Abstract
Excerpted From: Chenglin Liu, The Evolution of Race-based Admissions in American Higher Education, 51 Ohio Northern University Law Review 77 (2024) (664 Footnotes) (Full Document)
In 1868, Congress proposed, and the states ratified, the Fourteenth Amendment to the Constitution, which declares that “[n]o State shall ... deny to any person ... the equal protection of the laws.” Initially, the Supreme Court faithfully upheld the Amendment's core commitments. For example, in Strauder v. West Virginia, the Court struck down a state law that excluded black people from jury service. According to Justice Strong, the Equal Protection Clause required that “... the law in the States shall be the same for the black as for the white: ... all persons, whether colored or white, shall stand equal before the laws of the States.”
However, with the growing resistance to the Fourteenth Amendment in the Southern states, the Court quickly abandoned its earlier commitment to equal protection and became a facilitator of state-mandated segregation laws. The Court later acknowledged that it “played its own role in that ignoble history, allowing in Plessy v. Ferguson the separate but equal regime that would come to deface much of America.” After Plessy, the Court labored with the doctrine [of separate but equal] for over half a century.”
During the 127 years between Plessy in 1896 and SFFA v. Harvard in 2023, state universities have radically changed their race-based admissions policies to keep pace with the Supreme Court's shifting positions on the constitutionality of racial classifications. This Article examines the Court's key decisions on race-based admissions policies, which fall into four distinct periods.
The first period, often referred to as the “post-Plessy and pre-Brown era,” began with Plessy and ended with Brown v. Board of Education. During this period, the Supreme Court heard four cases involving race-based admissions policies. The facts in these cases were almost identical: state segregation laws imposed fines and criminal penalties on university officials who granted admission to black students. When a black applicant was denied admission to a state university solely based on race, attorneys from the National Association for Advancement of Colored People (NAACP) filed lawsuits on their behalf, arguing the university violated the applicant's rights to equal protection. Bound by the “separate but equal” doctrine established in Plessy, the Court's remedies were limited to requiring states to provide black students with equal educational resources and opportunities as those enjoyed by white students. By 1950, however, “the inevitable truth of the Fourteenth Amendment had thus begun to reemerge: [s]eparate cannot be equal.” In 1954, Plessy was overruled by Brown v. Board of Education, which heralded a new era.
The second period was marked by a series of federal legislative and administrative actions in the 1960s that made affirmative action prominent in college admissions. “[T]he Civil Rights Act of 1964 prohibited race, color, and national origin discrimination in public facilities and accommodations (Title II); in activities subsidized by federal funds (Title VI); and in employment (Title VII).” Similar mandates were included in Executive Orders issued by President John F. Kennedy in 1961 and reissued by President Lyndon B. Johnson in 1965. These federal actions extended their influence over private universities reliant on federal funds. In Coffee v. Rice University, the university petitioned the state court to modify Mr. Rice's discriminatory trust. This trust, which created the university, restricted admission to only white students. At the time, Rice University was one of the few Southern colleges still refusing to admit students of color. Facing the threats of reputational damage and loss of federal funding for its prized research programs, the university sought to move beyond the control of Mr. Rice's dead hand and to welcome students of all races. The court granted Rice university's request under the cy pres doctrine.
The third period is called the “critical mass” era, which began with University of California v. Bakke and ended with SFFA v. Harvard. With the exception of SFFA, each case during this period involved white applicants who sued a university when denied admission, arguing it violated their constitutional right to equal protection. In Bakke, the UC Davis Medical School reserved 16 out of 100 seats for minority applicants. Mr. Bakke, a white male, was denied admission despite having higher grades than some of the admitted minority applicants. Bakke sued the university, seeking both an order compelling his admission and an injunction to prevent the use of its race-based admissions policy. The Court was deeply divided, with four Justices supporting the race-based admissions program and four opposing it. The fractured decision produced six separate opinions, none of which commanded a majority. Justice Powell casted a fifth vote, invalidating the medical school's use of racial quotas but upholding the use of race in general in its admissions decisions. He also raised Harvard College's race-based admissions policy as a model.
Twenty-five years later, in Grutter v. Bollinger, the Court endorsed Justice Powell's view that student body diversity was a compelling state interest justifying the use of race in university admissions. During the four decades leading up to SFFA, Justice Powell's opinion became the guiding precedent: race-based admissions policies were subject to strict scrutiny, a two-prong test requiring the policy to further a compelling state interest and be narrowly tailored to achieve that interest. Grutter was highly deferential to the university's academic decisions because its admissions policy closely modeled that of Harvard's. The Court imposed only one limitation: a race-based policy should end within twenty-five years.
“Abandoning” Grutter, SFFA commenced a new era of its own. In 2023, Chief Justice Roberts delivered the majority opinion for the Court. To chart a different path, the Chief Justice knew the major hurdle was Justice Powell's view of diversity as a compelling state interest. Thus, Chief Justice Roberts directly attacked the foundation of Justice Powell's opinion. He pointed out that none of the six opinions in Bakke commanded a majority. Even though Justice Powell announced the Court judgment, he only wrote on behalf of himself. “No other Member of the Court joined Justice Powell's opinion.” Furthermore, in the years following Bakke, “lower courts struggled to discern whether Justice Powell's decision was 'binding precedent.”’ Highlighting the uncertainty with Bakke's plurality decision, Chief Justice Roberts discarded diversity as a compelling state interest justification because it was insufficiently measurable. By contrast, the Chief Justice pointed out, the impact of temporal racial segregation in prisons to prevent violence was more concrete and measurable than the purported benefits of diversity in college education. With Powell's framework dismantled, Harvard's race-based admissions model crumbled, failing to survive the Court's strict scrutiny.
[. . .]
Over the past 127 years, universities have used race as a factor in admissions policies, either as a sword or a shield for achieving their political, moral, and educational objectives. Between Plessy and Brown, race was used to exclude black applicants from public universities attended by white students. Under the auspices of the “separate but equal” doctrine, southern states went as far as criminalizing the admission of black students to white universities. Nevertheless, the NAACP strategically challenged these segregation laws with test cases, achieving occasional success. In Sweatt v. Painter, the Supreme Court, for the first time, compelled a black student's admission. However, several cases during this period focused on equality in educational resources provided to the two races. Eventually, the Court came to realize the folly of “trying to derive equality from inequality.”
In 1954, the Brown decision caused a tectonic shift in race-based admissions policies, transitioning from blocking to accepting black students. In the 1960s, the federal government led efforts to craft affirmative action policies that increased minority representation in federally funded projects and civil services. Additionally, the Civil Rights Act of 1964 and the establishment of EEOC institutionalized anti-discrimination policies and practices. As a result, universities reshaped their admissions policies from merely accepting minority applicants to actively recruiting black students and other minority candidates. Quotas and percentages were used to build a diverse student body on college campuses.
Universities changed their admissions policies again when affirmative action met resistance from States and non-minority groups. In the 1970s, Defunis and Bakke were the first cases challenging race-based admissions favoring minorities over non-minorities. Justice Powell's view of diversity as a compelling state interest and the positive treatment of the ““Harvard Model” guided universities for the next forty-five years. In the interim, the Supreme Court made adjustments to minimize collateral damage to other races while allowing universities to achieve racial diversity on campus. With the removal of quotas and percentages, the breathing space for affirmative action diminished.
In 2003, the majority in Grutter held that the law school had a compelling interest in attaining a “critical mass” of minority students for educational benefits. However, the obvious flaw of the “critical mass” theory is its lack of a precise definition. The law school in Grutter coined the term to make its admissions policies appear holistic and individualized, enabling it to pass the “narrow tailoring” prong of strict scrutiny. Critical mass did pass scrutiny, but not without the help of a deferential Court, unwilling to reject Justice Powell's view of diversity as a compelling interest.
Two decades after Grutter, SFFA found itself before a very different Court--one where a “critical mass” of justices were ready and eager to upend the affirmative action jurisprudence since Bakke. First, the majority removed diversity from the list of compelling interests justifying racial classification. Second, it abandoned deference to universities' educational judgment in assessing the value of diversity. Third, the majority introduced a “measurability requirement,” placing universities in an untenable position. As Justice Sotomayor put it, the Court rendered strict scrutiny “fatal in fact.” Fourth, the majority insisted on honoring the “sunset clause” in Grutter, albeit five years ahead of the schedule. Any of the changes would have invalidated the universities' raced-based admissions policies. When the Court in SFFA fired all four shots at once, the Harvard model crumbled.
Professor of Law, Katherine A. Ryan Chair for Global and International Law, St. Mary's University School of Law.
