).
In conclusion, the court determined that the only appropriate relief was a declaratory
judgment and an order allowing the plaintiffs to reapply to the school without charge. No
compensatory or punitive damages could be awarded when the plaintiffs had proven no
harm. Furthermore, the court believed that as the law school had promised to change its
admissions program by abandoning the two-committee system, no prospective injunctive
relief was justified (¶ 49).
The Fifth Circuit further stated:
Within the general principles of the Fourteenth Amendment, the use of race in
admissions for diversity in higher education contradicts, rather than furthers, the aims
of equal protection. Diversity fosters, rather than minimizes, the use of race. It treats
minorities as a group, rather than as individuals. It may further remedial purposes but,
just as likely, may promote improper racial stereotypes, thus fueling racial
hostility…The use of race, in and of itself, to choose students simply achieves a
student body that looks different. Such a criterion is no more rational on its own terms
43
than would be choices based upon the physical size or blood type of applicants. Thus,
the Supreme Court has long held that governmental actors cannot justify their
decisions solely because of race
(http://faculty-staff.ou.edu/K/Thomas.M.Keck-1/Cases/HopwoodvTexas1996.htm).
The use of race to achieve a diverse student body, whether as an alternative for
acceptable characteristics, simply could not be a state interest influential enough to meet the
steep standard of strict scrutiny. These latter factors may turn out to be considerably
correlated with race, but the key is that race itself not be taken into account. This portion of
the district court's opinion upholding the diversity rationale is reversibly flawed
(http://www.nacua.org/documents/hopwoodVsStateofTexas.html).
The Fifth Circuit believed that any fault therein lay with the law school and not the
university system as a whole:
We further reject the proposition that the University of Texas System, rather than the
law school, is the appropriate governmental unit for measuring a constitutional
remedy. The law school operates as a functionally separate unit within the system. As
with all law schools, it maintains its own separate admissions program. The law
school hires faculty members that meet the unique requirements of a law school and
has its own deans for administrative purposes. Thus, for much the same reason that
we rejected the educational system as the proper measure--generally ensuring that the
legally-imposed racially discriminatory program is remedial--we conclude that the
University of Texas System is itself too expansive an entity to scrutinize for past
discrimination…For purposes of determining whether the law school's admissions
system properly can act as a remedy for the present effects of past discrimination, we
must identify the law school as the relevant alleged past discriminator. The fact that
the law school ultimately may be subject to the directives of others, such as the board
of regents, the university president, or the legislature, does not change the fact that the
relevant putative discriminator in this case is still the law school. In order for any of
these entities to direct a racial preference program at the law school, it must be
because of past wrongs at that school
(http://www.faculty.piercelaw.edu/redfield/library/case-hopwood-n.htm).
The law school has failed to show a compelling state interest in remedying the present
effects of past discrimination sufficient to maintain the use of race in its admissions system.
44
Accordingly, it is unnecessary for us to examine the district court's determination that the law
school's admissions program was not narrowly tailored to meet the compelling interests that
the district court erroneously perceived
(http://www.nacua.org/documents/hopwoodVsStateofTexas.html).
The district court has already granted some equitable relief. It directed that the
plaintiffs be permitted to re-apply to the law school without incurring further administrative
costs. In accordance with this opinion, the plaintiffs are entitled to apply under a system of
admissions that will not discriminate against anyone based on race. Moreover, the plaintiffs
have shown that it is likely that the law school will continue to consider race in admissions
unless it receives further judicial instruction. It may not do so for the purpose of (1) obtaining
a diverse student body; (2) altering the school's reputation in the community; (3) combating
the school's perceived hostile environment toward minorities; or (4) remedying the present
effects of past discrimination by actors other than the law school
(http://www.faculty.piercelaw.edu/redfield/library/case-hopwood-n.htm).
It is not necessary, however, for us to order at this time that the law school be
enjoined, as we are confident that the conscientious administration at the school, as well as
its attorneys, will heed the directives contained in this opinion. If an injunction should be
needed in the future, the district court, in its discretion, can consider its parameters without
our assistance. Accordingly, we leave intact that court's refusal to enter an injunction
(http://www.nacua.org/documents/hopwoodVsStateofTexas.html).
In summary, the court upheld that the University of Texas School of Law may not use
race as a factor in deciding which applicants to admit in order to achieve a diverse student
45
body. Nor to combat the perceived effects of a hostile environment at the law school, to
alleviate the law school's poor reputation in the minority community, or to eliminate any
present effects of past discrimination by actors other than the law school. Because the law
school has proffered these justifications for its use of race in admissions, the plaintiffs have
satisfied their burden of showing that they were scrutinized under an unconstitutional
admissions system. The plaintiffs are entitled to reapply under an admissions system that
invokes none of these serious constitutional infirmities. The district court was directed to
reconsider the question of damages ((http://www.faculty.piercelaw.edu/redfield/library/casehopwood-n.htm).
The Fifth Circuit court upheld the district court’s ruling with the exception of
equitable relief. The Fourteenth Amendment does not permit the University of Texas Law
School to discriminate in the aforementioned process. The law school has presented no
compelling justification, under the Fourteenth Amendment or Supreme Court precedent, that
allows it to continue to elevate some races over others, even for the wholesome purpose of
correcting perceived racial imbalance in the student body
(http://www.nacua.org/documents/hopwoodVsStateofTexas.html).
The Supreme Court denied certiorari and thus allowed the appellate court’s ruling to
stand.
Smith v. University of Washington 2000 WL 1770045 (9th Cir. 2000)
Katuria Smith, Angela Rock, and Michael Pyle brought action on behalf of
themselves and other Caucasian students who were denied admission to the University of
Washington Law School. Ms. Smith claimed that her being denied was due to racially
46
discriminatory admissions policies. The district court denied Smith a partial summary
judgment on the clam that race cannot be used as a factor in achieving educational diversity,
although it can be used for certain limited remedial purposes.
The Law School moved to dismiss the cases on the basis that the claims were moot as
the result of a state statute that prohibited the law school from discriminating in the fashion
that Smith claimed. Smith opposed the motion because it was unclear how the law school
would interpret the new statute.
The statute, I-200, eliminated the use of race as a criterion in its admissions process,
although it did retain a diversity clause. The district court issued an order granting the
motion to dismiss the individual and class claims for injunctive and declaratory relief as moot
due to the passage of 1-200. The court also denied Smith’s partial summary judgment
motion.
Upon appeal, the 9th Circuit Court reviewed the determination of moot ness, and the
determination of class certification. To be entitled to summary judgment, a party must show
not only that there are no questions of material fact, but also that he/she is entitled to
judgment as a matter of law. Smith wanted the reversal of the district court because the
district court failed to grant a partial summary judgment motion because it should have
determined that the law school was barred from using a race-conscious admissions policy
under the aforementioned circumstances.
The 9th Circuit, in discussing moot ness, declared, “It is fair to say, nonetheless, that
courts are particularly cautious when a case has become moot because the defendant has
voluntarily ceased to pursue the challenged course of action. Were it otherwise, the
47
defendant’s ‘mere voluntary cessation’ would compel the courts to leave the defendant free
to return to his old ways” (http://lib.law.washington.edu/research/smith_v_lawschool.html).
The Court further stated:
We are satisfied that when these approaches are applied to this case, even if the Law
School’s change of policy has some tinge of voluntary cessation, as Smith contends,
the matter is still moot. The only truly voluntary aspect is that the Law School did
stop using race, ethnicity, and national origin as factors once I-200 was passed and
the directive from the president of the University was issued. The Law School did
not wait for the litigation or internal University discipline before doing that. To the
extent that can be called voluntary, it is still highly unlikely that the Law School’s old
practices will be recrudescent under the current state of the law in Washington.
Moreover, considering the real reason for the change, it is rather apparent that it was
made under the lash of I-200 and not because of the prodding effect of this litigation,
there can be no real expectation that the alleged wrongs will recur now that the people
of the state have prohibited them. Nor can we address Smith’s fear of ‘the possibility
that the state’s allegedly discriminatory policy will manifest itself under the new
statute. Federal courts are not authorized to address such theoretical possibilities’…If
the Law School should become temerarious enough to decide to ignore the law of the
State of Washington in the future, Smith, or others, can commence a new battle at that
time
(http://caselaw.lp.findlaw.com/cgibin/getcase.pl?court=9th&navby=docket&no=9935209).
In other words, whenever the question of the Law School violating the I-200 statute
comes up, then the court will address it, but not until that time. The 9th Circuit upheld the
district court’s ruling by declaring the case moot (¶ 26).
In regards to the motion for partial summary judgment, the Court applied strict
scrutiny to determine if the Law School’s admissions policy was tailored to serve a
compelling governmental interest. Using the bifurcated Bakke ruling as a basis, the 9th
Circuit determined that Justice Powell’s opinion was still the governing authority, and “We
therefore leave it to the Supreme Court to declare that the Bakke rationale regarding
48
university admissions policies has become moribund, if it has”
(http://lib.law.washington.edu/research/smith_v_lawschool.html).
The Court further held
For now, therefore, it ineluctably follows that the Fourteenth Amendment permits
University admissions programs which consider race for other than remedial
purposes, and educational diversity is a compelling governmental interest that meets
the demands of strict scrutiny of race conscious measures…The district court
correctly decided that Justice Powell’s opinion in Bakke described the law and would
require a determination that a properly designed and operated race-conscious
admissions program at the law school of the University of Washington would not be
in violation of Title VI or the 14th Amendment. It was also correct when it determined
that Bakke had not been overruled by the Supreme Court. Thus, at our level of the
judicial system, Justice Powell’s opinion remains the law
(http://caselaw.lp.findlaw.com/cgibin/getcase.pl?court=9th&navby=docket&no=9935209).
Even with the passage of the I-200 statute, which precludes the law school from
granting preferential treatment to minorities, Smith’s request was declared moot because
good faith should be assumed in the nonexistence of a showing to the converse. The 9th
Circuit upheld the lower court’s ruling.
Johnson v. Board of Regents of the University System of Georgia; 106 F. Supp. 2d. 1362
(11th Cir. 2001)
The University of Georgia, located in Athens, Georgia, is the State of Georgia’s
flagship institution. Established in 1785, no minority students were admitted until 1961. 5 In
1969, the Office of Civil Rights (OCR) decided that Georgia’s university system was still
operating a twofold track of higher education that was based on race. “Past patterns of racial
segregation have not been eliminated from most of the institutions within the system”
5
In 1961, seven years after the Brown decision, Hamilton Holmes and Charlayne Hunter were admitted to the
University of Georgia.
49
(http://www.nacua.org/practice/NACUALERTS_NonPsswd/Michigan_Note/Johnson_v_Bd
OfRegents.pdf).
In 1970, OCR ordered Georgia’s Board of Regents to tender a desegregation plan and
to advocate compulsory affirmative action policy to alleviate the relics of discrimination.
One of the goals of the programs implemented was to increase the number of Black students
at Georgia’s conventionally White institutions of higher education
By March of 1989, OCR decided that Georgia’s university system had complied with
the agreed counteractive procedures and determined that Georgia’s secondary institutions
were in acquiescence with Title VI and no additional desegregation measures would be
requisite. The institutions did have to maintain compliance with Title VI and avoid
discrimination based on race, color or national origin
Admission to the University of Georgia is highly competitive and there are far more
applicants than there are freshman seats. The faculty admissions committee recommends a
freshman admission policy each year, which is then presented to the president of the
University of Georgia for endorsement. 6 After getting confirmation from the president, the
admissions office implements the policy
From the early to mid-1990s, the freshman admissions policy at the University of
Georgia applied scholastic criteria differently depending upon which race box was checked.
To be eligible for admission, an applicant had to have predetermined minimums in SAT
scores, grade point average, and academic index. The minimums for Black students were
6
The president of the University of Georgia at that time was Charles B. Knapp. Michael Adams succeeded him
in 1997.
50
lower than the minimums for students of other races. UGA revised the policy in 1995
because of apprehension about the constitutionality of its dual-track admissions strategy (¶
10).
Jennifer Johnson, Aimee Bogrow, and Molly Ann Beckenhauer applied for admission
to the University of Georgia in 1999 and were denied. They filed suit in August of that year,
claiming that UGA’s freshman admissions policy intentional use of race violated the Equal
Protection Clause of the 14th Amendment. The district court found that UGA’s consideration
of race in the 1999 freshman admissions policy violated Title VI, which the court decided
was equivalent to the Equal Protection Clause (¶ 3-4). The court also reasoned that Justice
Lewis Powell’s opinion in Bakke “was not binding precedent, and hence…not required to
assume that the desire to foster student body diversity…was a compelling interest…UGA’s
real interest was not diversity, but rather obtaining a percentage of non-White students
equivalent to the representation of these non-White groups in the population at large” (¶ 8).
The district court granted summary judgment because the 1999 freshman admissions
policy violated Title VI. UGA was summarily directed to allow the Plaintiffs entrance into
the next freshman class. The United States 11th Circuit Court of Appeals, upon hearing the
appeal brought by Defendants, decided to review the summary judgment. After
consideration of the consensus of the Bakke decision and any relevant litigation, the 11th
Circuit Court “assume arguendo—but we do not decide—that Bakke remains good law and
some iterations of diversity might be sufficiently compelling, in specific circumstances, to
justify race conscious actions. We shall do the same and assume for purposes of this opinion
only that UGA’s asserted interest in student body diversity is a compelling interest” (¶ 8).
51
The 11th Circuit laid out the scope of an appropriate admissions policy.
Accordingly, an admissions policy that seeks to create diversity by considering the
race of applicants must do so in a sufficiently flexible way. It goes without saying
that a university may not establish a quota system for members of certain racial
groups, and may not put members of one racial group on a different and more lenient
track than members of another group…Second, the policy must ensure that raceneutral factors which contribute to a diverse student body are considered fully and
fairly along with race in making admissions decisions…Third, the policy must use
race in a way that does not give an arbitrary or disproportionate benefit to members of
the favored racial groups, and thereby unduly disadvantage applicants from outside
the favored groups who may well add more to the overall diversity of the student
body…Finally, a university defending a race-conscious admissions policy must show
that it has genuinely considered, and rejected as inadequate, race-neutral alternatives
for creating student body diversity (¶ 55).
The Circuit Court further ruled that in light of those factors, UGA’s freshman
admissions policy was not narrowly customized to achieve its affirmed goal of student body
diversity because the policy considers that non-White applicants will be admitted or advance
further in the process at the expense of White applicants with greater potential to contribute
to a varied student body. “This lack of flexibility is fatal to UGA’s policy” (¶ 59; 68).
The 11th Circuit believed that UGA failed to show that its procedure was flexible in
its consideration of race, that its use of race did not unfairly burden third parties, that it
seriously considered race-neutral alternatives, and the bonus awarded to nonwhite applicants
was “wholly arbitrary” and had no apparent relationship to the representation of nonwhite
students in the population at large. As such, the 11th Circuit upheld the district court’s ruling
for summary judgment on behalf of Plaintiffs (¶ 77).
Wooden v. Board of Regents of the University System of Georgia, 32 F.Supp.2d 1370 (S.D.
Ga. 1999); U.S. 11th Circuit Court of Appeals (2001)
52
This case involved two separate sets of plaintiffs and the issue of standing. The
University of Georgia, the State of Georgia’s flagship institution. Admission to UGA was
highly competitive and there were far more applicants than there are freshman seats. The
faculty admissions committee recommends a freshman admission policy each year, which
was then presented to the president of the University of Georgia (Michael Adams) for
endorsement. After getting confirmation from the president, the admissions office
implements the policy (http://laws.lp.findlaw.com/11th/0014322opn.htm).
Kirby Tracy applied to UGA under through this admissions policy. He did not meet
the requirements for non-Black applicants and was denied admission. In 1995, UGA revised
their freshman admissions policy over concerns of constitutionality. The revised process was
in place at the time of summary judgment. Two plaintiffs sought admissions under the post1995 policy. Ashley Davis’s academic index was below the minimum to advance to the next
stage of the admissions process where race was not a factor and her application was denied.
Craig Green’s application score was also below the minimum requirements, and he was
denied admission. These were the first set of plaintiffs (¶ 9).
The second set of plaintiffs had an entirely different set of facts. Their claim was that
the Board of Regents of the University System of Georgia failed to desegregate three
historically Black colleges: Fort Valley State, Savannah State, and Albany State Universities.
Mr. Wooden refused to send his daughter to a segregated campus; Mr. Jarvis, a former
student at FVS, claimed that the school’s continued segregation unfavorably affected his
educational experience and undermined the value of his degree. Ms. Bratcher, a faculty
member at FVS contends that the school’s hostility to Whites adversely affects her work and
53
makes the school inferior. These plaintiffs contend that those scholastic institutions are de
facto bastions of segregation (¶ 16).
The district court granted partial summary judgment to Kirby Tracy and granted
summary judgment to Defendants with respect to Ms. Davis. Later, the court granted
summary judgment against the Wooden plaintiffs (the second set) on lack of standing
grounds. Mr. Green’s cause of action was rejected because he, like Ms. Davis, lacked
standing to pursue his discrimination claim (¶ 27).
While on appeal to the 11th Circuit Court, the Supreme Court decided a relevant case,
Texas v. Lesage, 528 U.S. 18, 120 S. Ct. 467 (1999). The Court explained:
Where a plaintiff challenges a discrete governmental decision, as being based on an
impermissible criterion and it is undisputed that the government would have made the
same decision regardless, there is no cognizable injury warranting relief under
Section 1983. Of course, a plaintiff who challenges an ongoing race-conscious
program and seeks forward-looking relief need not affirmatively establish that he
would receive the benefit in question if race were not considered. The relevant injury
in such cases is “the inability to compete on an equal footing” (¶ 22).
As a result, the 11th Circuit issued a decision vacating the district court’s orders.
Appellants brought related challenges to the University of Georgia’s use of race in its
admissions process and to the maintenance of historically Black colleges within the state’s
university system. The district court granted summary judgment to appellees on all but one
claim on standing and moot ness grounds. After the appeal was filed in this case, the
Supreme Court in the case of Texas v. Lesage, 528 U.S. 18, 120 S. Ct. 467 (1999) clarified
the standing requirements for plaintiffs challenging race-based admissions policies. It is
therefore ordered that the judgment of the district court is vacated and the case is remanded
to that court for further consideration in light of Lesage (¶ 24).
54
The district court reinstated its prior rulings after considering Lesage. Mr. Tracy’s
request for injunctive relief was declared moot because he transferred into UGA in 1997 and
had no reason to pursue an order compelling his admission to UGA. Mr. Tracy lacked
standing to obtain any form of prospective relief regarding UGA’s freshman admissions
policy given that he would never again be subject to it.
The court also declared that Ms. Davis did not suffer any injury because she was
denied admission before race became a factor. She could not establish that UGA’s
discriminatory practices made her unable to compete on an equal footing with similarly
situated non-White applicants. Mr. Green lacked standing because he would have been
rejected regardless if UGA had given him racial bonus points (¶ 26).
With respect to the Wooden plaintiffs, the court found that their alleged grievances
were too attenuated to constitute an injury necessary to have standing. The only plaintiff to
have standing, Mr. Tracy, was not an adequate class representative because his request for
relief was declared moot (¶ 31).
The 11th Circuit reviewed the summary judgment applying the same legal standard
used by the district court. The court then had to determine jurisdiction and ruled that it had
jurisdiction with respect to the Tracy plaintiffs, but no jurisdiction with respect to the
Wooden plaintiffs. The 11th Circuit ruled that the district court erred in rejecting Mr. Green’s
claim because he lacked standing and reversed the court’s decision. The court had no
opinion on Mr. Green’s chances for success. As for Ms. Davis, the circuit court ruled that
she was not exposed to any unequal treatment and she was never disadvantaged because of
her race and upheld the district court’s ruling. (¶ 27-30).
55
The circuit court also upheld the rejection of Mr. Tracy’s injunctive relief claim. He
was not able to show that he would again be affected by the aforementioned unlawful
conduct. It dismissed the case of the Wooden plaintiffs and affirmed the district court’s
dismissal for lack of standing brought by Ms. Davis and Mr. Tracy. The court also reversed
the summary judgment order on Mr. Green’s claim. The case was remanded back to the
district court for further proceedings regarding Green’s claim to make it consistent with the
11th Circuit’s ruling (¶ 92-96).
Grutter v. Bollinger, 000 U.S. 02-241 (20030)
The University of Michigan Law School (Law School), one of the Nation's top law
schools, followed an official admissions policy that sought to achieve student body diversity
through compliance with Regents of Univ. of Cal. v. Bakke, 438 U. S. 265. The faculty
adopted the admissions strategy in 1992. The objective of the law school admissions policy
was to admit a group of students who independently and communally are among the most
competent students applying to American law schools at any given time
(http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=02241#opinion1).
When the University of Michigan Law School (UMLS) denied admission to Ms.
Grutter, a White student with a 3.8 GPA and 161 LSAT score, she filed the suit, alleging that
the University of Michigan had discriminated against her because of race in violation of the
Fourteenth Amendment, Title VI of the Civil Rights Act of 1964. She further stated that she
was rejected because the Law School uses race as a "predominant" factor, giving applicants
belonging to certain minority groups a significantly greater chance of admission than
56
students with similar credentials from disfavored racial groups; and that UMLS had no
compelling interest to justify that use of race. The District Court found the Law School's use
of race as an admissions factor unlawful. The Sixth Circuit reversed, holding that Justice
Powell's opinion in Bakke was binding precedent establishing diversity as a compelling state
interest, and that the Law School's use of race was narrowly tailored because race was merely
a "potential 'plus' factor" (¶ 1-20).
Justice O’Conner delivered the opinion that affirmed the University of Michigan Law
School admissions program as ultimately being constitutional. “The Law School engages in a
highly individualized, holistic review of each applicant's file, giving serious consideration to
all the ways an applicant might contribute to a diverse educational environment. Either there
is no policy, de jure or de facto, of automatic acceptance or rejection based on any single
"soft" variable. In addition, the program adequately ensures that all factors that may
contribute to diversity are meaningfully considered alongside race.
The hallmark of that policy is its focus on academic ability coupled with a flexible
assessment of applicants' talents, experiences, and potential "to contribute to the learning of
those around them." (App. 111). The policy requires admissions officials to evaluate each
applicant based on all the information available in the file, including a personal statement,
letters of recommendation, and an essay describing the ways in which the applicant will
contribute to the life and diversity of the Law School. (Id., at 83-84, 114-121). In reviewing
an applicant's file, admissions officials must consider the applicant's undergraduate grade
point average (GPA) and Law School Admissions Test (LSAT) score because they are
important (if imperfect) predictors of academic success in law school. (Id., at 112). The
57
policy stresses that "no applicant should be admitted unless we expect that applicant to do
well enough to graduate with no serious academic problems" (Id., at 111;
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=02241#opinion1).
The policy sought to guide admissions officers in "producing classes both diverse and
academically outstanding, classes made up of students who promise to continue the tradition
of outstanding contribution by Michigan Graduates to the legal profession."
Justice O’Conner and a majority of the court believed that: 1) Law School has a
compelling interest in attaining a diverse student body; 2) The admissions program was
narrowly tailored and does not amount to a quota system; 3) The Law School's current
admissions program considers race as one factor among many, in an effort to assemble a
student body that is diverse in ways broader than race. All three elements are required in
creating individuals that benefit from the use of race in admissions decisions to further the
interest in obtaining the educational benefits that flow from a diverse student body. (¶ 3-7).
Gratz v. Bollinger, 000 U.S. 02-516 (2003)
Petitioners Jennifer Gratz and Patrick Hamacher, both residents of Michigan and
White, applied for admission to the University of Michigan's College of Literature, Science,
and the Arts (LSA) in 1995 and 1997, respectively. Although Gratz was well qualified and
Hamacher within the qualified range, both were denied early admission and were ultimately
denied admission. The University's Office of Undergraduate Admissions (OUA) used written
guidelines for each academic year, support consistency in the review applicants that are
submitted. The OUA took into account a number of factors in making admissions decisions
58
(high school grades, standardized test scores, high school quality, curriculum strength,
geography, alumni relationships, leadership, and race). The guidelines used at the time used a
selection method under which every applicant from an underrepresented racial or ethnic
minority group (African-Americans, Hispanics, and Native Americans) is automatically
awarded 20 points of the 100 needed to guarantee admission. The defendants argued that the
uses of race in their admissions guidelines were narrowly tailored. therefore, constitutional as
defined by the majority opinion of Justice Powell and US Supreme Court in Regents of Univ.
of Cal. v. Bakke, 438 U. S. 265, 317, which articulated the view that the consideration of race
as a factor in admissions might in some cases serve a compelling government interest
(http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=02516#opinion1).
The majority of the court ruled that the University of Michigan Office of
Undergraduate Admissions use of race in its freshman admissions policy is not narrowly
tailored to achieve the desired interest in diversity; the policy violates the Equal Protection
Clause. The Court rejected the petitioners' argument that diversity cannot constitute a
compelling state interest. However, the Court finds that the University's current policy, which
automatically distributes 20 points, or one-fifth of the points needed to guarantee admission,
to every single "underrepresented minority" applicant solely because of race, is not narrowly
tailored to achieve educational diversity and therefore unconstitutional.
Unlike the law school, admissions policy the Court upholds the procedures employed
by the University of Michigan's (University) Office of Undergraduate Admissions do
not provide for a meaningful individualized review of applicants. Cf. Regents of Univ.
of Cal. v. Bakke, 438 U. S. 265 (1978) (principal opinion of Powell, J.). The law
school considers the various diversity qualifications of each applicant, including race,
59
on a case-by-case basis. See Grutter v. Bollinger, post, at 24. By contrast, the Office
of Undergraduate Admissions relies on the selection index to assign every
underrepresented minority applicant the same, automatic 20-point bonus without
consideration of the particular background, experiences, or qualities of each
individual applicant. Cf. ante, at 23, 25. In addition, this mechanized selection index
score, by and large, automatically determines the admissions decision for each
applicant. The selection index thus precludes admissions counselors from conducting
the type of individualized consideration the Court's opinion in Grutter, supra, at 25,
requires: consideration of each applicant's individualized qualifications, including the
contribution each individual's race or ethnic identity will make to the diversity of the
student body, taking into account diversity within and among all racial and ethnic
groups. Cf. ante, at 24 (citing Bakke, supra, at 324; ¶ 43).
60
CHAPTER THREE: THE CURRENT STATUS OF AFFIRMATIVE ACTION
POLICY
Rectifying the contemporary consequences of past inequity and diversity are the two
major rationalizations for race-cognizant affirmative action in higher education that have
conventionally been recognized under the existing civil rights decrees. In recent decisions,
courts have carefully looked at the makeup and influence of the substantiation required to
prove present effects of past discrimination, and have focused on an institution's ability to
correct effects of past discrimination within that institution only, as opposed to systemic or
collective prejudice. As to diversity, courts have been looking for articulated confirmation of
the educational benefits of multiplicity, and for the connection between those benefits and the
educational mission of colleges and universities
(http://www.aaup.org/issues/affirmativeaction/aalegal.htm).
The Supreme Court’s most recent decisions have in part affirmed and invalidated
affirmative action policies in university admissions. Affirmative action in the college
admissions process has been an ethical issue in the decades following Bakke. Universities
with guidelines that are narrowly defined and assessment processes that do not employ strict
racial quotas pass the Bakke test. Under these circumstances, colleges and universities can
choose to accept whomever they want.
A number of states have passed laws or regulations to address the concerns of their
constituents that believe that affirmative action discriminates and has no place in higher
education. In 1997, Governor George W. Bush signed into law House Bill 588. This bill
provided for automatic admission to all students in the top 10 percent of their graduating
61
class, regardless of standardized test score, to any public university in Texas. In 1999, the
University of California Board of Regents voted 13 to 1 in favor of a policy that guaranteed
admission to the University of California system any public or private high school student
who graduated in the state of California in the top 4 percent (4%) of his/her class. In 1999,
Governor Jeb Bush signed Executive Order 99-281, eliminating the use of race or gender
conscious decisions in government employment, state contracting, and higher education.
Governor Jeb Bush also initiated the Talented 20. This plan, guaranteed admission to public
high school graduates who finished in the top 20 percent of their class and had completed the
required coursework. (Horne, Flores, 2003).
On November 7, 2006, the residents of the State of Michigan approved a ballot initiative
to amend state constitution to ban affirmative action programs that gave preferential
treatment to groups or individuals based on race, gender, color, ethnicity or natural origin for
public employment, education, or contracting purposes [(State of Michigan Statewide Ballot,
proposal 06-02 (2007)]. The initiative was partially in response to the 2003, Supreme Court
decision in Grutter v. Bollinger, which affirmed the University of Michigan Law School use
of race as criteria in determining admission
(http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=02241#opinion1).
The legal challenges to affirmative action, which continue in a variety of frameworks
within higher education and the courts, create confusion and uncertainty for colleges and
universities throughout the country. The cases primarily involve constitutional issues for
62
federal court interpretation and ruling, although other grievances related to affirmative action
programs have been filed in state courts, as well as with the U.S. Department of Education's
Office for Civil Rights (primarily involving student issues under Title VI of the 1964 Civil
Rights Act), and other federal and state agencies.
In the meantime, statistics continue to show that members of many minority groups,
especially African-Americans, Hispanics, and Native Americans are underrepresented within
student ranks throughout higher education. Furthermore, significant barriers to equal access
to higher education (disparities in the quality of elementary and secondary education, de
facto segregation of local school districts, socio-economic disenfranchisement, etc.) remain
(http://www.aaup.org/issues/affirmativeaction/aalegal.htm).
63
CHAPTER 4: CONCLUSION AND RECOMMENDATIONS
The battle over affirmative action in higher education admissions has morphed into a
never-ending war over socio-cultural beliefs, values, and ideals about, race, equity, fairness,
access, and academic integrity (Allen, 2005). There will never be a clear victory. The
“landmark” Supreme Court decisions of Grutter v. Bollinger and Gratz v. Bollinger were to
be the defining moment in whether or not race conscious admissions are constitutional.
Those decisions in part affirmed and invalidated the use of race in college admissions
(http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=02516#opinion1;
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=02241#opinion1).
The original intent of Affirmative Action was to address the twin heritages of slavery
and Jim Crow by broadening and increasing access to previously excluded and
underrepresented groups (Executive Order No. 11246, 1964). Over forty years later, we, as
Americans, still wrestle with, “What must be done for the least must also be done for the
rest.” This ideal in my option is unattainable. Based upon court cases filed since President
Lyndon Johnson signed Executive Order 11246, I believe that logic dictates that when one
group of people perceives that a limited resource is taken from them and then “arbitrarily”
given to another group, hostilities are an inevitable result. Thus, the resistance to affirmative
action policy is not surprising. Further, the Civil Rights Act of 1964 was established to
address a specific minority group at that time: American Blacks. Now, decades later,
America’s racial heterogeneity has further complicated an already complex and difficult
64
issue. In many southwestern states, Whites are no longer the majority. Asians and Latin
Americans have not suffered the unique discrimination suffered by African-Americans in
America. In Bakke, Justice Marshall wrote:
It is unnecessary in 20th century America to have individual Negroes demonstrate that
they have been victims of racial discrimination; the racism of our society has been so
pervasive that none, regardless of wealth or position, has managed to escape its
impact. The experience of Negroes in America has been a different in kind, not just
in degree, from that of other ethnic groups. It is not merely the history of slavery
alone but also that a whole people were marked as inferior by the law. And that mark
has endured. The dream of America as the great melting pot has not been realized for
the Negro; because of his skin color he never even made it into the pot….
By virtue of the fact that African-Americans are still under-represented in many
institutions of higher learning and that Latin-Americans are experiencing academic
difficulties, it makes sense that affirmative action programs are still needed. The challenge at
hand is how to implement programs that allow equal access for all without unconstitutionally
restricting access to others.
State and federal courts have handed down decisions within the last 15 years that
supported the argument that race based admissions is unconstitutional if not limited in its
desired goal. If affirmative action is going to survive, its processes must be revamped and its
rationale revisited. No longer can an argument be made to justify race-based admissions by
merely stating that it is the best interest of the students and institution [Johnson v. Board of
Regents of the University System of Georgia (2001); Wooden v. Board of Regents of the
University System of Georgia (1999)]. I believe that an assimilation of the Supreme Court
decisions of Bakke and Gratz will provide a glimpse into how a university can design an
affirmative action plan that will provide greater opportunities for qualified, underrepresented
minorities to gain access to their institutions and pass judicial muster. The Bakke decision
stated that race could be used if it is narrowly tailored to establish diversity; Gratz used race
as one of many factors that could be used to determine admittance [University of California
Regents v. Bakke, 438 U.S. 265 (1978); Gratz v. Bollinger, 000 U.S. 02-516 (2003)].
65
However, one must also accept that “preferential treatment for all” is an impossible;
oxymoronic. In Bakke, Justice Blackmun wrote:
It is somewhat ironic to have us so deeply disturbed over a program where race is an
element of consciousness, and yet to be aware of the fact, as we are, that institutions
of higher learning, albeit more on the undergraduate than the graduate level, have
given conceded preferences up to a point to those possessed of athletic skills, to the
children of alumni, to the affluent who may bestow their largess on the institutions,
and to those having connections with celebrities, the famous, and the powerful….
University of California Regents v. Bakke (1978), 438 U.S. 265.
Current state legislation similar to those implemented by Florida and Texas redefines
affirmative action. University admission policies can no longer be solely based on race. The
new defining criteria for admission are socio-economic status, academic achievement, or
other tangibles (such as legacy of alumni or boosters, or exceptional physical ability).
Although the courts have repeatedly ruled that the use of race in university
admissions can be unconstitutional, advocates for the use of race are still fighting to over turn
recent court decisions and state statue. The constitutional amendment to amend Michigan’s
constitution to bar state institutions of higher education, the state, and all others state entities
from providing preferential treatment based on race, sex, color, ethnicity or national origin
was challenged by organizations that opposed the ban. In November, 2006 they filed suit in
the US District Court for the Eastern District of Michigan, Southern Division. “Stating that
Article I, § 26 is preempted by various federal laws, and violates the Equal Protection Clause,
the First Amendment of the United States Constitution, as well as 42 U.S.C. § 1983”
(Coalition to Defend Affirmative Action v Granholm, No. 06-15024, 2006). In December
2006 the University of Michigan (UM), Michigan State University (MSU), and Wayne Sate
University (WSU) “filed a cross-claim seeking a declaration that they may continue to use
66
their existing admissions and financial aid policies through the end of the current admissions
cycle and an injunction allowing them to continue their policies during that time” (¶ 14-15).
The district court agreed with the plaintiffs and the universities and ordered the injunction
allowing a short-term delay of implementing the ban at the University of Michigan, Michigan
State University and Wayne State University. The case was appealed to the US Sixth Circuit
Court of Appeals. The 6th Circuit overturned the injunction and ordered that the ban take
effect in accordance to the prescribed framework mandated by the state (Coalition to Defend
Affirmative Action v Granholm, No. 06-06-2640/06-2642, 2006; CCH, 2007). The roads to
racial equality to creating a road to remedy for past wrongs have been long and hard for
Americans. I do not believe there will ever be a happy medium between those who advocate
affirmative action and those opposed to “preferential treatment” for a minority group. The
best that I believe that can be accomplished is for universities to create admissions policies
that target those prospective students who are socio-economically disadvantaged and who
meet the universities admissions standards. Long gone are the days were the use of race
exclusively to determine admission is constitutional.
67
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