Bakke was the first decision from the Supreme Court directly addressing affirmative action policies in higher education. As a result, it laid the foundation for affirmative action admissions policies and challenges to those policies in the decades that followed.
As a procedural matter, the Bakke court noted that all racial classifications are deserving of the highest level of judicial review, strict scrutiny. At first glance, the application of strict scrutiny in Bakke seems unremarkable. This is a case dealing with state sanctioned racial discrimination, therefore, it must be analyzed under the highest level of judicial review. However, the issue was that a non-minority was challenging the University’s program. Although the Court has never explicitly held that non-minorities are afforded a strict scrutiny level of review under the Equal Protection Clause, up until the Bakke decision, it had only been applied in the context of minorities. And the University attempted to make note of this distinction, arguing that application of strict scrutiny was improper because Plaintiff Alan Bakke was not a member of a “discrete and insular minority.”
The Court disagreed, holding “[r]acial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination.” Accordingly, this interpretation guaranteed strict scrutiny for any class of higher education applicant asserting that a university’s admissions program improperly discriminated against them. In addition, the Court did three important things with respect to addressing the issue of affirmative action in higher education on its merits. First, it held that promoting diversity on college campuses was a compelling state interest for purposes of affirmative action. Second, it further held that while employing racial quotas were constitutionally impermissible, a university could still consider race, provided that it is merely a factor among many in an evaluation that compares individual applicants against each other. Third, the Court granted wide deference to universities in establishing their own admissions policies. In that regard, Justice Powell explained that as long as the admissions program is truly individualistic, “good faith would be presumed in the absence of a showing to the contrary[.]” Thus, the Bakke Court established a framework in which universities can consider race, and those universities can assume that their consideration will be honored by the courts as long as they stayed within this framework.
The Bakke decision was far from infallible. While many educators, administrators, and jurists were likely put at ease knowing affirmative action in higher education was finally being decided on its merits, the lack of clarity in the decision seemed to create just as many problems as it solved. The “diversity rationale” or the idea that having a diverse campus benefits both education and social interactions as whole, albeit noble and seemingly correct, was explained without any basis in empirical evidence. So, although some would agree that diverse campuses are better than homogeneous campuses, it is still unclear as to why that is the case. And some have even criticized this goal as depending on the assumption that a person’s race or ethnicity defines a person’s point of view.
But even more confusing is what a diverse campus actually looks like. Additionally, the combination of giving deference to universities with the ability to take race into account in a detailed evaluation leads to the question of just how big of role race plays in admissions decisions. Overall evaluations can be employed under the guise of individualistic decisions, but when race becomes more of a deciding factor, the decisions seem a lot less individualistic, whether intentional or not. These nebulous standards made interpretation and implementation very difficult. And became reoccurring themes in later higher education cases.
Additionally, the Court was deeply divided and this created confusion among the lower courts, including the perception that the Bakke decision did not produce binding precedent in certain respects. For example, lower courts have disagreed as to whether the diversity rationale can withstand strict scrutiny. Circuit Court cases like Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), and District Court cases like Johnson v. Board of Regents of the University System of Georgia, 106 F. Supp. 2d 1362 (S.D. Ga. 2000), found that the diversity rationale was not a compelling state interest. Conversely, in Smith v. University of Washington School of Law, 233 F.3d 1188 (9th Cir. 2000), the Ninth Circuit agreed with the Court and held “educational diversity is a compelling governmental interest that meets the demands of strict scrutiny of race-conscious measures.” Thus, post-Bakke, clearer guidance on affirmative action in higher education is needed.