What follows is an examination of four key decisions by the United States Supreme Court discussing the permissible and impermissible uses of "race and ethnicity" in university admissions policy. In 1978, the Supreme Court hinted that "diversity" was a permissible goal, but using racial quotas was not a constitutional way to achieve diversity. Twenty-five years later, in 2003, the Supreme Court again said "diversity" is a permissible goal in admissions. However, in two different decisions issued on the same date, the Supreme Court found that the University of Michigan Law School's policy which considered a number of factors, in addition to race, was constitutional but found that the University of Michigan's undergraduate admissions policy which awarded a substantial number of points to minority students was not constitutional. Ten years later, in 2013, the Supreme Court again said "diversity" can be a goal in admissions policies, but that the lower court needed to take a second look at the University of Texas at Austin's undergraduate admissions policy to make sure it achieved that goal lawfully.
Regents of the University of California v. Bakke (1978) 438 U.S. 265 (http://supreme.justia.com/cases/federal/us/438/265/case.html):
In 1973, the UC Davis medical school created a special admissions program to increase the number of "disadvantaged" students in the medical school. This program was separate from its regular admissions program. Although "disadvantaged" seemed very broad, the school in implementing the special admissions program only considered minorities. Moreover, the faculty explicitly prescribed a set number of special admits each year (hence why this became a legal decision about quotas). Allan Bakke, a white student, applied to the medical school and was denied admission in both 1973 and 1974. Bakke sued, claiming he was denied equal protection under the law, because less-qualified non-white students were admitted through the special admissions program. The United States Supreme Court, in a fractured opinion, agreed with Bakke and found that UC Davis' special admissions program was unconstitutional. Justice Powell, in the plurality opinion (that basically means the opinion with the most votes even though not everyone agreed with everything said), wrote that "the attainment of a diverse student body" is constitutional. (438 U.S. at p. 311) But that, when the Supreme Court examined the special admissions program using the most rigorous standard - what is referred to legally as "strict scrutiny" - the special admissions program did not pass. Justice Powell summed it up this way:
"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. But 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." (438 U.S. at p. 315.)
Grutter v. Bollinger (2003) 539 U.S. 306 (https://supreme.justia.com/cases/federal/us/539/306/case.html ):
The University of Michigan Law School, which was one of the top law schools in the country, had a written admissions policy that said it wanted to achieve a diverse student body that recognized "many possible bases for diversity admissions." The policy did point out that the law school had a longstanding commitment to "racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like African-Americans, Hispanics and Native Americans, who without this commitment might not be represented in our student body in meaningful numbers." (539 U.S. at p. 316.) Yet the policy emphasized that diversity was not defined solely by race or ethnicity. (Id.) Barbara Grutter, a white applicant, sued the dean of the law school (Lee Bollinger) claiming racial discrimination.
In her majority opinion, Justice Sandra Day O'Connor pointed out that since Bakke, which had been decided 25 years earlier, "Public and private universities across the Nation have modeled their own admissions programs on Justice Powell's views on permissible race conscious policies" (539 U.S. at p. 323.) Then Justice O'Connor explained that would continue to back Justice Powell's reasoning - "today we endorse Justice Powell's view that student body diversity is a compelling state interest that can justify the use of race in university admissions." (539 U.S. at p. 325.) Justice O'Connor then examined the law school's admissions policies and practices and concluded it was not an illegal quota system (like Bakke) and that the law school did, in practice, give "substantial weight to diversity factors besides race." (539 U.S. at pp. 333-338.)
Justice O'Connor reiterated that educational institutions are given specialized treatment for good reason: "We have long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition. ... In announcing the principle of student body diversity as a compelling state interest, Justice Powell invoked our cases recognizing a constitutional dimension, grounded in the First Amendment, of educational autonomy: 'The freedom of a university to make its own judgments as to education includes the selection of its student body.' From this premise, Justice Powell reasoned that by claiming 'the right to select those students who will contribute the most to the robust exchange of ideas,' a university 'seek[s] to achieve a goal that is of paramount importance in the fulfillment of its mission.'" (539 U.S. at p.329 (internal citations omitted).)
Justice O'Connor also pointed out that diversity is important in other aspects of society: "These benefits are not theoretical but real, as major American businesses have made clear that the skills needed in to day's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints." (539 U.S. at p. 330.)
Gratz v. Bollinger (2003) 539 U.S. 244 (http://supreme.justia.com/cases/federal/us/539/244/case.html ):
Two white applicants sued the University of Michigan when their applications to admissions to the undergraduate school were rejected. The Supreme Court, while again noting that diversity was permissible, said that the University of Michigan's admissions policy was unconstitutional in how it sought to achieve that diversity. Specifically, "We find that the University's 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 the interest in educational diversity that respondents claim justifies their program." (539 U.S. at 270.)
Fisher v. University of Texas at Austin (2013) 570 U.S. __ (http://www.supremecourt.gov/opinions/12pdf/11-345_l5gm.pdf ):
In 2004, after the Grutter decision, the University of Texas at Austin changed its admissions policy so that it explicitly mentioned race as a factor to consider in the overall assessment of a candidate. Fisher, who was white, sued when she was denied admission. The Supreme Court summarized its previous decisions that schools can use race as a factor in admissions. However, the Supreme Court found that the appellate court had not done its job correctly when it was examining the university's actual program. So the Supreme Court sent the case back to the appellate court to do over.
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