Revisiting Bakke and Diversity-Based Admissions: Constitutional Law, Social Science Research, and the University of Michigan Affirmative Action Cases
Introduction
The upcoming decisions of the United States Supreme Court in two major cases – Gratz v. Bollinger and Grutter v. Bollinger – are expected to have broad effects on the future of race-conscious affirmative action in the United States. In these cases, the Supreme Court will address the constitutionality of admissions policies at the University of Michigan that are designed to promote educational diversity in both the University’s undergraduate college and its law school. Hanging in the balance are the admissions policies of dozens of selective colleges and universities – both public and private – as well as the boundaries of race-conscious policy making in areas such as voluntary desegregation in K-12 education; government contracting; and recruitment, hiring, promotion, and layoff practices in private and public sector employment.
Like the admissions policies at many highly selective colleges and universities, the University of Michigan’s policies draw legal support from the U.S. Supreme Court’s 1978 ruling in Regents of the University of California v. Bakke, in which a closely divided Court upheld the use of race as a factor in higher education admissions. The Supreme Court’s revisiting of the Bakke decision in the University of Michigan cases, designed to reconcile a split among the lower federal courts over the vitality of Bakke as a legal precedent, has generated extensive public attention and the participation of scores of individuals and institutions both inside and outside of higher education. Over eighty amicus curiae (friend of the court) briefs have been filed in the University of Michigan cases, including briefs from the United States government, several state governments, elected officials, the military, major corporations, leading colleges and universities, civil rights organizations, academic and research associations, advocacy groups, and students from across the country.
The issues in these cases are complex, and the outcomes are far from certain. Colleges and universities have relied on the guidelines established in Justice Powell’s opinion in Bakke for nearly twenty-five years, but the upcoming rulings in the University of Michigan cases could seriously disrupt the current legal landscape. A majority of the Supreme Court could vote to uphold Bakke, to overturn it, to modify it in some way, or to develop entirely new standards for evaluating race-conscious admissions policies in higher education. Moreover, in applying its legal standards to the actual policies in question, a Court majority might vote to uphold both the undergraduate and the law school policies, to strike down both sets of policies, or to differentiate the policies and uphold one set and not the other.
This Briefing Paper is designed to clarify several issues at stake in the University of Michigan cases, and focuses on two major areas: (1) the constitutional questions before the Court, and (2) recent research findings that are directly relevant to answering these constitutional questions. The issues of constitutional law revolve around a legal test known as the “strict scrutiny” standard, a rigorous test applied to race-conscious policies in which the courts evaluate both the importance of the underlying goals of an institution’s policy and the necessity of the policy in advancing those goals. Research findings focusing on the educational benefits of diversity in higher education and on the effectiveness of race-conscious admissions policies have a direct bearing on the Supreme Court’s analysis of whether the University’s interest in promoting diversity is, in the language of the law, a “compelling governmental interest” and whether the University’s race-conscious admissions policies are "narrowly tailored" to advance that interest.
The Briefing Paper is divided into four parts. Part I provides information on the Bakke case and the more recent cases challenging the Bakke ruling. Part II examines the basic legal and constitutional questions at stake in the University of Michigan cases. Part III highlights research findings relevant to the question of whether promoting diversity in higher education is a "compelling governmental interest." Part IV examines research findings addressing "narrow tailoring" requirement, including the effectiveness of race-conscious and race-neutral admissions policies.
In compliance with the UC Open Access Policy, this report has been made available on eScholarship:
