2. How did the “equal protection” clause of the Fourteenth Amendment relate to the complaint in this case? Select correct answers from among the following statements, and be prepared to explain your answers.
_____ a. Blacks claimed the “equal protection” clause prohibited segregated schools.
_____ b. The NAACP argued that the Plessy v. Ferguson case guaranteed “equal protection.”
_____ c. In the Brown decision, the Supreme Court overturned the meaning given the “equal protection” clause in the case of Plessy v. Ferguson.
3. Which side won the decision in Brown?
4. What rights did African Americans win in the Brown case?
5. Which of the following statements about the effects of this decision is correct?
_____ a. It ended segregation in the schools immediately.
_____ b. It led to the passage of several civil rights laws.
_____ c. It gave African Americans a constitutional tool to continue to fight segregation.
One historian said: “The Court’s decision in Brown v. Board remains one of the great landmarks in the history of American liberty.” Why could the historian make such a claim? Do you agree or disagree? Explain.
*Student worksheet from Lessons on the Constitution, by John J. Patrick and Richard C. Remy.
REGENTS OF THE UNIVERSITY OF CALIFORNIA
v. ALLAN BAKKE
438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed. 2d 750
Argued October 12, 1977
Decided June 28, 1978
The Medical School of the University of California at Davis had two admissions programs for entering classes of 100 students—the regular admissions program and the special admissions program. Candidates under the regular program whose undergraduate grade point averages fell below 2.5 on a 4.0 scale were automatically rejected. Students with higher GPAs were granted interviews. Candidates then were rated based on the interview, overall GPA, science GPA, Medical Admissions Test (MCAT) scores, recommendations, extracurricular activities, and other biographical data, all of which resulted in a total score. The admission’s committee then made offers of admission based on this score.
A separate committee, a majority of whom were members of minority groups, operated a special admissions program. The 1973 and 1974 application forms asked candidates whether they wished to be considered as "economically and/or educational disadvantaged" applicants and members of a "minority group" (blacks, Chicanos, Asians, and American Indians). No formal definition of "disadvantaged" was provided. If an applicant of a minority group was found to be "disadvantaged," he was rated in a similar manner as that of the regular admission’s program, except that he did not have to meet the 2.5 grade point cutoff and was not ranked against candidates in the general admissions process. After interviews, the top choices were given to the general admission’s committee, which could reject these special candidates for failure to meet course requirements or other specific deficiencies. A total of sixteen special admissions selections were allowed in each class. During a four-year period, sixty-three minority students were admitted to the medical school under the special program and forty-four under the general program. No disadvantaged whites were admitted under the special program, although many applied.
Allan Bakke was a white male. He applied to Davis in 1973 and 1974, being considered only under the general admissions program both years. In 1974, 3,737 applications were submitted, including 628 who applied to the special admissions program. Of those applying for the special program, 172 were white. Although Bakke had a 468 out of 500 score in 1973 and 549 out of 600 in 1974 and received interviews, he was rejected. In both years special applicants were admitted with significantly lower scores than Bakke's. No disadvantaged whites received offers of admission through that process.
After his second rejection, Allan Bakke filed an action in state court, alleging that the special admission’s program caused him to be excluded admission on the basis of race. Bakke alleged that this was a violation of the Equal Protection Clause of the Fourteenth Amendment, the California Constitution, and Title VI of the Civil Rights Act of 1964. Section 601 of Title VI provided that:
No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. The trial court found that the special program operated as a racial quota because minority applicants were rated only against one another. The program was also held to violate the Federal and State Constitutions and Title VI. Bakke's admission was not ordered, however, for lack of proof that he would have been admitted even without the special program.
When appealed further, the California Supreme Court concluded that the special admission’s program violated the Equal Protection Clause and ordered Bakke's admission to the medical school. The university then appealed to the U. S. Supreme Court.
ISSUE: Does the establishment of a special admissions policy for minority students according to Title VI of the Civil Rights Act of 1964 violate the Equal Protection Clause of the Fourteenth Amendment?
UNIVERSITY OF CALIFORNIA v. BAKKE (1978)
In arriving at this important affirmative action decision, the Justices were divided into two blocs. Justices Brennan, White, Marshall, and Blackmun took the position that the affirmative action program of the University was constitutional under the Equal Protection of the Laws Clause of the Fourteenth Amendment, as well as under the Civil Rights Act of 1964. Under the Amendment and the statute, the University could design race-conscious programs to remedy past discriminatory policies. Therefore, Bakke did not have to be admitted to the medical school.
On the other hand, Chief Justice Burger and Justices Stevens, Stewart, and Rehnquist focused on the Civil Rights Act of 1964 and concluded that Bakke should be admitted because the Davis program was a fixed quota, which discriminated against an individual on racial grounds.
Justice Powell, the swing Justice, came to the rescue by casting the deciding vote. He sided with the Burger-Stewart-Stevens-Rehnquist bloc in condemning racial quotas and ordering the admission of Bakke. He then sided with the Brennan-White-Marshall-Blackmun bloc by declaring that race can be one of the factors to be considered in the admission of students to achieve diversity where there has been a history of past discriminatory policies.
Justice Powell stated:
The concept of "discrimination," like the phrase "equal protection of the laws," is susceptible of varying interpretations, for as Mr. Justice Holmes declared, "[A] word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the times in which it is used." In determining whether the special admissions policy could be defined as a "quota" system, Justice Powell wrote:
The special admissions program is undeniably a classification based on race and ethnic background.... white applicants could compete only for 84 seats in the entering class, rather than the 100 open to minority applicants. Whether this limitation is described as a quota or a goal, it is a line drawn on the basis of race and ethnic status. Justice Powell addressed the Equal Protection Clause of the Fourteenth Amendment and stated:
The guarantees of the Fourteenth Amendment extend to all persons.... It is settled beyond question that the "rights created by the first section of the Fourteenth Amendment are, by its terms, guaranteed to the individual...." The guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal. Justice Powell also examined the purpose of the special admission=s program, writing:
If petitioner's purpose is to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin, such a preferential purpose must be rejected not as substantial but as facially invalid. Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids.... Powell summarized his statements with:
... [I]t is evident that the Davis special admissions program involves the use of an explicit racial classification never before countenanced by this Court. It tells applicants who are not Negro, Asian, or Chicano that they are totally excluded from a specific percentage of the seats in an entering class. No matter how strong their qualifications, quantitative and extracurricular, including their own potential for contribution to educational diversity, they are never afforded the chance to compete with applicants from the preferred groups for the special admissions seats. Justice Blackmun concurred in part and dissented in part, stating:
The Court today, in reversing in part the judgment of the Supreme Court of California, affirms the constitutional power of Federal and State Governments to act affirmatively to achieve equal opportunity for all.... Government may take race into account when it acts not to demean or insult any racial group, but to remedy disadvantages cast on minorities by past racial prejudice, at least when appropriate findings have been made by judicial, legislative, or administrative bodies with competence to act in this area.... We agree with Mr. Justice Powell that, as applied to the case before us, Title VI goes no further in prohibiting the use of race than the Equal Protection Clause of the Fourteenth Amendment itself.... Since we conclude that the affirmative admissions program at the Davis Medical School is constitutional, we would reverse the judgment below in all respects. Mr. Justice Powell agrees that some uses of race in university admissions are permissible and, therefore, he joins with us to make five votes reversing the judgment below insofar as it prohibits the University from establishing race-conscious programs in the future. Justice Marshall explained his position with these words:
I agree with the judgment of the Court only insofar as it permits a university to consider the race of an applicant in making admissions decisions. I do not agree that petitioner's admissions program violates the Constitution. For it must be remembered that, during most of the past 200 years, the Constitution as interpreted by this Court did not prohibit the most ingenious and pervasive forms of discrimination against the Negro. Now, when a State acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier.... It is because of a legacy of unequal treatment that we now must permit the institutions of this society to give consideration to race in making decisions about who will hold the positions of influence, affluence, and prestige in America.... It has been said that this case involves only the individual, Bakke, and this University. I doubt, however, that there is a computer capable of determining the number of persons and institutions that may be affected by the decision in this case.
FOLLOW-UP: Allan Bakke was admitted to the Medical School of the University of California at Davis and subsequently graduated.
JENNIFER GRATZ AND PATRICK HAMACHER
LEE BOLLINGER, et al.
Argued April 1, 2003
Decided June 23, 2003
In a landmark case in 1978, the United States Supreme Court struck down the use of rigid quotas in affirmative-action plans but left some room for race to be a factor in a selection process aimed at promoting diversity on college campuses. In the 1978 case, University of California v. Bakke, Justice Powell drew a distinction between admission regimes that relied solely on race to achieve diversity and programs that treated each applicant as an individual. Powell explained that in order to achieve what he called genuine diversity, race must be relied upon only as a “plus factor,” among an array of other characteristics.
As a result of the Bakke decision and believing that a diverse student body is a worthy goal that benefits all students, the University of Michigan began a new policy for selecting applicants to undergraduate programs. Minority candidates—blacks, Hispanics and American Indians—were awarded an automatic twenty points out of a possible 150 points, which was the same number of points given for the difference between a 4.0 grade point average and a 3.0 average and more than the school awarded for some measures of academic excellence, writing ability or leadership skills. Outstanding athletes also got 20 points, as did impoverished applicants. The school also “flagged” minority applications, making it easier to keep an applicant in the pool even if he or she did not pass an initial review. In 1997, the university had 13,500 applicants and selected 3,958 of them as freshmen.
Jennifer Gratz and Patrick Hamacher, Caucasian Michigan residents with good grades and other qualifications, were refused undergraduate admission at the University of Michigan. In 1997, Gratz and Hamacher filed a lawsuit against the university, arguing that its policy of giving minorities extra credit in admissions violates the Fourteenth Amendment’s guarantee of equal protection. Both later graduated from other colleges.
For the first time in more than two decades (since the Bakke decision), the United States Supreme Court agreed to hear a case involving whether public colleges and universities can consider race in their admissions policies.
ISSUE: Under the Equal Protection Clause of the Fourteenth Amendment, may race be a factor when public colleges and universities choose their students? Does the University of Michigan’s use of racial preferences in undergraduate admissions violate Title VI of the Civil Rights Act of 1964?
GRATZ v. BOLLINGER (2003)
By a vote of six-to-three, the Supreme Court ruled the University of Michigan undergraduate admissions policy unconstitutional. The majority on the Court explained that schools cannot blindly give minorities extra points just because of their race and instead must take the time to assess each applicant’s background and potential. The decision was announced on the same day as the one in which the Court upheld the University of Michigan Law School admissions policy by a vote of five-to-four in the case of Grutter v. Bollinger, No. 02-0241. Chief Justice Rehnquist wrote for the Court in the Gratz case.
We find that the University’s policy, which automatically distributes 20 points, or one-fifth of the points needed to guarantee admission, to every single “underrepresented minority” applicant solely because of race, is not narrowly tailored to achieve the interest in educational diversity that [Michigan] claim[s] justifies their program. Rehnquist continued by evaluating the Michigan undergraduate program with the Court’s decision in Bakke: Justice Powell’s opinion in Bakke emphasized the importance of considering each particular applicant as an individual, assessing all of the qualities that individual possesses and, in turn, evaluating that individual’s ability to contribute to the unique setting of higher education. The admissions program Justice Powell described, however, did not contemplate that any single characteristic automatically ensured a specific and identifiable contribution to a university’s diversity…. Instead, under the approach Justice Powell described, each characteristic of a particular applicant was to be considered in assessing the applicant’s entire application. The inclusion of race on the scale, with the result that nearly all qualified minority applicants were admitted to the competitive program while many qualified white students were turned away, demonstrates the absence of the “individualized consideration” that the Bakke decision required, Chief Justice Rehnquist wrote.
In explaining the difference between the undergraduate policy for admissions and the one for the law school, Justice Rehnquist wrote:
Respondents contend that “the volume of applications and the presentation of applicant information make it impractical for [LSA] to use the … admissions system” upheld by the Court today in Grutter…. But the fact that the implementation of a program capable of providing individualized consideration might present administrative challenges does not render constitutional an otherwise problematic system…. Nothing in Justice Powell’s opinion in Bakke signaled that a university may employ whatever means it desires to achieve the stated goal of diversity without regard to the limits imposed by our strict scrutiny analysis. In her pivotal concurring opinion, Justice O’Connor explained the difference in the two cases from her point of view. Where the law school had considered each applicant individually, the undergraduate school had resorted to a “mechanized” selection process—the point system. In doing so, it had valued race far more than other student qualities—such as leadership, personal achievement and service. She wrote:
… Even the most outstanding national high school leader could never receive more than five points for his or her accomplishments—a mere quarter of the points automatically assigned to an underrepresented minority solely based on the fact of his or her race…. Justice Thomas wrote in a concurring opinion:
… Under today’s decisions, a university may not racially discriminate between the groups constituting the critical mass…. An admissions policy, however, must allow for consideration of those nonracial distinctions among applicants on both sides of the single permitted racial classification. Justice Breyer, concurring separately, did not sign the Rehnquist opinion. He explained, “I do not dissent from the Court’s reversal of the District Court’s decision.”
Justice Stevens dissented, saying the case should have been dismissed because the plaintiffs were enrolled elsewhere before filing their class-action lawsuit against the university. “Neither petitioner has a personal stake in the outcome of the case, and neither has standing to seek prospective relief on behalf of unidentified class members who may or may not have standing to litigate on behalf of themselves,” he wrote.
Justices Souter and Ginsburg also dissented. Souter stated:
The very nature of a college’s permissible practice of awarding value to racial diversity means that race must be considered in a way that increases some applicants’ chances for admission. Since college admission is not left entirely to inarticulate intuition, it is hard to see what is inappropriate in assigning some stated value to a relevant characteristic, whether it be reasoning ability, writing style, running speed, or minority race…. Justice Souter liked the openness of the point system and concluded that, “Equal protection cannot become an exercise in which the winners are the ones who hide the ball.”
Ginsburg wrote in her dissent:
…[W]e are not far distant from an overtly discriminatory past, and the effects of centuries of law-sanctioned inequality remain painfully evident in our communities and schools. BARBARA GRUTTER v. LEE BOLLINGER, et al.
Argued April 1, 2003
Decided June 23, 2003
In 1996, Barbara Grutter, a forty-three year old single mother, applied for admission to the University of Michigan Law School. She had run her own health care consulting business and had considerably more life experience than the average law school applicant. Grutter, a Caucasian, had a 3.8 undergraduate grade point average and a score on the law-school aptitude test, which placed her in the 86th percentile nationally.
The philosophy of the University of Michigan contended that a diverse student body was a worthy goal that benefited all students. They therefore maintained an affirmative-action plan that sought to grant admission to a “critical mass” of qualified minority students. This meant that a large number of white students were rejected, even though they had higher grades and test scores than many of the minority applicants. The law school admissions process consisted of using an applicant’s Law School Admissions Test and undergraduate grade-point average, along with consideration for the “enthusiasm of the recommenders, the quality of the undergraduate institution, the quality of the essay, residency, leadership and work experience, unique talents or interests, and the areas of difficulty of undergraduate course selection.” In addition, low performing students were sometimes admitted if there was a combination of poor standardized test performance and consistently outstanding academic records. Although students were sometimes admitted to achieve diversity that would make the class stronger, seats were not reserved or set aside for underrepresented minority students. The stated goal of the admission policy was “to admit a group of students who individually and collectively are among the most capable students applying to American law schools in a given year.”
Statistics in 1995 showed a consistent disparity between acceptance rates for minority applicants (African Americans, Hispanics and Native Americans) and Caucasian and Asian American applicants. Those minority applicants with the highest LSAT scores enjoyed a 96 percent acceptance rate compared with an acceptance rate of 59 percent for whites and 63 percent for Asian Americans with comparable test scores. For those middle-tier applicants (such as Grutter), minorities had an 81 percent acceptance rate, while only 5 percent of whites and 4.7 percent of Asian Americans were offered admission. In the bottom tier, 26 percent of minorities won admission, compared with 1.4 percent of whites and 1.6 percent of Asian Americans.
After several months of being on a “wait list,” Grutter was notified of her rejection. She then filed a class action suit in the Eastern District of Michigan at Detroit, claiming that she was denied admission because minority students received preferential treatment. The district court found for Grutter, concluding that the university’s “use of race as a factor in its admissions decisions is unconstitutional and a violation of Title VI and of the 1964 Civil Rights Act.”
The Sixth Circuit Court of Appeals upheld the law school’s admissions policies by a five-to-four margin. This court found that Michigan’s law school had written its admissions policy in compliance with the Supreme Court opinion in Bakke v. Board of Regents, 1978. In that case, a sharply divided Court struck down the use of rigid racial quotas in affirmative-action plans, but Justice Powell said in his opinion that race could be used as one of many factors in a selection process aimed at promoting diversity in enrollment at tax-supported university admissions. Powell drew a distinction between admission policies that relied entirely on race to achieve diversity and programs that treated each applicant as an individual.
For the first time in more than twenty-four years, the United States Supreme Court accepted a case in which it had to decide whether public colleges and universities could consider race in their admissions policies.
Does the use of race as a factor when public colleges and universities choose their students violate the Equal Protection Clause of the Fourteenth Amendment or the Civil Rights Act of 1964?
GRUTTER v. BOLLINGER, et al. (2003)
In the Supreme Court’s first statement on university affirmative action in a quarter-century, the justices voted five-to-four to uphold the University of Michigan’s preferences for minorities who apply to its law school. On the same day in a separate case (Gratz v. Bollinger, No. 02-516), by a six-to-three vote, however, they struck down a point system used by Michigan’s undergraduate program.
Writing for the majority, Justice O’Connor said the value of diverse classrooms extends far beyond the campus, continuing:
We have repeatedly acknowledged the overriding importance of preparing students for work and citizenship, describing education as pivotal to “sustaining our political and cultural heritage” with a fundamental role in maintaining the fabric of society…. This court has long recognized that “education … is the very foundation of good citizenship….” For this reason, the diffusion of knowledge and opportunity through public institutions of higher education must be accessible to all individuals regardless of race or ethnicity. … Effective participation by members of all racial and ethnic groups in the civic life of our nation is essential if the dream of one nation, indivisible, is to be realized. Because attorneys are often elected to leadership positions such as state governorships and the United States Congress, in addition to judgeships of all levels, O’Connor expanded, “In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.”
O’Connor clearly felt that minorities should not be stereotyped because minority students do not always express “characteristic minority” viewpoints. In fact, she explained, [D]iminishing the force of such stereotypes is both a crucial part of the Law School’s mission, and one that it cannot accomplish with only token numbers of minority students.”
The law school engages in a “highly individualized, holistic review of each applicant’s file” in which race counts as a factor but is not used in a “mechanical way,” Justice O’Connor said. For that reason, she said, it was consistent with Justice Powell’s controlling opinion in the Bakke case in 1978, which permitted the use of race as one “plus factor.”
Justice Ginsburg wrote a concurring opinion that was joined by Justice Breyer. In it, she expressed her concerns that:
However strong the public’s desire for improved education systems may be … , it remains the current reality that many minority students encounter markedly inadequate and unequal educational opportunities. Despite these inequalities, some minority students are able to meet the high threshold requirements set for admission into the country’s finest undergraduate and graduate educational institutions. As lower school education in minority communities improves, an increase in the number of such students may be anticipated. From today’s vantage point, one may hope, but not firmly forecast, that over the next generation’s span, progress toward nondiscrimination and genuinely equal opportunity will make it safe to sunset affirmative action. Chief Justice Rehnquist wrote the principal dissenting opinion that spoke for all four dissenters (himself, Thomas, Scalia and Kennedy). He said he didn’t believe the law school’s process was “narrowly tailored to the interest it asserts,” that is, achieving a “critical mass” of minorities. He explained, “Stripped of its ‘critical mass’ veil, the Law School’s program is revealed as a naked effort to achieve racial balancing.” Rehnquist continued:
I do not believe that the Constitution gives the Law School such free rein in the use of race. The Law School has offered no explanation for its actual admissions practices and, unexplained, we are bound to conclude that the Law School has managed its admissions program, not to achieve a “critical mass,” but to extend offers of admission to members of selected minority groups in proportion to their statistical representation in the applicant pool. But this is precisely the type of racial balancing that the Court itself calls “patently unconstitutional.” The Chief Justice concluded by voicing his disapproval of the Court’s decision in this case:
The Court … upholds the Law School’s program despite its obvious flaws. We have said that when it comes to the use of race, the connection between the ends and the means used to attain them must be precise. But here the flaw is deeper than that; it is not merely a question of “fit” between ends and means. Here the means actually used are forbidden by the Equal Protection Clause of the Constitution. Justice Kennedy explained in his separate dissent:
… Having approved the use of race as a factor in the admissions process, the majority proceeds to nullify the essential safeguard Justice Powell insisted upon as the precondition of the approval. The safeguard was rigorous judicial review, with strict scrutiny as the controlling standard. … Although the four dissenters in the case did not directly confront the continued validity of the Bakke precedent, it was clear that both Justices Thomas and Scalia would have overturned it if they could. “Every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all,” Justice Thomas said in his dissenting opinion that Justice Scalia also signed.
Thomas, the only African American member of the Court and an opponent of affirmative action, said the school’s policy violated the Constitution’s Equal Protection Clause. He quoted from a speech by Frederick Douglass, the famous abolitionist, to deliver what he called “a message lost on today’s majority.” In the 1865 speech to a group of abolitionists, Douglass said Americans had always been anxious about what to do with black people. Thomas quoted:
“In regard to the colored people, there is always more that is benevolent, I perceive, than just, manifested towards us. What I ask for the Negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us …. I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and dispose to fall, let them fall! … And if the Negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! … Your interference is doing him positive injury.” Thomas wrote that he, like Douglass, believes blacks can achieve in “every avenue of American life without the meddling of university administrators.” “Because I wish to see all students succeed whatever their color, I share, in some respect, the sympathies of those who sponsor the type of discrimination advanced by the University of Michigan Law School,” Thomas said, continuing, “The Constitution does not, however, tolerate institutional devotion to the status quo in admissions policies when such devotion ripens into racial discrimination.”
Scalia, who partly disagreed with elements of the majority’s ruling, said the “Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.”