Institutions wishing to use preferences as a means of admitting a “diverse” group of matriculants must deal with a series of threshold legal issues.  The most obvious of these is the 14th Amendment requirement that the instrumentalities of government in the United States accord all individuals  “equal protection of the law.”    Private institutions, in turn, are subject to Section 601 of the Civil Rights Act of 1964, which bars discrimination on the basis of race, color, or national origin in any program that receives federal financial assistance.  That stricture binds virtually every private college or university and the Supreme Court has held that it is to be interpreted in the same manner as the ”equal protection clause” in section one of the Fourteenth Amendment.

Opponents of these measures also note and emphasize the notion that, in theory if not in fact, the Constitution should be “color-blind.”  The assumption is that any selection system that gives an individual a “boost” based on group identity, rather than individual merit, necessarily places others not from that “favored” group at a comparative disadvantage.  If the boost is based on race or national origin, the Court uses what is called “strict scrutiny,” which requires that the institutional interest pursued must be “compelling” and the means employed “narrowly tailored,” which means that the institution must pursue the least discriminatory path to its compelling end.  Thus, for example, if there is a way to achieve the goal though methods that do not discriminate on racial or ethnic grounds, that method must be selected. 

The Court has heard and decided five cases on affirmative action and preferences in college, university, and professional school admissions.  Our tab, “Affirmative Action Cases,” has detailed materials and analysis of each of these cases. One can get an overview of how the doctrine has evolved through our Chronological Digest of Supreme Court decisions. 

In the first, Bakke, the Court held that student body diversity in admissions could be viewed as a “compelling” interest.  “Diversity,” Justice Lewis Powell declared, promotes “[t]he atmosphere of ‘speculation, experiment and creation’ . . . essential to the quality of higher education [which] is widely believed to be promoted by a diverse student body,” allowing institutions to admit “those students who will contribute the most to the ‘robust exchange of ideas.”  He stressed, however, that this was the only interest offered in support of diversity that survived strict scrutiny, rejecting any reliance on the notion that institutions of higher education could promote general social goals. The Court has since emphasized that race-based decisions should always be treated with great “skepticism” and are “in most circumstances irrelevant and therefore prohibited.”  Adarand Constructors.

The Bakke Court was deeply divided and these divisions have persisted to this day, with the Court continuing to allow institutions to use admissions preferences in opinions that have both elaborated its analysis while using vague constructs that leave the law open to a wide variety of interpretations.  In Grutter, for example, the Court reaffirmed the core of Bakke.  Diversity remained a compelling educational interest for admissions purposes, but only for admissions.  Colleges could not pursue “racial balancing” but could seek to attain a “critical mass” of non-white students. Narrow tailoring required a “holistic” review of each applicant, but the admissions at the University of Michigan Law School, which gave much greater weight to race than to any other diversity characteristic and in many respects appeared to be quite mechanical, apparently satisfied the “holistic” requirement. All viable race-neutral alternatives must have first been considered and rejected and the system must not “unduly burden” non-minority applicants, though the Court provided no clear guidance on how universities were to make the tradeoff between the undoubted greater “precision” of racial preferences in producing racial diversity, and the constitutional preference for race-neutrality. Finally, the policy must be “limited in time,” with the Court speculating that the need for most measures should reasonably be expected to vanish in twenty-five years (i.e., by the rapidly approaching date of 2028).

These principles were reaffirmed in Fisher I and Fisher II and offer institutions that believe they need to employ preferences both opportunities and challenges.  On the positive side of the ledger, a college or university may use an otherwise suspect decision-making criteria as a plus in the admissions process when reliance on traditional indicia of academic merit like high school grade point averages and standardized test scores would not yield the mix and numbers of students they seek to enroll.  On the negative side, the courts require that the programs be crafted with extraordinary care. 

Both institutions wishing to employ preferences and those wishing to contest those decisions must take these principles and constraints into account before initiating what will always be a protracted and highly contentious process.

List of Citations

Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).

Fisher v. The University of Texas at Austin, 570 U.S. 297 (2013).

Fisher v. The University of Texas at Austin, 138 S. Ct. 2198 (2016).

Grutter v. Bollinger, 539 U.S. 306 (2003).

Regents of the University of California v. Bakke, 438 U.S. 265 (1978).