Amdt14.S1. Appropriate Level of Scrutiny: Current Doctrine

Fourteenth Amendment, Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

A clear distinction was then drawn between federal and state power to apply racial classifications. In City of Richmond v. J.A. Croson Co.,1 the Court invalidated a minority set-aside requirement that holders of construction contracts with the city subcontract at least 30% of the dollar amount to minority business enterprises. Applying strict scrutiny, the Court found Richmond’s program to be deficient because it was not tied to evidence of past discrimination in the city’s construction industry. By contrast, the Court in Metro Broadcasting, Inc. v. FCC2 applied a more lenient standard of review in upholding two racial preference policies used by the FCC in the award of radio and television broadcast licenses. The FCC policies, the Court explained, are benign, race-conscious measures that are substantially related to the achievement of an important governmental objective of broadcast diversity.3

In Croson, the Court ruled that the city had failed to establish a compelling interest in the racial quota system because it failed to identify past discrimination in its construction industry. Mere recitation of a benign or remedial purpose will not suffice, the Court concluded, nor will reliance on the disparity between the number of contracts awarded to minority firms and the minority population of the city. [W]here special qualifications are necessary, the relevant statistical pool for purposes of demonstrating exclusion must be the number of minorities qualified to undertake the particular task.4 The Court also said that because the ordinance defined minority group members to include citizens of the United States who are Blacks, Spanish-speaking, Orientals, Indians, Eskimos, or Aleuts, this expansive definition impugn[ed] the city’s claim of remedial motivation, there having been no evidence of any past discrimination against non-black racial minorities in the Richmond construction industry.5 It followed that Richmond’s set-aside program also was not narrowly tailored to remedy the effects of past discrimination in the city: an individualized waiver procedure made the quota approach unnecessary, and a minority entrepreneur from anywhere in the country could obtain an absolute racial preference.6

At issue in Metro Broadcasting were two minority preference policies of the FCC, one recognizing an enhancement for minority ownership and participation in management when the FCC considers competing license applications, and the other authorizing a distress sale transfer of a broadcast license to a minority enterprise. These racial preferences – unlike the set-asides at issue in Fullilove—originated as administrative policies rather than statutory mandates. Because Congress later endorsed these policies, however, the Court was able to conclude that they bore the imprimatur of longstanding congressional support and direction.7

Metro Broadcasting was noteworthy for several other reasons as well. The Court rejected the dissent’s argument – seemingly accepted by a Croson majority—that Congress’s more extensive authority to adopt racial classifications must trace to section 5 of the Fourteenth Amendment, and instead ruled that Congress also may rely on race-conscious measures in exercise of its commerce and spending powers.8 This meant that the governmental interest furthered by a race-conscious policy need not be remedial, but could be a less focused interest such as broadcast diversity. Secondly, as noted above, the Court eschewed strict scrutiny analysis: the governmental interest need only be important rather than compelling, and the means adopted need only be substantially related rather than narrowly tailored to furthering the interest.

The distinction between federal and state power to apply racial classifications, however, proved ephemeral. The Court ruled in Adarand Constructors, Inc. v. Pena9 that racial classifications imposed by federal law must be analyzed by the same strict scrutiny standard that is applied to evaluate state and local classifications based on race. The Court overruled Metro Broadcasting and, to the extent that it applied a review standard less stringent than strict scrutiny, Fullilove v. Klutznick. Strict scrutiny is to be applied regardless of the race of those burdened or benefitted by the particular classification; there is no intermediate standard applicable to benign racial classifications. The underlying principle, the Court explained, is that the Fifth and Fourteenth Amendments protect persons, not groups. It follows, therefore, that classifications based on the group characteristic of race should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection . . . has not been infringed.10

By applying strict scrutiny, the Court was in essence affirming Justice Powell's individual opinion in Bakke, which posited a strict scrutiny analysis of affirmative action. There remained the question, however, whether Justice Powell's suggestion that creating a diverse student body in an educational setting was a compelling governmental interest that would survive strict scrutiny analysis. It engendered some surprise, then, that the Court essentially reaffirmed Justice Powell's line of reasoning in the cases of Grutter v. Bollinger,11 and Gratz v. Bollinger.12

In Grutter, the Court considered the admissions policy of the University of Michigan Law School, which requires admissions officials to evaluate each applicant based on all the information available in their file (e.g., grade point average, Law School Admissions Test score, personal statement, recommendations) and on soft variables (e.g., strength of recommendations, quality of undergraduate institution, difficulty of undergraduate courses). The policy also considered racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like African-Americans, Hispanics and Native Americans . . . . Although, the policy did not limit the seeking of diversity to ethnic and racial classifications, it did seek a critical mass of minorities so that those students would not feel isolated.13

The Grutter Court found that student diversity provided significant benefits, not just to the students who might have otherwise not been admitted, but also to the student body as a whole. These benefits include cross-racial understanding, the breakdown of racial stereotypes, the improvement of classroom discussion, and the preparation of students to enter a diverse workforce. Further, the Court emphasized the role of education in developing national leaders. Thus, the Court found that such efforts were important to cultivate a set of leaders with legitimacy in the eyes of the citizenry.14 As the university did not rely on quotas, but rather relied on flexible assessments of a student's record, the Court found that the university's policy was narrowly tailored to achieve the substantial governmental interest of achieving a diverse student body.15

The law school's admission policy in Grutter, however, can be contrasted with the university's undergraduate admission policy. In Gratz, the Court evaluated the undergraduate program's selection index, which assigned applicants up to 150 points based on a variety of factors similar to those considered by the law school. Applicants with scores over 100 were generally admitted, while those with scores of less than 100 fell into categories that could result in either admittance, postponement, or rejection. Of particular interest to the Court was that an applicant would be entitled to 20 points based solely upon his or her membership in an underrepresented racial or ethnic minority group. The policy also included the flagging of certain applications for special review, and underrepresented minorities were among those whose applications were flagged.16

The Court in Gratz struck down this admissions policy, relying again on Justice Powell's decision in Bakke. Although Justice Powell had thought it permissible that race or ethnic background . . . be deemed a 'plus' in a particular applicant's file,17 the system he envisioned involved individualized consideration of all elements of an application to ascertain how the applicant would contribute to the diversity of the student body. According to the majority opinion in Gratz, the undergraduate policy did not provide for such individualized consideration. Instead, by automatically distributing 20 points to every applicant from an underrepresented minority group, the policy effectively admitted every qualified minority applicant. Although it acknowledged that the volume of applications could make individualized assessments an administrative challenge, the Court found that the policy was not narrowly tailored to achieve respondents' asserted compelling interest in diversity.18

The Court subsequently revisited the question of affirmative action in undergraduate education in its 2016 decision in Fisher v. University of Texas at Austin, upholding the University of Texas at Austin’s (UT’s) use of scores based, in part, on race in filling approximately 25% of the slots in its incoming class that were not required by statute to be awarded to Texas high school students who finished in the top 10% of their graduating class (Top Ten Percent Plan or TTPP).19 The Court itself suggested that the sui generis nature of the UT program,20 coupled with the fact that this case has been litigated on a somewhat artificial basis because the record lacked information about the impact of Texas’s TTPP,21 may limit the decision’s value for prospective guidance.22 Nonetheless, certain language in the Court’s decision, along with its application of the three controlling factors set forth in the Court’s 2013 decision in Fisher,23 seem likely to have some influence, as they represent the Court’s most recent jurisprudence on whether and when institutions of higher education may take race into consideration in their admission decisions. Specifically, the 2016 Fisher decision began and ended with broad language recognizing constraints on the implementation of affirmative action programs in undergraduate education, including language that highlights the university’s continuing obligation to satisfy the burden of strict scrutiny in light of changing circumstances24 and emphasized that [t]he Court’s affirmance of the University’s admissions policy today does not necessarily mean the University may rely on that same policy without refinement.25 Nonetheless, while citing these constraints, the 2016 Fisher decision held that the challenged UT program did not run afoul of the Fourteenth Amendment. In particular, the Court concluded that the state’s compelling interest in the case was not in enrolling a certain number of minority students, but in obtaining the educational benefits that flow from student body diversity, noting that the state cannot be faulted for not specifying a particular level of minority enrollment.26 The Court further concurred with UT’s view that the alleged critical mass of minority students achieved under the 10% plan was not dispositive, as the university had found that it was insufficient,27 and that UT had found other means of promoting student-body diversity were unworkable.28 In so concluding, the Court held that the university had met its burden in surviving strict scrutiny by providing sworn affidavits from UT officials and internal assessments based on months of studies, retreats, interviews, and reviews of data that amounted, in the view of the Court, to a reasoned, principled explanation of the university’s interests and its efforts to achieve those interests in a manner that was no broader than necessary.29 The Court refused to question the motives of university administrators and did not further scrutinize the underlying evidence relied on by the respondents, which may indicate that there are some limits to the degree in which the Court will evaluate a race-conscious admissions policy once the university has provided sufficient support for its approach.30

While institutions of higher education were striving to increase racial diversity in their student populations, state and local governments were engaged in a similar effort with respect to elementary and secondary schools. Whether this goal could be constitutionally achieved after Grutter and Gratz, however, remained unclear, especially as the type of individualized admission considerations found in higher education are less likely to have useful analogies in the context of public school assignments. Thus, for instance, in Parents Involved in Community Schools v. Seattle School District No. 1,31 the Court rejected plans in both Seattle, Washington and Jefferson County, Kentucky, that, in order reduce what the Court found to be de facto racial imbalance in the schools, used racial tiebreakers to determine school assignments.32 As in Bakke, numerous opinions by a fractured Court led to an uncertain resolution of the issue.

In an opinion by Chief Justice Roberts, a majority of the Court in Parents Involved in Community Schools agreed that the plans before the Court did not include the kind of individualized considerations that had been at issue in the university admissions process in Grutter, but rather focused primarily on racial considerations.33 Although a majority of the Court found the plans unconstitutional, only four Justices (including the Chief Justice) concluded that alleviating de facto racial imbalance in elementary and secondary schools could never be a compelling governmental interest. Justice Kennedy, while finding that the school plans at issue were unconstitutional because they were not narrowly tailored,34 suggested in separate concurrence that relieving racial isolation could be a compelling governmental interest. The Justice even envisioned the use of plans based on individual racial classifications as a last resort if other means failed.35 As Justice Kennedy's concurrence appears to represent a narrower basis for the judgment of the Court than does Justice Roberts' opinion, it appears to represent, for the moment, the controlling opinion for the lower courts.36


  1.  Jump to essay-1488 U.S. 469 (1989). Croson was decided by a 6-3 vote. The portions of Justice O’Connor’s opinion adopted as the opinion of the Court were joined by Chief Justice Rehnquist and by Justices White, Stevens, and Kennedy. The latter two Justices joined only part of Justice O’Connor’s opinion; each added a separate concurring opinion. Justice Scalia concurred separately; Justices Marshall, Brennan, and Blackmun dissented.
  2.  Jump to essay-2497 U.S. 547 (1990). This was a 5-4 decision, Justice Brennan’s opinion of the Court being joined by Justices White, Marshall, Blackmun, and Stevens. Justice O’Connor wrote a dissenting opinion joined by the Chief Justice and by Justices Scalia and Kennedy, and Justice Kennedy added a separate dissenting opinion joined by Justice Scalia.
  3.  Jump to essay-3497 U.S. at 564–65.
  4.  Jump to essay-4488 U.S. at 501–02.
  5.  Jump to essay-5488 U.S. at 506.
  6.  Jump to essay-6488 U.S. at 508.
  7.  Jump to essay-7497 U.S. at 600. Justice O’Connor’s dissenting opinion contended that the case does not present ‘a considered decision of the Congress and the President.’ Id. at 607 (quoting Fullilove, 448 U.S. at 473).
  8.  Jump to essay-8497 U.S. at 563 & n.11. For the dissenting views of Justice O’Connor see id. at 606–07. See also Croson, 488 U.S. at 504 (opinion of Court).
  9.  Jump to essay-9515 U.S. 200 (1995). This was a 5-4 decision. Justice O’Connor’s opinion for Court was joined by Chief Justice Rehnquist, and by Justices Kennedy, Thomas, and—to the extent not inconsistent with his own concurring opinion—Scalia. Justices Stevens, Souter, Ginsburg and Breyer dissented.
  10.  Jump to essay-10515 U.S. at 227 (emphasis original).
  11.  Jump to essay-11539 U.S. 306 (2003).
  12.  Jump to essay-12539 U.S. 244 (2003).
  13.  Jump to essay-13539 U.S. at 316.
  14.  Jump to essay-14539 U.S. at 335.
  15.  Jump to essay-15Grutter, 539 U.S. at 315. While an educational institution will receive deference in its judgment as to whether diversity is essential to its educational mission, the courts must closely scrutinize the means by which this goal is achieved. Thus, the institution will receive no deference regarding the question of the necessity of the means chosen and will bear the burden of demonstrating that each applicant is evaluated as an individual and not in a way that an applicant's race or ethnicity is the defining feature of his or her application. Fisher v. Univ. of Tex. at Austin (Fisher I), 570 U.S. 297, 298 (2013) (citation omitted). In its 2013 decision in Fisher, the Court did not rule on the substance of the challenged affirmative action program and instead remanded the case so that the reviewing appellate court could apply the correct standard of review. However, the Court issued a subsequent decision in Fisher addressing the Texas program directly. See Fisher v. Univ. of Tex. at Austin (Fisher II), 136 S. Ct. 2198 (2016).
  16.  Jump to essay-16539 U.S. at 272–73.
  17.  Jump to essay-17438 U.S. at 317.
  18.  Jump to essay-18438 U.S. at 284–85.
  19.  Jump to essay-19Fisher II, 136 S. Ct. at 2206.
  20.  Jump to essay-20Id. at 2208.
  21.  Jump to essay-21Id. at 2209.
  22.  Jump to essay-22Id.
  23.  Jump to essay-23Fisher v. Univ. of Tex. at Austin (Fisher I), 570 U.S. 297, 298 (2013). The first of these principles is that strict scrutiny requires the university to demonstrate with clarity that its purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is necessary . . . to the accomplishment of its purpose. Id. at 309. The second principle is that the decision to pursue the educational benefits that flow from student body diversity is, in substantial measure, an academic judgment to which some, but not complete, judicial deference is proper. Id. at 310. The third is that no deference is owed in determining whether the use of race is narrowly tailored; rather, the university bears burden of proving a non-racial approach would not promote its interests about as well and at tolerable administrative expense. Id. at 312.
  24.  Jump to essay-24Fisher II, 136 S. Ct. at 2209–10.
  25.  Jump to essay-25Id.
  26.  Jump to essay-26Id. at 2210–11. On the other hand, the Court emphasized that the university cannot claim educational benefits in diversity writ large. Id. at 2211. A university’s goals cannot be elusory or amorphous—they must be sufficiently measurable to permit judicial scrutiny of the policies adopted to reach them. Id. The Court also noted that the asserted goals of UT’s affirmative action program mirror those approved in earlier cases (e.g., ending stereotypes and promoting cross-racial understanding). Id. at 2211.
  27.  Jump to essay-27Id. at 2211–13. The Court further emphasized that the fact that race allegedly plays a minor role in UT admissions, given that approximately 75% of the incoming class is admitted under the 10% plan, shows that the challenged use of race in determining the composition of the rest of the incoming class is narrowly tailored, not that it is unconstitutional. Id. at 2212.
  28.  Jump to essay-28Id. at 2212–14.
  29.  Jump to essay-29Id. at 2211 (Petitioner’s contention that the University’s goal was insufficiently concrete is rebutted by the record).
  30.  Jump to essay-30Id. at 2211–12.
  31.  Jump to essay-31551 U.S. 701 (2007). Another case involving racial diversity in public schools, Meredith v. Jefferson County Board of Education, was argued separately before the Court on the same day, but the two cases were subsequently consolidated and both were addressed in the cited opinion.
  32.  Jump to essay-32In Seattle, students could choose among 10 high schools in the school district, but, if an oversubscribed school was not within 10 percentage points of the district's overall white/nonwhite racial balance, the district would assign students whose race would serve to bring the school closer to the desired racial balance. 127 S. Ct. at 2747. In Jefferson County, assignments and transfers were limited when such action would cause a school's black enrollment to fall below 15 percent or exceed 50 percent. Id. at 2749.
  33.  Jump to essay-33127 S. Ct. at 2753–54. The Court also noted that, in Grutter, the Court had relied upon considerations unique to institutions of higher education. Id. at 2574 (finding that, as stated in Grutter, 539 U.S. at 329, because of the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition).
  34.  Jump to essay-34In his analysis of whether the plans were narrowly tailored to the governmental interest in question, Justice Kennedy focused on a lack of clarity in the administration and application of Kentucky's plan and the use of the crude racial categories of white and non-white (which failed to distinguish among racial minorities) in the Seattle plan. 127 S. Ct. at 2790–91.
  35.  Jump to essay-35127 S. Ct. at 2760–61. Some other means suggested by Justice Kennedy (which by implication could be constitutionally used to address racial imbalance in schools) included strategic site selection for new schools, the redrawing of attendance zones, the allocation of resources for special programs, the targeted recruiting of students and faculty, and the tracking of enrollments, performance, and other statistics by race.
  36.  Jump to essay-36Marks v. United States, 430 U.S. 188, 193 (1977) (When a fragmented Court decides a case and no single rationale enjoys the assent of five Justices, 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgment on the narrowest grounds . . . .').