Affirmative Action & Reverse Discrimination

Background

• LBJ executive order affirmative action, particularly Dept of Ed (then-called HEW). Nixon continue

• Regents of Univ CA v. Bakke (1978)

  • “In order to get beyond racism, we must first take account of race. There is no other way.”

  • quotas wrong, but DEI not

  • exacting scrutiny, not strict scrutiny; only applied to higher ed

• Gratz v. Bollinger (2003)

  • decided w/ Grutter; point-system for univ admissions bad, holistic approach not

  • decline to overturn Bakke, debate b/t Justices over how long AA should persist (O’Connor suggest only 25 more years)

  • AA policies subject to strict scrutiny

    • 1. presume laws unconstitutional

    • 2. survive only if compelling state interest and least drastic means

  • counter = suspect class means historic discrimination, white doesn’t fit that

• Parents Involved in Community Schools v. Seattle (2007)

  • race cannot be used in assignment of public schools to achieve and maintain diversity

  • disagreement over how race may be used as factor

    • plurality says race-conscious student assignments impermissible

    • plurality say race OK for attendance zones, not individual

    • dissent say majority neglect history

Grutter v. Bollinger (2003)

Vote: 5-4

Facts: Univ of Michigan Law School made their admission policy to comply with the ruling in Regents v. Bakke. Admission was based on a composite score of LSAT & GPA; also “commitment to racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against like Africa-Americans, Hispanics, and Native-Americans,” who “might not be represented in the student body in meaningful numbers” without some preference. Barbara Grutter, 43 y/o white businesswoman says AA policy favors minority groups. Federal court agree, appellate reverse. Barb appeals.

Issue: Is an admissions policy committed to racial and ethnic diversity inconsistent with the EPC of the 14th?

Holding: No. An admissions policy committed to racial and ethnic diversity is not inconsistent with the EPC of the 14th.

Opinion (J. O’Connor):

(1) This case requires strict scrutiny; that does not mean fatality of law/policy.

(2) Diversity in education is a compelling state interest. Critical mass OK, racial balancing not.

(3) Race-conscious admissions policies are not forever; they will likely be unnecessary in 25 years (weird to include in opinion).

Dissent (summarizing):

(1) If allow race to be taken into consideration, colleges will disguise how and discriminate based on racial stereotypes.

(2) The correlation b/t the pool of racial minority applicants and those admitted is too precise; must be racial balancing → unconstitutional.

Comment: Race can play a part, but there still must be individualized consideration. Subject to strict scrutiny and survives—rare. Michigan banned AA via state referendum in 2006, applies to unis.

Students for Fair Admissions Inc v. President and Fellows of Harvard (2023)

Vote: 6-3

Facts: Combined w/ Students v. Univ NC. Both Harvard and NC have highly selective admissions processes that use race as a factor. The SFFA argued that race-based admissions violated Title VI of the Civil Rights Act of 1964 and the EPC of the 14th. Courts held that both these processes were fine.

Issue: Are the admissions systems used by Harvard and NC lawful under the EPC of the 14th?

Holding: No.

Opinion (J. Roberts):

(1) Students must be treated by their experiences, not their race (could talk about it in essay, view it holistically).

(2) Grutter limits:

1. No illegitimate stereotyping.

2. Cannot unduly harm non-minority applicants

(3) Race for race’s sake is stereotyping; inconsistent w/ Grutter.

(4) Programs lack logical endpoint, will use race forever if allowed.

Dissent (J. Sotomayor):

(1) The 14th does not impose a blanket ban on race-conscious policies.

(2) Diverse student body is constitutionally permissible.

(3) Racial discrimination remains an issue today.

(4) The Court parts w/ stare decisis.

Note: Roberts exempted military academies from this decision b/c officers white but infantry not, dangerous.

Comment: Even the holistic and individualized consideration of race in college admissions in lower courts today is being challenged. Should AA be top tier? White people not historically discriminated against the way other racial minorities have been. No one believe we are in a post-racial world, but “discrimination” against whites is not a solution.

Strict Scrutiny

1. presume laws unconstitutional

2. survive only if compelling state interest and least drastic means