Education Law - Affirmative Action Programs In Higher Education

One of the most heated debates in higher education has focused on AFFIRMATIVE ACTION programs in higher education. Advocates for these programs cite statistics that minorities have been traditionally underrepresented in COLLEGES AND UNIVERSITIES. During the 1960s and 1970s, schools began to address these issues by implementing programs that required a certain percentage of enrollment by minorities. The programs were quickly subject to lawsuits by those who had been rejected by the schools, often claiming that the schools had violated their constitutional and statutory rights.

A fiercely-divided U.S. Supreme Court in REGENTS OF THE UNIVERSITY OF CALIFORNIA V. BAKKE, 438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978), held that a program at a state-sponsored school that reserved 16 seats out of a class of 100 for certain disadvantaged and minority groups violated the EQUAL PROTECTION CLAUSE and Title VI of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000d (Supp. 2003). The plaintiff in the case was a white applicant who had been denied admission to the medical school at the University of California at Davis. The student's credentials were superior to some of those who had been admitted to the 16 seats reserved for the minority or disadvantaged applicants.

Although a majority of the justices agreed that the program was unlawful, a majority could not agree as to the rationale for its judgment. Justice LEWIS POWELL, who wrote the opinion of the Court, found that the use of quotas to admit minorities and disadvantaged students was illegal, but also found that schools could consider race as a factor in their admissions. Other justices disagreed, stating that schools that consider race as a factor violated constitutional guarantees.

Lower courts have struggled for years with affirmative action admissions programs that considered race as a factor. The Court agreed to consider the issue again when it granted certioari in the case of Grutter v. Bollinger, 288 F.3d 732 (6th Cir. 2002). The Sixth Circuit Court of Appeals case upheld the constitutionality of an admissions program at the University of Michigan School of Law that considered race and ethnicity in its admissions policies. The case had a massive following, fueled by comments by President GEORGE W. BUSH, who voiced his opposition to the program.

The Court affirmed the 6th Circuit's decision in Grutter v. Bollinger, 539 U.S. ___, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (2003). The opinion, drafted by Justice SANDRA DAY O'CONNOR, found that Michigan's law school had a compelling state interest in attaining a diverse student body, and the admissions program was narrowly tailored to achieve this interest. However, in a companion case, Gratz v. Bollinger, 539 U.S. ___, 123 S. Ct. 2411, 156 L. Ed. 2d 257 (2003), the Court found the University of Michigan's undergraduate admissions program was not narrowly tailored to achieve diversity in its class. Writing for the majority, Chief Justice WILLIAM REHNQUIST found that the university's practice of adding ARBITRARY points to the application of any racial minority, without considering the individual application, violated the EQUAL PROTECTION Clause.