“Affirmative Action” and Equal Protection in Higher Education
Released: 2019-01-31T00:00:00

Introduction

The last several years have seen renewed debate over the role that race plays in higher education—a debate over "affirmative action." A high-profile lawsuit challenging Harvard University's consideration of race in admitting its incoming classes, and the recent withdrawal of Obama Administration-era guidance addressing similar race-conscious policies, have focused the debate on "affirmative action" in perhaps its more familiar sense: the voluntary consideration of student applicants' race as a way of increasing the participation of racial minorities in higher education. Meanwhile, a recent lawsuit involving Maryland's university system has brought renewed attention to "affirmative action" in its other, original sense: the mandatory use of race by public higher education systems to eliminate the remnants of state-imposed racial segregation. This report addresses "affirmative action" in each of these two senses and discusses how the federal courts have analyzed them under the Fourteenth Amendment's guarantee of "equal protection."

The report first considers "affirmative action" in its original sense: the mandatory race-conscious measures that the federal courts have imposed on de jure segregated public university systems. The Supreme Court has made clear that a state that had a segregated system of education must eliminate all "vestiges" of that system, including through expressly race-conscious remedies. In its consequential 1992 decision United States v. Fordice , the Court charted a three-step inquiry for assessing whether a state has fulfilled that constitutional obligation, examining whether a current policy is traceable to the de jure segregated system, has continued discriminatory effect, and can be modified or practicably eliminated consistent with sound educational policy.

Outside this de jure context, "affirmative action" has come to refer to a different category of race-conscious policies. These involve what the Court once called the "benign" use of racial classifications —voluntary measures designed not directly to remedy past governmental discrimination, but to increase the representation of racial minorities previously excluded from various societal institutions. And in the context of higher education the Court has addressed one type of policy in particular: the use of race as a factor in admissions decisions, a practice now observed by many public and private colleges and universities.

As this report explains, the federal courts have come to subject these voluntary "affirmative action" policies to a particularly searching form of review, known today as strict scrutiny. And they have so far upheld those policies under a single theory: that the educational benefits that flow from a diverse student body uniquely justify some consideration of race when deciding how to assemble an incoming class. To rely on that diversity rationale, however, the Court now requires universities to articulate in concrete and precise terms what their diversity-related goals are, and why they have chosen those goals in particular. And even once those goals are established, a university must still show that its admissions policy achieves its diversity-related goals as precisely as possible, while ultimately "treat[ing] each applicant as an individual."

Because both lines of cases discussed here have their roots in the Equal Protection Clause, this report focuses primarily on public universities, all of which are directly subject to constitutional requirements. But those same requirements apply equally to private colleges and universities that receive federal funds pursuant to Title VI of the Civil Rights Act of 1964 (Title VI or the Act), which similarly prohibits recipients of federal dollars from discriminating on the basis of race. This report concludes by discussing the role that Title VI plays in ensuring equal protection in higher education, both public and private, including several avenues for congressional action under the Act.

"Affirmative Action" as Affirmative Obligation: Dismantling De Jure Segregation

De Jure Segregation in Higher Ed and the Equal Protection Clause

Though government-sanctioned racial segregation in public education is commonly associated with primary and secondary schools, numerous states had also mandated or permitted racial segregation in institutions of higher education, including through the latter part of the 20 th century, categorically excluding black students solely because of their race. Though the Supreme Court held decades ago that state-sanctioned racial segregation in higher education violates the Equal Protection Clause, such intentional segregation, or practices arising from formerly de jure segregated university systems and their discriminatory effects, may still persist.

Addressing such circumstances, the Supreme Court has held the Equal Protection Clause to require states to eliminate all vestiges of their formerly de jure segregated public university systems that continue to have discriminatory effect. As the Court concluded in United States v. Fordice , state actors "shall be adjudged in violation of the Constitution and Title VI [of the Civil Rights Act]" to the extent they have failed to satisfy this affirmative duty to dismantle a de jure segregated public university system. A state actor therefore remains in violation of the Equal Protection Clause today if it maintains a policy or practice "traceable" to a formerly de jure segregated public university system that continues to foster racial segregation. Where such a violation is shown, race-conscious measures are not only constitutionally permissible, but may be constitutionally required to remedy and eliminate such unconstitutional remnants.

Segregated Colleges and Universities Before 1954

As in the K-12 context, a number of states maintained racially segregated public university systems and denied black students admission to post-secondary schools—including colleges, law schools, and doctoral programs —on the basis that these institutions educated white students only. Prior to 1954—the year of the Supreme Court's landmark Brown v. Board of Education decision ( Brown I ) —the Court had interpreted the Equal Protection Clause to permit state-sanctioned racially segregated public educational systems, provided that the separate schools for black students were substantially equal to those reserved for white students.

For example, in its 1950 decision Sweatt v. Painter , the Court addressed an equal protection claim raised by a black student challenging the University of Texas Law School's denial of his admission based on his race, pursuant to its white-only admissions policy. At the time of the plaintiff's application in 1946, the state did not have a law school that admitted black students. Denying the plaintiff's requested relief for admission, the state trial court instead granted additional time to Texas to create a law school for black students; the state thereafter created a law school at the Texas State University for Negroes. The Supreme Court, however, held that the law school—which, among other features, lacked accreditation —did not offer an education "substantially equal" to that which the plaintiff would receive at the University of Texas Law School. On that basis—the absence of a separate but equivalent legal education—the Court held that the Equal Protection Clause required the plaintiff's admission to the University of Texas Law School.

A decisive turn in the Court's interpretation and application of the Equal Protection Clause, however, came by way of its 1954 decision in Brown I . There, the Court held for the first time that race-based segregation "in the field of public education" violates the Equal Protection Clause. The Court concluded that race-based segregation in public schools deprives minority students of equal educational opportunities, and observed that segregation commonly denotes inferiority of the minority group. Segregated educational facilities, the Court concluded, are "inherently unequal."

The Court's holding in Brown I applies with equal force to public higher education—that is, to public colleges and universities —as does the Court's subsequent 1955 decision in the same case (" Brown II "), in which the Court addressed how school authorities and federal courts were to implement the mandate of Brown I . Indeed, one of the Court's earliest applications of Brown I and Brown II was in the higher education context. In that case, State of Fla. Ex. Rel. Hawkins v. Board of Control , the Supreme Court vacated a Florida supreme court decision that declined to order the state's white-only law school to admit a black student. Relying on language in Brown II that courts could consider practical obstacles to a school's transition to desegregation, the Florida court refused to order the plaintiff's admission. The Supreme Court vacated the state court's decision, concluding that in the case of admitting a black student "to a graduate professional school, there [wa]s no reason for delay" and that he was "entitled to prompt admission under the rules and regulations applicable to other qualified candidates."

The Affirmative Duty to Eliminate De Jure Segregation in Higher Education

Following Brown I and Brown II , the Court's equal protection jurisprudence in the public education context expanded significantly to address questions regarding the scope and sufficiency of state actions to "dismantle" racially segregated systems in public school districts across the country, and various challenges to district court-ordered remedies. As the Court revisited these legal standards over time, it continued to describe the affirmative duty of formerly segregated public school entities as the duty to "take all steps necessary to eliminate the vestiges of the unconstitutional de jure system" to the extent practicable. Turning to the context of higher education, the Court addressed, in its 1992 decision United States v. Fordice , how these equal protection principles and legal standards apply to a state's affirmative duty to dismantle a formerly de jure segregated public university system.

United States v. Fordice (1992)

Though it had "many occasions to evaluate whether a public school district has met its affirmative obligation to dismantle its prior de jure segregated system in elementary and secondary schools," the Court explained, Fordice presented the issue of "what standards to apply" in determining whether the state has met this obligation in the university context.

At issue before the Court was Mississippi's prior de jure public university system. The Court observed that since establishing the University of Mississippi as an institution of "higher education exclusively of white persons" in 1848, Mississippi had created four more exclusively white institutions and three exclusively black institutions through 1950. Thereafter, it continued to maintain its racially segregated public university system, and admitted its first black student to the University of Mississippi in 1962 "only by court order." For the "next 12 years," the state's segregated university system "remained largely intact." Around 1987, when the case went to trial, over 99 percent of the state's white students attended the five universities that had been formerly white-only, while the three formerly black-only institutions had student bodies between 92 percent to 99 percent black.

Citing its precedent addressing de jure segregation in the K-12 context, the Court stated that "[o]ur decisions establish that a [s]tate does not satisfy its constitutional obligations until it eradicates policies and practices traceable to its prior de jure dual system that continue to foster segregation." Perhaps critically, in the context of remedying a formerly de jure segregated system, a state's "adoption and implementation of race-neutral policies alone " is not sufficient to demonstrate that it has "completely abandoned its prior dual system." Aside from segregative admissions policies, the Court explained, a state's other policies may shape and determine student choice and attendance, and continue to foster segregation.

Instead, to determine whether a state has satisfied its affirmative duty to dismantle its de jure public university system, the Court set out a three-step analysis. First , the analysis examines whether the challenged policy or practice maintained by the state is "traceable to its prior [ de jure ] system." By way of example, the Court identified four policies that, in its view, were "readily apparent" vestiges of de jure segregation:

admissions standards based on a test-score range originally adopted for discriminatory reasons; unnecessary program duplication throughout the university system (e.g., multiple institutions offering the same "nonbasic" courses); the state's academic mission assignments to its higher education institutions (e.g., assigning the broadest academic missions to only formerly white-only institutions and the narrowest academic mission to a formerly black-only institution); and the continued operation of all public universities established in the de jure segregated system.

With respect to traceability, the Court's analysis reflects that where a current policy functions based on distinctions or a framework created in a formerly de jure system, traceability can be shown. For example, when concluding that the state's designation of academic missions to its universities was traceable to de jure segregation, the Court cited evidence that the state's current method of assigning its universities into three academic missions levels largely mirrored a three-tiered grouping of its universities in the de jure system. In addition and more generally, an interim change or new, nondiscriminatory justification for a current policy does not necessarily sever its traceability to a de jure system. Where the traceability of a policy or policies is shown, a party need not show discriminatory intent with respect to those challenged policies.

Where traceability is not shown—that is, where the policies "do not have such historical antecedents" to de jure segregation—an equal protection challenge would then require "a showing of discriminatory purpose." In those instances, the Court explained, "the question becomes whether the fact of racial separation establishes a new violation of the Fourteenth Amendment under traditional principles."

Second , once traceability is shown, the analysis turns to whether those traceable policies have continued discriminatory or "segregative" effects in student choice, enrollment, or other facets of the university system. At this stage, the Court noted that a court should not consider "this issue in isolation," but rather examine the "combined effects" of all the challenged policies together "in evaluating whether the State ha[s] met its duty to dismantle its prior de jure segregated system." In light of this instruction, it appears the focus of the second step of the test is not on establishing causation between specific racial disparities and specific policies—by this stage, a court has already found traceability—but rather to evaluate whether a state has sufficiently dismantled its formerly de jure system. Consistent with the state's burden of proving it has dismantled its de jure segregated system, the state must show the absence of segregative effects; plaintiffs are not required to establish this second element.

Third , because traceable policies that have discriminatory effects "run afoul of the Equal Protection Clause," such policies must accordingly "be reformed to the extent practicable and consistent with sound educational practices." Thus, at the third step, a court assesses whether traceable policies can be "practicably eliminated" "consistent with sound educational practices," with the burden on the state to show that the challenged policies are "not susceptible to elimination without eroding sound educational policy." Because the Court remanded the case to the lower court to address practicable elimination, its analysis in Fordice on this point is limited. The Court suggested, however, that if a current policy lacks sound educational justification, it reasonably follows that it can be practicably eliminated in part or in whole. In addition, the Court observed that in some cases, a merger or closure of institutions could be constitutionally required to eliminate vestiges, should other methods fail to eliminate their discriminatory effects. Finally, the Court repeatedly stated that so long as vestiges remain, which have discriminatory effects, the state remains in violation of the Equal Protection Clause unless it can show it cannot practicably eliminate those policies or practices.

In addition, Justice O'Connor, in a separate concurring opinion in Fordice , emphasized the "narrow" circumstances under which a state could maintain a traceable policy or practice with segregative effects. In her view, courts may "infer lack of good faith" on the part of the state if it could accomplish educational objectives through less segregative means, and the state has a "'heavy burden'" to explain its preference for retaining the challenged practice. Moreover, even if the state shows that retaining certain traceable policies or practices is "essential to accomplish its legitimate goals," Justice O'Connor asserted that the state must still prove it has "counteracted and minimized the segregative impact of such policies to the extent possible."

Flagship Universities and Historically Black Colleges and Universities (HBCUs)

The Court in Fordice observed that the closure or merger of certain institutions may be constitutionally required, consistent with its holding that any vestige of a de jure segregated system that continues to have discriminatory effect must be eliminated to the extent practicable and consistent with sound educational policy. Yet that invited a new—and more difficult—set of questions: which institutions would be most subject to closure or merger, and under what circumstances would such action be required?

Significantly, the Court did not categorically identify which institutions would be most subject to such remedial action —a state's flagship, formerly white-only institutions from which a de jure system originated, for example, or formerly black-only institutions created to preserve white-only admission at other institutions. Instead, the Court concluded that it was unable to determine—on the record presented in Fordice —whether closures or mergers were required in that case and directed the lower court on remand to "carefully explore" several considerations. This instruction to the lower court, while not part of the holding in Fordice , suggests that several factors are relevant for determining whether merger or closure is constitutionally required. In addition, the Court observed that maintaining all eight higher education institutions in Mississippi was "wasteful and irrational," particularly in light of the close geographic proximity between some of the universities. This observation suggests that close proximity between institutions offering similar programs could be a relevant factor in assessing remedial closure or merger as well.

Regarding the fate of a state's historically black institutions, Justice Thomas, in a concurring opinion, did not read Fordice to "forbid[]" those institutions' continued operation or "foreclose the possibility that there exists 'sound educational justification' for maintaining historically black colleges as such ." Justice Thomas emphasized that "[d]espite the shameful history of state-enforced segregation," historically black colleges and universities were and remain institutions critical to the academic flourishing and leadership development of many students, and observed that "[i]t would be ironic, to say the least, if the institutions that sustained blacks during segregation were themselves destroyed in an effort to combat its vestiges." In his view, though a state is not constitutionally required to maintain its historically black institutions as such, their continued operation is constitutionally permissible, so long as admission is open to all students "on a race-neutral basis, but with established traditions and programs that might disproportionately appeal to one race or another."

Legal Challenges Following Fordice

Following Fordice , plaintiffs, including the United States in Title VI enforcement actions, have brought suit challenging practices allegedly traceable to a state's de jure segregated university system. Challenged practices have included unnecessary program duplication, which the Court identified in Fordice as one of the "readily apparent" remnants of de jure segregation, as well as others such as scholarship policies, funding practices, and the use of curricula at formerly white-only institutions with little representation of black history and culture. More recently, in 2018, a legal challenge against the State of Maryland alleged that practices relating to capital and operational funding, unnecessary program duplication, and the limited institutional missions of the state's formerly black-only institutions are traceable to the state's formerly de jure segregated higher education system.

To date, however, only a few federal appellate courts have had occasion to analyze Fordice -based claims, and the Supreme Court has not, since its 1992 decision, addressed claims challenging higher education policies or practices as unconstitutional vestiges of de jure segregation. Though development of the Fordice standard in federal case law is limited, the few appellate decisions applying Fordice provide at least some analytical examples and reflect discernible differences in approach, particularly with respect to the evidence sufficient to satisfy the third element of the Fordice standard—that elimination of a practice is not possible, despite being traceable and having continued discriminatory effect.

Unnecessary Program Duplication: Program Transfers to Mergers

As discussed above, the Supreme Court in Fordice identified "unnecessary program duplication" as a practice traceable to the prior de jure segregated system of higher education at issue in that case, stating that "it can hardly be denied" that such duplication was a requisite feature of the prior dual system because "the whole notion of 'separate but equal' required duplicative programs in two sets of schools." Drawing upon that rationale, courts that have addressed unnecessary program duplication have generally had little difficulty tracing duplicative courses and degree programs to prior de jure segregation. On the matter of if and how program duplication might be eliminated, however, there is lesser consensus. Generally, federal courts have considered several methods for eliminating program duplication, such as transferring existing programs from one institution to another, eliminating certain programs altogether, creating cooperative programs, and—perhaps most drastically—merging institutions.

Challenges to Disproportionate Allocations of Federal and State Land Grants

Plaintiffs have also raised equal protection challenges to state funding practices that allocate all or most of their federal and state land grants to institutions that were formerly white-only in a de jure system while dedicating significantly less or no funds to formerly black-only institutions. More specifically, these cases have concerned a state's allocation of federal land grants provided annually to support research on agricultural issues and the dissemination or "extension" of that research.

At issue in Knight v. Alabama , for example, was the State of Alabama's allocation of federal funds between its two land grant universities, Auburn University, formerly white-only in the de jure system, and Alabama A&M University (A&M), formerly established as black-only. The state allocated to Auburn the entirety of Alabama's approximately $4 million in federal aid for agricultural research, and allocated an additional $14 million to Auburn in state funds. Meanwhile, the state had "for years" allocated no federal aid to A&M and given state funds for agricultural research in amounts that "today still totals less than $200,000 each year." The U.S. Court of Appeals for the Eleventh Circuit held that the state's current funding allocation was traceable to de jure segregation and instructed the lower court on remand to make determinations with respect to the second and third parts of the Fordice test. On the issue of practicable elimination, the Eleventh Circuit observed that reduced efficiency would not necessarily render a proposed modification impracticable or educationally unsound.

By contrast, the Fifth Circuit affirmed a district court's ruling that permitted a state to retain its traceable funding practices. There, despite finding traceability and discriminatory effects, the district court had concluded, based on inefficiencies related to running more than one agricultural research program, that it was not practicable for the state to eliminate its exclusive funding allocation to its formerly white-only land grant institution.

Open Questions After Fordice

The Supreme Court has not revisited its analysis in Fordice , leaving open questions about the permissible applications of its three-part legal standard to an array of fact patterns and legal theories. Similarly, as discussed above, few courts of appeals have addressed claims under Fordice , limiting the development and interpretation of Fordice in federal case law.

One such unresolved question is under what circumstances, if any, traceability can be established under Fordice when a state makes changes to an originally discriminatory policy such that the current policy functions differently, but there is still some evidence of traceability between the two, or perpetuation of similar segregative effects under the changed policy as under the original policy. In addition, the Supreme Court and circuit courts have not yet expressly addressed how far a district court may go in remedying an unconstitutional vestige or remnant of a prior de jure public university system. In the K-12 context, the Supreme Court has upheld district court orders that set certain faculty and student ratios at schools in noncompliant school districts, to desegregate them pursuant to Brown and its progeny . It remains unclear, however, whether the district courts enjoy similar authority under Fordice to order similarly extensive remedies. Indeed, the few cases alleging Fordice -type claims that did reach the federal appellate courts ultimately resolved in settlements, thus leaving little judicial guidance on the scope of a court's authority to mandate specific remedies if a state fails to dismantle its formerly de jure segregated public university system. With respect to these unresolved questions, the Supreme Court's express reliance in Fordice on precedent addressing de jure segregation in the primary and secondary school context suggests that at least some of this same precedent should inform future analyses, with adaptation to the higher education context.

Racial Segregation and Discriminatory Intent

A finding of a state entity's intent to segregate students by race in the higher education context is critical to showing a violation of the Equal Protection Clause, and has significant legal consequences. In such cases of de jure —that is, intentional, state-imposed —segregation, the state has an affirmative duty under the Equal Protection Clause to eliminate all vestiges of its de jure system by dismantling the infrastructure and other mechanisms that produced the discriminatory segregation. According to the Supreme Court's 1992 Fordice decision, this duty commands more than just the repeal of state laws sanctioning racial segregation in higher education. The state must also uproot or reform any policy or practice "traceable" to its formerly de jure system that continues to have discriminatory effect.

In Fordice , the state's intent to racially segregate its higher education system was plain: with the founding of the University of Mississippi in 1848, Mississippi explicitly set out to create a public university "dedicated to the higher education exclusively of white persons," and racially segregated its public university system over the next 100 years through the creation of other "exclusively white institutions" and "solely black institutions." Nor was Mississippi's system unique in this regard. "[D]ual system[s]" of public higher education—one for black students, another for white—were codified in other state and local laws throughout the country. Thus far, federal courts that have addressed de jure segregation in higher education have done so in the context of such codified segregation, as in Fordice .

The absence of a codified dual system of higher education, however, may not mean that a university system was not or is not intentionally segregated. As reflected in the Supreme Court decision Keyes v. School District No. 1, Denver, Colorado , even when state authorities have not segregated their public schools by statute, they may still have engaged in unconstitutional racial segregation. Thus, in the K-12 context, federal courts have found de jure segregation based on evidence reflecting a state actor's impermissible segregative intent. This line of cases would appear to apply in the context of higher education as well. As the Court noted in Fordice , where a plaintiff is unable to show that a policy or practice is a vestige of prior de jure segregation, she may nonetheless prove a "new" constitutional violation with evidence of a present-day intent to racially segregate students "under traditional principles" governing discriminatory intent. This would be consistent with the Court's application of Brown and its progeny broadly across "the field of public education," including higher education, as reflected in Fordice .

Because the Supreme Court has yet to address segregative intent in higher education, it is unclear what intent evidence would be sufficient to establish a de jure segregated public university or institution, apart from a law codifying such segregation. As a general matter, though, a court's determination of discriminatory intent is a fact-intensive, "sensitive inquiry." And the Supreme Court has observed that this is even more so in cases alleging de jure segregation in public education. Where the evidence indicates, for example, that a state actor undertook a policy or practice knowing that doing so would have the "foreseeable" effect of segregating students by race, that evidence may support an inference of de jure segregation. In addition, at least in the K-12 context, a finding of a state entity's segregative intent in one part of a school system creates a rebuttable presumption that segregation found in other parts of the same system was also intentional. De jure segregation proved by such nonstatutory evidence generally triggers the same affirmative obligation on the state to eliminate the vestiges of its state-imposed segregation, as when de jure segregation is shown through state or local laws.

Though segregative intent analyses at the K-12 level may be instructive, the guidance these decisions provide may be limited by the nature of the evidence at issue in those particular cases: the method of student assignment to elementary or secondary schools, for example, or the drawing of attendance zones to create racially segregated schools. It appears unlikely that such evidence would be at issue or directly applicable in cases alleging segregative intent at the collegiate or graduate level. Nonetheless, these decisions generally suggest that categorical distinctions—between evidence indicative of de jure segregation and evidence of existing segregation insufficiently linked to state intent—are difficult to draw. Indeed, given the difficulties that can arise in a court's analysis of "segregative intent," over the years a number of Justices have called into question the rationale and basis for the distinction between de jure and so-called de facto segregation, though the majority of the Court has recognized and continues to recognize this distinction.

Whatever the open questions may be regarding the evidence sufficient to show segregative intent, particularly in the higher education context, Fordice instructs that a plaintiff need not provide evidence of new discriminatory intent when alleging that a state has failed to eliminate vestiges of a prior de jure segregated system. And with respect to remedying intentional racial segregation, the Court has repeatedly held that a state not only may use a broad array of explicit race-conscious policies and practices to remedy its constitutional violation, but often must do so. By themselves, race-neutral measures simply may not be enough, the Court has explained, to provide equitable, make-whole relief for intentionally segregative acts.

This affirmative obligation to consider race arises, however, only in the context of de jure segregation. Outside that de jure context, institutions of higher education subject to the Equal Protection Clause have no such duty to remedy racial segregation. Nor may they—or the federal courts, for that matter—use the same broad array of race-conscious measures available for remedying de jure segregation.

De jure segregation, however, is not the only context in which race-conscious measures in higher education may be used. For over forty years colleges and universities have considered race as a way of increasing the racial diversity of their student bodies, independent from a legal basis relating to de jure segregation. Thus far, however, the Supreme Court has addressed only one type of discretionary race-conscious measure in the higher education context: admissions policies. And when evaluating these discretionary policies, the Court reviews them under a notably different analytical lens, looking to their precision in achieving certain concretely defined and "compelling" educational interests, as explained more fully below.

Beyond De Jure: Judicial Scrutiny of Racial Classifications

"Affirmative action" in its original sense grew out of the states' affirmative obligation under the Equal Protection Clause to rid their public institutions of the lingering vestiges of de jure segregation. But "affirmative action" has also come to refer to race-conscious policies developed outside this de jure context. These are policies voluntarily adopted by institutions to help racial minorities overcome the effects of their earlier exclusion. And unlike the measures ordered by the courts to right the wrongs of de jure segregation, these policies are strictly voluntary, with their legality consequently turning on constitutional considerations unlike those involved in the de jure context.

"Affirmative action" in this more familiar, voluntary sense has also been among the most contentious subjects in constitutional law. In the forty years since Regents of the University of California v. Bakke , when the Court first addressed those programs' constitutionality, the Justices have divided sharply over when or whether such programs can survive constitutional scrutiny. And a major point of disagreement among the Justices—lingering to this day —is how strictly to review those policies and what the government or other state entity must do to justify its use of "benign" racial classifications. In recent decisions, the Court has reviewed such classifications under a seemingly "elastic" regime of strict scrutiny, accepting those classifications only where they have been narrowly tailored to serve compelling government interests.

Equal Protection and Racial Classifications

The constitutional guarantee of equal protection broadly prohibits the government from employing "arbitrary classification[s]." And the use of racial classifications in particular has long been of special concern for the courts. Indeed, this "heightened judicial solicitude" for racial categorizing has roots nearly as old as the Fourteenth Amendment itself. As the Supreme Court explained in an early decision under the Amendment, the "spirit and meaning" of the Equal Protection Clause was "that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, ... that no discrimination shall be made against them by law because of their color." In the decades since, the Court has only made clearer that it regards the government's use of racial classifications as "inherently suspect" and therefore subject to more demanding scrutiny than other classifications, which are typically reviewed only for basic rationality.

There has been significant disagreement, however, over just how rigidly the courts should scrutinize a racial classification, especially when the point of the classification is to benefit racial minorities, as in the case of affirmative action. That issue came before the Court for the first time in Bakke , involving a challenge to an affirmative action admissions program begun at the then newly created medical school at the University of California at Davis (the Medical School). And the Court's fractured decision there prefigured the central disagreements that the Justices still face in reviewing so-called "benign" racial classifications.

1. Bakke's Splintered Levels of Scrutiny

In the early 1970s, not long after the Medical School opened, it adopted a race-conscious admissions policy to increase its enrollment of certain "disadvantaged" students. Under that policy, the school each year would set aside 16 seats in its entering class of 100 specifically for members of this "disadvantaged" group, to be admitted by a "special admissions" committee. Although many white students sought admission under this "special" policy, the committee considered only students of specifically identified racial minorities. After Allan Bakke, a white male, twice sought—and was denied—admission to the school, he brought suit challenging the set-aside under the Equal Protection Clause as well as Title VI, which prohibits institutional recipients of federal funds—like the Medical School—from discriminating on the basis of race.

Bakke's case eventually found its way to the Supreme Court and into the hands of a divided bench. The Justices found themselves particularly at odds over the case's threshold question—what level of scrutiny the Court should apply in reviewing Bakke's challenge. Justice Stevens, writing for a quartet of Justices, concluded that the program violated Title VI, sidestepping the constitutional question. Another four Justices would have reached the equal protection challenge, and in doing so would have required the Medical School to point to "important governmental objectives" that justified its admissions policy's use of "remedial" racial classifications, along with evidence that their use was "substantially related to" achieving those important objectives . Under that standard—a form of intermediate scrutiny —these Justices would have upheld the policy.

Justice Powell, announcing the Court's judgment but writing for himself, insisted that all "racial and ethnic distinctions" drawn by the government must be regarded as "inherently suspect," calling for "the most exacting judicial examination." What that meant in Bakke , according to Justice Powell, was that the Medical School would need to prove that its use of the "special admissions" carve-out was "precisely tailored to serve a compelling governmental interest"—the standard of review now known simply as strict scrutiny . And because, in his view, the school could come forward with no such proof, Justice Powell concluded that its affirmative-action policy could not survive the Court's scrutiny, whether under the Fourteenth Amendment or the overlapping standards of Title VI.

2. Settling on Strict Scrutiny

Because Bakke yielded no majority opinion, it could only hint at how the Court might treat other "benign" race-conscious policies that did not involve the sort of apparent quota invalidated in that case or cases outside the unique context of higher education. That uncertainty would last another decade, as the Court, in another series of splintered decisions, weighed constitutional challenges to differently structured affirmative action policies in other contexts, each time without resolving the appropriate standard of review.

That uncertainty appeared to abate with the Court's 1989 decision in Richmond v. J.A. Croson , Co. There, for the first time, five Justices clearly signaled that they would apply strict scrutiny to affirmative action plans implemented at the state and local levels, including the program they invalidated in that case, involving the City of Richmond's set-aside of public work funds for minority-owned businesses. But the next year, in Metro Broadcasting, Inc. v. FCC , the Court, in another 5-4 ruling, suggested that it would review federal affirmative action plans differently. In the Court's view there, "benign race-conscious measures mandated by Congress " need only "serve important governmental objectives" and be "substantially related to the achievement of those objectives"—satisfying an intermediate level of scrutiny.

Just a few years later, however, in Adarand Constructors, Inc. v. Peńa , the Supreme Court reversed course. There, in a federal contracting case, the Court drew a different lesson from its pre- Metro line of race-classification cases: in the view of the Adarand majority, "any person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny." That simple rule therefore precluded the divided regime upheld in Metro Broadcasting , subjecting the states' use of racial classifications to strict scrutiny, while relaxing the review of comparable classifications enacted by Congress. Instead, the Adarand Court held, "[f]ederal racial classifications, like those of a State, must serve a compelling governmental interest, and must be narrowly tailored to further that interest." And to the extent that Metro Broadcasting was "inconsistent" with that uniform rule, it was accordingly overruled.

After Adarand strict scrutiny therefore became the test of any classification that subjected individuals to unequal treatment based on their race, no matter which state actor was doing the classifying. And the Court expressly extended that holding to the context of higher education. As the Court reaffirmed in Fisher v. University of Texas , "because racial characteristics so seldom provide a relevant basis for disparate treatment," "[r]ace may not be considered [by a university] unless [its] admissions process can withstand strict scrutiny."

It therefore appears that a classification that subjects individuals to unequal treatment because of their race, even if for a "benign" purpose, will have to satisfy strict scrutiny. In its canonical formulation, that test calls for measuring such classifications along the two dimensions Justice Powell identified in Bakke : (1) the classification must serve a compelling governmental interest and (2) the use of that classification must also be narrowly tailored to achieving that interest. The government has the burden of proving both, and neither is easy to do. Indeed, in the sixty years that separated the Court's now-repudiated decision in Korematsu v. United States from Grutter v. Bollinger , when the Court first upheld an affirmative action policy at a public university, the only other "racial classifications upheld under strict scrutiny [have been] race-based remedies for prior racial discrimination by the government." To many commentators "strict scrutiny" has thus come to seem rather more "strict in theory, but fatal in fact" —a point sometimes echoed by the Justices themselves.

Voluntary "Affirmative Action" in Higher Education: Scrutinizing Admissions

Strict scrutiny may typically be fatal in fact, but affirmative action policies in higher education have been a notable exception. Partly this has to do with the Equal Protection Clause itself, and the often crucial difference that a particular context makes in deciding cases under that "broad provision[]." And for several Justices the context of affirmative action, involving the arguably "benign" use of race, has seemed particularly distinctive. Yet, despite this contextual difference, the Court has made it clear that its scrutiny of race-conscious admission policies is still every bit as strict. Or, as Justice Kennedy put the point in the first Fisher case, even though "[s]trict scrutiny must not be 'strict in theory, but fatal in fact,'" it must also "not be strict in theory but feeble in fact."

This seeming tension—between the strictness of the Court's scrutiny and its approval of race-conscious admissions policies—has led the Court to adjust its framework for scrutinizing similar policies over the years. And since Bakke that framework appears to have shifted in two significant respects, corresponding to each of the two prongs of strict scrutiny. First, the Court now requires public universities that adopt affirmative action admissions policies to explain in increasingly "concrete and precise" terms what diversity-related educational goals those policies serve and why the university has chosen to pursue them. Anything less, the Court has held, would fail to present an interest sufficiently compelling under strict scrutiny. Second, the Court also now expects universities to prove that their policies achieve those "concrete and precise goals" in an appropriately "flexible" way, as most clearly exemplified by the Harvard plan that Justice Powell singled out in Bakke . That model has yielded "five hallmarks" of an appropriately tailored affirmative action policy, criteria that have since guided lower courts in assessing other affirmative action plans.

From "Student Body Diversity" to Concrete and Particular Diversity-Related Goals

For a university's affirmative action policy to survive strict scrutiny, a university must first "demonstrate with clarity that its 'purpose or interest is both constitutionally permissible and substantial." The Court has recognized only a single interest that meets that standard: "the attainment of a diverse student body." What exactly that interest amounts to—and how, consequently, a university should ensure it has appropriately tailored its policy to achieve that interest—has been a point of uncertainty since Bakke . With its two decisions in Fisher v. University of Texas , however, the Court appears now to require a more "concrete and precise" articulation of the diversity-related educational goals a university hopes to achieve through its affirmative action admissions policy. In addition, the Court also now appears to expect a university to provide a reasoned and principled explanation of why the school believes it important to achieve those goals.

1. Bakke and the Diversity Interest

The diversity rationale emerged with the Court's first encounter with a voluntary affirmative-action policy, in Bakke . There—in an opinion for the Court joined by no other Justice—Justice Powell explained what interests clearly would not count as compelling enough to satisfy strict scrutiny. Those included the Medical School's alleged interest in having "some specified percentage" of certain racial or ethnic groups in a student body and its interest in "remedying ... the effects of societal discrimination," as well as the school's particular interest in "the delivery of health-care services to communities currently underserved." None of these interests, Justice Powell concluded, provided a reason substantial enough to justify turning to race-conscious measures. Nor has the Court said otherwise since.

But Justice Powell was also clear about what interest he believed would satisfy strict scrutiny: "student body diversity." And just as importantly, he also explained why: colleges and universities, he suggested, had a uniquely academic interest in promoting an "atmosphere of speculation, experiment, and creation"—an interest, more simply, in "academic freedom." That interest, Justice Powell observed, was not only "essential to the quality of higher education," but had also long "been viewed as a special concern of the First Amendment." Thus the "right to select those students who will contribute the most to the robust exchange of ideas" not only allowed a university "to achieve a goal that is of paramount importance in the fulfillment of its mission," it also represented a "countervailing constitutional interest" that, in Justice Powell's view, called for the Court's respect.

In Bakke , Justice Powell set out the basic theory for why diversity could justify an affirmative action policy, at least "in the context of a university's admissions program. But he gave few details about what that interest encompassed. As he saw it, that interest must have its limits: pursuing diversity would not allow a university to resort to racial quotas, for example, nor could the school disregard other "constitutional limitations protecting individual rights." But Justice Powell declined to indicate where those other limitations fell or how they circumscribed the goals a university could permissibly seek in the name of a diverse student body. And because the Bakke Court fractured as it did, with no one opinion commanding a majority of the Justices' votes, the lessons of that case have been hard to discern, especially after the Court appeared to decline a similar diversity rationale in later cases outside higher education. Perhaps unsurprisingly, the lower courts soon came to reflect this uncertain division of opinion in later cases involving affirmative action programs at other public universities.

2. "Critical Mass" and Diversity

Some clarity over Bakke 's diversity theory came in 2003, with a pair of decisions reviewing affirmative action policies of the University of Michigan: Grutter v. Bollinger , challenging the university's law school admission program, and Gratz v. Bollinger , challenging the policy used by the university's undergraduate program. Grutter , especially, helped clarify what an interest in diversity involved, and how a university could rely on that interest to defend a race-conscious admissions policy.

Under the admissions policy of the University of Michigan Law School ( the Law School) challenged in Grutter , applicants to incoming classes were admitted under a policy that weighed a composite of the applicant's LSAT score and undergraduate GPA along with several more individualized factors, including the applicant's race. The Law School set out to create classes with what it called a "critical mass of underrepresented minority students," to ensure that those students felt "encourage[d] ... to participate in the classroom and not feel isolated." The school, however, never explicitly assigned a numerical target for any particular racial group, though it did track, on an ongoing basis, "the racial composition of the developing class." A rejected white applicant claimed the Law School's admission policy discriminated against her based on her race, in violation of the Equal Protection Clause and Title VI. And her challenge eventually reached the Supreme Court, alongside its companion case, Gratz , challenging the university's admissions policy for its undergraduate program.

Given the uncertainties surrounding Bakke 's bottom line, the first major question in Grutter centered on the basic goal of the Law School's policy: Is achieving student diversity an interest compelling enough to justify a school's use of race at all in its admissions decisions? And for the first time the Supreme Court held that it was. Writing for a clear majority, Justice O'Connor adopted the view Justice Powell set out in Bakke : "student body diversity is a compelling state interest that can justify the use of race in university admissions."

More than that, the Court made clear that it was willing to defer to the Law School's understanding of that interest, and its goal of "enroll[ing] a 'critical mass' of minority students.'" As Justice O'Connor explained for the Court, by enrolling a "critical mass" of students, the Law School was trying to achieve the "substantial" "educational benefits that diversity is designed to produce"—benefits such as "promot[ing] cross-racial understanding," "break[ing] down racial stereotypes," "promot[ing] learning outcomes," and "better prepar[ing students] as professionals." Achieving a "critical mass" of underrepresented students, the Court agreed, was simply one way that the Law School could try to vindicate those diversity-related educational benefits. And because this interest was deemed compelling enough to satisfy strict scrutiny, the Court was therefore willing to treat the school's use of the "critical mass" target as a permissible proxy for achieving those benefits.

Not all the Justices agreed, however, that the university's invocation of "critical mass" made the diversity interest more concrete or compelling. In dissent, Justice Kennedy sided with Chief Justice Rehnquist's view that "the concept of critical mass [was] a delusion used by the Law School to mask its attempt to make race an automatic factor in most instances and to achieve numerical goals indistinguishable from quotas." That "delusion," according to Justice Kennedy, did not just make the school's appeal to "critical mass" "inconsistent with [the] individual consideration" of applicants. It also, in his view, turned the school's admissions policy into a veiled form of racial balancing. And all four dissenting Justices found that result incompatible with the Equal Protection Clause.

3. From "Critical Mass" to "Concrete and Precise Goals"

Grutter appeared to settle the major question left open by the fractured decision in Bakke : whether achieving student diversity was a compelling enough interest for a public university to justify its consideration of race in its admissions policies. Grutter confirmed not only that the Court still viewed student diversity as a compelling interest, but also that a school could vindicate that interest by seeking to enroll a "critical mass" of underrepresented minorities in its incoming classes.

The ruling also effectively swept aside contrary lower court decisions that struck down other state universities' affirmative action policies, including in Texas. In the wake of Grutter , the University of Texas (UT Austin) decided to revisit its applicant review process, eventually choosing to introduce race as one of the factors considered in its admissions policy. Under the revised policy, UT Austin would continue to admit all Texas high school students who graduated in the top ten percent of their class, and fill in the rest of its incoming undergraduate classes using an index score incorporating two assessments: (1) an "Academic Index" (AI) that weighed the applicant's SAT score and academic record; and (2) a "Personal Achievement Index" (PAI) that included a more holistic appraisal of the student's character and, following post- Grutter revisions, also factored in the applicant's race. Abigail Fisher, a white Texas student whose application to UT Austin was rejected under this process, challenged the AI-PAI system. That system, she argued, had discriminated against her as a white applicant by allegedly allowing race to figure in the decision to reject her application, in violation of the Equal Protection Clause. Her challenge eventually made its way to the Supreme Court as Fisher v. University of Texas , where the Supreme Court remanded the challenge to the lower court to review UT Austin's policy under strict scrutiny ( Fis her I ), and then upon appeal upheld the school's admission policy ( Fis her II ).

In her suit, Fisher did not challenge Grutter 's basic holding—that the university had a compelling interest in student diversity, or even that the school could pursue that interest in diversity by enrolling a "critical mass" of underrepresented minorities. But when the Court finally took up her challenge on the merits in Fisher II , Justice Kennedy also took the occasion to revisit Grutter 's analysis, offering several "controlling principles" on behalf of the four-Justice majority that would guide its review of UT Austin's race-conscious admissions policy.

In Fisher II , as in Fisher I , Justice Kennedy confirmed that Grutter 's bottom line remained good law: "obtaining 'the educational benefits that flow from student body diversity,'" he confirmed, was still an interest compelling enough to satisfy strict scrutiny. But perhaps mindful of his dissent in Grutter , Justice Kennedy also clarified that "asserting an interest in the educational benefits of diversity writ large" would not suffice. That, he explained, would make the "university's goals" too "elusory or amorphous" "to permit judicial scrutiny of the policies adopted to reach them."

The Court thus cut two new benchmarks for reviewing a university's asserted interest in resorting to race as a factor in its admissions policy. First, the university had to articulate "precise and concrete goals" that its race-conscious policy served, goals "sufficiently measurable" under "judicial scrutiny." And, second, the university had to provide a "'reasoned, principled explanation' for its decision to pursue those goals"—a sound academic rationale, in other words, for wanting to achieve whatever diversity-related goals it set for itself. In the majority's view, UT Austin's use of race in its admissions decisions measured up to both benchmarks.

According to the Court, the first benchmark was straightforwardly met: the goals UT Austin articulated, Justice Kennedy pointed out, effectively "mirror[ed] the 'compelling interest' th[e] Court ha[d] approved in its prior cases." And under Grutter , the majority concluded, those benefits passed constitutional muster.

Notably, however, achieving critical mass was not among those Justice Kennedy listed. Nor did Justice Kennedy return to the question he raised in Grutter : whether the "critical mass" concept even has a place among the "concrete and precise goals" that could survive strict scrutiny. But that question was also arguably beside the point in Fisher II . As Justice Kennedy emphasized for the Court, the goals that UT Austin articulated were clearly constitutionally adequate, having come nearly verbatim from the Court's case law. And the university's officials had all offered "the same, consistent 'reasoned, principled explanation'" for pursuing them—meeting the Court's second benchmark. That was apparently enough for the Court to conclude that a compelling interest justified the university's diluted use of race in its holistic review of applications.

The Harvard Plan and the Five Hallmarks of Narrow Tailoring

With Fisher I and II , the Court reiterated that the educational benefits that come with a racially diverse student body count among the few interests compelling enough to survive strict scrutiny. But Fisher I and II also narrowed that interest: seeking student body diversity had to involve objectives more specific than the simple desire for "diversity writ large." Rather, under the Fisher formulation, the university must articulate the "concrete and precise goals" it expects its affirmative action policy to accomplish, along with a "reasoned, principled explanation" of why it has chosen to pursue them. So long as a university does that, it will likely have a strong case, under Fisher I and II , that a compelling interest supports its use of a race-conscious admissions policy.

That, however, is only the first of two tests that a policy has to pass under strict scrutiny. The second—probing whether the university has narrowly tailored its policy to achieve those diversity-related benefits—has proved equally critical in the Court's review of affirmative action policies. And once again owing to Justice Powell's opinion in Bakke , the Court appears to have embraced a model of what a narrowly tailored policy looks like: Harvard College's admissions program endorsed in Bakke , now more commonly known as the "Harvard plan." The Harvard plan has also provided the Court with a basis for developing more specific criteria for evaluating other affirmative action policies—what one court has described as the "five hallmarks of a narrowly tailored affirmative action plan."

A Narrowly Tailored Affirmative Action Policy: Bakke's Harvard Plan

The first affirmative action program to come before the Court—the policy challenged in Bakke at U.C. Davis's Medical School—was also the first to falter under the Court's scrutiny. But because the Justices were unable to cobble together a majority there, they also settled on no single rationale for why the Medical School's policy could not survive the Court's scrutiny. This uncertainty left the lower courts without clear guidance on the permissibility of race-conscious admissions policies structured differently than the one struck down in Bakke .

In announcing the judgment in Bakke , however, Justice Powell offered a clear reason why, in his view, the Medical School's policy could not survive a challenge under the Equal Protection Clause. The school's 16-seat set-aside for minority students was not "the only effective means of serving [the school's] interest in diversity" —in constitutional parlance, the set-aside was not narrowly tailored. And to explain why not, Justice Powell pointed to the Harvard plan as an example of an appropriately tailored affirmative action policy.

That plan, according to Justice Powell, had several significant features that distinguished it—favorably—from the set-aside struck down in Bakk e :

In [Harvard's] admissions program, race or ethnic background [is] 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. The file of a particular black applicant may be examined for his potential contribution to diversity without the factor of race being decisive when compared, for example, with that of an applicant identified as an Italian-American if the latter is thought to exhibit qualities more likely to promote beneficial educational pluralism. Such qualities could include exceptional personal talents, unique work or service experience, leadership potential, maturity, demonstrated compassion, a history of overcoming disadvantage, ability to communicate with the poor, or other qualifications deemed important ... [And] the weight attributed to a particular quality may vary from year to year depending upon the 'mix' both of the student body and the applicants for the incoming class.

Unlike this "flexible" system of review, the Medical School policy at issue in Bakke was rigid: reserving a predetermined number of seats for a "selected ethnic group." In Justice Powell's view, that technique effectively precluded a more holistic review, that "treats each applicant as an individual." "[R]ace or ethnic origin," as he saw it, did not serve as "a single though important element" of an applicant's file in the Medical School's policy; it had instead become a factor that "foreclosed" other applicants "from all consideration for [certain] seat[s] simply because [they were] not the right color or had the wrong surname." A program like that, Justice Powell concluded, could not be narrowly tailored—precisely because another more individualized and "holistic" model, like Harvard's, could serve instead.

Ratifying the Harvard Model

Even if Bakke suggested that the Court's scrutiny of a race-conscious admissions policy would be every bit as strict as for other racial classifications, later cases have made clear that such scrutiny need not always be fatal. The companion cases of Grutter v. Bollinger and Gratz v. Bollinger offer clear examples: each involved affirmative action admissions policies at the University of Michigan, and each yielded a different bottom line, with the Court upholding the Law School's policy in Grutter while striking down the university's undergraduate admissions policy in Gratz . But those diverging results appeared to proceed from a common starting point: how closely the challenged admissions policy resembled the Harvard plan.

In the case of the Law School's admissions policy, the Court found the resemblance quite close. As Justice O'Connor explained for the Court in Grutter , "the Law School engages in a highly individualized, holistic review of each applicant's file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment." It therefore did not award "mechanical, predetermined diversity 'bonuses' based on race or ethnicity." And "[l]ike the Harvard Plan, the Law School's admissions policy" accorded each applicant the same sort of flexible consideration that Justice Powell had called for in Bakke .

That "policy st[ood] in sharp contrast," however, with the way the Court viewed the university's undergraduate admissions policy in Gratz . Under the undergraduate policy, admissions officers automatically awarded "20 points, or one-fifth of the points needed to guarantee admission, to every single 'underrepresented minority' applicant solely because of race." As Chief Justice Rehnquist explained for the Court, that policy therefore violated a basic feature of "[t]he admission program Justice Powell described" in Bakke —a program that "did not contemplate that any single characteristic automatically ensured a specific and identifiable contribution to a university's diversity." The result was a policy that did not "offer applicants the individualized selection process described in Harvard's example," and that could consequently not pass strict scrutiny.

On that point Justice O'Connor also agreed. As she explained in supplying her decisive fifth vote, the undergraduate policy simply did not "enable[] admissions officers to make nuanced judgments with respect to the contributions each applicant is likely to make to the diversity of the incoming class," unlike the Law School's more holistic policy. This was true even though the undergraduate policy "assign[ed] 20 points to some 'soft' variables other than race," such as "leadership and service, personal achievement, and geographic diversity." None of that, in Justice O'Connor's view, could counteract the more problematic effect of those factors' being "capped at much lower levels," so that "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." That weighting, though not problematic in all cases, had all but ensured there "that the diversity contributions of applicants [could not] be individually assessed." A thumb pressed that heavily on the racial scale, Justice O'Connor concluded, came too close to the "nonindividualized, mechanical" balancing condemned by Bakke to survive strict scrutiny.

Five Hallmarks of a Narrowly Tailored Admissions Policy

Despite their contrasting results, Gratz and Grutter gestured at several basic criteria by which to assess a university's race-conscious admissions policy. Those criteria, as the U.S. Court of Appeals for the Ninth Circuit later described them, could be summed up in "five hallmarks of a narrowly tailored affirmative action plan." And all five can be traced in one way or another to Justice Powell's analysis of the Harvard plan.

1. No Quotas.

Perhaps the clearest violation of the requirement that a policy be narrowly tailored is the use of racial quotas. As Justice O'Connor explained in Grutter , a "'quota' is a program in which a certain fixed number or proportion of opportunities are reserved exclusively for certain minority groups," consequently "insulat[ing] the individual [applicant] from comparison with all other candidates for the available seats." And as Justice Powell emphasized in Bakke , and as has been consistently reaffirmed by the Court since, "[t]o be narrowly tailored, a race-conscious admissions program cannot use a quota system." This ban on quotas therefore precludes the use of a rigid set-aside like the one challenged in Bakke . And it likewise rules out the sort of "mechanical," automatic points system that was once in place at the University of Michigan's undergraduate college and was later invalidated in Gratz .

2. Individualized Consideration.

The flip side of the Court's refusal to accept racial quotas has been its insistence on individualizing the consideration of applicants. As Justice Kennedy reaffirmed in Fisher I , echoing Justice Powell's description of the Harvard plan in Bakke , an appropriately tailored program "must 'remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of his or her application.'" And as the Court suggested in Gratz and Grutter , an acceptable plan will therefore engage in a "highly individualized, holistic review of each applicant's file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment." Such review allows "the use of race as one of many 'plus factors' in an admissions program," like in the University of Michigan Law School's policy upheld in Grutter . It also appears to bar a school from "automatically award[ing] points to applicants from certain racial minorities" as an effectively decisive factor, as it became under the university's undergraduate policy.

3. Serious, Good-Faith Consideration of Race-Neutral or More Flexible Alternatives.

Neither of these two criteria, however, implies that a university must exhaust "every conceivable race-neutral alternative" before turning to a race-conscious policy. Instead, a university need only provide evidence that it undertook "serious, good faith consideration of workable race-neutral alternatives" before resorting to its choice of a race-conscious plan, but that those alternatives either did not suffice to meet its approved educational goals or would have required some sacrifice of its "reputation for academic excellence." The same holds true, moreover, of more flexible race-conscious alternatives. Thus Justice Powell explained in Bakke that the Medical School's program was not narrowly tailored when the school could have adopted the more individualized, holistic program then in use at Harvard, an option the Medical School apparently did not consider.

4. No Undue Harm.

Even though the Court has allowed the use of race-conscious admissions policies under the exacting standard of strict scrutiny, it has also long "acknowledge[d] that 'there are serious problems of justice connected with the idea of preference itself.'" In Grutter , Justice O'Connor drew another corollary from that apparent discomfort with racial preferences. "[A] race-conscious admissions program," she explained, must "not unduly harm members of any racial group." What this corollary means more specifically remains unclear; so far it has received only passing attention from the Court. At the least, Justice O'Connor suggested, a race-conscious admissions policy must not "unduly burden individuals who are not members of the favored racial and ethnic groups." And in Grutter , Justice O'Connor put more flesh on that analysis: an affirmative action policy that closely resembled the Harvard plan, she suggested, would not "unduly harm" other applicants. It remains to be seen, however, whether this principle might take on new life in the Court's review of other plans.

5. Ongoing Review.

In Grutter , Justice O'Connor also drew a fifth and final corollary from the basic premise that the Fourteenth Amendment was meant "to do away with all governmentally imposed discrimination based on race." "[R]ace-conscious admissions policies," she concluded, "must be limited in time." This requirement, Justice O'Connor explained for the Court, reflected a consideration apparently unique to racial classifications: "however compelling their goals, [they] are potentially so dangerous that they may be employed no more broadly than the interest demands." Doctrinally, this meant there could be no "permanent justification" for race-conscious admissions policies in higher education; sooner or later they had to end, as the university conceded in its briefing. Practically, this "logical end point" could come in one of several ways. It could take the form of an explicit "durational limit," such as a sunset provision. Or it could arrive as a result of "periodic reviews to determine whether racial preferences are still necessary to achieve student body diversity." But, however a university chooses to pursue that end, it has an "ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies" and the role race plays in them, or whether it should continue to play one at all.

For several Justices this ongoing obligation of review also pointed to something more definite—an expiration date, when "the use of racial preferences will no longer be necessary to further [the school's] interest" in student body diversity. Looking back over the quarter-century since Bakke , Justice O'Connor "expect[ed]" that day to come twenty-five years after casting her deciding votes in Gratz and Grutter —ten years from this writing. What exactly this meant, as either a practical or doctrinal matter, also remains unclear. Indeed, even then several of her fellow Justices seemed less sure, or simply unsure, what to make of that unusually specific constitutional deadline. But with six Justices having since departed the Court, Justices O'Connor and Kennedy included, it remains to be seen whether in the next ten years race-conscious admissions policies will reach this foreordained "logical end point."

What seems clear for now, however, is that the Harvard plan described in Bakke remains the Court's working model of a constitutionally satisfactory race-conscious admissions policy. And that, as the Court has consistently said since, is a policy capable of achieving the diversity "essential" to the life of a modern university, while still "treat[ing] each applicant as an individual."

Title VI and Higher Education

Race has come to play two major doctrinal roles in higher education today, mirroring the two senses of "affirmative action" discussed in this report: the mandatory role, rooted in the affirmative obligation states have to eliminate the vestiges of de jure segregation, and the voluntary role, particularly in admissions decisions at selective colleges and universities. In the context of higher education, the Court has so far considered these two forms of "affirmative action" only in relation to public universities, and then primarily as a matter of constitutional law, under the Fourteenth Amendment's Equal Protection Clause. But many of those cases have also involved claims brought under Title VI of the Civil Rights Act of 1964 (Title VI or the Act). And while the Court has read Title VI's protections to overlap with the Equal Protection Clause, Congress still has a significant say over the substantive scope of Title VI as well as its enforcement.

Agency Interpretation and Enforcement of Title VI

Title VI generally protects participants in federally funded "program[s] or activit[ies]" from discrimination based on their "race, color, or national origin." To ensure that statutory right, the Act grants all federal funding agencies the authority to issue implementing regulations, and the power to enforce the regulations they issue. In practice, much of the interpretive authority falls to the U.S. Department of Justice (DOJ), and for educational programs, the U.S. Department of Education (ED). Both DOJ and ED have also established their own processes for receiving and investigating complaints of suspected Title VI violations. ED, meanwhile, has also issued its own set of rules to govern the federal education dollars it disburses each year, reaching some 4,700 colleges and universities.

Every agency that awards federal funds—ED included—has the authority not just to issue implementing regulations but to enforce those rules against noncompliant recipients, including through an investigation that may, upon a finding of noncompliance, result in the termination, suspension, or refusal to grant federal funds. Thus, for example, where ED finds a school in violation of Title VI or its implementing regulations the department may seek to cut off federal funding through an "administrative fund termination proceeding," as it has in at least some cases. And since the passage of the Civil Rights Restoration Act of 1987, the courts have read the scope of liability under Title VI broadly. With respect to the termination of funds, a Title VI violation in one program at a college or university could therefore jeopardize funding for the institution as a whole.

Withdrawing funds may be the ultimate means of enforcing Title VI, but it is far from exclusive. DOJ, for its part, has also sought to achieve compliance through the federal courts, intervening in some private suits alleging Title VI violations and otherwise representing executive branch agencies, such as ED, in lawsuits seeking enforcement of Title VI. DOJ has participated in cases challenging practices of formerly de jure segregated public university systems as well as in settlements resolving such Fordice -related claims. DOJ has also taken a position in cases challenging affirmative action admissions policies, most recently in the ongoing litigation surrounding Harvard College's admissions policies. ED has ventured into this area as well, having recently opened investigations into the admissions decisions at several prominent private universities.

Congress and Title VI

Congress continues to have considerable say over how Title VI works—at least within the parameters of the Supreme Court's equal protection jurisprudence. Perhaps the most direct way of doing so is by amendment. As a general matter, Congress could revise Title VI in one of two directions, to make the statute either (1) more restrictive than the Court's current Equal Protection jurisprudence or (2) expressly permissive of race-conscious measures that the Court has upheld or has thus far not addressed.

In the more restrictive direction, Congress could prohibit recipients of federal funds from using voluntary race-conscious measures at all—a result that four Justices in Bakke argued Title VI already requires, but which the Court has so far not embraced. A statutory revision of that kind would also implicitly reject the Harvard Plan discussed in Bakke , by excluding race as a permissible factor in admissions decisions at the many universities subject to Title VI, including the many private universities that receive federal funds. And, consequently, an amendment along these lines would make unlawful the type of admissions policies that the Court has approved under the Equal Protection Clause, like those at issue in Grutter and Fisher II .

On the other hand, Congress could expressly open other avenues for effectuating Title VI's antidiscrimination mandate. This could include incorporating a private right of action to bring suit under Title VI, which, at present, is an implied right with no statutorily defined remedies. More consequentially, Congress could also amend Title VI to provide for disparate impact liability—that is, a Title VI violation based on a funding recipient's use of certain policies or practices that disproportionately and negatively impact members of a protected class, as already exists under Title VII of the same Act. A provision addressing disparate impact liability—either its availability or foreclosure under Title VI—would resolve a significant and ongoing debate on the issue. Such an addition would also be one way of clarifying whether Congress does in fact intend for Title VI to be read coextensively with the Equal Protection Clause.

Beyond legislative amendments, Congress also exercises oversight over the agencies charged with carrying out Title VI's antidiscrimination mandate. As discussed earlier, DOJ and ED are primarily responsible for enforcing Title VI in educational programs. For its part, ED investigates and seeks compliance through its Office for Civil Rights, while the Educational Opportunities Section of the Department of Justice's (DOJ's) Civil Rights Division typically enforces Title VI in educational programs for the department. Both offices maintain public archives documenting their past and current investigations, as well as wider-ranging reports detailing their enforcement priorities and investigatory procedures. And because Title VI applies to a wide variety of entities that receive federal financial assistance, not just colleges and universities, DOJ also publishes news and updates on Title VI enforcement activity in other programmatic areas, from agencies across the federal government.

Conclusion

Race has come to play two major doctrinal roles in higher education today, reflecting the two senses of "affirmative action" discussed in this report. "Affirmative action" in its original sense grew out of the affirmative obligation imposed on the states by the Equal Protection Clause to eliminate the vestiges of de jure segregation from their public schools. And in that sense, "affirmative action" involves the mandatory use of race-conscious measures in higher education to right the enduring wrongs of state-sanctioned segregation. But "affirmative action" has also come to refer to race-conscious policies outside this de jure context—policies voluntarily adopted by institutions to help racial minorities overcome the effects of their earlier exclusion. In higher education, none has been more salient—or stirred more debate—than the race-conscious admissions policies that colleges and universities across the country have used to diversify their student bodies.

Thus far, remedial measures addressing de jure segregation, and voluntary measures designed to promote student-body diversity, have been the only race-conscious measures that the Court has approved under the Equal Protection Clause. And both remain areas of active litigation and administrative enforcement. Over the years, however, the Court has made it clear that it will subject voluntary "affirmative action" policies to especially close scrutiny, approving them only when they can be shown to be narrowly tailored to serve compelling educational goals. It has approved such polices twice already, most recently in 2016. Still, several Justices have suggested that the rationales supporting these voluntary race-conscious measures will one day run out. But for the time being, at least, these two lines of authority nevertheless provide a place for affirmative action in higher education today.

This authority, however, leaves questions as of yet unexplored. It appears to be an open question, for example, whether a public institution of higher education can cite its own history of intentional exclusion, or else its "past discrimination," as a basis for adopting a race-conscious admissions policy, among other measures. Whether—and how—the courts might assess such untested arguments would likely turn on a range of factors, including the further development of the two lines of authority addressed in this report. Regardless of those and other possible developments, however, Congress still has a significant say in in this area, through its authority not just to revise Title VI but to oversee the Act's enforcement.