3.13 Affirmative Action

Affirmative action policies take steps to increase participation by groups that have faced discrimination based on race, ethnicity, sex, disability or age. Debates have centered on race and sex. In college admissions, this meant considering race as one factor in deciding whom to admit. Because public universities are state actors and most private universities take federal money, these policies are judged under the Fourteenth Amendment's Equal Protection Clause and Title VI of the Civil Rights Act of 1964. Racial classifications get strict scrutiny (3.10).

The medical school at UC Davis set aside 16 of its 100 seats each year for minority applicants. Allan Bakke, a white applicant, was rejected twice even though his scores were higher than those of some students admitted through the special program.

The Court was deeply divided and produced no single majority opinion. The controlling result came from Justice Lewis Powell: rigid racial quotas are unlawful, so Bakke had to be admitted, but universities may consider race as one factor among many to achieve a diverse student body.

Two cases involving the University of Michigan were decided the same day. In Grutter, the Court upheld the law school's admissions program 5–4. Justice Sandra Day O'Connor's majority opinion said student diversity is a compelling interest and the school's individualized, holistic review of each applicant was narrowly tailored. She added that the Court expected race-conscious admissions to be unnecessary 25 years later.

In Gratz, the Court struck down the undergraduate program 6–3 because it automatically gave every underrepresented minority applicant a fixed number of points, which worked too much like a quota.

An organization called Students for Fair Admissions sued Harvard and the University of North Carolina, arguing their admissions programs discriminated against applicants, especially Asian American applicants. The Court ruled against both schools, 6–3 in the UNC case and 6–2 in the Harvard case (one justice sat out the Harvard case). UNC, a public university, violated the Equal Protection Clause. Harvard, a private university that takes federal money, violated Title VI of the Civil Rights Act, which the Court applies using the same standard.

The majority reasoned that the schools' diversity goals couldn't be measured well enough for courts to review, that their programs used race as a negative for some applicants and relied on racial stereotypes, and that they had no logical end point. Universities may still consider an applicant's discussion of how race affected their life, such as through an essay, as long as the applicant is treated as an individual and not on the basis of race. The dissenters argued that the ruling ignored ongoing inequality and abandoned decades of precedent.

Effect: the decision effectively ended race-conscious admissions at most colleges. Several states, including California (1996) and Michigan (2006), had already banned affirmative action by ballot measure.