THE SUPREME COURT's TREATMENT OF AFFIRMATIVE ACTION

The Court first considered the issue of affirmative action in Regents of the University of California v. Bakke . Bakke involved a challenge to the University of California at Davis Medical School’s set-aside of sixteen slots in the entering class of one hundred for minority students. There was no majority opinion for the Supreme Court. Four justices— William Brennan, Byron White, Thurgood Marshall, and Harry Blackmun—said that intermediate scrutiny was the appropriate test for racial classifications benefiting minorities, and voted to uphold the University of California at Davis Medical School’s affirmative action program.

Four justices—Stevens, Warren Burger, Potter Stewart, and Rehnquist—concluded that the affirmative action program violated Title VI of the 1964 Civil Rights Act, which prohibited discrimination by institutions receiving federal funds. They did not reach the constitutional issue or discuss the level of scrutiny.

Finally, Justice Powell, writing only for himself, said that strict scrutiny should be used for affirmative action. He said that “racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination.” Powell concluded that the set-aside was unconstitutional, but that it was permissible for race to be used as one factor in admissions decisions to enhance diversity. Thus, the vote was 5 to 4 invalidating the setaside—Powell, Stevens, Burger, Rehnquist, and Stewart voting for this conclusion—but 5 to 4 that it is permissible for universities to use race as a factor in admissions to increase diversity—Powell, Brennan, Marshall, White, and Blackmun coming to this conclusion.

Two years later, in Fullilove v. Klutznick , the Supreme Court again considered an affirmative action program but did not produce a majority opinion. The Court upheld a federal law that required that 10 percent of federal public works monies given to local governments be set aside for minority-owned businesses. Chief Justice Burger, in an opinion joined by Justices White and Powell, concluded that the affirmative action program was justified to remedy past discrimination, but said that the “opinion does not adopt, either expressly or implicitly, the formulas of analysis articulated in cases such as University of California Regents v. Bakke .”

Three Justices Marshall, Brennan, and Blackmun concurred in the judgment to uphold the affirmative action program, but argued again that intermediate scrutiny should be used for racial classifications serving a remedial purpose. Finally, on the other hand, three Justices Stewart, Rehnquist, and Stevens dissented and said that strict scrutiny was the appropriate test. It was not until 1989, in Richmond v. J. A. Croson Company , that the Supreme Court expressly held that strict scrutiny should be used in evaluating state and local affirmative action programs. The Court invalidated a Richmond, Virginia, plan to set aside 30 percent of public works monies for minority-owned businesses. Five Justices O’Connor, Rehnquist, White, Kennedy, and Scalia wrote or joined in opinions declaring that strict scrutiny was the appropriate test in evaluating such affirmative action plans. As Justice Marshall lamented in his dissenting opinion: “Today, for the first time, a majority of the Court has adopted strict scrutiny as its standard of Equal Protection Clause review of race-conscious remedial measures.”

But a year later, in Metro Broadcasting, Inc. v. Federal Communications Commission , the Supreme Court held that congressionally approved affirmative action programs only need to meet intermediate scrutiny. The Supreme Court, in a 5 to 4 decision, upheld FCC policies that gave a preference to minority-owned businesses in broadcast licensing. The majority expressly said: “We hold that benign race-conscious measures mandated by Congress, even if those measures are not ‘remedial’ in the sense of being designed to compensate victims of past governmental or society discrimination, are constitutionally permissible to the extent that they serve important governmental objectives within the power of Congress and are substantially related to the achievement of those objectives.”

Justice Brennan wrote the majority opinion in Metro Broadcasting , joined by Justices White, Marshall, Blackmun, and Stevens. Justices O’Connor, Kennedy, Scalia, and Rehnquist dissented. Between Metro Broadcasting , in 1990, and Adarand Constructors, Inc. v. Pena , in 1995, four of the Justices in the majority, but none of the Justices in the dissent, resigned from the Court. In Adarand , the four dissenters from Metro Broadcasting were joined by Justice Thomas to create a majority to overrule it. The Court thus concluded that “federal racial classifications, like those of a State, must serve a compelling governmental interest, and must be narrowly tailored to further that interest.”

In its affirmative action decisions in the first decade of the 2000s, the Supreme Court reaffirmed that strict scrutiny is the test for affirmative action but held that colleges and universities may use race as a factor in admissions decisions to benefit minorities and enhance diversity. In Grutter v. Bollinger , in a 5-4 decision, with Justice O’Connor writing for the majority, the Court upheld the University of Michigan Law School’s affirmative action program. The Court ruled that colleges and universities have a compelling interest in creating a diverse student body and that they may use race as one factor, among many, to benefit minorities and enhance diversity. In a companion case, Gratz v. Bollinger , the Court, 6-3, invalidated an affirmative action program for undergraduate admissions that added twenty points to the applications for minority students. In an opinion by Chief Justice Rehnquist, the Court ruled that the undergraduate program was not sufficiently “narrowly tailored” to meet the strict scrutiny used for government racial classifications. In essence, the Court adhered to the position articulated by Justice Lewis Powell in Regents of the University of California v. Bakke a quarter century earlier: Diversity is a compelling interest in education and universities may use race as a factor to ensure diversity, but quotas or numerical quantification of benefits is impermissible.

Is this a distinction that makes a difference? Practically speaking, can colleges and universities effectively add points so long as it is not done explicitly and officially? Is there really a difference between a college having a set-aside and a college using race as a factor in admissions decisions and keeping track of the number of minority students to ensure “critical mass”? Colleges and universities long have valued diversity in education; it always has been easier for a person from Wyoming or Montana to get into Harvard or Yale than an applicant with the same qualifications from Boston or New York. Individuals with special skills, like making downfield tackles or shooting jump shots, long have been admitted to college with lower grades and test scores. These variables generally are not quantified. The Court’s affirmative action cases stand for the proposition that racial diversity matters, too, and that it should be treated like other factors considered in ensuring a diverse class. Any quantification, in terms of adding points or using a set-aside, seems arbitrary and inflexible.

The bottom line from the Supreme Court’s affirmative action decisions over a quarter of a century is that any use of racial classifications, whether to benefit or disadvantage minorities, must meet strict scrutiny and be shown to be necessary to achieve a compelling government interest. The Court regards remedying past discrimination and enhancing diversity in education as compelling goals. The Court has been clear that it rarely will allow quotas or set-asides, but it will allow educational institutions to use race as one factor in admissions decisions to benefit minorities.