Back Tobakke: Defining the Strict Scrutiny Test for Affirmative Action Policies Aimed at Achieving Diversity in the Classroom

• Publication year: 2021
• Citation: Vol. 83

83 Nebraska L. Rev. 631. Back toBakke: Defining the Strict Scrutiny Test for Affirmative Action Policies Aimed at Achieving Diversity in the Classroom

631

Leslie Yalof Garfield*

Back to Bakke: Defining the Strict Scrutiny Test for Affirmative Action Policies Aimed at Achieving Diversity in the Classroom

TABLE OF CONTENTS

I. Introduction ................................................... 632
II. A Brief History of Challenges to Affirmative Action
Programs and Policies ......................................... 634
A. The Supreme Court's Application of the Strict
Scrutiny Test .............................................. 634
1. Challenges to Affirmative Action Admissions
Policies ................................................ 634
2. Challenges to Affirmative Action Programs
Aimed at Achieving Diversity in the
Workplace ............................................... 640
B. Challenges to Affirmative Action Admission Policies
in the Circuit Courts ...................................... 644
III. The Supreme Court's Recent Application of the Strict
Scrutiny Test to Affirmative Action Admission Policies:
The Gratz and Grutter Decisions .......................... 660
IV. Defining the Strict Scrutiny Test for Affirmative Action
Admission Programs ............................................ 671
A. The Classroom Diversity Strict Scrutiny Test: A
New Test for Evaluating Affirmative Action
Admission Policies ......................................... 672
1. The Compelling Governmental Interest Test ............... 672
2. The Narrowly Tailored Test .............................. 675
a. The Program Is the Least Intrusive and
Most Effective Means To Achieve the Goals
of the Program ....................................... 676
b. The Program Is "Flexible and
Nonmechanical" and Limited in Duration ............... 6

632

77

B. The Appropriateness of the Classroom Diversity
Strict Scrutiny Test ....................................... 679
V. Conclusion ..................................................... 683

I. INTRODUCTION

You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, "You are free to compete with all the others," and still justly believe that you have been completely fair. Thus it is not enough just to open the gates of opportunity. All our citizens must have the ability to walk through those gates.(fn1)

The United State Supreme Court's recent review of affirmative action admissions policies in Grutter v. Bollinger(fn2) and Gratz v. Bollinger(fn3) confirms that the Court applies a different strict scrutiny test for challenges to affirmative action programs aimed at improving diversity in the classroom than the test it applies to challenges to programs aimed at achieving racial equality in the workplace. Since the first challenge to an affirmative action program over twenty-five years ago, the Court has required that a race-conscious program not be upheld under the Constitution unless it passes the strict scrutiny test.(fn4) Justice Powell first articulated the strict scrutiny test in Regents of the University of California at Davis v. Bakke,(fn5) writing that a race-conscious program survives strict scrutiny if it is "precisely tailored to serve a compelling governmental interest."(fn6) Post-Bakke challenges more clearly defined the test, requiring state or federal entities defending any race-conscious program to demonstrate that there was a compelling governmental interest in the program, and to establish that the program was narrowly tailored to meet that interest.(fn7)

The Bakke case considered whether the affirmative action admissions program at the University of California at Davis violated the Equal Protection Clause by granting preferential treatment in its admissions decisions to applicants of color.(fn8) Justice Powell, writing for a plurality of the Court, identified a compelling governmental interest in achieving diversity in the classroom, but found--along with four of his brethren--that the Davis program was not narrowly tailored to

633

meet that objective.(fn9) Following Bakke, the Court heard a series of affirmative action challenges, all of which considered the constitutionality of affirmative action programs aimed at providing greater racial equality in the workplace.(fn10) Through these cases, the Court identified a compelling governmental interest in remedying past effects of present discrimination, and more formally promulgated the narrowly tailored test to allow for ease of evaluation of these programs.(fn11)

The post-Bakke challenges implicitly suggested the Court's willingness to treat programs aimed at achieving diversity in the classroom differently from those designed to enhance equality in the workplace.(fn12) The Court's failure to put its imprimatur on Justice Powell's decision, however, had unfortunate results. Because the Court never used the workplace challenges as an opportunity to endorse Justice Powell's plurality decision in Bakke, a split developed in the circuits concerning whether Justice Powell's definition of a compelling governmental interest in achieving diversity in the classroom was binding on lower courts.(fn13)

The Grutter and Gratz decisions, which presented the Court with the first post-Bakkechallenge to affirmative action programs aimed at achieving diversity in the classroom, offered the Court an opportunity to endorse Justice Powell's decision.(fn14) In reviewing challenges to two affirmative action admissions policies, the Court confirmed that there is a compelling governmental interest in achieving diversity in the classroom.(fn15) Equally important, while reviewing the challenged programs, the Court articulated a "narrowly tailored" test that is arguably more appropriate for evaluating challenges to affirmative action programs aimed at achieving diversity in the classroom than those designed to increase racial equality in the workplace.(fn16)

This Article will identify the new strict scrutiny test, and will consider the reason for creating a separate definition of strict scrutiny for evaluating affirmative action policies that achieve diversity in the classroom. Part II of the Article will review constitutional challenges

634

to affirmative action policies prior to Grutter and Gratz, and will discuss the split in the circuits that resulted from the Court's failure to endorse Justice Powell's definition of a compelling governmental interest in Bakke. Part III will provide an analysis of the Grutter and Gratz decisions, with a particular focus on each Court's discussion of the strict scrutiny test. Part IV will define the Court's strict scrutiny test for evaluating affirmative action admission policies, and will highlight why it is appropriate to use separate tests for challenges to affirmative action programs aimed at achieving diversity in the workplace and those aimed at achieving diversity in education.

II.A BRIEF HISTORY OF CHALLENGES TO AFFIRMATIVE ACTION PROGRAMS AND POLICIES

A.The Supreme Court's Application of the Strict Scrutiny Test

1. Challenges to Affirmative Action Admissions Policies

Because race-conscious affirmative action policies potentially grant preferential treatment to one class of people, opponents began challenging the policies, arguing that the policies violate the Equal Protection Clause.(fn17) The Supreme Court first considered an affirmative action program in Regents of the University of California at Davis v. Bakke.(fn18) Allen Bakke, a white male, unsuccessfully applied for admission to the University of California at Davis Medical School ("Da

635

vis") in 1973 and 1974.(fn19) He challenged the school's 1973 admission policy, adopted in an effort to diversify its entering class, on the grounds that it operated to exclude him from the school on the basis of his race. Bakke challenged the policy as violating the Equal Protection Clause,(fn20) the California Constitution,(fn21) and Title VI of the Civil Rights Act of 1964 ("Title VI").(fn22)

636

At the time, Davis employed a bifurcated admissions policy. One committee considered nonminority applicants who had achieved a minimum 2.5 undergraduate GPA ("UGPA").(fn23) Another committee considered all minority candidates, regardless of their objective scores.(fn24) The school set aside a certain number of seats for applicants in each of the groups.(fn25) Individuals from the general applicant pool could not fill seats from the minority applicant pool, even if seats were available.(fn26) Bakke claimed that the policy, which allowed the school to set aside a certain number of places for minority applicants with lower objective test scores than his own, was tantamount to a quota.(fn27) The trial court found that Davis's admission policy was a racial quota and held that it violated the California and United States Constitutions, as well as Title VI.(fn28) The California Supreme Court affirmed

637

this.(fn29) Upon the State's appeal, the Supreme Court of the United States granted certiorari.(fn30)

The Supreme Court, considering both the Equal Protection Clause and Title VI, affirmed the California Supreme Court's decision.(fn31) The Court subjected the Davis program to the most exacting evaluation. According to the majority, "[t]he Constitution guarantees" that when a program touches upon "an individual's race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear . . . is precisely tailored to serve a compelling governmental interest."(fn32) This language became the embodiment of the strict scrutiny test.

The Court, in a highly fractionalized opinion, struck down the Davis policy. Justice Powell was chosen to write the majority opinion.(fn33) He concluded that the Davis program violated both...