Back to Bakke: Are Racial-Conscious College Admissions Policies Doomed?

October 12, 2012

The U.S. Supreme Court will soon entertain arguments for a case involving race as a factor in college admissions. Abigail N. Fisher filed suit after being denied admission into the University of Texas in 2008. She alleged racial discrimination in violation of the Equal Protection Clause and 14th Amendment. U.S. District Court Judge Sam Sparks upheld the University’s policy and, subsequently, a 5th Circuit panel refused review.

The issue of race-based admissions policies rose to the court in a 1978 case, Regents of University of California v. Bakke, 438 U.S. 265. After a white applicant to medical school was denied admission, a challenge was brought against a special admissions program reserving a specific number of positions in the class for disadvantaged minority students. The court found the special admissions program illegal, but held that race may be one of a number of factors in considering applications.

In 2003, the Court used Grutter v. Bollinger, 539 U.S. 306, as a vehicle to affirm the precedent established in Bakke. The Court reasoned that “when race-based action is necessary to further a compelling governmental interest, such action does not violate the constitutional guarantee of equal protection so long as the narrow-tailoring requirement is also satisfied.” 539 U.S. at 327. Additionally, the Court noted that remedying past discrimination was not the only governmental use of race able to withstand strict scrutiny. Ultimately, the Grutter court ruled attaining a diverse student body a sufficiently compelling interest.

If Fisher overrules Grutter, race-based admission policies in United States public universities might be swept away. It remains to be seen whether “legacy” preferences could suffer a similar demise. Ultimately, universities may be able to create a meritocracy without sacrificing diversity. It remains to be seen whether such a goal is attainable, but it’s a goal worth striving for.


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