Each opening on the U.S. Supreme Court leads to everyone questioning how a change in justices might impact the legal environment for higher education. Just as after Justice Sandra Day O’Connor’s departure, Anthony Kennedy’s retirement means the swing vote on many key higher education cases will be leaving the Court. While the Supreme Court’s more recent history with ruling on affirmative action in the context of the two rounds of cases involving the University of Michigan are more familiar to most people in higher education today, the longer history often is less understood. In today’s post, I will share the legal history of affirmative action in higher education admissions before the Michigan cases.

Legal History of Affirmative Action in Admissions

Regents of the University of California v. Bakke

The legal justification for the constitutionality of affirmative action programs is predicated on the notion that such programs serve a compelling government interest of the institution and broader society.

The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution broadly provides, “No State shall … deny to any person within its jurisdiction the equal protection of the laws.”  This protection, of course, applies to all races, whether minority or majority in number.  Stated another way, “[T]he guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color.  If both are not accorded the same protection, then it is not equal.”  (Bakke, 438 U.S. at 289-90).

Where admissions criteria are based upon racial and ethnic distinctions, therefore, such criteria are “immediately suspect” and, accordingly, “call for the most exacting judicial examination.” (Bakke, 438 U.S. at 291).

Justice Powell’s landmark opinion in the Regents of the University of California v. Bakke established the legal precedent of using race as a factor in satisfying the government’s interest in diversity.  In Bakke, the Court held that quotas or other rigid numerical systems are unconstitutional, yet allowed the use of race as a “plus” factor in making admissions decisions.

That is, race and ethnicity could be a factor, but not the deciding factor.

The admissions process could allow for the consideration of race equal with that of all other aspects of determining the qualifications of an applicant.  Justice Powell found the need for a diverse student population persuasive due to the benefits diversity brings to the educational process and future success of graduates.

The Bakke case began when Allan Bakke, a Caucasian male, was twice denied admission to the medical school at the University of California at Davis.  After the second denial, Bakke filed suit against the school in the Superior Court of California, alleging that the school’s special admissions program caused him to be denied his rights under the Equal Protection Clause.

The issue in question was the school’s racial set-aside admissions program, whereby a set number of seats in each entering class were reserved for members of certain minority groups.  Although, in Justice Powell’s opinion, student body diversity is a compelling state interest that can justify the use of race in college and university admissions, the Bakke court ultimately invalidated the set-aside program.

In his opinion, Justice Powell rejected three arguments presented in favor of the racial set-aside, including promoting an interest in (1) reducing the “historic deficit of traditionally disfavored minorities in medical schools and in the medical profession” (Bakke, 438 U.S. at 306-07); (2) remedying societal discrimination (Bakke, 438 U.S. at 310); and (3) “increasing the number of physicians who will practice in communities currently underserved” (Bakke, 438 U.S. at 306).

On the other hand, Justice Powell approved the use of race in admissions decisions based upon an interest in promoting diversity in the student body, with the important caveat that “constitutional limitations protecting individual rights may not be disregarded.”  (Bakke, 438 U.S. at 311).

As Justice Powell opined, “[T]he nation’s future depends upon leaders trained through wide exposure’ to the ideas and mores of students as diverse as this Nation of many peoples.”  (Bakke, 438 U.S. at 312).

Unfortunately for practitioners, the Bakke decision was a fractured one.  Specifically, four justices concluded that the program was constitutional, and four concluded that it was unconstitutional, with Justice Powell casting the deciding vote and ultimately delivering the judgment of the Court.

Because Justice Powell’s opinion was not joined by any other justices of the Court, many courts struggled during the twenty-five year period following Bakke with the question of whether the standards announced by Justice Powell in Bakke constitute binding precedent.

Much of the litigation following the Bakke decision has relied upon Justice Powell’s opinion, the complicated aspects of which have led to much legal indecision.  (Grutter, 539 U.S. at 324-25).  Even though Justice Powell’s opinion in Bakke was not joined by a majority of the justices of the Court, it provides a substantial justification for the use of race in college admissions.

In fact, “most colleges and universities with affirmative action admissions plans followed the Powell guidelines.”  (Kaplan and Lee, 2006, p. 788).

Hopwood v. Texas

Although the U.S. Supreme Court has found affirmative action to be illegal in several non-higher education opinions following Bakke, the first most significant higher education affirmative action case following Bakke is the 1996 decision in Hopwood v. Texas.

In Hopwood, the Fifth Circuit Court of Appeals examined the constitutionality of using race as a factor in the admissions process and held the University of Texas Law School’s admission process to be unconstitutional because a separate review occurred for majority and minority applicants.

In the Hopwood court’s opinion, preferential treatment and separate qualifications were applied based on the race and ethnicity of applicants which, it believed, violated the Equal Protection Clause.

Furthermore, the Hopwood court ruled that, despite Justice Powell’s opinion in Bakke, diversity was not a compelling government interest.  The Hopwood decision, therefore, prevented the use of race within the Fifth Circuit, which includes the states of Texas, Mississippi, and Louisiana. However, because the U.S. Supreme Court denied a writ of certiorari, thereby choosing not to hear an appeal from the Hopwood decision, the Hopwood decision was controlling authority in the Fifth Circuit only.

Smith v. University of Washington Law School

In 2002, the Ninth Circuit Court of Appeals considered the case of Smith v. University of Washington Law School. In Smith, plaintiffs were assisted by the Center for Individual Rights, which had successfully supported the Hopwood case.

The plaintiffs in Smith contended that the law school’s admissions process was not narrowly tailored and used race as a deciding factor.  In response, the law school argued for the benefits of educational diversity and that its affirmative action program satisfied the strict scrutiny standard of review announced by Justice Powell in Bakke.

The Smith court agreed with the university that diversity was a compelling government interest, thereby disagreeing with the decision in Hopwood.  Therefore, the Smith decision allowed the use of race within the Ninth Circuit, which includes the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.

Resolution of Circuit Court Conflicts

Under the American judicial system, appellate court decisions constitute binding law only within the geographical region over which the appellate court has jurisdiction.

On the other hand, the law of one circuit may merely be compelling authority in another circuit.  As a result, different rulings may occur in various circuits, such that what the law is in Texas may not be the law in Washington.

Inconsistent rulings across different circuits, therefore, can breed conflict and confusion.  A significant role of the U.S. Supreme Court is to settle differences in law that occur between various circuit courts.

As evidenced by the discussion above, the legal environment of affirmative action has always been murky at best, but the disparities between circuits [prior to the Michigan cases] significantly compounded the issue, leaving many universities to question how, if at all, to use race as a factor in admissions.

Confusion and disagreement among the circuits regarding Justice Powell’s opinion in Bakkewas finally addressed when the U.S. Supreme Court undertook a review of race conscious admissions policies in Gratz v. Bollinger and Grutter v. Bollinger.

Excerpt from The use of data in affirmative action litigation with co-author John Roth.