From Bakke to Schuette: The Future of Affirmative Action

By Winston Smith


A quality education grants us the ability to fight the war on ignorance and poverty.

-Charles B. Rangel


Since its inception, affirmative action has been a divisive and controversial issue in the United States. Many believe that affirmative action is the way in which society is able to correct the cultural and racial imbalances that are inherent in the educational system and the workplace. This is countered by those who believe that it is discriminatory against whites and those who would otherwise be more qualified for admissions or a job placement. This tension between the two opinions has sparked much legislation and many court battles over the fair use of race as a factor for admissions to post-secondary education. These court fights culminated in the issuing of the opinions of Schuette v. Coalition to Defend Affirmative Action (2014) and Fisher v. University of Texas (2016), which reaffirmed the Court’s earlier decision in this case made in 2013. To understand how the Supreme Court has come to its conclusion on affirmative action in higher education it will be necessary to understand the issue of affirmative action and the precedent cases which the Court has ruled on.

Affirmative action is a policy in which “the allocation of scarce positions in education, employment or business contracting so as to increase the representation in those positions of persons belonging to certain population subgroups.”[1] These types of policies are aimed at “redressing the injustices caused by our nation’s historic discrimination against people of color and women, and for leveling what has long been an uneven playing field.”[2] Affirmative action first made its debut in 1961 when President John F. Kennedy created the Committee on Equal Employment Opportunity through Executive Order 10925 and was later followed by President Lyndon Johnson who signed the Civil Rights Act of 1964.[3] In the context of Schutte and its precedent cases, affirmative action is applied to schooling admissions. The main question and subject of these cases are to whether or not there should be the use of race in the decision for admission to the undergraduate and graduate schools.  

The first case in which affirmative action was brought to the Court was Regents of the University of California v. Bakke. The medical school at the University of California at Davis implemented a racial quota system for their admissions process. Within this admissions process, the school had a numerical rating system of applicants which included GPA, science course GPA, MCAT test score, letters of recommendation, and other biographical data.[4] While having an entering class of 100 students, there were 16 minority or persons from underrepresented groups were to be given admission. Bakke, a white male, applied to Davis in 1973 and 1974 being rejected both times being considered under the general admission program. In his second bid for application, Bakke scored 549 out of 600 in the admissions score but was still rejected. During this year, special applicants were admitted with significantly lower scores than Bakke’s. The decision for this case is indicative of the split mentality that the general public has on affirmative action, with the decision being 5-4 with the swing vote of Justice Powell to be the deciding force. The Court, using strict scrutiny, ruled that the quota system that was used by the medical school at the University of California at Davis was unconstitutional. Along with this, the Court found that “[t]his is not a situation in which the classification on its face is racially neutral, but has a disproportionate racial impact.” As a result, quotas were ruled to be unconstitutional but race was left to the school to be used as a factor in the admissions process only for “the attainment of a diverse student body.”[7]

The case of Gratz v. Bollinger considered the portion of Bakke which left race as a factor for admissions. In this case, two applicants, Gratz and Hamacher, were not admitted into the University of Michigan, with Gratz being a highly qualified applicant and Hamacher being “within the qualified range.”[5] During this time, the University of Michigan used race as a factor in admissions, “the University has considered African-Americans, Hispanics, and Native Americans to be “underrepresented minorities.” These “underrepresented minorities” were also given 20 points out of a needed 100 for admission because of their classification. The Court applied strict scrutiny to find that the admissions program used by the University of Michigan was unconstitutional.[6] In this, the court found that giving the “underrepresented minorities” the 20 points toward the needed 100 was not “not narrowly tailored to achieve respondents’ asserted compelling interest in diversity.” The court believed that race should not be the deciding factor in the admission of a student to a university.

Grutter v. Bollinger considered the use of race as a factor in admissions to the University of Michigan Law School. The dean of the school sought to create an admissions program that would encompass “‘a mix of students with varying backgrounds and experiences who will respect and learn from each other.’”[7] To do this, the school wanted to “look beyond grades and test scores” and to other factors about the applicant which included race. The Court found that the admissions program used by the law school was constitutional because race was only one factor out of many that would lead towards a more diverse student body. The court found that this use of race as a factor was substantially different from Gratz in that the law school added nothing to the admissions profile of the student who was a minority. In Gratz, the minority student was a given a quantifiable benefit for being part of a minority group, which was a race based classification.

There are various common arguments for the adoption and rejection of affirmative action. For the adoption of affirmative action, proponents believe that this is a form of benign discrimination. From this they mean that there is no malintent in this discrimination because its targets only benefit. Proponents also cite that allowing minorities to be able to attend college will benefit society in general. Educating those who have experienced discrimination in the past benefits those communities by bringing highly educated individuals to those areas which, in turn, will increase the likelihood of other minorities attending college. These college educated minorities will also be able to contribute to the economy and society in a more substantial way than if they were not able to attend college.

Those who do not believe in affirmative action see these programs as a sign that underrepresented groups need governmental assistance. They believe that it does not empower these minorities, but makes them dependent on the state for help. Opponents further argue that those who benefit from affirmative action programs may have never been directly discriminated against even if their class has been traditionally discriminated against. This means that some who benefit from those programs would have never experienced segregation, a lack of suffrage, or any other hindrance to political or civil freedoms. Finally, the opponents to affirmative action believe that these policies are a form of discrimination. They find that if the Constitution is to be color-blind, why is race now a classification at all. They believe that these policies violate the spirit of equal protection and might be an outright violation of Title IV.

Schutte considered an amendment to the Michigan State Constitution which would prohibit the state from granting certain preferences, including race, in “a wide range of actions and decisions,” meaning race cannot be used in the admissions process for state universities.[8] This amendment was voted on in response to the Gratz and Grutter decisions that affected the University of Michigan undergraduate and law school admissions. Unlike the precedent cases, the Court made sure to note that this case was not to decide the constitutionality of race-based factors in admissions but was to see if voters are able to prohibit racial consideration “in governmental decisions, in particular with respect to school admissions.”

The court held that the judgment of the Court of Appeals for the Sixth Circuit is reversed. The court found that there is “no authority in the Constitution of the United States or in this Court’s precedents for the Judiciary to set aside Michigan laws that commit this policy determination to the voters.”[9] In their analysis of this case, the Court began by looking at previous times where the Court has encountered times in which states have banned raced-based preferences. The Court primarily considered the case Washington v. Seattle School District No. 1 in which they found this type of amendment to be unconstitutional, but the Court found the facts in that case where very different from this case so that it would not be applicable to this case.[8] In its reasoning, the Sixth Circuit read Seattle to compel the Court to find which “political policies” best served the interests of a racial group, but the Supreme Court found that this “rationale was unnecessary to the decision in Seattle; it has no support in precedent.”[10] The Court found that making this decision on which policies benefited the racial group the most would have the assumption that all members of a racial minority believe and think alike, which the Court finds to be simply not true.8 Instead, the Court states that racial minorities have the opportunity to voice their concerns through “voter review or participation” which would allow the citizens to vote on these issues rather than have the Court make the decision for them.11 Justice Kennedy wrote; “Perhaps, when enacting policies as an exercise of democratic self-government, voters will determine that race-based preferences should be adopted.”[11] In this Justice Kennedy makes sure to note that allowing the public to vote on these policies will not always mean that affirmative action will be overturned. Justice Kennedy then concludes with making clear that the “constitutional system” allows citizens to “debate so they can learn and decide through the political process, act in concert to try to shape the course of their own times and the course of a nation that must strive to make freedom ever greater and more secure.”[12] In this he makes clear that it is necessary for voters to make these decisions so that the country is able to grow.

Affirmative action is a policy which was created with the best intentions in mind. To try and rectify decades of racial and cultural discrimination through giving minorities some protections in education is truly something that is geared towards creating a more equal playing field for all races. While I believe this to be true,  affirmative action continues to serve its true purpose of a band-aid for the larger, underlying issues. Yes, it is important and necessary for this nation to provide higher education to those in minority groups. However, it is necessary to address and rectify the issues that cause the need for affirmative action in higher education in the first place. Affirmative action should not be a permanent solution, it only attempts to rectify one symptom of a much larger problem of education, race and class. Unfortunately, the necessity of affirmative action is obvious. Nevertheless, we should strive to make steps towards true, thorough solutions to inequality in education so that an equal playing field is created for all when they begin schooling.


[1] Fryer, Roland, and Glenn Loury. “Affirmative Action and Its Mythology.” Journal of Economic Perspectives. Volume 19.Number 3 (2005): 147. Print.

[2] “Affirmative Action.” American Civil Liberties Union. American Civil Liberties Union. Web. <;.

[3] Sykes, Marquita. “The Origins of Affirmative Action.” National Organization for Women. National Organization for Women, n.d. Web. <;.

[4] Justice Lewis F. Powell, , Justice Marshall, Justice White, and Justice Blackmun. “REGENTS OF THE UNI V. OF CAL. V. BAKKE.” Legal Information Institute. Cornell University Law School, 28 Jun 1977. Web. <;.

[5]Syllabus. “GRATZ v. BOLLINGER.” Legal Information Institute. Cornell University Law School, 23 Jun 2003. Web. <;.

[6] Justice William Rhenquist, . “GRATZ v. BOLLINGER.” Legal Information Institute. Cornell University Law School, 23 Jun 2003. Web. <;.

[7] Justice Sandra Day O’Connor, . “GRUTTER V. BOLLINGER.” Legal Information Institute. Cornell University Law School, 23 Jun 2003. Web. <;.

[8] Schuette v. Coalition to Defend Affirmative Action, 572 U.S. p. 1-18 (2014)

[9] Schuette, op. at 18

[10] Schuette, op. at 11

[11] Schuette, op. at 13

[12] Schuette, op. at 15-16

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