From Bakke To SFFA: How The Supreme Court Shaped Diversity In College Admissions

What happens when a single swing opinion steers higher education for decades—and then the Court changes course? We unpack the legal journey from Bakke’s fragmented ruling to the 2023 Students for Fair Admissions decision, tracing how Justice Powell’s narrow vision of “holistic” diversity took root, evolved in Grutter and Gratz, and ultimately ran into a stricter equal protection and Title VI jurisprudence. Along the way, we break down why quotas were off-limits, how individualized review became the gold standard, and where the latest majority says universities went too far.

With Dr. Beienberg, we revisit the key legal hooks—strict scrutiny, compelling interest, and narrow tailoring—and the uneasy alliance between academic freedom and constitutional limits. We examine the arguments that shaped the field: diversity as an educational benefit versus remediation for generalized discrimination; the role of federal funding under Title VI; and the competing opinions from O’Connor, Roberts, Sotomayor, Jackson, Thomas, and Gorsuch. The Asian American claims at the center of SFFA make the human stakes concrete, raising hard questions about zero-sum admissions, opaque ratings, and what “holistic” truly means when opportunities are finite.

Looking forward, we map practical, race-neutral strategies that universities can pursue without running afoul of the Court: expanding class sizes, rethinking testing, leveraging percent plans, strengthening need-based aid, recruiting across underserved regions, and valuing first-generation and socioeconomic indicators. The message is clear: if diversity remains a goal, institutions must prove that their means are lawful, measurable, and tightly fitted to that end. Subscribe, share, and tell us where you stand on the future of admissions—what solutions would you trust to balance fairness, opportunity, and excellence?

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School of Civic and Economic Thought and Leadership

Center for American Civics

Chapters

• 2:19 Setting The Case And Stakes
• 2:52 Bakke’s Challenge And Legal Hooks
• 5:08 Powell’s Solo Framework Emerges
• 9:04 Grutter, Gratz, And The Michigan Split
• 11:42 SFFA 2023 And The New Limits
• 14:05 Asian American Plaintiffs And Zero Sum
• 15:46 Alternatives Under Strict Scrutiny
• 16:00 Narrow Scope: Admissions Only

Transcript

SPEAKER_00: 1:33

Welcome back to Civicen Year. Today's Supreme Court case deals with affirmative action. And we have Dr. Beyenberg with us. So, Dr. Beyenberg, today we're talking about the regions of the University of California versus Allen Baki in 1978. This case is talking about racial quotas in university admissions. And I know that you're going to talk about other cases, one that has been actually very recent, but can you give us a little background on this case specifically?

SPEAKER_01: 2:06

Right. So one of the University of California medical schools is trying to increase its percentage of basically black doctors, is the long-term goal. And so they create a system that effectively creates a pretty strong preference for, in fact, effectively a de facto quota for what the sort of the racial composition of their entering class. And a student who is basically not eligible for that extra pool, that sort of special pool, argues it is unconstitutional under the equal protection clause. And also Title VI of the Civil Rights Act, which I'll come back to arguing that effectively a governmental institution, which the University of California is, is both bound by the Equal Protection Clause and which and Title VI, which says that effectively no institution receiving federal funding can public or private. So the Equal Protection Clause binds public government only. The Civil Rights Act, Title VI, is any institution taking federal funding. And that says that they can't discriminate on grounds of race. And so he argues he's both been discriminated on grounds of race and that equal protection has been denied to him. And the case, the original Backey case, is pretty messy. Four justices want to basically take a fairly straightforward, this is a clean violation of Title VI of the Civil Rights Act. We don't the Equal Protection Clause can be fuzzy, but this is a discrimination based on race, and the University of California takes federal funding, therefore. So they want to strike it down, and Justice Stevens uh writes this opinion. Justice Brennan and Justices Brennan and Marshall want to argue that effectively the Civil Rights Act only applies to sort of negative discrimination, but not sort of I want to say compensatory, but everybody agrees that if you've been specifically harmed on account of race, you can basically make a claim. But sort of generalized compensatory discrimination. They want to say that that's fine under both the Civil Rights Act and the Equal Protection Clause. And so you have effectively four and four saying unconstitutional and illegal or illegal and four saying it's fine. And you have Justice Powell basically for himself writing this very, very idiosyncratic fifth sort of simple opinion, which is only binding on him. The lower courts will then sort of treat it as precedent, but it's effectively just a sort of tiebreaker. And Powell says that laws that he agrees laws classifying based on race are presumptively unconstitutional. Right. So he says, yep, Brown has basically stood for this precedent, it's unconstitutional. He specifically then he goes through sort of specific justifications that have been offered by the University of California. I'm just going to focus on two of them. One is they say we need to be able to do this to help remedy generalized racial discrimination. Not a particular individual can point to a racist policy that he then suffered from, and therefore like he's being forced to be admitted to a school, right? That's everybody who would say that, that's fine. But simply saying I am black and black Americans have been sort of generally discriminated against, Powell rejects that as an argument for affirmative action. He says generalized racial discrimination is not a legally justifiable defense of this. If someone had shown they were getting individually discriminated against, absolutely they would win. But you can't, you say there's this general racial discrimination. And so now an institution can in turn practice general sort of compensatory discrimination. So he says that's out. The only justification that he says is defensible, and this is a really odd thing, but this ends up being really significant to the way the American political debate shaped, is he says academia has effectively an academic freedom component to it. And so universities as trying to build a sort of broadly intellectually diverse body of students. And he's very influenced by a brief that Harvard writes where they say, look, we want kids from Idaho, we want white kids, we want black kids, we want people who've, you know, military brats, whatever, right? So they say, we want to create a class that's basically a bunch of interesting, different people talking to each other. And Powell says that is effectively the only justification that he will approve here. So it's a weirdly sort of almost more of an academic freedom case in some ways, because he rejects, he's sort of speaking completely aside from the way that we normally talk about racial discrimination issues. For him, it's effectively, he wants Harvard effectively to be able to sort of set its own class. And so Powell says, really, really complicatedly, racial discrimination is presumptively unconstitutional. Universities distinctly can practice a limited form of racial discrimination if it's part of a, he uses the word holistic a whole bunch of times, but a very sort of complicated system to build a diverse graduating class. But it ceases to be narrow if it turns into effectively a quota, where you say we want X percentage of our class to be this grace, X percentage of Y percentage of our class to be this race. And so he blocks the policy there on the grounds that it's become effectively a quota if it turns into that level of that level of discrimination, effectively, that the thumb is that heavily on the scale. And so you can see why this is for your lower court, this is almost impossible to try to apply because discrimination is usually wrong, almost always wrong on racial grounds, if by a government, except for the universities, except if the universities do it too much. And so, but the Backey case effectively ends up but with its focus on sort of intellectual diversity, is really the sort of origin of the sort of major sort of American discourse of racial diversity that really flows from this case. In 2003, the Supreme Court, and so the Supreme Court continues to hear sorts of cases involving different kinds of affirmative action, and they sort of track Powell's thinking in 2003, in a case called Grutter versus Bollinger, a majority of the court basically says yes. And this is an opinion written by Sandard A. O'Connor, says, yes, we're gonna go with Justice Powell's sort of framework here. So now it's not just sort of one justice, it has the precedential value of the court behind it. And you have different blocks of justices, you have sort of Ginsburg and Breyer taking something akin to the Brennan position that, like, yep, no, this is this is fine to have compensatory, compensatory racial classification. And you have sort of Rehnquist and Scalia and Thomas taking the, and I think, and Kennedy at the time saying, no, like Stevens and Crewe were correct. This is illegal under the Civil Rights Act and the 14th Amendment. But the Grutter case sides with Powell. Now, again, showing how complicated this is, they allow one affirmative action policy that is being implemented by the University of Michigan, but they reject another one on the same day. So there's a Grutter versus Bollinger, and there's a Graz versus Bollinger. And so they say the one in Grutter is sort of minimal enough and vague enough that it's within the realm of sort of acceptable racial discrimination, but the other one looks like a quota. So that one is out. So those two cases basically make Powell's framework the rule of law. And then there's some cases in the middle that I'll skip. But then in 2023, in the Students for Fair Admissions case, the Supreme Court says effectively using the framework that we've used for dealing with racial discrimination, which is called strict scrutiny, where it's presumptively unconstitutional, but you have to really tightly identify how the classification works. The court says universities have moved away from that and use sort of vaguer and vaguer frameworks. And Grutter had also said we're willing to basically turn a blind eye. The case does concede racial discrimination is happening. Powell concedes that, O'Connor concedes that, but say it's temporarily justifiable under these circumstances. And O'Connor's opinion says in 25 years, we expect this will be unconstitutional because the fit won't be close enough. So in 2023, a majority of the Supreme Court says effectively the grutter, Powell sort of this needs to be limited. This is now over, basically, that we need to implement that part of it. That the gen the again, the justifications have become sort of vaguer and vaguer and more expansive in terms of government institutions. Again, specifically for higher education, it's worth emphasizing this hasn't been generalized. This was never generalized more broadly. You have a concurrence, uh, you have a dissent from Justice Sotomayor and Justice Jackson basically saying the court gets it wrong on history, we should have never done this. You have a really interesting, you have Thomas basically fighting with Jackson on the original argument, original understanding. It's a really long, historically sophisticated argument. And you have Gorsuch effectively saying, look, there's a real and much easier way for us to do this rather than say, how much is too much? He says we should have just gone back to Title VI of the Civil Rights Act, which says government institutions taking government money can't racially discriminate. It doesn't have a caveat, it doesn't, it just says very, very clearly for Gore in the text there. And so rather than sort of ignore the Civil Rights Act, that's what Gorsuch wants to do. The Roberts, Roberts basically says, yeah, but the other people aren't asking us to rule on Title VI, so we can just sort of brush it aside. But Gorsuch wants to do that. So Backy originally again held sort of the sort of summary of the framework here. Backey held consistent with Brown, racial discrimination by government, presumptively unconstitutional. Universities distinctly can practice a limited form of it to implement a diverse student body, diverse in all terms, but it can't be hardened racial quotas. Rutter basically implemented that, and the Students for Fair Admission case said that the universities, et cetera, have been basically taking that allowance and making it too broad, too wide. And so, therefore, the normal rule of racial discrimination by government institutions, that it's prohibited, like that needs to control here too.

SPEAKER_00: 12:50

And all of these cases, I mean, the Gretter one, and correct me if I'm wrong, that was the law school. Like the University of Michigan was trying to make their law school more diverse, correct? Yeah.

SPEAKER_01: 13:01

So the one was a law school case and one was an undergrad case. So that's so they they turn out differently in that front. Yeah.

SPEAKER_00: 13:09

So when you talk about like, you know, the discrimination is allowable in like these cases, it is to make things more diverse. But then in the students for fair admission versus Harvard, those students felt like the quotas, for lack of a better word, were actually harming them and not allowing them to get in because they were only allowing so many of X race in. Because the students for Fair Admission weren't the students primarily Asian.

SPEAKER_01: 13:46

Primarily Asians in terms of the plane. I mean, it's a group, but the students for Fair Admission was effectively like a lobby in an interest group. But the bulk of their brief focused on effectively Asian American students who had been who basically were going to have a very small chunk of what the quota looked like. And so they were arguing that you know what their SAT score had to be compared to two different groups was wildly different. And so therefore they were being actively discriminated against. That effectively their perspective is it's zero sum. Once you basically say we can make an allowance here, then it's the same argument that Backy had made back in the day, but that basically benign discrimination or compensatory or whatever it's called is zero sum. Where if unless this is actually one of the things that the dissents in the Grunter case argued, which is they said, if you truly were concerned about diversity, then you have another way to actually do this, which is make your law school less selective. Expand it, change its SAT range, et cetera. Because under the strict scrutiny framework, you can only make a racial discrimination if you say this is the only way to achieve the goal that you're trying to seek. And Rank Weston Thomas in that case said, if that really is your most important goal, then there's a really easy solution. Just increase the class size of the University of Michigan until you can get effectively a different, a different band. So they argued effectively it failed even under the strict scrutiny, the strict scrutiny standard.

SPEAKER_00: 15:14

And just to clarify and make sure everybody knows, we are specifically speaking about affirmative action in college admissions here, because like with everything else in the Supreme Court, there are no sweeping decisions. Everything is very, very specific. So, Dr. Weinberg, thank you again.