History of Legal Challenges Against Affirmative Action in Higher Education

Higher education institutions across the U.S. adopted race-conscious admissions policies to increase diversity for historically disadvantaged minority students in the late 1960s, complying with the government’s affirmative action. Since then, however, there have been numerous legal challenges against the policies and affirmative action at large.

Most recently in January of this year, the Supreme Court of the United States consolidated two legal cases against Harvard University and the University of North Carolina (UNC). The lawsuits were brought by an anti-race conscious admissions advocacy group, arguing that the institutions’ admissions policies have discriminated against Asian American students. The group bases its legal argument on Title VI of the Civil Rights Act of 1964, which prohibits any entity that receives federal funds or financial assistance from discriminating or distinguishing among individuals based on race or national origin.

The Supreme Court will proceed with initial one-hour oral arguments from participating parties as early as this October, possibly announcing the ruling on the case by the summer of 2023. The fate of affirmative action and race-conscious admissions policies may dramatically change as a result of this lawsuit, for the country now has an unprecedented majority of conservative justices by six to three. Therefore, the time is ripe to revisit the previous Supreme Court cases concerning affirmative action.

History of Legal Challenges

Marco DeFunis v. Charles Odegaard, President of the University of Washington (1974)

The first legal challenge against affirmative action was posed by Marco DeFunis, a white Jewish student, when he was denied admission to the University of Washington School of Law for the second time in 1971. As his GPA and LSAT score were well within the qualified range, he believed that he was not accepted because of the school’s suspected racial quota system for its total of 150 admission slots. The state trial court in Washington agreed with the plaintiff that his rights under the equal protection clause of the Fourteenth Amendment were violated, and DeFunis was admitted to the school for fall 1971. Although the Supreme Court later found the university’s policy to be justifiable, reversing the trial court’s decision, it declined to make a ruling as DeFunis only had a few months left before finishing his legal education.

Regents of the University of California v. Bakke (1978)
The Bakke case was a landmark decision by the Supreme Court, upholding affirmative action by allowing race to be one of several factors in college admissions. The court’s legal rationale still reverberates in recent legal cases. Photo: Archives of the Bancroft Library, the University of California at Berkeley / Licensed under Public Domain Mark 1.0

Numerous universities in the 1970s adopted a racial quota system to increase the minority population in their student body. Of those schools, the Medical School of the University of California at Davis reserved sixteen slots for URM students out of one hundred for its entering class. Under the newly implemented quota system, Allan Bakke, a white applicant with test scores and GPA well above the average numeric measures of the admitted students, was denied admission for two application cycles in 1973 and 1974. He consequently sued the school in 1977 and reached the Supreme Court in 1978, arguing that the racial quota system violated his constitutional rights and the Civil Rights Act of 1964.

As a result of the legal dispute, the racial quota system at universities was outlawed. The court stated that the system is a violation of the equal protection clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. The majority of justices mostly concurred with Justice Lewis F. Powell that there are ways to achieve the representation of minority students other than the racial quota system. Nevertheless, they deemed the colleges’ use of race in the admissions process constitutional, leaving leeway for schools to continue increasing classroom diversity with more minority representation on campus.

Grutter v. Bollinger (2003) & Gratz v. Bollinger (2003)

Just as the first legal challenge against affirmative action in higher education, Grutter v. Bollinger was also against a law school brought by a white applicant who was denied admission. Barbara Grutter, a white female applicant to the University of Michigan Law School, filed a lawsuit, accusing the school of using race as a predominant factor in admissions. Similar to precedents, she also based her legal claim on the equal protection clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. The Supreme Court eventually upheld the Bakke precedent and stated in the majority decision, “the Equal Protection Clause does not prohibit the Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.” However, Justice Sandra Day O’Connor wrote in the majority ruling that the race-conscious admissions “will be unnecessary 25 years from now [2003].”

On the very same day that the decision on Grutter v. Bollinger came, Gratz v. Bollinger case saw quite a different ruling. Jennifer Gratz and Patrick Hamacher, two white applicants who were denied acceptance to the University of Michigan’s undergraduate programs, sued the school for violating the equal protection clause of the Fourteenth Amendment. Specifically, the university’s point system gave 20 points out of 100 points required for admittance to any applicant from an underrepresented minority group. The Supreme Court ruled in favor (6-3) of the plaintiff, judging the point system to be unconstitutional. Nevertheless, the court remained in agreement with the Bakke ruling, allowing higher education institutions to continue taking race into account in the admissions process.

Fisher v. University of Texas at Austin (Fisher I 2013 & Fisher II 2016)
The Fisher case had a narrow decision by four to three in favor of the University of Texas at Austin. However, the current Supreme Court is considered to be filled with the largest number of conservative-leaning justices by six to three. The future of affirmative action and race-conscious admissions policies is ever uncertain. Photo: Nick Amoscato / Licensed under CC BY 2.0

The two most recent Supreme Court decisions came to be when Abigail Fisher, a white female applicant from the city of Sugar Land in Texas, sued the University of Texas at Austin (UT) in 2008 soon after she was denied admission. The plaintiff alleged that the university’s race-conscious admissions policy violated the equal protection clause, reaching the Supreme Court in 2012. A little over a year later in 2013, the court sent the case back to the court of appeals, ruling (7-1) that the corresponding lower court failed to apply strict scrutiny to UT’s admissions policy of interest. Then, in 2015, the Supreme Court announced that it will rehear the case based on the same legal ground. Finally, in 2016, the court ultimately judged (4-3) UT’s affirmative-action admissions process to be constitutional, meeting the standard of strict scrutiny. However, the decision noted that the institution should regularly evaluate available data and “tailor its approach in light of changing circumstances, ensuring that race plays no greater role than is necessary to meet its compelling interest.”

During the trials, it was revealed that though Fisher had considerable numeric measures — 3.59 GPA and 1180 out of 1600 SAT score — her credentials did not stand out for the most competitive university in the state. By the time Fisher applied in 2008, 92 percent of UT’s admission spots were filled with applicants who graduated in the top 10 percent of their high school class, as the school abided by the so-called “Top 10 Percent Law” or formally Texas House Bill 588, which guarantees automatic admission to all state-funded universities for the aforementioned top students. Considering that she did not graduate in the top 10 percent of her class, she would have still had a very slim chance of getting an acceptance even if UT gave admissions to applicants “solely based on their merit” as she hoped in an interview. It was also reported that the majority of accepted students with lower GPA and SAT scores than Fisher were, in fact, white applicants; only 5 students were black or Latino, while 42 were white.


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