The U.S. Supreme Court and Affirmative Action

On 23 June 2003, the United States Supreme Court made two landmark rulings about the use of affirmative action policies at the University of Michigan. Both supporters and detractors of affirmative action claimed victory. The court struck down the undergraduate school's point-based admissions policy 6-3 in Gratz v. Bollinger. However, the law school's more ambiguous affirmative action policy was upheld 5-4 in Grutter v. Bollinger. The court reasoned that race can be a determinant in school admissions, but it cannot be a predominant factor in a school's admissions procedure.


The standard for affirmative action was set in the 1978 case of Regents of the University of California v. Bakke. The majority opinion was determined by Justice Powell's noncommittal vote because votes for and against the admissions policy were effectively neutralized in the 4-1-4 ruling. Powell ruled that "race or ethnic background may be deemed a 'plus' in a particular applicant's file, yet it does not insulate the individual from comparison with all other candidates for the available seats." Powell was alone in writing his majority opinion; therefore, lower courts have often treated the Bakke ruling as tenuous and open to interpretation. According to FindLaw Columnist Michael Dorf, some recent court rulings have even determined that Powell's views were never controlling or have been overruled by a series of later Supreme Court cases based on the Constitution's Equal Protection Clause. Decisions in cases such as Wygant v. Jackson Board of Education (1986), City of Richmond v. Croson (1989), Adarand Constructors v. Pena (1995), and Shaw v. Reno (1995) had limited the legal use of racial preference programs, says Boston Globe correspondent Lyle Denniston. Despite the disputes, most universities and lower courts upheld the banning of numerical quotas while allowing flexible targets based on racial preferences (see box).

Admissions at the University of Michigan

The University of Michigan used two different affirmative action systems. The undergraduate school used a point scale to rate its 25,000 annual applications (of which 5000 are accepted). Extra points were given to members of a variety of groups including minority applicants, scholarship athletes, and men enrolling in nursing programs. The undergraduate policy was determined to have violated the Equal Protection Clause because applicants were not considered on their overall individual merit and race was used as an overriding factor in admissions.

The law school sought a critical but flexible mass of minority students by considering race as a factor in admissions, but it did not assign it any specified value. The law school's preferential treatment of minority applicants was ruled to be consistent with a permissible plus-factor approach.


Although many speculated that the lawsuits brought by plaintiffs Jennifer Gratz and Barbara Grutter would change the nature of affirmative action, the court upheld Bakke by allowing race to be considered but disallowing the use of any quantification in admissions. The primary question in both cases was whether minority preferences unconstitutionally discriminated against white applicants. In her majority opinion, Justice O'Connor endorsed Powell's earlier position using the following reasoning.

  • The First Amendment promotes the expression of diverse perspectives in higher learning.


  • Expression in higher learning is part of academic freedom.


  • Academic freedom is a constitutional value under the First Amendment.


  • Viewpoint and background are related; therefore, institutes of higher education can use race as one factor among others in their efforts to create a diverse student body.

  • In addition, O'Connor noted that the number of minority applicants with high grades and scores had increased in the 25 years since the Bakke ruling, and she predicted that in another 25 years, racial preferences would no longer be necessary.


    The Supreme Court rulings reiterated Powell's sentiments against quotas but expanded support for preferences stated nearly a quarter-century ago. Once again, diversity (not redemption for past injustices) was viewed as an important issue in furthering affirmative action efforts. The court's backing appears to ensure continued legal support for minority assistance programs in the sciences. Experts agree that the rulings' impact will cause universities and schools to stop using systematic formulas in favor of more ambiguous bonuses for minority applicants, according to cable news agency CNN. However, O'Connor's assertion that affirmative action may no longer be necessary in 25 years has many questioning the longevity of such programs. These open-ended rulings and split decisions have plagued the wellbeing of affirmative action because they open the debate to attack from opponents. It would appear that the fight for affirmative action in higher education has seen a cease-fire but not a lasting peace.


    MiSciNet would like to hear opinions from readers on these crucial decisions. Please write us at We plan to publish a follow-up article later this summer that will include some of your reactions. The following questions may help focus ideas and comments.

    What will be the immediate and long-term effects of these rulings on minority students and more specifically minority science students?

    Do you think the Supreme Court's decisions will specifically affect your organization and those like it? If so, how?

    Will the 2003 Grutter and 1978 Bakke decisions' support of affirmative action be a valuable instrument for promoting diversity versus remedying societal discrimination?

    How do you feel about the court striking down the University of Michigan's undergraduate admissions point system while upholding the more general Law School admissions system?

    What kind of message is Justice O'Connor sending by suggesting a limit of 25 more years on affirmative action?

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