Affirmative Action

The Supreme Court and the Burden of Proof

The Supreme Court is the highest court in the United States and has ultimate jurisdiction over all courts that involve a contest of federal law.

Learning Objectives

Describe the structure and function of the Supreme Court

Key Takeaways

Key Points

  • The Supreme Court hears cases from lower courts and decides the law of the United States.
  • The Court expresses its views in a legal opinion, which much have a majority opinion and may have concurrences and dissents.
  • Though the Supreme Court is supposed to be politically independent, the current court’s opinions are more frequently embraced by conservatives than by liberals.

Key Terms

  • Supreme Court of the United States: The highest court in all of the United States, one that can hear and decide cases from all lower courts.
  • opinion: A statement of judicial finding that becomes law.

The Supreme Court of the United States

The Supreme Court is the highest court in all of the United States. Any lower (more local) court can appeal a ruling to the Supreme Court. In other words, it has ultimate, but largely discretionary, appellate jurisdiction over all courts that involve a contest of federal law. The Court consists of a chief justice and eight associate justices who are nominated by the President and confirmed by the United States Senate. Once appointed, justices have life tenure unless they resign, retire, or are removed after impeachment. The sitting court consists of Chief Justice John Roberts, Anthony Kennedy, Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito, Sonia Sotomayor, and Elena Kagan. No replacement has been made to fill the open seat resulting from the death of justice Antonin Scalia on Feb. 13, 2016.

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The U.S. Supreme Court: The United States Supreme Court, the highest court in the United States, in 2010. Top row (left to right): Associate Justice Sonia Sotomayor, Associate Justice Stephen G. Breyer, Associate Justice Samuel A. Alito, and Associate Justice Elena Kagan. Bottom row (left to right): Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony Kennedy, and Associate Justice Ruth Bader Ginsburg.

The Supreme Court is the head the judicial branch, one of the three branches of American government (the other two being the executive branch and legislative branch). Of the three, the Supreme Court is supposed to be politically independent, and thus not wed to either the Democratic or Republican Party. However, the nomination process itself essentially ensures that some partisanship, or allegiance to a political party, appears on the Court. A partisan president nominates a justice and a partisan Senate must confirm a justice. Justices are thus categorized in legal and political circles as being judicial conservatives, moderates, or liberals. Though explicitly not for political motivations, judicial conservatives tend to confirm Republican agendas while judicial liberals tend to support Democratic aims. Ideally, their legal holdings are independent of their political views, though the degree to which this is true in practice is highly contested. The current court tends to lean conservatively in its opinions.

The Supreme Court decides which cases it would like to hear. Allowing a case to come before the court is called granting a writ of certiorari or granting cert. But for a small set of limited exceptions, the Court only hears cases that have already been reviewed by a lower court, meaning that the Supreme Court is a court of appeal. The party that lost the case in the lower court is called the petitioner and the party that won in lower court is called the respondent. The names of all of the cases that come before the court are structured as Petitioner v. Respondent, regardless of which party brought suit in the lower court. After granting cert, lawyers for each party will submit briefs, or written legal arguments, about the issues for the Court to read before oral arguments, or the time when a lawyer from each side will argue his case before all of the justices. After oral arguments, the justices will meet to discuss the case and then issue an opinion, or written statement of their findings, weeks or months later.

Not all justices have to agree on the finding of the court; in fact, they rarely unanimously agree. Instead, the justices will vote on the issues before them and the majority vote will constitute the legal opinion and law of the United States. Because of this voting process, you will frequently see the score for the vote (justices for and against). For example, in the case of Roe v. Wade (1973), the case that established federal abortion law in some instances of pregnancy became law by a vote of 7-2. The opinion will describe the justices’ reasons for voting as they did. The part of the opinion that address the majority vote and the new law of the land is called the majority opinion, while the part of the opinion that describes the rationale for the minority voters is called the dissent. One justice can write an opinion to which other justices will sign, though justices will frequently write their own opinion. When a justice that voted with the majority writes his or her own opinion, it is called a concurrence. You will frequently find opinions that contain several concurrences and dissents.

Referenda on Affirmative Action

Affirmative action measures, particularly those pertaining to higher education, have been politically controversial in the United States.

Learning Objectives

Identify four key referenda challenging affirmative action programs

Key Takeaways

Key Points

  • Affirmative action refers to the integration of minorities in higher education settings and equal opportunity employment.
  • Referenda have been issued across the country so that citizens can vote on this politically controversial issue.
  • California, Washington, Michigan, and Nebraska have all passed referenda to limit the use of affirmative action in their states.

Key Terms

  • affirmative action: A policy or program providing advantages for people of a minority group with the aim of creating a more racially equal society through preferential access to education, employment, health care, social welfare, etc.
  • referendum: A direct popular vote on a proposed law or constitutional amendment.

In the United States, affirmative action refers to two different institutional capacities: 1) the proactive integration of minorities in settings of higher education, possibly by the use of different admissions standards and 2) equal opportunity employment measures that federal contractors are legally required to adopt. Affirmative action measures, particularly those pertaining to higher education, have been politically controversial in the United States. Though the majority of legal discussions about affirmative action have pertained to law suits, many states have had referenda on the topic. A referendum is a direct vote in which an entire electorate (citizens of particular states, in these cases) is asked to either accept or reject a particular proposal.

Major Affirmative Action Referenda in the United States

In California, Proposition 209 (the California Civil Rights Initiative) was passed in 1996 and amended the state constitution to prohibit state government institutions from considering race, sex, or ethnicity, specifically in the areas of public employment, public contracting, and public education. Proposition 209 was passed with 54% of the electorate approving of the initiative. The most controversial aspect of Proposition 209 was the element that applied to public education. Prior to the passage of the proposition, the University of California system had used mechanisms of affirmative action. Since the passage of Proposition 209, higher graduation rates have be been posted across all of the University of California, leading opponents of affirmative action to suggest a causal link between Proposition 209 and a better prepared student body. However, while minority graduation rates have risen, enrollment rates have decreased. Of the 4,422 student in UCLA’s class of 2006, only 100 (2.26%) were African American. Since the passage of Proposition 209, enrollment rates for African Americans and Latinos have declined significantly, while rates have increased for Asian Americans.

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Protests of California’s Proposition 209: Hundreds of students protested Proposition 209 at the University of California – Berkeley.

Several other states were inspired by California’s referendum. In 1998, the state of Washington sought to prohibit racial and gender preferences by state and local government. The initiative passed with 58.22% of the vote, adding the following language to Washington’s laws: “The state shall not discriminate against, or grant preferential treatment to, or any individual group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”

The Michigan Civil Rights Initiative (MCRI, or Proposition 2), was a ballot initiative that passed into Michigan Constitutional law by a 58% to 48% vote in 2006. The MCRI was legislation aimed at stopping the preferential treatment of minorities (by race, color, sex, or religion) in receiving admission to colleges, jobs, and other publicly funded institutions. However, the MCRI was overturned by the United States Court of Appeals for the Sixth Circuit in 2011. Bill Schutte, Attorney General for the State of Michigan, announced that he was appealing the Sixth Circuit’s decision, so the MCRI is in effect until the appeal is complete.

The Nebraska Civil Rights Initiative, or Initiative 424, was a 2008 ballot measure that proposed a constitutional amendment which would prohibit the state from discriminating against or granting preferential treatment to “any individual on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” The measure, in effect, banned affirmative action at the state level. It passed with 58% of the vote.

Controversies Surrounding Affirmative Action

Opponents have tested affirmative action programs politically and legally through referendums and lawsuits since the 1970s.

Learning Objectives

Analyze the response to the rise of affirmative action programs

Key Takeaways

Key Points

  • Since the 1970s, affirmative action programs, particularly those in higher education, have been tested politically and legally by its opponents.
  • Referendums have curtailed affirmative action programs in California, Michigan, Washington, and Nebraska.
  • Lawsuits have also questioned the constitutionality of affirmative action programs.

Key Terms

  • affirmative action: A policy or program providing advantages for people of a minority group with the aim of creating a more racially equal society through preferential access to education, employment, health care, social welfare, etc.
  • referendum: A direct popular vote on a proposed law or constitutional amendment.
  • reverse racism: Racism against either a person or people of a racial majority as a result of favorable treatment given to the minority.

Since the 1970s, affirmative action programs, particularly those in higher education, have been tested politically and legally by its opponents. Proponents of affirmative action contend that affirmative action programs give minorities the same educational advantages and opportunities that should be afforded to all races and attempt to compensate for past institutional racism. Proponents further argue that affirmative action programs encourage the elimination of racism by demonstrating that people from all different backgrounds can succeed in educational and professional settings.

However, supporters of affirmative action have encountered opposition. Some opponents have tested the bases for affirmative action programs on the basis of class inequality. These opponents argue that the program actually benefits middle- and upper-class African and Hispanic Americans at the expense of lower-class European and Asian Americans. This argument supports the idea of solely-class based affirmative action or the idea that affirmative action programs should be instituted based on social class rather than race. Other opponents have tested affirmative action by arguing that these programs lower admission standards for educational and professional environments and stating that affirmative action is a form of reverse racism, by which Caucasians are disadvantaged in the same way that minorities were in the past.

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Justice Clarence Thomas: Supreme Court Justice Clarence Thomas has argued that affirmative action programs disadvantage minority students because others think that they achieved success due to affirmative action rather than their own merits.

Opponents of affirmative action have tried to disassemble affirmative action programs. States such as California, Michigan, Washington, and Nebraska have held a referendums, turning the issue over to voters on a direct ballot measure. In all four of these states, voters demanded that state institutions, including public institutions of higher education, disband all programs that take race and ethnicity into account for admissions. Affirmative action programs have engendered lawsuits disputing their constitutionality. These suits are normally sought by Caucasian students who were not admitted to institutions of higher education while lower scoring minority students were admitted. The most famous of these cases include Regents of the University of California v. Bakke (1978), Hopwood v. Texas (1996), Grutter v. Bollinger (2003), Gratz v. Bollinger (2003), and Parents Involved in Community Schools v. Seattle School District No. 1 (2006). Each of these cases has more narrowly defined the instances in which public schools can factor race into account in admissions.

Strict Scrutiny

The legal standard of strict scrutiny, the most stringent standard of judicial review, must be used in all court cases involving affirmative action.

Learning Objectives

Describe the three tests a law faces under a strict scrutiny standard

Key Takeaways

Key Points

  • Courts employ different legal standards to evaluate the constitutionality of legal claims; all cases of affirmative action must pass the strict scrutiny test.
  • To pass the strict scrutiny test, the state must demonstrate that the state has a compelling governmental interest in the program or law, that the law or program is narrowly tailored to suit the compelling governmental interest, and that the state is using the least restrictive means.
  • The court must use the strict scrutiny test because affirmative action programs constitute suspect classification, or preferential treatment based on race.

Key Terms

  • suspect classification: When the government classifies individuals along racial lines and treats minority populations differently than the majority population.
  • strict scrutiny: The most stringent standard of legal review in American courts, used to evaluate the constitutionality of laws and government programs.
  • constitutional: Conforming to the constitution.

Strict scrutiny is the most stringent standard of judicial review used in American courts. It is part of the hierarchy of standards that courts use to weigh the government ‘s interest against a constitutional right or principle. The other members of the hierarchy of standards are, at the lowest level, “rational basis review” and, at the intermediate level, “intermediate scrutiny.”

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Strict Scrutiny: Courts must use strict scrutiny to evaluate affirmative action programs.

Strict scrutiny is the standard that is employed in litigating affirmative action cases. Strict scrutiny is applied by judges in these cases because they give preferential treatment to a class of citizens–racial minorities. Whether the treatment is justified or not is politically contentious, but the treatment is recognized as legally preferential. Because affirmative action programs do not treat citizens equally, the implementation of affirmative action programs must pass the strict scrutiny standard for the programs to be constitutional, or legal and in accordance with the law and principles outlined in the American Constitution.

Judges apply strict scrutiny tests when a case regarding affirmative action come before them. In other words, in order to determine the constitutionality of the contested program, the judge must determine whether or not the program meets the standards of a strict scrutiny test. To meet these standards, the law or program must satisfy three tests:

  1. The program must be justified by a compelling governmental interest. This concept refers to something that is necessary or crucial for the functioning of the state, rather than just something that the state wants. An example of a compelling governmental interest would be national security. Whether or not the state has a compelling governmental interest in the incorporation of minority students in places of public education is a key question in any affirmative action case coming before the court.
  2. The law or program must be narrowly tailored to achieve the state’s compelling governmental interest. For example, even if the court found that states had a compelling governmental interest in incorporating minority students, the state would have to demonstrate that its program only incorporated eligible candidates. A person could not be admitted to an institution of higher education simply because of his racial background.
  3. The law or program must use the least restrictive means for achieving the state’s compelling governmental interest; that is, there cannot be a less restrictive way to effectively achieve the compelling governmental interest.

When the court uses the strict scrutiny standard to evaluate affirmative action cases, the court is employing the standard because the court must do so in every case of suspect classification. These are cases in which a petitioner is questioning the state’s categorization and treatment of a particular minority group of citizens. Affirmative action cases fall in this category. For the classification to be constitutional, the class must have experienced a history of discrimination, must be definable as a group, must have limited political powers, and its characteristic must have little relationship to the government’s policy aims or the ability of the group’s members to contribute to society. The Supreme Court has consistently found that classification based on race, national origin, and alienage require strict scrutiny review. Thus, it is used in all legal contestations of affirmative action.

The Diversity Debate

Debates over affirmative action center around the question of whether diversity in the classroom merits a program of state intervention.

Learning Objectives

Reconstruct frequently-made arguments for and against affirmative action in higher education

Key Takeaways

Key Points

  • Debates about affirmative action question the need and usefulness of state schemes for racial integration in the classroom.
  • Brown v. Board of Education made it illegal to segregate public education; affirmative action programs claim that the government needs to be proactive in integrating minorities.
  • Opponents of affirmative action claim that the program encourages a sensitivity to race rather than the development of a colorblind world.

Key Terms

  • affirmative action: A policy or program providing advantages for people of a minority group with the aim of creating a more racially equal society through preferential access to education, employment, health care, social welfare, etc.
  • Brown v. Board of Education: The Supreme Court case that ruled segregated education unconstitutional.

Racial diversity in American schools remains a contentious political issue. Should public schools go out of their way to attract minority students? Does the government have a serious interest in the balancing of racial populations in education? Does a racially diverse classroom support educational goals? These questions are at the heart of the debate over affirmative action.

The institutional practice of slavery, and later segregation, in the United States prevented certain racial groups from entering the school system, particularly systems of higher education, until midway through the 20th century when the Supreme Court case of Brown v. Board of Education forbade racially segregated education. The Court ruled that school segregation stunted the educational development of minority children. Though Brown became law, most counties in the Southern United States did not fully integrate their schools until the 1970s.

Affirmative action programs in higher education are, of course, different from the desegregation programs of the mid-twentieth century. In affirmative action programs, the state goes beyond ensuring de jure equality for racial minorities in public education and makes strides to create conditions for de facto equality. Supporters of affirmative action believe that these types of proactive programs prove that all students benefit from racial diversity in the class room, and that institutional forms of racism have precluded members of the minority community from entering spaces of higher education. Some believe that racial and ethnic diversity in schools fosters understanding of new cultures and beliefs systems, dispelling stereotypes held by the majority population. Since the mid-twentieth century, researchers have found that benefits of racial diversity in schools range from higher reading levels, increased likelihood of high school graduation, positive impact on work aspirations and higher educational attainment, greater interaction with other racial groups and creation of interracial friendships in adult life, and higher desire to live and work in racially diverse environments.

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Diversity in Education: Supporters of affirmative action programs posit that all students benefit from diversity in schools.

In addition to the perceived legal obstacles to the implementation of affirmative action programs, some opponents of affirmative action believe that race-conscious approaches to diversity in the classroom are harmful. They perceive little correlation between racial diversity in the classroom and increased performance by minority students. These theorists believe that focusing on race in diversity policies creates a heightened awareness of racial difference and perpetuates discrimination. Rather, these individuals usually support colorblind policies to instill the norm that skin color does not matter.

The Supreme Court Revisits Affirmative Action

The first affirmative action case to come before the Supreme Court dealt with affirmative action in employment.

Learning Objectives

Summarize the facts of the case Griggs v. Duke Power

Key Takeaways

Key Points

  • As a concept, affirmative action developed in relation to employment and only later was applied to institutions of higher education.
  • The first court case addressing affirmative action was Griggs v. Duke Power Co. in 1971.
  • The Supreme Court held that Duke’s hiring tests, which disadvantaged minority candidates, were not reasonably related to the job at hand and thus unconstitutional.

Key Terms

  • Griggs v. Duke Power Co.: The first Supreme Court case in the US to address affirmative action in 1971.
  • affirmative action: A policy or program providing advantages for people of a minority group with the aim of creating a more racially equal society through preferential access to education, employment, health care, social welfare, etc.

Though the current debate over affirmative actionin the United States generally refers to affirmative action programs in admissions to institutions of higher education, the term originally developed in regard to actions to proactively hire candidates from minority backgrounds. Examples of affirmative action programs offered by the US Department of Labor include outreach campaigns, targeted recruitment, employee and management development, and employee support programs. In broad terms, affirmative action programs in employment refer to the preferential treatment of minority employees in the hiring or management process.

The first Supreme Court cases adjudicating affirmative action dealt with affirmative action in cases of employment. The first court case in the United States over affirmative action was Griggs v. Duke Power Co., 401 U.S. 424, in 1971. In the 1950s, Duke Power’s Dan River plan had a policy that African-Americans were allowed to work only in its Labor Department, which constituted the lowest-paying positions in the company. In 1955, a time when even public education served as a barrier between whites and African Americans, the company added the requirement of a high school diploma for its higher jobs. After the passage of the Civil Rights Act in 1964, the company removed the racial restriction, but retained the high school diploma requirement, and added the requirement of an IQ test, with the racist belief that African Americans would score lower than whites on an IQ test. African Americans were far less likely to be hired than white candidates. It was found that white people who had been working at the firm for some time but met neither of the new requirements performed their jobs as well as those that did meet the requirements.

The court ruled that Duke Power’s employment requirements did not pertain to applicants’ abilities to perform the job and so was discriminating against African-American employees, even if Duke Power hadn’t intended for the policy to have that effect. The Supreme Court ruled that under Title VII of the Civil Rights Act, if the IQ and diploma tests disparately impacted ethnic minority groups, businesses must demonstrate that such tests are “reasonably related” to the job for which the test is required. Duke Power’s requirements did not pass this legal standard, and thus the case was decided against Duke Power.

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Chief Justice Burger: Chief Justice Warren E. Burger authored the opinion of the court in Briggs v. Duke Power Co. in 1971.

State Initiatives Against Affirmative Action

States and the federal government have argued about the appropriate implementation of affirmative action policies.

Learning Objectives

Assess the relationship between states and the federal government in matters related to affirmative action

Key Takeaways

Key Points

  • States have sought to limit the federal government ‘s implementation of affirmative action policies.
  • The most effective state actions against affirmative action have occurred through referenda.
  • The federal government has pushed back against state opposition to affirmative action policies.

Key Terms

  • referendum: A direct popular vote on a proposed law or constitutional amendment.
  • Griggs v. Duke Power Company: The 1971 Supreme Court case in which the federal government first adjudicated affirmative action, ruling that states cannot limit access to employment for minorities; limitations for employment must be related to work performance.

Following the decision of Griggs v. Duke Power Company, the first court case to assess affirmative action in employment that made it to the Supreme Court in 1971, states took action to limit the application of affirmative action programs in their jurisdictions. This case decided for the minority petitioners, asserting that companies could not impose policies that raised obstacles for minority applicants so long as the the fulfillment of the policies were not reasonably related to job performance. States sought to limit the reach of federal policies regulating employment standards.

However, the scope of affirmative action debates soon extended beyond employment and entered the domain of higher education. Opponents to affirmative action have been even more vociferous about the use of affirmative action in higher education than when affirmative action pertains to employment policies. Since 1996, citizens of Arizona, Nebraska, California, Michigan, and Washington have all sponsored referendums to limit the legality of affirmative action policies. Since voters passed the referenda, the law in Michigan has been put on hold while the Michigan courts assess the constitutionality of voters’ limitations.

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State Initiatives Against Affirmative Action: State referenda have been the most successful way for opponents of affirmative action to limit its reach.

Since the implementation of state policies resisting affirmative action programs, the federal government has pushed back to ensure that affirmative action policies are implemented. In 1973, the U.S. Congress passed Section 717 of Title VII of the Civil Rights Act and Section 501 of the Rehabilitation Act, both of which require all U.S. federal agencies to implement affirmative employment opportunity programs for all federal employees. In 1979, President Carter issued U.S. Executive Order 12138, creating a National Women’s Business Enterprise Policy and requiring government agencies to take affirmative action in support of women’s business enterprises. As for the judicial branch, in 1995, the Supreme Court heard Adarand Constructors v. Peña, which established strict scrutiny standards of review for race and ethnicity-based federal affirmative action programs.

Thus, one can see that affirmative action policies and programs have gone back and forth between the states and federal government, typically with state voters trying to limit the reach of affirmative action and the federal government insisting on implementation.

Regents of the University of California v. Bakke

The 1978 Supreme Court case Bakke was the first case before the Court of affirmative action in higher education.

Learning Objectives

Analyze the Supreme Court’s decision in Bakke v. University of California (Davis)

Key Takeaways

Key Points

  • Regents of the University of California v. Bakke (1978) was the first case before the U.S. Supreme Court that evaluated the constitutionality of affirmative action programs in admissions for higher education.
  • Bakke held that universities could use affirmative action in admissions and consider racial background “a plus,” but could not establish quota systems like that in place in Bakke.
  • The Bakke holding was confusing and far from unanimous. It opened space for decades of further debate over affirmative action in higher education.

Key Terms

  • quota systems: An affirmative action program in which a certain number of spots in any class of higher education or employment are reserved for minority applicants.
  • affirmative action: A policy or program providing advantages for people of a minority group with the aim of creating a more racially equal society through preferential access to education, employment, health care, social welfare, etc.

In 1973, Allan Bakke, a 33-year-old white male, applied to 12 medical schools. He had been a National Merit Scholar in high school and graduated from the University of Minnesota with a GPA of 3.51. Bakke had served in Vietnam. After college, he and went on to work as an engineer at NASA. Bakke said that his interest in medicine began while serving in Vietnam and increased at NASA, as he had to consider the problems of space flight for the human body. All 12 schools rejected his application, including the University of California, Davis School of Medicine.

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University of California, Davis School of Medicine: Bakke was adjudicated as a result of the 1970’s admissions policies of the University of California, Davis School of Medicine.

At that time, UC Davis was employing an overt form of affirmative action. The school had 100 seats available to applicants, 16 of which were specifically for “Blacks,” “Asians,” “Chicanos,” and “American Indians” under an affirmative action program. By siphoning off these 16 spaces, UC Davis created a separate admissions process for those 16 seats alone. Bakke sued the Regents of the University of California based on the fact that these 16 seats were off limits for him based on race and that minorities had been admitted to fill these 16 seats with lower academic scores than Bakke. He sued to have the state force UC Davis to admit him.

The Supreme Court heard the case in 1978. There were two main issues before the Court: 1) Was it illegal and unconstitutional under Section VI of the Civil Rights Act of 1964 for Bakke’s to be excluded from consideration in UC Davis Medical School special admissions program for minorities? And 2) If Bakke’s exclusion was unconstitutional, should UC Davis be required to admit him?

The strongest contention by the University of California in countering the law suit was the justification of affirmative action by the good of diversity in the classroom. UC Davis’s admissions procedure was designed to increase diversity. UC Davis maintained that the program had originally been developed to 1) reduce the historic deficit of traditionally disfavored minorities in medical schools and the medical profession, 2) counter the effects of societal discrimination, 3) increase the number of physicians who will practice in under served communities, and 4) obtain the educational benefits that flow from a racially diverse student body.

Though fragmented and far from a unanimous decision, the Court ultimately held that affirmative action programs are constitutional. However,quota systems, such as that established by UC Davis, were unconstitutional. In other words, the state could enact programs that preference the applications of minority candidates in the name of campus diversity, but could not reserve a certain number of seats for minority applicants and use an entirely different admissions process.

Bakke is significant for its holding and for the role of the decision in the adjudication of affirmative action. Bakke was the first case the Supreme Court decided that referenced affirmative action policies in higher education. Further, the nuances and confusions surrounding the Bakke decision set the stage for decades of future adjudication over affirmative action. The Court did not establish a precise ruling, but rather opened the door for future debates.

The End of Affirmative Action?

Since Bakke, the Supreme Court has been questioning the constitutionality of affirmative action programs.

Learning Objectives

Analyze the two affirmative action cases in which the University of Michigan was involved in the early 2000s

Key Takeaways

Key Points

  • In 2003, Gratz v. Bollinger held that the use of point systems in college admissions, where certain races are given a high number of points, are unconstitutional.
  • In 2003, Grutter v. Bollinger held that the consideration of race in law school admissions without a point or quota system is constitutional.
  • In 2012, the Court will hear Fisher v. University of Texas which could dismantle the use of affirmative action in public, higher education programs in the US.
  • In the United States, multiculturalism is not clearly established in policy at the federal level, but ethnic diversity is common in both rural and urban areas.
  • The idea of the Melting pot is a metaphor that implies that all the immigrant cultures are mixed and amalgamated without state intervention.
  • Critics of multiculturalism often debate whether the multicultural ideal of benignly co-existing cultures that interrelate and influence one another, and yet remain distinct, is sustainable, paradoxical, or even desirable.

Key Terms

  • Grutter v. Bollinger: A 2003 Supreme Court case that found that considering race without a point or quota system in law school admissions is constitutional.
  • Fisher v. University of Texas: A court case coming before the Supreme Court in 2012 that has the potential to dismantle affirmative action in public education.
  • Gratz v. Bollinger: A 2003 Supreme Court case in which the court held that giving race a certain number of points in admissions decisions at the University of Michigan College of Literature, Science, and Arts was unconstitutional.

Multiculturalism in America

Multiculturalism relates to communities containing multiple cultures. In the United States, multiculturalism is not clearly established in policy at the federal level, but ethnic diversity is common in both rural and urban areas. Continuous mass immigration was a feature of the United States economy and society since the first half of the 19th century. The absorption of the stream of immigrants became, in itself, a prominent feature of America’s national myth. The idea of the Melting pot is a metaphor that implies that all the immigrant cultures are mixed and amalgamated without state intervention

Critics of multiculturalism often debate whether the multicultural ideal of benignly co-existing cultures that interrelate and influence one another, and yet remain distinct, is sustainable, paradoxical, or even desirable. It is argued that Nation states, who would previously have been synonymous with a distinctive cultural identity of their own, lose out to enforced multiculturalism and that this ultimately erodes the host nations’ distinct culture.

Affirmative Action in America

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The Supreme Court Building: Since Bakke in 1978, the Supreme Court has slowly been limiting the types of affirmative action programs that are deemed constitutional.

Since the case of Regents of the University of California v.Bakke in 1978, several Supreme Court cases have revisited questions of affirmative action in higher education. The majority of these cases have limited universities’ abilities to incorporate race into admissions.

In 2003, the Supreme Court heard the case of Gratz v. Bollinger, regarding the undergraduate admissions policies of the College of Literature, Science, and Arts at the University of Michigan. The University of Michigan used a 150-point scale to rank applicants, with 100 points needed to guarantee admission. The University gave underrepresented ethnic groups, including African-Americans, Hispanics, and Native Americans an automatic 20-point bonus on the scale. As a point of comparison, a perfect SAT score was worth 12 points. After being denied admission, Jennifer Gratz filed suit on the basis that the University of Michigan’s point system discriminated against her on the basis of race, as she belonged to none of the specified minority groups. The Supreme Court held that the university could still consider race in college admissions, but that the University of Michigan’s ranking and point system was unconstitutional because it gave an automatic point increase to all racial minorities rather than considering what a specific individual could contribute to campus life.

The Supreme Court is expected to rule again on affirmative action in the upcoming term in the case of Fisher v. University of Texas. The case is brought by Abigail Fisher after she was denied admission to the University of Texas at Austin. UT Austin guarantees admission to the top 10% of students in every high school class, regardless of race. Fisher was not in the top 10% and was therefore evaluated based on her merits. She contends that race plays too great of a role in the decision making for students outside of the 10% rule.