Affirmative Action and Diversity in Public Education-Legal Developments
Prepared for Members and Committees of Congress
Nearly a quarter century after the Supreme Court ruling in Regents of the University of California
v. Bakke, the diversity rationale for affirmative action in public education remains a topic of
political and legal controversy. Many colleges and universities have implemented affirmative
action policies not only to remedy past discrimination, but also to achieve a racially and
ethnically diverse student body or faculty. Justice Powell, in his opinion for the Bakke Court,
stated that the attainment of a diverse student body is “a constitutionally permissible goal for an
institution of higher education,” noting that “[t]he atmosphere of ‘speculation, experiment, and
creation’ so essential to the quality of higher education is widely believed to be promoted by a
diverse student body.” In recent years, however, federal courts began to question the Powell
rationale, unsettling expectations about the constitutionality of diversity-based affirmative action
in educational admissions and faculty hiring.
After a series of conflicting lower court rulings were issued regarding the use of race to promote a
diverse student body, the Supreme Court agreed to review the race-conscious admissions policies
used by the undergraduate and law school admissions programs at the University of Michigan. In
Grutter v. Bollinger, a 5 to 4 majority of the Justices held that the University Law School had a
“compelling” interest in the “educational benefits that flow from a diverse student body,” which
justified its race-based efforts to assemble a “critical mass” of “underrepresented” minority
students. But in the companion decision, Gratz v. Bollinger, six Justices decided that the
University’s policy of awarding “racial bonus points” to minority applicants was not “narrowly
tailored” enough to pass constitutional scrutiny. The decisions resolved, for the time being, the
doctrinal muddle left in Bakke’s wake. And because the Court’s constitutional holdings translate
to the private sector under the federal civil rights laws, nonpublic schools, colleges, and
universities are likewise affected.
Although the Grutter and Gratz decisions settled the question of whether race-based policies to
promote diversity in higher education are ever constitutionally acceptable, the decisions did not
address whether diversity is a permissible goal in the elementary and secondary educational
setting. To resolve this question, the Supreme Court recently agreed to review two cases that
involve the use of race to maintain racially diverse public schools and to avoid racial segregation.
In a consolidated ruling in Parents Involved in Community Schools v. Seattle School District No.
1, the Court struck down the Seattle and Louisville school plans at issue, holding that they
violated the equal protection guarantee of the Fourteenth Amendment.
II. Historical Background................................................................................................................2
III. Recent Legal Developments......................................................................................................6
Student Diversity in Higher Education Admissions..................................................................6
Background in the University of Michigan Admissions Cases.................................................8
The Grutter Decision................................................................................................................9
The Gratz Decision..................................................................................................................11
Desegregation and Racial Diversity in Public Elementary, Secondary, and Magnet
The Parents Involved in Community Schools Decision..........................................................18
Author Contact Information..........................................................................................................25
Nearly a quarter century after the Supreme Court ruling in Regents of the University of California 1,2
v. Bakke, the diversity rationale for affirmative action in public education remained a topic of
political and legal controversy. Many colleges and universities established affirmative action
policies not only to remedy past discrimination, but also to achieve a racially and ethnically
diverse student body or faculty. Justice Powell, in his opinion for the Bakke Court, stated that the
attainment of a diverse student body is “a constitutionally permissible goal for an institution of
higher education,” noting that “[t]he atmosphere of ‘speculation, experiment, and creation’ so
essential to the quality of higher education is widely believed to be promoted by a diverse student
In the last decade, however, federal courts began to question the Powell rationale, unsettling
expectations about the constitutionality of diversity-based affirmative action in educational
admissions and faculty hiring decisions. In striking down the admissions process at the University
of Texas School of Law, the Fifth Circuit in Hopwood v. Texas concluded that any use of race in 3
the admissions process was forbidden by the Constitution. Reverberations of the 1996 Hopwood
opinion are apparent in several subsequent cases, which voided “race conscious” policies
maintained by institutions of higher education, as well as public elementary and secondary
schools. Some judges avoided resolving the precedential effect of Justice Powell’s opinion by
deciding the case on “narrow tailoring”or other grounds not dependent on the constitutional status 4
of student diversity as a compelling state interest. But, in Johnson v. Board of Regents, the
Eleventh Circuit sided with Hopwood by rejecting diversity as constitutional justification for a
numerical “racial bonus” awarded minority freshman applicants to the University of Georgia. A
circuit court conflict was created when the Ninth Circuit relied on Bakke to uphold an affirmative
action admissions policy to the University of Washington Law School that made extensive use of
race-based factors. Smith v. University of Washington was the first federal appeals court to rely on 5
Justice Powell’s decision as binding precedent on the issue.
1 This report was originally prepared by Charles V. Dale, Legislative Attorney.
2 438 U.S. 265 (1978).
3 78 F.3d 932, 944 (5th Cir. 1996) (“Justice Powell’s view in Bakke is not binding precedent on the issue.”), cert.
denied, 518 U.S. 1033 (1996). See also Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344, 354 (D.C.Cir. 1998)
(stating, without addressing Bakke, that diversity cannot “be elevated to the ‘compelling’ level”).
4 See Brewer v. West Irondequoit Center School District, 212 F.3d 738, 747-49 (2d Cir. 2000) (noting that “there is
much disagreement among the circuit courts as to ... the state of the law under current Supreme Court jurisprudence,”
but concluding that, regardless of Bakke, reducing racial isolation may be a compelling interest under Second Circuit th
precedent); Eisenberg v. Montgomery County Public Schools, 197 F.3d 123, 130 (4 Cir. 1999) (explaining that the
status of educational diversity as a compelling interest is “unresolved,” and rather than rule on the issue, decided the
case solely on narrow tailoring grounds); Wessmann v. Gittens, 160 F.3d 790, 795, 800 (lst Cir. 1998) (While “[t]he
question of precisely what interests government may legitimately invoke to justify race-based classifications is largely
unsettled,” the court concluded defendant’s apparent interest in “racial balancing” of the student body was neither “a
legitimate [n]or necessary means of advancing” diversity); Buchwald v. University of New Mexico School of th
Medicine, 159 F.3d 487, 499 (10 Cir. 1998) (noting the absence of “a clear majority opinion” in Bakke, but according
qualified immunity to defendants who relied upon that case in adopting a preference based on durational residency); th
McNamara v. City of Chicago, 138 F.3d 1219, 1222 (7 Cir. 1998) (citing Bakke for statement that “whether there may
be compelling interests other than remedying past discrimination remains ‘unsettled,’” but finding defendant’s remedial
5 Smith v. University of Washington Law School, 233 F.3d 1188, 1201 (9th Cir. 2000) (pursuant to Bakke, “educational
diversity is a compelling governmental interest that meets the demands of strict scrutiny of race conscious measures”),
cert. denied, 121 S.Ct. 2192 (2001).
The judicial divide over Bakke’s legacy was vividly underscored by a pair of separate trial court
decisions, one upholding for diversity reasons the race-based undergraduate admissions policy of 6
the University of Michigan, the other voiding a special minority law school admissions program 7
at the same institution. Restoring a degree of clarity to the law, the U.S. Supreme Court 8
concluded its 2002-03 term with rulings in the Michigan cases. In Grutter v. Bollinger, a 5 to 4
majority of the Justices held that the University Law School had a “compelling” interest in the
“educational benefits that flow from a diverse student body,” which justified its consideration of
race in admissions to assemble a “critical mass” of “underrepresented” minority students. But in a 9
companion decision, Gratz v. Bollinger, six Justices decided that the University’s policy of
awarding “racial bonus points” to minority applicants was not “narrowly tailored” enough to pass
Although the Grutter and Gratz decisions settled the question of whether race-based policies to
promote diversity in higher education are ever constitutionally acceptable, the decisions did not
address whether diversity is a permissible goal in the elementary and secondary educational
setting. To resolve this question, the Supreme Court agreed to review two cases that involved the
use of race to maintain racially diverse public schools. The cases were Meredith v. Jefferson
County Board of Education—formerly MacFarland v. Jefferson County Public Schools—and 10
Parents Involved in Community Schools v. Seattle School District No. 1. In Parents Involved in
Community Schools v. Seattle School District No. 1, a consolidated ruling that resolved both
cases, the Court ultimately struck down the school plans at issue, holding that they violated the 11
equal protection guarantee of the Fourteenth Amendment.
The first part of this report briefly reviews the judicial evolution of race-based affirmative action,
particularly in relation to public education. Recent rulings challenging the use of race-conscious
admissions and hiring practices by public educational institutions are then considered for their
implications on the future development of affirmative action law.
The origins of affirmative action law may be traced to the early 1960’s as first the Warren, and
then the Burger Court, grappled with the seemingly intractable problem of racial segregation in
the nation’s public schools. Judicial rulings from this period recognized an “affirmative duty,”
cast upon local school boards by the Equal Protection Clause, to desegregate formerly “dual
school” systems and to eliminate “root and branch” the last “vestiges” of state-enforced 12
segregation. These holdings ushered in a two decade era of “massive” desegregation—first in
the South, and later the urban North—marked by federal desegregation orders frequently
6 Gratz v. Bollinger, 122 F.Supp.2d 811 (E.D.Mich. 2000).
7 Grutter v. Bollinger, 137 F. Supp. 2d 821, 848 (E.D. Mich. 2001) (concluding that “Bakke does not stand for the
proposition that a university’s desire to assemble a racially diverse student body is a compelling state interest”).
8 539 U.S. 306 (2003).
9 539 U.S. 244 (2003).
10 416 F.3d 513 (6th Cir. 2003) (per curiam), cert. granted, 126 S. Ct. 2351 (U.S. 2006); 426 F.3d 1162 (9th Cir. 2005)
(en banc), cert. granted, 126 S. Ct. 2351 (U.S. 2006).
11 2007 U.S. LEXIS 8670 (U.S. 2007).
12 See e.g. Green v. County Board, 391 U.S. 430 (1968); Swann v. Board of Education, 402 U.S. 1 (1971); Keyes v.
Denver School District, 413 U.S. 189 (1973).
requiring drastic reconfiguration of school attendance patterns along racial lines and extensive
student transportation schemes. School districts across the nation operating under these decrees
have since sought to be declared in compliance with constitutional requirements in order to gain
release from federal intervention. The Supreme Court eventually responded by holding that
judicial control of a school system previously found guilty of intentional segregation should be
relinquished if, looking to all aspects of school operations, it appears that the district has
complied with desegregation requirements in “good faith” for a “reasonable period of time” and 13
has eliminated “vestiges” of past discrimination “to the extent practicable.”
A statutory framework for affirmative action in employment and education was enacted by the
Civil Rights Act of 1964. Public and private employers with 15 or more employees are subject to
a comprehensive code of equal employment opportunity regulations under Title VII of the 1964
Act. The Title VII remedial scheme rests largely on judicial power to order monetary damages 14
and injunctive relief, including “such affirmative action as may be appropriate,” to make
discrimination victims whole. Except as may be imposed by court order or consent decree to
remedy past discrimination, however, there is no general statutory obligation on employers to
adopt affirmative action remedies. But the Equal Employment Opportunity Commission (EEOC)
has issued guidelines to protect employers and unions from charges of “reverse discrimination” 15
when they voluntarily take action to correct the effects of past discrimination.
The term “affirmative action” resurfaced in federal regulations construing the 1964 Act’s Title VI,
which prohibits racial or ethnic discrimination in all federally assisted “programs” and 16
activities, including public or private educational institutions. The Office of Civil Rights of the
Department of Education interpreted Title VI to require schools and colleges to take affirmative
action to overcome the effects of past discrimination and to encourage “voluntary affirmative 17
action to attain a diverse student body.” Another Title VI regulation permits a college or
university to take racial or national origin into account when awarding financial aid if the aid is 18
necessary to overcome effects of past institutional discrimination. Affirmative action in higher
education was before the Congress in 1998, when the full House defeated a bill to prohibit federal
aid to colleges and universities that consider race, ethnicity, or sex in the admission process.
The Bakke ruling in 1978 launched the contemporary constitutional debate over state-sponsored
affirmative action. A “notable lack of unanimity” was evident from the six separate opinions filed
in that case. One four-Justice plurality in Bakke voted to strike down as a violation of Title VI a
13 Dowell v. Board of Education, 498 U.S. 237 (1991). See also Freeman v. Pitts, 503 U.S. 467 (1993) (allowing
incremental dissolution of judicial control) and Missouri v. Jenkins, 515 U.S. 70 (1995) (directing district court on
remand to “bear in mind that its end purpose is not only ‘to remedy the violation’ to the extent practicable, but also `to
restore state and local authorities to the control of a school system that is operating in compliance with the
14 42 U.S.C. 2000e-5(g).
15 29 C.F.R. Part 1608 (the guidelines state the EEOC’s position that when employers voluntarily undertake in good
faith to remedy past discrimination by race- or gender-conscious affirmative action means, the agency will not find
them liable for reverse discrimination.).
16 42 U.S.C. 2000d et seq.
17 44 Fed. Reg. 58,509 (October 10, 1979).
18 59 Fed. Reg. 8756 (February 23, 1994). See also Letter from Judith A. Winston, General Counsel, United States
Department of Education, to College and University Counsel, July 30, 1996 (reaffirming that it is permissible in
appropriate circumstances for colleges and universities to consider race in admissions decisions and granting financial
special admissions program of the University of California at Davis medical school which set-
aside sixteen of one hundred positions in each incoming class for minority students, where the
institution itself was not shown to have discriminated in the past. Another bloc of four Justices
argued that racial classifications designed to further remedial purposes were foreclosed neither by
the Constitution nor the Civil Rights Act and would have upheld the minority admissions quota.
Justice Powell added a fifth vote to each camp by condemning the Davis program on equal
protection grounds while endorsing the nonexclusive consideration of race as an admissions
criterion to foster student diversity.
In Justice Powell’s view, neither the state’s asserted interest in remedying “societal
discrimination,” nor of providing “role models” for minority students was sufficiently
“compelling” to warrant the use of a “suspect” racial classification in the admission process. But
the attainment of a “diverse student body” was, for Justice Powell, “clearly a permissible goal for
an institution of higher education” since diversity of minority viewpoints furthered “academic 19
freedom,” a “special concern of the First Amendment.” Accordingly, race could be considered
by a university as a “plus” or “one element of a range of factors”—even if it “tipped the scale”
among qualified applicants—as long as it “did not insulate the individual from comparison with 20
all the other candidates for the available seats.” The “quota” in Bakke was infirm, however,
since it defined diversity only in racial terms and absolutely excluded non-minorities from a given
number of seats. By two 5-to-4 votes, therefore, the Supreme Court affirmed the lower court
order admitting Bakke but reversed the judicial ban on consideration of race in admissions.
Bakke was followed by Wygant v. Jackson Board of Education,21 where a divided Court ruled
unconstitutional the provision of a collective bargaining agreement that protected minority public
school teachers from layoff at the expense of more senior white faculty members. While holding
the specific layoff preference for minority teachers unconstitutional, seven Wygant Justices
seemed to agree in principle that a governmental employer is not prohibited by the Equal
Protection Clause from all race-conscious affirmative action to remedy its own past
discrimination. Another series of decisions approved of congressionally mandated racial 22
preferences to allocate the benefits of contracts on federally sponsored public works projects, 23
and in the design of certain broadcast licensing schemes, while condemning similar actions
taken by local governmental entities to promote public contracting opportunities for minority 24
entrepreneurs. However, in each of these cases, the Justices failed to achieve a consensus on
most issues, with bare majorities, pluralities, or—as in Bakke—a single Justice, determining the
“law” of the case.
By the mid-1980’s, the Supreme Court had approved the temporary remedial use of race- or
gender-conscious selection criteria by private employers under Title VII of the 1964 Civil Rights 25
Act. These measures were deemed a proper remedy for “manifest racial imbalance” in 26
“traditionally segregated” job categories, if voluntarily adopted by the employer, or for
19 Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 311-12 (1978).
20 Id. at 317.
21 476 U.S. 267 (1986).
22 Fullilove v. Klutznick, 448 U.S. 448 (1980).
23 Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990).
24 City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989).
25 42 U.S.C. §§ 2000e et seq.
26 United Steelworkers v. Weber, 443 U.S. 193 (1979).
entrenched patterns of “egregious and longstanding” discrimination by the employer, if imposed 27
by judicial decree. In either circumstance, however, the Court required proof of remedial
justification rooted in the employer’s own past discrimination and its persistent workplace effects.
Thus, a “firm basis” in evidence, as revealed by a “manifest imbalance”—or “historic,”
“persistent,” and “egregious” underrepresentation—of minorities or women in affected job
categories was deemed an essential predicate to preferential affirmative action. Second, but of
equal importance, all racial preferences in employment were to be judged in terms of their
adverse impact on “identifiable” non-minority group members. Remedies that protected
minorities from layoff, for example, were most suspect and unlikely to pass legal or constitutional
muster if they displaced more senior white workers. But the consideration of race or gender as a
“plus” factor in employment decisions, when it did not unduly hinder or “trammel” the 28
“legitimate expectations” of non-minority employees, won ready judicial acceptance.
Affirmative action preferences, however, had to be sufficiently flexible, temporary in duration,
and “narrowly tailored” to avoid becoming rigid “quotas.”
Not until 1989, however, did a majority of the Justices resolve the proper constitutional standard
for review of governmental classifications by race enacted for a remedial or other “benign” 29
legislative purpose. Disputes prior to City of Richmond v. J.A. Croson yielded divergent views
as to whether state affirmative action measures for the benefit of racial minorities were subject to
the same “strict scrutiny” as applied to “invidious” racial discrimination under the Equal
Protection Clause, an “intermediate” standard resembling the test for gender-based classifications,
or simple rationality. In Croson, a 5 to 4 majority settled on strict scrutiny to invalidate a 30% set-
aside of city contracts for minority-owned businesses because the program was not “narrowly
tailored” to a “compelling” governmental interest. While “race-conscious” remedies could be
legislated in response to proven past discrimination by the affected governmental entities, “racial
balancing” untailored to “specific” and “identified” evidence of minority exclusion was
impermissible. Croson suggested, however, that because of its unique equal protection
enforcement authority, a constitutional standard more tolerant of racial line-drawing may apply to
Congress. This conclusion was reinforced a year later when, in Metro Broadcasting, Inc. v. 30
FCC, the Court upheld certain minority broadcast licensing schemes approved by Congress to
promote the “important” governmental interest in “broadcast diversity.”
The two-tiered approach to equal protection analysis of governmental affirmative action was 31
short-lived. In Adarand Constructors, Inc. v. Pena, the Court applied “strict scrutiny” to a
federal transportation program of financial incentives for prime contractors who subcontracted to
firms owned by “socially and economically disadvantaged individuals,” defined so as to prefer
members of designated racial minorities. Although the Court refrained from deciding the
constitutional merits of the particular program before it, and remanded for further proceedings
below, it determined that all “racial classifications” by government at any level must be justified
by a “compelling governmental interest” and “narrowly tailored” to that end. But the majority
opinion, by Justice O’Connor, sought to “dispel the notion” that “strict scrutiny is `strict in theory,
but fatal in fact,’” by acknowledging a role for Congress as architect of remedies for
discrimination nationwide. “The unhappy persistence of both the practices and lingering effects
27 Local 28 Sheet Metal Workers v. EEOC, 478 U.S. 421 (1986).
28 United States v. Paradise, 480 U.S. 149 (1987); Johnson v. Transportation Agency, 480 U.S. 616 (1987).
29 488 U.S. 469 (1989).
30 497 U.S. 547 (1990).
31 515 U.S. 200 (1995).
of racial discrimination against minorities in this country is an unfortunate reality, and the
government is not disqualified from acting in response to it.” No further guidance is provided,
however, as to the scope of remedial power remaining in congressional hands, or of the
conditions required for its exercise. Bottom line, Adarand suggests that racial preferences in
federal law or policy are a remedy of last resort and must be adequately justified and narrowly
drawn to pass constitutional muster.
The Court applied the Adarand rule in Miller v. Johnson.32 In Miller, the Court reviewed a
congressional redistricting plan for the State of Georgia. The plan, adopted at the insistence of the
Justice Department, was designed to create three congressional districts that had a majority of
African-American residents. The Court reversed its traditional deference to remedial race-33
conscious apportionment and held that while race could be considered in redistricting, the
Justice Department’s policy of making race the predominant factor failed the strict scrutiny test. 3435
The Miller holding was revisited in Bush v. Vera and Shaw v. Hunt, both of which affirmed
Miller’s essential holding by sustaining challenges to race-based redistricting plans.
The emphasis in Adarand on past discrimination prompted an upsurge in judicial challenges to
educational diversity as an independent justification for student and faculty affirmative action.
The notion that diversity could rise to the level of a compelling interest in the educational setting
sprang a quarter century ago from Justice Powell’s opinion in the Bakke case. While concluding
that a state medical school could not set-aside a certain number of seats for minority applicants,
Justice Powell opined that a diverse student body may serve educators’ legitimate interest in
promoting the “robust” exchange of ideas. He cautioned, however, that “[t]he diversity that
furthers a compelling state interest encompasses a far broader array of qualifications and 36
characteristics of which ethnic origin is but a single though important element.”
Justice Powell split the difference between two four-Justice pluralities in Bakke. One camp, led
by Justice Stevens, struck down the admissions quota on statutory civil rights grounds. Another
led by Justice Brennan would have upheld the medical school’s policy as a remedy for societal
discrimination. Justice Powell held the “dual admissions” procedure to be unconstitutional, and
ordered Bakke’s admission. But, he concluded, that the state’s interest in educational diversity
could warrant consideration of students’ race in certain circumstances. For Justice Powell, a
diverse student body fostered the “robust” exchange of ideas and academic freedom deserving of
32 515 U.S. 900 (1995).
33 See, e.g., United Jewish Organizations, Inc. v. Carey, 430 U.S. 144, 161 (1977); Shaw v. Reno, 509 U.S. 630, 658-75
(1993) (White J., dissenting).
34 517 U.S. 952 (1996).
35 517 U.S. 899 (1996).
36 Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 315 (1978).
Justice Powell’s theory of diversity as a compelling governmental interest did not turn on race
alone. He pointed with approval to the “Harvard Plan,” which defined diversity in terms of a
broad array of factors and characteristics. Thus, an applicant’s race could be deemed a “plus”
factor. It was considered on a par with personal talents, leadership qualities, family background,
or any other factor contributing to a diverse student body. However, the race of a candidate could
not be the “sole” or “determinative” factor. No other Justice joined in the Powell opinion.
Although Justice Powell’s opinion announced the judgment of the Court, no other Bakke Justices
joined him on that point. Justice Powell ruled the “dual admission program” at issue to be
unconstitutional and the white male plaintiff entitled to admission, while four other Justices
reached the same result on statutory rather than constitutional grounds. Another four Justice
plurality concluded that the challenged policy was lawful, but agreed with Justice Powell that the
state court had erred by holding that an applicant’s race could never be taken into account. Only
Justice Powell, therefore, expressed the view that the attainment of a diverse student body could
be a compelling state interest.
For nearly two decades, colleges and universities relied on the Powell opinion in Bakke to support
race-conscious student diversity policies. Consideration of race in admissions, which took various 37
forms, stood pretty much unchallenged until Hopwood v. State of Texas. A panel of the Fifth
Circuit repudiated the Powell diversity rationale when it voided a special admission program of
the University of Texas law school. Unlike Bakke, the Texas program entailed no explicit racial
quota. But, in other respects, it was a classic dual track system: one standard for blacks and
Hispanics, another for everyone else, and cutoff scores for minorities were lower. The Powell
opinion was not binding precedent, the Hopwood panel ruled, since it was not joined by any other
justice. Thus, race could be considered in admissions only to remedy past discrimination by the
law school itself, which was not shown in Hopwood.
Two other federal circuit courts, besides the Sixth Circuit Michigan case, have looked at race-38
based college admissions since Bakke. Johnson v. Board of Regents struck down the award of
“racial bonus” points to minority students as one of 12 factors—academic and nonacademic—
considered for freshman admissions to the University of Georgia. The Eleventh Circuit majority
was skeptical of the Powell opinion but did not take a stand on the diversity issue. Instead, the
program failed the second requirement of strict scrutiny. It was not “narrowly tailored.” That is, it
“mechanically awards an arbitrary ‘diversity’ bonus to each and every non-white applicant at a
decisive stage in the admissions process.” At the same time, the policy arbitrarily limited the
number of nonracial factors that could be considered, all at the expense of white applicants, even
those whose social or economic background and personal traits would promote “experiential”
diversity. On the other hand, the Ninth Circuit upheld the minority law school admissions
program at the University of Washington on the basis of Bakke. The appeals court in Smith v. 39
University of Washington Law School concluded that the four Brennan Justices who approved of
the racial quota in Bakke “would have embraced [the diversity rationale] if need be.” Justice
Powell’s opinion thus became the “narrowest footing” for approval of race in admission and was
the “holding” of Bakke.
37 78 F.3d 932 (5th Cir. 1996), cert. denied 518 U.S. 1033 (1996).
38 263 F.3d 1234 (11th Cir. 2001).
39 233 F.3d 1188 (9th Cir. 2000).
Post-Bakke appeals courts, guided by Marks v. United States,40 sliced and diced the various
opinions in Bakke to come up with a controlling rationale. In Marks, the Supreme Court ruled that
when a majority of Justices are unable to agree on a controlling rationale, the holding of the Court
is the position of those Justices concurring in the judgment on the narrowest grounds. The pro-
diversity circuits concluded that the Powell opinion approving race as a “plus” factor was
narrower than the Brennan rationale, which would have upheld the race quota in Bakke on a
societal discrimination theory. The opposing circuits had generally reasoned otherwise or
concluded that the competing Bakke opinions defy rational comparison so that absent a majority
consensus, the Powell opinion was without controlling weight. In no way bound by Bakke,
Supreme Court review of the Michigan cases augured fundamental reexamination of issues raised
by that earlier precedent.
The judicial divide over the student diversity policies deepened with the Michigan cases. One
federal district court in Grutter originally struck down the student diversity policy of the
University of Michigan Law School, while another judge upheld a procedure awarding points to 41
“underrepresented minority” applicants to the undergraduate school. Based on Bakke, the Sixth 42
Circuit reversed Grutter and permitted the Law School to consider race in admissions. The
Supreme Court granted certiorari in Grutter and agreed to review Gratz prior to judgment by the
Undergraduate admission to the University of Michigan had been based on a point system or
“student selection index.” A total possible 150 points could be awarded for factors, academic and
otherwise, that made up the selection index. Academic factors accounted for up to 110 points,
including 12 for standardized test performance. By comparison, 20 points could be awarded for
one, but only one, of the following: membership in an underrepresented minority group,
socioeconomic disadvantage, or athletics. Applicants could receive one to four points for “legacy”
or alumni relationships, three points for personal essay, five points for community leadership and
service, six points for in-state residency, etc. In practice, students at the extremes of academic
performance were typically admitted or rejected on that basis alone. But for the middle range of
qualified applicants, these other factors were often determinative. Finally, counselors could “flag”
applications for review by the Admissions Review Committee, where any factor important to the
freshman class composition—race included—was not adequately reflected in the selection index
In upholding this policy, the district court in Gratz found that Bakke and the University’s own
evidence demonstrating the educational benefits of racial and ethnic diversity established a
compelling state interest. And the award of 20 points for minority status was not a “quota” or
“dual track” system, as in Bakke, but only a “plus factor,” to be weighed against others in the
selection process. Thus, the constitutional demand for “narrow tailoring” was satisfied. The Gratz
district court also concluded that “vigorous minority recruitment” and other race-neutral
alternatives to the current policy would not yield a “sufficiently diverse student body.”
40 430 U.S. 188 (1977).
41 Gratz v. Bollinger, 122 F. Supp. 811 (E.D. Mich. 2000).
42 Grutter v. Bollinger, 288 F.3d 732 (6th Cir. 2002).
Generally setting the bar for admission to the Michigan Law School was a “selection index”
based on applicants’ composite LSAT score and undergraduate GPA. A 1992 policy statement,
however, made an explicit commitment to “racial and ethnic diversity,” seeking to enroll a
“critical mass” of black, Mexican-American, and Native American students. The objective was to
enroll minority students in sufficient numbers to enable their participation in classroom
discussions without feeling “isolated or like spokesmen for their race.” To foster, “distinctive
perspectives and experiences,” admission officers consider a range of “soft variables”—e.g.,
talents, interests, experiences, and “underrepresented minority” status—in their admissions
decisions. In the course of each year’s admissions process, the record showed, minority admission
rates were regularly reported to track “the racial composition of the developing class.” The 1992
policy replaced an earlier “special admissions program,” which set a written goal of 10-12%
minority enrollment and lower academic requirements for those groups. The district court in
Grutter made several key findings: there is a “heavy emphasis” on race in the law school
admissions process; that over a period of time (1992- 1998) minorities ranged from 11% to17%
of each incoming class; and that large numbers of minority students were admitted with index
scores the same as or lower than unsuccessful white applicants.
Writing for the Sixth Circuit majority, Judge Martin adopted the Powell position in Bakke to find
that the law school had a compelling interest in achieving a racially diverse student body, and that
its admission’s policy was “narrowly tailored” to that end. “Soft variables” were found to treat
each applicant as an individual and to be “virtually indistinguishable” from “plus factors” and the
Harvard Plan approved by Justice Powell in Bakke. The law school’s policy “did not set-aside or
reserve” seats on the basis of race. Rather, in pursuit of a “critical mass,” the policy was designed
to ensure that a “meaningful number” of minority students were able “to contribute to classroom
dialogue without feeling isolated.” The majority opinion further emphasized that the admissions
program was “flexible,” with no “fixed goal or target;” that it did not use “separate tracks” for
minority and nonminority candidates; and did not function as a “quota system.”
Without waiting for a final appeals court decision, the Supreme Court agreed to review the Gratz
undergraduate admissions case in tandem with the Sixth Circuit ruling in Grutter. The Supreme
Court handed down its rulings in Grutter and Gratz in 2003. Writing for the majority in the
former was Justice O’Connor, who was joined by Justices Stevens, Souter, Ginsburg, and Breyer
in upholding the Law School admissions policy. Chief Justice Rehnquist authored an opinion, in
which Justices O’Connor, Scalia, Kennedy, and Thomas joined, striking down the University’s
undergraduate racial admissions program. Justice Breyer added a sixth vote to invalidate the
racial bonus system in Gratz, but declined to join the majority opinion.
A notable aspect of the Grutter majority opinion was the degree to which it echoed the Powell
rationale from Bakke. Settling, for the present, the doctrinal imbroglio that had consumed so
much recent lower court attention, Justice O’Connor quoted extensively from Justice Powell’s
opinion, finding it to be the “touchstone for constitutional analysis of race-conscious admissions
policies.” But her opinion was not without its own possible doctrinal innovations. Overarching
much of her reasoning were two paramount themes, that drew considerable criticism from Justice
Thomas and his fellow dissenters. First, in applying “strict scrutiny” to the racial aspects of the
Law School admissions program, Justice O’Connor stressed the situational nature of
constitutional interpretation, taking “relevant differences into account.” Thus, the majority
opined, “[c]ontext matters when reviewing race-based governmental action” for equal protection
purposes and “[n]ot every decision influenced by race is equally objectionable,” but may depend
upon “the importance and the sincerity of the reasons advanced by the governmental
decisionmaker” for that particular use of race. Second, and equally significant, was the deference
accorded to the judgment of educational decision-makers in defining the scope of their academic
mission, even in regard to matters of racial and ethnic diversity. “[U]niversities occupy a special
niche in our constitutional tradition,” Justice O’Connor stated, such that “[t]he Law School’s
educational judgment ... that diversity is essential to its educational mission is one to which we
defer.” Institutional “good faith” would be “presumed” in the absence of contrary evidence.
Justice Thomas’s dissent, joined by Justice Scalia, took particular exception to what he viewed as
“the fundamentally flawed proposition that racial discrimination can be contextualized”—deemed
“compelling” for one purpose but not another—or that strict scrutiny permits “any sort of
deference” to “the Law School’s conclusion that its racial experimentation leads to educational
benefits.” Indeed, the dissenters found such deference to be “antithetical” to the level of searching
review demanded by strict scrutiny.
Satisfied that the Law School had “compelling” reasons for pursuing a racially diverse student
body, the Court moved to the second phase of strict scrutiny analysis. “Narrow tailoring,” as
noted, requires a close fit between “means” and “end” when the state draws any distinction based
on race. In Grutter, the concept of “critical mass,” so troubling to several Justices at oral
argument, won the majority’s approval as “necessary to further its compelling interest in securing
the educational benefits of a diverse student body.” In this portion of her opinion, Justice
O’Connor drew chapter and verse from the standards articulated by Justice Powell in Bakke.
We find that the Law School’s admissions program bears the hallmarks of a narrowly
tailored plan. As Justice Powell made clear in Bakke, truly individualized consideration
demands that race be used in a flexible, nonmechanical way. It follows from this mandate
that universities cannot establish quotas for members of certain racial groups or put members
of those groups on separate admissions tracks. Nor can universities insulate applicants who
belong to certain racial or ethnic groups from the competition for admission. Universities
can, however, consider race or ethnicity more flexibly as a “plus” factor in the context of
individualized consideration of each and every applicant.
Justice O’Connor drew a key distinction between forbidden “quotas” and permitted “goals,”
exonerating the Law School’s admission program from constitutional jeopardy. She observed that
both approaches pay “some attention to numbers.” But while the former are “fixed” and “reserved
exclusively for certain minority groups,” the opinion continued, the Law School’s “goal of
attaining a critical mass” of minority students required only a “good faith effort” by the
institution. In addition, Justice O’Connor noted, minority Law School enrollment between 1993
and 2000 varied from 13.5 to 20.1 percent, “a range inconsistent with a quota.” Responding, in
his separate dissent, the Chief Justice objected that the notion of a “critical mass” was a “sham,”
or subterfuge for “racial balancing,” since it did not explain disparities in the proportion of the
three minority groups admitted under its auspices.
Other factors further persuaded the Court that the Law School admissions process was narrowly
tailored. By avoiding racial or ethnic “bonuses,” the policy permitted consideration of “all
pertinent elements of diversity,” racial and nonracial, in “a highly individualized, holistic review
of each applicant’s file.” Justice O’Connor also found that “race neutral alternatives” had been
“sufficiently considered” by the Law School, although few specific examples are provided.
Importantly, however, the opinion made plain that “exhaustion” of “every conceivable
alternative” is not constitutionally required, only a “serious good faith consideration of workable
race-neutral alternatives that will achieve the diversity the university seeks.” Consequently, the
Law School was not required to consider a lottery or lowering of traditional academic
benchmarks—GPA and LSAT scores—for all applicants since “these alternatives would require a
dramatic sacrifice of diversity, the academic quality of all admitted students, or both.” And,
because the admissions program was based on individual assessment of all pertinent elements of
diversity, it did not “unduly burden” non-minority applicants. Nonetheless, as she had during oral
argument, Justice O’Connor emphasized the need for “reasonable durational provisions,” and
“periodic reviews” by institutions conducting such programs. To drive home the point, the
majority concludes with a general admonition. “We expect that 25 years from now, the use of
racial preferences will no longer be necessary to further the interest approved today.”
Besides Justices Thomas and Scalia, and the Chief Justice, another dissenting opinion was filed
by Justice Kennedy, who agreed with his brethren that the “constancy” of minority admissions
over a period of years “raised a suspicion” of racial balancing that the Law School was required
by the rigors of strict scrutiny to rebut. Arguing from different statistics than the majority, he
found “little deviation among admitted minority students from 1995 to 1998,” which “fluctuated
only by 0.3% from 13.5% to 13.8” and “at no point fell below 12%, historically defined by the
Law School as the bottom of its critical mass range.” In addition, he contended, the use of daily
reports on minority admissions near the end of the process shifted the focus from individualized
review of each applicant to institutional concerns for the numerical objective defined by a
“critical mass.” For these reasons, he agreed with his fellow dissenters that deference to the Law
School in this situation was “antithetical to strict scrutiny, not consistent with it.”
The four Grutter dissenters were joined by Justices O’Conner and Breyer in striking down the
racial bonus system for undergraduate admissions in Gratz. Basically, the same factors that saved
the Law School policy, by their absence, conspired to condemn the undergraduate program, in the
eyes of the majority. Since the university’s “compelling” interest in racial student diversity was
settled in Grutter, the companion case focused on the reasons why the automatic award of 20
admission points to minority applicants failed the narrow tailoring aspect of strict scrutiny
analysis. Relying, again, on the Powell rationale in Bakke, the policy was deemed more than a
“plus” factor, as it denied each applicant “individualized consideration” by making race
“decisive” for “virtually every minimally qualified underrepresented minority applicant.” Nor did
the procedure for “flagging” individual applications for additional review rescue the policy since
“such consideration is the exception and not the rule,” occurring—if at all—only after the “bulk
of admission decisions” are made based on the point system. The opinion of the Chief Justice
rejected the University’s argument based on “administrative convenience,” that the volume of
freshman applications makes it “impractical” to apply a more individualized review. “[T]he fact
that the implementation of a program capable of providing individualized consideration might
present administrative challenges does not render constitutional an otherwise problematic
system.” Finally, the majority made plain that its constitutional holding in Gratz is fully
applicable to private colleges and universities pursuant to the federal civil rights laws. “We have
explained that discrimination that violates the Equal Protection Clause of the Fourteenth
Amendment committed by an institution that accepts federal funds also constitutes a violation of
Title VI [of the 1964 Civil Rights Act].”
Justice O’Connor, concurring in Gratz, emphasized the “mechanical” and “automatic” nature of
the selection index scoring, which distinguished it from the Law School program, and made
impossible any “nuanced judgments” concerning “the particular background, experiences, or
qualities of each particular candidate.” She agreed that the Admissions Review Committee was
“kind of an afterthought,” particularly since the record was barren of evidence concerning its
methods of operation and “how the decisions are actually made.”
Dissenting opinions were filed jointly, by Justices Stevens and Souter, and separately by Justice
Ginsburg. The former argued on technical grounds that since the named petitioners had already
enrolled in other schools, and were not presently seeking freshman admission at the university,
they lacked standing to seek prospective relief and the appeal should be dismissed. But Justice
Souter argued separately on the merits that the Michigan undergraduate admission program was
sufficiently different from the racial quota in Bakke to be constitutionally acceptable. At the very
least, he felt, a more appropriate course would be to remand the case for further development of
the record to determine whether the entire “admissions process, including review by the
[Admissions Review Committee], results in individualized review sufficient to meet the Court’s
standards.” Justice Ginsburg found “no constitutional infirmity” in the Michigan program since
only “qualified” applicants are admitted, the current policy is not intended “to limit or decrease”
admissions of any racial or ethnic group, and admissions of nonminority groups is not “unduly
restricted.” More broadly, she opined that government decision-makers may properly distinguish
between policies of inclusion and exclusion, because the former are more likely to comport with
constitutional imperatives of individual equality.
The use of different cutoff scores for admission of white and minority students to magnet or other
special schools within a public school system formerly illegally segregated has been the source of
considerable controversy. In 1974, courts found the Boston schools to be unlawfully segregated
and ordered into effect a desegregation plan requiring, among other things, a thirty-five percent 43
set-aside for admission of black and Hispanic students to the city’s three “examination” schools.
This policy was revised to eliminate the set-aside after a successful equal protection challenge
was brought in 1996 by a white student who was denied admission to the famed Boston Latin 44
School. Under the new policy, half of the available seats at each school was awarded solely on
the basis of students’ composite scores, derived from grade point averages and entrance
examination scores. The other half was also awarded according to composite score rankings, but
in conjunction with “flexible racial/ethnic guidelines.” The guidelines required that these seats be
allocated by composite rank score in proportion to the racial and ethnic composition of each
school’s remaining qualified applicant pool. A white student denied admission for the 1997-98
academic year, despite higher qualifications than several admitted minority students, challenged
the guidelines on equal protection grounds.
In Wessman v. Gittens,45 the First Circuit reversed a judgment in favor of the Boston School
Committee, which had adopted the two-track admissions policy. The district court had applied
strict scrutiny, but nonetheless concluded that the policy was constitutional based on the school
system’s compelling interests in diversity and in “overcoming the vestiges of past discrimination
43 See Morgan v. Hennigan, 379 F. Supp. 410 (D. Mass), aff’d sub nom. Morgan v. Kerrigan, 509 F.2d 580 (lst Cir.
44 See McLaughlin v. Boston School Committee, 938 F. Supp. 1001 (D.Mass. 1996).
45 160 F.3d 790 (lst Cir. 1998).
and avoiding the re-segregation of the Boston Public Schools.” According to the appeals court,
however, the School Committee had not produced sufficient evidence to demonstrate a
compelling interest in either goal or that the admissions policy was narrowly tailored to those
ends. First, there was no “solid and compelling evidence” that student diversity was “in any way
tied to the vigorous exchange of ideas,” nor that any achievement gap between minority and non-
minority students amounted to “vestiges” of the system’s past discrimination. The policy also
swept “too broadly” by dividing individuals into “only five groups—blacks, whites, Hispanic,
Asians, and Native Americans—without recognizing that none is monolithic.” Thus, even
assuming that diversity might, in some circumstances, be sufficiently compelling to justify race-
conscious actions, “the School Committee’s flexible racial/ethnic guidelines appear to be less a
means of attaining diversity in any constitutionally relevant sense and more a means of racial
balancing,” which is neither “a legitimate [n]or necessary means of advancing the lofty principles 46
credited in the policy.”
Meanwhile, in a pair of decisions, the Fourth Circuit invalidated affirmative action policies for
admission of minority students to magnet schools in Arlington County, Va. and Montgomery
County, Md. Because neither policy was found to satisfy the “narrow tailoring” aspect of strict
scrutiny as required by Adarand, however, it was unnecessary for the court to decide whether
educational diversity may be a “compelling interest” justifying race based admissions in other 47
circumstances. At issue in the Arlington County case, Tuttle v. Arlington County School Board,
was a “sequential, weighted random lottery” system developed in response to prior litigation
which took account of three factors—low-income background, the applicant’s primary language,
and race or ethnicity—in determining admission to three county magnet schools. The
probabilities associated with each applicant’s lottery number were weighted, so that members of
under-represented groups, as defined by any of those factors, had an increased probability of 48
selection. In the Montgomery County case, Eisenberg v. Montgomery County Public Schools,
school officials considered a variety of factors, including a “diversity profile” of affected schools,
when deciding whether to grant applications for transfer from a student’s assigned school to
another county public school. The diversity profile, in effect, precluded transfer of students of a
particular racial or ethnic background—white, black, Asian or Hispanic—from any school where
the percentage of that group in the student body had declined over the preceding three years and
was under-represented when compared to the county as a whole. In both cases, the challenged
policy led to white students being denied admission to schools of their choice for racial reasons
tied to student diversity.
While the Arlington County school system, earlier in its history, had been found to be de jure
segregated and was required to desegregate by judicial decree, Montgomery County had never
been subject to court supervised desegregation. Rather, the Maryland district had dismantled its
formerly segregated schools by voluntary means, one aspect of which included implementation of
a magnet school program. In neither case, however, did the Fourth Circuit attribute a remedial
purpose to the diversity interest asserted by the school board, but found that the admissions and
transfer policies in question were an exercise in “racial balancing.” In so doing, the appeals court
sidestepped deciding whether racial diversity in education could ever be a “compelling” state
interest, proceeding instead to find the challenged policies failed the narrow tailoring aspect of
Adarand analysis. In the Arlington case, the school board was found to have disregarded “one or
46 Id. at 799.
47 195 F.3d 698 (4th Cir. 1999), cert. denied 529 U.S. 1050 (2000).
48 197 F.3d 123 (4th Cir. 1999), cert. denied 529 U.S. 1019 (2000).
more race-neutral policies” recommended by an advisory committee as alternatives to promote
diversity. The duration of the plan was criticized for being “in perpetuity” and without “a logical
stopping point.” Although the weighted lottery did not “set-aside” positions for minorities,
according to the court, the practical effect was the same since it “skew[ed] the odds of selection”
in their favor to achieve classroom diversity “in proportions that approximate the distribution of
students from [racial] groups in the district’s overall student population.” Finally, the plan lacked
flexibility and impermissibly burdened “innocent third parties” who are denied admission for
racial or ethnic reasons. Montgomery County’s race-conscious transfer policy was characterized
by the court as “mere racial balancing in a pure form” due to many of the same failings and
because it was not directed at the correction of any past constitutional wrongs.
The County annually ascertains the percentage of enrolled public school students by race on
a county-wide basis, and then does the same for each school. It then assigns a numbered
category for each race at each school, and administers the transfer policy so that the race and
percentage in each school to which students are assigned by residence is compared to the
percentage of that race in the countywide system. The transfer policy is administered with an
object toward maintaining this percentage of racial balance in each school.... Although the
transfer policy does not necessarily apply ‘hard and fast quotas,’ its goal of keeping certain
percentages of racial/ethnic groups within each school to ensure diversity is racial 49
Montgomery County officials were directed to eliminate the consideration of race from student
transfer decisions, while in the Arlington case, further proceedings in the district court were
ordered to review alternative admissions policies.
The U.S. Supreme Court in 2002 denied review of the Fourth Circuit en banc decision in Belk v. 50
Charlotte Mecklenburg Board of Education. The appeals court there affirmed a finding that “all
vestiges of past discrimination” had been erased from the school system where student busing
was first approved by the Supreme Court as a desegregation remedy. Because of its newly
achieved “unitary status,” the district court had relinquished jurisdiction of the desegregation case
and ordered the school district to stop “assigning children to schools or allocating educational
opportunities and benefits through race-based lotteries, preferences, set-asides or other means that
deny students an equal footing based on race.” The specific target of Judge Potter’s order was the
“race-conscious policy for admission of students to the magnet school program operated by the 51
district for desegregation purposes.”
A majority of the en banc appellate court affirmed that the school district had eliminated the “last
vestiges” of unconstitutional segregation to the fullest extent “practicable.” Any remaining racial
concentrations, therefore, were a consequence of factors—namely residential segregation—
beyond the power of school authorities or the courts to control. In a unitary setting, the magnet
49 Id. at 133.
50 269 F.3d 305 (4th Cir. 2001), cert. denied, 535 U.S. 986 (2002).
51 After nearly three decades of court-enforced desegregation, a white parent sued the school district, charging that his
daughter had twice been denied admittance to a magnet school because she was not black. Six other white parents
joined the case, arguing that the school district had been successfully rid of segregation and with it any constitutional
justification for race-based preferences. Judge Potter agreed, calling the argument for continuing the desegregation
process a “bizarre posture” and the focus on racial diversity a “social experiment.” The policy of allocating available
magnet school spaces to reflect the racial student makeup of the district as a whole was condemned by the court as
“nothing more than a means for racial balancing,” which could not be justified by a “litany of generalizations lauding
the benefits of racial diversity.”
admissions process could not clear the first hurdle by showing a compelling governmental
interest, and the school district could not make “any further use of race-based lotteries,
preferences, and set-asides in student assignment.” A slightly different majority ruled that the
school board could not be held liable for its use of race in assigning students to magnet schools
since the program had originated in a then valid desegregation order. But if the same plan were
adopted after the district is declared unitary, it would clearly be unconstitutional under Tuttle and
Eisenberg, these judges opined.
The issue before the Fourth Circuit in Belk focused on whether the school board, in creating its
admission plan, was acting beyond what was permitted to comply with the court’s desegregation 52
order. Another ruling, by the Fifth Circuit, in Cavalier v. Caddo Parish School Board, also
suggests that educational authorities have broader discretion to consider race in making
admissions decisions when the school district is under a court order to desegregate. Cavalier held
that a magnet school preferential admissions program that mandated a 50% to 50% (plus or minus
15%) racial student mix, and imposed lower minimum standardized test scores for minority than
white applicants, was not narrowly tailored to a compelling governmental interest. The school
board relied exclusively on a 1981 consent decree ordering desegregation to prove a compelling
governmental interest. Magnet schools had been released from the decree in 1990, however. And
the appeals court found that while student body diversity provided compelling justification for
considering race in law school admissions under Grutter, “it is by no means clear that it could be 53
such at or below the high school level.” The admission plan was additionally flawed for its
failure to consider race-neutral means to achieve student body diversity and was a quota system.
Student selections were made from two separate lists of applicant students, one for black student
and one for white students, without direct comparison of candidates to the applicant pool at large.
Insulating students of one racial group from competition with the larger admissions pool, along
with the 50% goal, amounted to an impermissible quota.
The diversity issue has also arisen in another educational setting. The University of California
operates a popular elementary school as a “laboratory” to research urban education and “to foster
a more effective educational system primarily for urban elementary students.” Beyond basic
research, the school develops new techniques for educating students in multi-cultural urban
settings and conducts seminars, workshops, and teacher training programs throughout the state.
The school considers applicants’ race and ethnicity to obtain adequate cross-samples of the
general population and thus to maintain “the scientific credibility of its educational studies.” The 54
plaintiff in Hunter v. Regents of the University of California challenged the school’s admissions
policy as an equal protection violation. While perhaps not tantamount to a diversity rationale, the
Ninth Circuit nonetheless agreed with the district court judge that the state’s interest in “operating
a research-oriented elementary school dedicated to improving the quality of education in urban
public schools” was compelling even absent any purpose of remedying past discrimination.
The challenges posed by California’s increasingly diverse population intensify the state’s
interest in improving urban public schools. Cultural and economic differences in the
classroom pose special difficulties for public school teachers. In his decision, Judge Kenyon
noted that defendants presented ‘an exhaustive list of such issues and challenges [that]
includes limited language proficiency, different learning styles, involvement of parents from
52 403 F.3d 246 (5th Cir. 2005).
53 Id. at 259.
54 190 F.3d 1061 (9th Cir. 1999), cert. denied, 531 U.S. 877 (2000).
diverse cultures with different expectations and values, and racial and ethnic conflict among
families and children.’ [An expert witness] stated that ‘[t]here is no more pressing problem,
facing California, or indeed the nation, than urban education; for it is in the urban school
system that the majority of California’s future citizens will be educated (either well or
poorly), creating the basic fabric for the society of the future.’ ... Given this record, the
district court concluded, and we agree, that ‘the defendants’ interest in operating a research-55
oriented elementary school is compelling.’
Given the demographics of California’s urban population, and the necessity of creating a multi-
cultural laboratory setting, the consideration of race for admission to the school was deemed
“narrowly tailored” since “it would not be possible, nor would it be reasonable, to require
defendants to attempt to obtain an ethnically diverse representative sample of students without 56
specific racial target and classifications.”
Meanwhile, although the Supreme Court in Grutter did not address the voluntary use of race as a
factor in achieving diversity in elementary and secondary education, all three appeals courts to
consider the issue since Grutter and Gratz were decided upheld racial diversity measures in 57
public schools. In Comfort v. Lynn School Committee, the U.S. Court of Appeals for the First
Circuit issued an en banc decision holding that a school district use of race as a factor in its
student assignment plan does not violate the Equal Protection Clause. Relying on principles laid
down by Grutter and Gratz, the First Circuit concluded that the plan’s goal of securing the
educational benefits of racial diversity constituted a compelling interest and that the plan was
narrowly tailored to achieve that goal. The ruling reversed an earlier three-judge appellate panel’s
contrary conclusion that the consideration of race in Lynn’s voluntary school choice plan was
Under Massachusetts’s Racial Imbalance Act, local communities receive additional state
education aid if they adopt plans that assign students on the basis of race. The City of Lynn
School Committee implemented a voluntary desegregation plan that allows all students to attend
neighborhood schools. Race only becomes a factor when a student seeks to transfer to another
school. The transfer is permitted only if it will not increase the racial imbalance at either the
sending or receiving school. Citizens for the Preservation of Constitutional Rights (CPCR) filed
suit on behalf of several parents. A federal district court ruled that the plan satisfied equal
protection requirements. On appeal, the three-judge panel reversed the district court, ruling that
while the goal of student body diversity constituted a compelling state interest, the plan was not
narrowly tailored to that end.
The panel decision was withdrawn when the First Circuit granted Lynn’s motion for a rehearing
en banc. Addressing the “compelling state interest” prong of the equal protection test, the full
court measured the plan against the law school admissions policy upheld in Grutter. The court
rejected CPCR’s assertion that Grutter’s recognition of a compelling interest in
‘the educational benefits that flow from student body diversity’ ... is ... limited to the benefits
that flow from viewpoint diversity in the higher education context and does not extend to the
benefits that flow from racial diversity in the K-12 context.
55 Id. at 1064.
56 Id. at 1065.
57 418 F.3d 1 (1st Cir. 2005).
The First Circuit, however, found that the educational benefits found compelling in Grutter are
advanced not only by viewpoint diversity, but also by racial diversity, and these interests are no
less strong in K-12 than in higher education.
Turning to the “narrowly tailored “ prong, the court noted that while the Supreme Court has yet to
consider the question, Grutter and Gratz provide sufficient guidance to determine the
constitutionality of a voluntary K-12 race-based assignment policy. Because the Lynn plan deals
with a noncompetitive transfer policy, as opposed to competitive admissions policies,
competition-related criteria—such as need for individualized consideration of applicants, so
important in Grutter/Gratz—were not relevant here. Otherwise, the court found that the plan’s use
of race was minimally invasive; avoided racial balancing for its own sake; avoided use of quotas;
was of finite duration; and was adopted after considering race-neutral alternatives.
In MacFarland v. Jefferson County Public Schools,58 issued on the first anniversary of the th
Michigan decisions and the 50 anniversary of Brown v. Board of Education, a federal district
court in Kentucky upheld a Louisville district’s voluntary consideration of race in making student
assignments to achieve racial integration in the public schools. Jefferson County Public Schools
(JCPS) were ordered by judicial decree to desegregate in 1975. Under the desegregation plan,
each school was to have between 15% and 50% African-American enrollment and students were
bused, if necessary, to ensure racial diversity. Twenty-five years later, in 2000, the federal courts
ended their supervision of the desegregation plan, but the JCPS voluntarily opted to maintain its
integrated schools through a “managed choice” plan. The plan was challenged in a lawsuit by
black parents whose children were denied admission to Central High School, which was already
at the upper percentage limit for minority enrollment.
The district court found that the managed choice plan served numerous compelling state interests,
“some of the same reasons for integrated schools that the Supreme Court upheld in Grutter.”
Thus, Judge Heyburn accepted the school board’s arguments that the plan improved the
educational experience; that it produced educational benefits for students of all races over the last
25 years; and that it helped overcome the adverse effects of concentrations of poverty that impact
black students to a greater extent than whites. “Integrated schools, better academic performance,
appreciation for our diverse heritage and stronger, more competitive public schools are consistent
with the central values and themes of American culture,” Judge Heyburn wrote. The court also
found that the student assignment plan was “narrowly tailored” in every respect except for its use
of separate “racial categories,” which the district was required to revise for the 2005-2006 school
year. For reasons “articulated in the well-reasoned opinion of the district court,” the Sixth Circuit 59
summarily affirmed Judge Heyburn’s decree, without issuing a detailed written opinion.
The constitutionality of race-conscious admissions to magnet or alternative schools, designed to
promote elementary and secondary school desegregation, has also been before the courts. In 60
Parents Involved in Community Schools v. Seattle School District No. 1, the Ninth Circuit
applied Grutter and Gratz to approve a school district’s plan to maintain racially diverse schools.
Under Seattle’s “controlled choice” high school student assignment plan, students were given the
option to attend high schools across the district, but if the demand for seats exceeded the supply at
a particular school, a student’s race was considered as a tie-breaker in determining admittance to
58 330 F. Supp. 2d 834 (W.D.Ky. 2004).
59 McFarland v. Jefferson County Public Schools, 416 F.3d 513 (6th Cir. 2003).
60 426 F. 3d 1162 (9th Cir. 2005).
the oversubscribed school. The racial tie-breaker applied only to schools whose student bodies
deviated by more than 15 percentage points from the overall racial makeup of the district, then
“approximately 40% white and 60% nonwhite.” The Seattle plan was voluntarily adopted to
“achiev[e] diversity [and] limit racial isolation” in the schools, not as a part of a desegregation
In an en banc decision, the Ninth Circuit ruled that the school district had a compelling interest in
the educational and social benefits of racial diversity and in avoiding racially concentrated or
isolated schools. Further, the court held that the district’s plan was sufficiently narrowly tailored
to pass constitutional muster. According to the court, the “individualized” and “holistic” review
endorsed by the Supreme Court was not required of a noncompetitive, voluntary student
assignment plan such as Seattle’s, as long as the plan is otherwise narrowly tailored. The court
held that Seattle’s plan was sufficiently narrowly tailored, concluding that the 15 percentage point
“band” was not a quota because it is flexible and does not reserve a certain number of fixed slots
based on race. The court also ruled that school district made a good faith effort to consider race-
neutral alternatives. Finally, the court concluded that the plan imposed a minimal burden—not
being permitted to attend one’s preferred school—that was shared by all students and that the
plan, which was subject to regular reviews, was sufficiently limited in time and in scope. The
ruling reversed an earlier three-judge appellate panel’s contrary decision that the school district’s
plan to maintain racially diverse schools was not sufficiently narrowly tailored.
As noted above, the Supreme Court had never, until recently, considered the constitutionality of
the voluntary use of race as a factor in achieving diversity in elementary and secondary education.
All three of the federal appeals courts to consider the issue since Grutter and Gratz were decided 61
upheld racial diversity measures in public schools, but these opinions conflicted with pre-62
Grutter/Gratz appellate rulings that rejected such racially based plans. Possibly as a result of
this conflict, the Supreme Court granted review in MacFarland v. Jefferson County Public
Schools—now Meredith v. Jefferson County Board of Education—and Parents Involved in
Community Schools v. Seattle School District No. 1 to consider the question of what steps, if any,
a public school district may take to maintain racial diversity in elementary and secondary 63
education. In Parents Involved in Community Schools v. Seattle School District No. 1, a
consolidated ruling that resolved both cases, the Court ultimately struck down the school plans at 64
issue, holding that they violated the equal protection guarantee of the Fourteenth Amendment.
Ultimately, the Supreme Court held that the Louisville and Seattle school plans violated the equal
protection clause. However, the decision was fractured, with five different Justices filing opinions
in the case. Announcing the judgment of the Court was Chief Justice Roberts, who led a plurality
of four Justices in concluding that the school plans were unconstitutional because they did not
serve a compelling governmental interest. Although Justice Kennedy, who concurred in the
Court’s judgment striking down the plans, disagreed with the plurality’s conclusion that the
61 Comfort v. Lynn Sch. Comm., 418 F.3d 1 (1st Cir. 2005); McFarland v. Jefferson County Pub. Schs., 416 F.3d 513
(6th Cir. 2005); Parents Involved in Cmty. Sch. v. Seattle Sch. Dist., No. 1, 426 F.3d 1162 (9th Cir. 2005).
62 See, e.g., Tuttle v. Arlington County Sch. Bd., 195 F.3d 698 (4th Cir. 1999); Eisenberg ex rel. Eisenberg v.
Montgomery County Pub. Schs., 197 F.3d 123 (4th Cir. 1999); Wessmann v. Gittens, 160 F.3d 790 (1st Cir. 1998).
63 126 S. Ct. 2351 (U.S. 2006).
64 2007 U.S. LEXIS 8670 (U.S. 2007).
diversity plans did not serve a compelling governmental interest, he found that the school plans
were unconstitutional because they were not narrowly tailored. In addition, Justice Thomas filed a
concurring opinion, and Justices Stevens and Breyer filed separate dissenting opinions.
In the portion of his opinion that was joined by Justice Kennedy and that therefore announced the
judgment of the Court, Chief Justice Roberts began by noting that the Court had jurisdiction in
the case, thereby rejecting a challenge to the standing of the plaintiff organization Parents 65
Involved in Community Schools (PICS). Chief Justice Roberts then turned to the substantive
merits of the claims involved, reiterating that governmental racial classifications must be
reviewed under strict scrutiny. As a result, the Court examined whether the school districts had
demonstrated that their assignment and transfer plans were narrowly tailored to achieve a
compelling governmental interest.
In assessing the compelling interest prong of the strict scrutiny test, Chief Justice Roberts noted
that the Court has recognized two interests that qualify as compelling where the use of racial
classifications in the school context is concerned: remedying the effects of past intentional
discrimination and promoting diversity in higher education. However, the Chief Justice found that
neither of these interests was advanced by the school plans at issue. According to the Chief
Justice, because Seattle schools were never intentionally segregated and because the lifting of its
desegregation order demonstrated that Louisville schools had successfully remediated past
discrimination in its schools, neither school district could assert a compelling interest in 66
remedying past intentional discrimination.
Likewise, the Court argued that the Grutter precedent did not govern the current cases. According
to Chief Justice Roberts, the compelling interest recognized in Grutter was in a broadly defined
diversity that encompassed more than just racial diversity and that focused on each applicant as
an individual. Because race was the only factor considered by the school districts rather than
other factors that reflected a broader spectrum of diverse qualifications and characteristics and
because the plans did not provide individualized review of applicants, the plurality opinion found
that the school districts’ articulated interest in diversity was not compelling. Added the Chief
Justice, “[e]ven when it comes to race, the plans here employ only a limited notion of diversity,
viewing race exclusively in white/nonwhite terms in Seattle and black/’other’ terms in Jefferson 67
County.” In rejecting Grutter as applicable precedent, the Court also noted that the decision had
rested in part on the unique considerations of higher education and that those considerations were
absent in the elementary and secondary education context.
Even if the school districts had met the first prong of the strict scrutiny test by establishing a
compelling governmental interest in the use of racial classifications to make school assignments,
the Court found the school plans would still have failed the second prong of the test because they
were not sufficiently narrowly tailored to meet their stated goals. According to Chief Justice
Roberts, in both Seattle and Louisville, only a few students were assigned to a non-preferred
school based on race. As a result, “the minimal impact of the districts’ racial classifications on 68
school enrollment casts doubt on the necessity of using racial classifications,” especially in light
of the fact that such racial classifications are permissible in only the most extreme circumstances.
65 Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 2007 U.S. LEXIS 8670, *32-33 (U.S. 2007).
66 Id. at *36-37.
67 Id. at *41.
68 Id. at *60.
Additionally, the Court was concerned that the school districts had failed to consider methods
other than racial classifications to achieve their goals, despite a requirement that narrowly tailored
programs consider race-neutral alternatives.
Although Justice Kennedy joined the above portions of the plurality opinion, thereby forming a
majority in favor of striking down the school plans, he did not join the remainder of the plurality
opinion, which concluded for additional reasons that the school plans were unconstitutional. In
these portions of his opinion, Chief Justice Roberts faulted the school plans for tying their
diversity goals to each district’s specific racial demographics rather than to “any pedagogical 69
concept of the level of diversity needed to obtain the asserted educational benefits.” In other
words, each district tried to establish schools with racial diversity that mirrored the percentages of
racial groups in their respective overall populations. This effort, according to the Chief Justice,
amounted to unconstitutional racial balancing because the plans were not in fact narrowly tailored
to the goal of achieving the educational and social benefits that allegedly flow from racial
diversity but rather were tailored to racial demographics instead. Indeed, Chief Justice Roberts
wrote, “[a]ccepting racial balancing as a compelling state interest would justify the imposition of
racial proportionality throughout American society, contrary to our repeated recognition that at
the heart of the Constitution’s guarantee of equal protection lies the simple command that the
Government must treat citizens as individuals, not as simply components of a racial, religious, 70
sexual or national class.” Such racial balancing could not, in the Chief Justice’s view, amount to
a compelling governmental interest even if pursued in the name of racial diversity or racial
In another portion of the plurality opinion not joined by Justice Kennedy, Chief Justice Roberts
criticized Justice Breyer’s dissent for misapplying precedents that recognized a compelling
interest in remedying past discrimination. According to the Chief Justice, the Court has
recognized a compelling interest in remedying past discrimination when that discrimination is
caused by governmental action but not when caused by other factors, such as social or economic
pressures. Noting that the Seattle school district was never segregated due to state action and the
Louisville school district had eliminated all vestiges of state segregation, the Chief Justice
therefore argued that the cases cited by Justice Breyer as precedents for race-conscious school 71
integration efforts were inapplicable to the current case. The plurality opinion concluded with a 72
discussion of Brown v. Board of Education, in which the Court held that the deliberate
segregation of schoolchildren by race was unconstitutional. According to the plurality:
Before Brown, schoolchildren were told where they could and could not go to school based
on the color of their skin. The school districts in these cases have not carried the heavy
burden of demonstrating that we should allow this once again—even for very different
reasons.... The way to stop discrimination on the basis of race is to stop discriminating on the 73
basis of race.
Although he joined the Court in striking down the school plans, Justice Kennedy wrote a separate
concurring opinion that provides additional insight into how the Justices might handle future
69 Id. at *46.
70 Id. at *52.
71 Id. at *62-64.
72 347 U.S. 483 (1954).
73 Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 2007 U.S. LEXIS 8670, *83-84.
cases involving the consideration of race in the educational context. As noted above, Justice
Kennedy declined to sign on to the plurality opinion in full, in part because he disagreed with its
implication that diversity in elementary and secondary education, at least as properly defined,
does not serve a compelling governmental interest. According to Justice Kennedy, “[d]iversity,
depending on its meaning and definition, is a compelling educational goal a school district may 74
pursue,” but neither Seattle nor Louisville had shown that its plans served a compelling interest
in promoting diversity or that the plans were narrowly tailored to achieve that goal.
Justice Kennedy also pointedly criticized the plurality opinion for “imply[ing] an all-too-
unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken
into account. ...In the administration of public schools by the state and local authorities, it is
permissible to consider the racial makeup of schools and to adopt general policies to encourage a 75
diverse student body, one aspect of which is its racial composition.” Justice Kennedy identified
several ways in which schools, in his view, could constitutionally pursue racial diversity or avoid
racial isolation, including strategic site selection of new schools, altering attendance zones,
providing resources for special programs, and recruiting students and faculty. According to
Justice Kennedy, such measures would be constitutional because, while race-conscious, they are
not based on classifications that treat individuals differently based on race. However, Justice
Kennedy would not limit schools to facially neutral methods of achieving diversity, saying that
racial classifications might be permissible if based on “a more nuanced, individual evaluation of 76
school needs and student characteristics” similar to the plan approved in Grutter. Although no
other justice joined his concurrence, Justice Kennedy’s unique role in providing the pivotal swing
vote in the case makes his concurring opinion significant to any future legal developments
regarding the use of racial classifications in the education context.
Although Justice Thomas joined the plurality opinion written by Chief Justice Roberts in full, he
also wrote a separate concurring opinion that took issue with certain aspects of Justice Breyer’s
dissent. Among other things, Justice Thomas disagreed with the dissent’s assertion that the school
plans were necessary to combat school resegregation, arguing that neither Seattle nor Louisville
faced the type of intentional state action to separate the races that the school districts in Brown 77
had. In addition, Justice Thomas contested the dissent’s argument that a less strict standard of
review should apply when racial classifications are used for benign purposes, in part because
Justice Thomas disagreed that the school plans—which, he wrote, inevitably exclude some
individuals based on race and therefore may exacerbate racial tension—are as benign as the
dissent asserted. More importantly, Justice Thomas argued that the perception of what constitutes
a benign use of race-conscious measures is nothing more than a reflection of current social
practice that relies too heavily on the good intentions of current public officials. According to
Justice Thomas, “if our history has taught us anything, it has taught us to beware of elites bearing
racial theories,” adding in a footnote, “Justice Breyer’s good intentions, which I do not doubt, 78
have the shelf life of Justice Breyer’s tenure.”
As noted above, both Justices Stevens and Breyer dissented from the Court’s decision to strike
down the school plans. In his brief dissent, Justice Stevens, who also joined Justice Breyer’s
74 Id. at *150.
75 Id. at *158-59.
76 Id. at *162.
77 Id. at *92-96.
78 Id. at *146.
dissent, described the Court’s reliance on Brown as a “cruel irony” because it ignored the
historical context in which Brown was decided and the ways in which subsequent precedents 79
applied the landmark decision to uphold school integration efforts. Meanwhile, in a lengthy and
passionate dissent nearly twice as long as Chief Justice Roberts’s opinion, Justice Breyer argued
that the Court’s holding “distorts precedent, ... misapplies the relevant constitutional principles, ...
announces legal rules that will obstruct efforts by state and local governments to deal effectively
with the growing resegregation of public schools, ... threatens to substitute for present calm a
disruptive round of race-related litigation, and ... undermines Brown’s promise of integrated 80
primary and secondary education that local communities have sought to make a reality.”
Corollary issues concerning faculty diversity have also been before the courts, including the
Piscataway case, which was dismissed as moot by the Supreme Court after the parties reached an 81
out-of-court settlement. The appeal from Taxman v. Board of Education of Piscataway Township
had asked the High Court to consider whether a local school board’s desire to promote faculty
diversity could legally justify its decision to protect a black teacher from layoff, while dismissing
an equally qualified white colleague, in the absence of a showing of past discrimination or a
“manifest” racial imbalance in its workforce. Two teachers, one white, the other black, were hired
on the same day in 1980 and were deemed equally qualified for their positions in the business
education department when a reduction in force became necessary eight years later. Minority
teachers were not underrepresented on the overall faculty—constituting 9.5 % of the district’s
teachers versus 5.8 % of the relevant county labor pool—and no evidence of past discrimination
by the school district was presented at trial. A “coin toss” had traditionally been used to determine
retention rights among similarly situated employees in the past. But because only one black
teacher was among the business department’s ten-member staff, the school district relied on its
affirmative action policy to retain the minority employee rather than her white colleague in the
interests of promoting racial diversity.
An en banc majority of the Third Circuit determined that however laudable the school board’s
objective might be, laying off a white reacher “solely” on the basis of race to achieve faculty
diversity exceeded the bounds of controlling Supreme Court precedent. Title VII rulings in Weber
and Johnson permitted employers to make employment decisions based on race or gender in
order to redress a “manifest” imbalance of minorities and women in “traditionally segregated job
categories.” But judicial teachings generally caution against affirmative action measures that
“unnecessarily trammel” or frustrate the “legitimate and firmly rooted expectation in continued
employment” of affected non-minorities. In its 1986 Wygant decision, the Court voided race-
based layoff protection for minority public school teachers because of its immediate adverse
impact on “identifiable” senior white employees. Consequently, while applauding the board’s
commitment to racial diversity, the Taxman appellate opinion rejected the non-remedial
educational purposes asserted by the board for its affirmative action plan because “there is no
congressional recognition of diversity as a Title VII objective requiring accommodation.” And
79 Id. at *177-84.
80 Id. at *185.
81 91 F.3d 1547 (3d Cir. 1996), appeal dismissed sub nom. Piscataway Twp. Bd. of Educ. v. Taxman, 522 U.S. 1010
because the entire burden of the board’s plan fell upon the white teacher whose interests were
“unnecessarily trammeled” by the loss of her job, the race-based policy violated Title VII.
On March 9, 1998, the Supreme Court declined to review the legality of a “minority bonus
policy” in an affirmative action plan established for Nevada’s public colleges to redress a lack of 82
minority faculty members. In Farmer v. University and Community College Systems of Nevada,
the plaintiff had been one of three finalists for a faculty position in the sociology department that
the university awarded to a black male candidate from Uganda with “comparable” qualifications.
The university’s minority bonus policy, which the Nevada Supreme Court described as an
“unwritten amendment” to its affirmative action plan, allowed a department to hire an additional
faculty member following the initial placement of a minority candidate. As a consequence, the
plaintiff was hired by the sociology department a year later, but at a lesser salary than the earlier-
hired black candidate. The differential was defended by the university as reflecting a pay
premium necessary “to prevent[ ] a bidding war between two prestigious universities slated to
interview [the black candidate].” Farmer challenged both the hiring and pay decisions by the
university as race and sex discrimination prohibited by Title VII and the Equal Pay Act.
The state supreme court reversed a jury verdict for the plaintiff and upheld the university’s
affirmative action hiring policy on both federal constitutional and statutory grounds. First,
according to the court, race was only one factor considered by the university—along with
educational background, publishing, teaching experience, etc.—in evaluating applicants. In
contrast to Piscataway, the university faculty was a “white enclave” with only 1 % black
members, a factor persuading the court that the university had a “compelling interest in fostering
a culturally and ethnically diverse faculty” under standards laid out by the Bakke and Weber
Here, in addition to considerations of race, the University based its employment decision on
such criteria as educational background, publishing, teaching experience, and areas of
specialization. This satisfies Bakke’s commands that race must be only one of several factors
used in evaluating applicants. We also view the desirability of a racially diverse faculty as
sufficiently analogous to the constitutionally permissible attainment of a racially diverse
student body countenanced by the Bakke Court.
Thus, severe minority underrepresentation on the university faculty combined with the
employer’s consideration of relative qualifications in addition to race distinguished Piscataway,
the Nevada court felt, and conformed the case to Justice Powell’s Bakke opinion. In addition, the
impact of the initial minority hire was mitigated by affording the disappointed white applicant a
subsequent position created pursuant to informal practice or custom under the affirmative action
The Michigan cases resolved an issue that had vexed the lower federal courts for a quarter-
century. Historically, judicial insistence on strict scrutiny has largely condemned governmental
distinctions based on race, except in the most narrowly circumscribed remedial or national
security circumstances. To the short list of governmental interests sufficiently “compelling” to
82 930 P.2d 730 (Nev. 1997), cert. denied 523 U.S. 1004 (1998).
warrant race-based decision-making, a majority of the Court added the pursuit of diversity in
higher education. But this expansion has been curtailed somewhat by the Court’s more recent
pronouncement involving Seattle’s and Louisville’s school plans to promote racial diversity.
Although the Court’s decision to strike down the Seattle and Louisville school assignment and
transfer plans will have a profound impact on similar plans at many of the nation’s elementary
and secondary schools, the Parents Involved in Community Schools case did not completely
foreclose the possibility that school districts may constitutionally pursue certain measures to
avoid racial isolation, prevent resegregation, and promote racial diversity in their schools.
However, it is not entirely clear what these measures might entail. While the facially race-neutral
methods identified in Justice Kennedy’s concurring opinion—such as engaging in strategic site
selection of new schools, altering attendance zones, providing resources for special programs, and
recruiting students and faculty—seem more likely to survive judicial scrutiny, the fate of other
kinds of race-conscious school plans may become apparent only as a result of legal developments
that emerge over time.
Indeed, the seeds of future controversy may lie in questions arguably raised but not fully
addressed by the latest rulings. For example, the Court’s latest rulings left unanswered the
constitutional status of racially exclusive diversity policies not directly involving admissions,
such as the legality of race-based scholarship and financial aid, recruitment and outreach, or
college preparation courses that exclusively target minority populations. In addition, the question
of whether schools or universities may completely avoid constitutional shoals by adopting “race-
neutral” plans to increase racial diversity may not be fully answered by the Court’s latest rulings.
Such race-neutral alternatives include “percentage plans” like those approved in Texas, Florida,
and California that guarantee college admission to top graduates from every state high school,
regardless of race. In addition to percentage plans, educational authorities have experimented
with other forms of “alternative action,” or policies designed to promote racial diversity without
relying on racial preferences. “Class-based” affirmative action, for example, takes socioeconomic
status or the family educational background of students into account. Florida has replaced race
and ethnicity with other socio-economic and geographical proxies for diversity; increased the
state’s need-based financial aid program; sought to improve the state’s lowest-performing primary
and secondary schools; and provided free SAT prep courses at those schools. California state
schools have targeted financial aid programs toward underprivileged neighborhoods as a means
of reaching minority students. Another approach considers “diversity” or “hardship” essays in
which applicants describe challenging life experiences such as poverty, English as a second
language, or having a family member in prison. Some reformers advocate targeting additional
resources to underperforming elementary and secondary schools as a way to address the root
causes of minority underrepresentation in higher education.
By avoiding the use of explicit racial classifications and dual track admission policies, these
efforts are far less susceptible to facial challenge as an equal protection violation. Programs
involving the explicit consideration of race remain most at risk. But policies that employ
nonracial factors as a proxy for race may be vulnerable if the purpose or intent is to benefit 8384
minority groups. In Washington v. Davis and related rulings, the Supreme Court determined
83 426 U.S. 229 (1976).
84 Cf. Personnel Administrator v. Feeney, 442 U.S. 256 (1979). In Feeney, the Court upheld a state law giving a
preference to veterans for civil service employment, which had a significant discriminatory effect against female
applicants. Notwithstanding the obvious impact of such a preference, the Court upheld it on the ground that
“‘[d]iscriminatory purpose’ ... implies more than intent as volition or intent as awareness of consequences. It implies
that a race-neutral law with a disparate racial impact on minority groups is subject to strict
scrutiny if it is enacted with a racially discriminatory purpose. Racial motive was made a
constitutional “touchstone” for equal protection analysis, and whether reflected by a racial
classification or other evidence of discriminatory purpose, strict scrutiny was triggered by
evidence of such intent. Similarly, alternatives to traditional racial diversity policies may not
escape strict judicial scrutiny if an objecting non-minority applicant is able to show that the plan
was racially motivated. The same limitations may apply to private institutions, which are immune
from constitutional limitations, under Title VI of the 1964 Civil Rights Act.
Beyond education, issues may inevitably arise concerning the implications of Grutter and Parents
Involved in Community Schools on efforts to achieve racial diversity in other social and economic
spheres. To date, the Court has permitted race-conscious hiring criteria by private employers
under Title VII, either as a remedy for past discrimination or to redress a “conspicuous racial 85
imbalance in traditionally segregated job categories,” but refused to find that a state’s interest in
faculty diversity to provide teacher “role models” was sufficiently compelling to warrant a race-86
conscious layoff policy. Lower courts are similarly divided, though a few have applied an
“operational need analysis” to uphold police force diversity policies, recognizing “that ‘a law
enforcement body’s need to carry out its mission effectively, with a workforce that appears
unbiased, is able to communicate with the public and is respected by the community it serves,’ 87
may constitute a compelling state interest.” But current standards under the federal civil rights
laws generally allow for consideration of race in hiring and promotion decisions only in response
to demonstrable evidence of past discrimination by the employer or within the affected industry.
No rule of deference like that extended to educational institutions has been recognized for
employers, nor is one likely to be applied in the wake of Parents Involved in Community Schools.
that the decisionmaker ... selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in
spite of,’ its adverse effects upon an identifiable group.” Id. at 279. Although Feeney involved a claim of sex-based
discrimination, the test there announced for determining whether a purpose is “discriminatory” with respect to a
particular trait has been applied to claims of racial discrimination as well. See Hernandez v. New York, 500 U.S. 352,
85 United Steelworkers of America v. Weber, 443 U.S. 179 (1979). In Johnson v. Transportation Agency, 480 U.S. 616
(1980), the Court extended this analysis to gender-conscious affirmative action programs in regard to use of a “plus”
factor in hiring and promotion decisions.
86 Wygant v. Board of Education, 476 U.S. 267 (1986).
87 Patrolmen’s Benevolent Assoc. v. City of New York, 310 F.3d 43, 52 (quoting Barhold v. Rodriguez, 863 F.2d 233,
238 (2d Cir. 1988); Reynolds v. City of Chicago, 296 F.3d 524 (7th Cir. 2002). See also Cotter v. City of Boston, 323 st
F.3d 160, 172 n. 10 (1 Cir. 2003) (declining to address question of compelling interest but expressing sympathy for
“the argument that communities place more trust in a diverse police force and that the resulting trust reduces crime
rates and improves policing”).