Affirmative Action and the Courts

In the wake of the Supreme Court's recent historic ruling on the University of Michigan's affirmative action program, we offer four lessons and a rich assortment of original source materials.

by Alan Shapiro

To the Teacher:

Affirmative action programs at universities have a controversial history. The history must be viewed as part of the centuries-long struggle of African Americans and, more recently, other minority groups to gain the equal opportunity that is part of American law and the American dream. The controversy is whether universities should regard membership in such groups as a positive factor to be considered with other factors in the admissions process.

The United States Supreme Court recently decided cases involving affirmative action policies at the University of Michigan's undergraduate school and its law school. These and other cases are the subject of the following study of affirmative action. The study begins with an introductory exercise to make students aware of some of the complexities of the affirmative action issue and a reading that provides some historical background.



1. Present the following situation to students and ask for their responses in writing:

You have accepted a position on a university committee whose mission is to list the factors that should be considered in determining student admissions. In preparation for the first committee meeting you jot down your ideas. What do you write?

2. After five to ten minutes ask for responses from a number of students and list them on the chalkboard without comment. Then consider the questions below.

a. Does the list include the following items, which many universities do consider in the application process?

  • grades
  • results on ACT and SAT examinations
  • high school quality
  • difficulty of curriculum
  • teacher recommendations
  • geography (e.g., resident of state, underrepresented county in the state, underrepresented other state)
  • alumni connection (e.g., parent, grandparent, sibling)
  • essay
  • personal achievement (e.g., athletics, art, music, writing, science, mathematics, foreign language abilities)
  • leadership and service
  • travel
  • race and ethnicity (especially African American, Hispanic, American Indian)

b. Are there any items that a majority of students would not include? Why?

Help students realize that (1) an admissions policy necessarily involves many factors and complexities and (2) no factor is completely "objective." For example, teacher assessments are necessarily subjective. So is determining how much weight to give to a specific student's leadership accomplishments.

3. Focus the discussion next on the race and ethnicity factor. Should a university consider as a plus factor that an applicant is African American, Latino or American Indian? Why or why not?

These questions are likely to provoke a controversy. Some are likely to argue that every applicant should be treated equally with all other applicants. Others may maintain that a minority candidate deserves special consideration because of the history of discrimination against his or her group. Still others may feel conflicted. Some of the following additional questions may prove useful.

How "objective" is any factor listed? What do you mean by "objective"?

  • Should only grades and examination results be considered? Why or why not?
  • Should an applicant's alumni connection or athletic ability be considered but not his/her race or ethnicity? Why or why not?
  • What purposes should a university serve? How do the admissions factors students have proposed support those purposes?

Assignment: Student Reading 1

The following brief overview provides some information about the African-American history that led universities to adopt affirmative action policies. Without a reasonable understanding of that history, students do not have a context for understanding affirmative action.

Ask students to read the overview, and then to prepare three good questions on the conclusions of the National Advisory Commission on Civil Disorders. "Good" in this context means questions that, if answered well, would lead to a better understanding of African American life in the United States and the Commission's analysis of the 1967 riots and recommendations for the creation of " a single society and a single American identity." Students' questions should help the teacher to gain insight into student understanding of African American history and suggest areas for study.

Student Reading 1:

Report of the National Advisory Commission on Civil Disorders

The forced enslavement of Africans and their importation to America began soon after the arrival of the first English settlers. About 250 years later most blacks of African origin were slaves in what had become the United States of America. They did not become free citizens and potential voters until the years after the Civil War. But despite the 13th, 14th and 15th amendments to the Constitution, no African American became really free, none had the rights of other citizens, and many dared not vote.

In its landmark 1954 unanimous decision, the U.S. Supreme Court overturned an 1896 court ruling that declared "separate but equal" facilities for African Americans and whites constitutional. It now ruled that segregation of children in public schools solely on the basis of race was necessarily unequal and unconstitutional. Until this ruling, 17 states and Washington D.C., the capital of the United States, had required school segregation by law. The following year the Montgomery, Alabama bus boycott against segregated bus seating led to a 1956 Federal district court ruling that segregation on local public transportation violated the due process and equal protection clauses of the 14th amendment. These two events fueled a developing civil rights movement.

During "the long hot summer" of 1967, city after city exploded in riots. President Lyndon Johnson established the National Advisory Commission on Civil Disorders to provide the nation with insight into what had happened, why, and what to do. The Commission concluded:

"Our nation is moving toward two societies, one black, one white—separate and unequal....certain fundamental matters are clear. Of these, the most fundamental is the racial attitude and behavior of white Americans toward black Americans. Race prejudice has shaped our history decisively; it now threatens to affect our future. White racism is essentially responsible for the explosive mixture which has been accumulating in our cities...."

The Commission cited among the specific causes for the riots "pervasive discrimination and segregation in employment, education and housing...., growing concentrations of impoverished Negroes in our major cities, creating a growing crisis of deteriorating facilities and services and unmet human needs and the black ghettos, where segregation and poverty converge on the young to destroy opportunity and enforce failure."

"What white Americans have never fully understood—but what the Negro can never forget—is that white society is deeply implicated in the ghetto. White institutions created it, white institutions maintain it, and white society condones it." The result is "crime, drug addiction, dependency on welfare, and bitterness and resentment against society in general and white society in particular...."

The Commission recommended programs in a number of areas for national action—employment, education, welfare, housing—to "shape a future compatible with the historic ideals of American society....The major need is to generate new meet the vital needs of the nation....The major goal is the creation of a true union—a single society and a single American identity."

In the years following this report, affirmative action programs were developed. "Affirmative action" can be defined as measures that attempt to correct discrimination by taking race, ethnicity, and gender into account in, for example, employment and university admissions programs.



1. Begin by dividing the class into groups of four to six students to share their questions and to decide on the three best. Each group should name a reporter to present the questions.

2. As each group reports, list its questions on the board without comment. Some question analysis will probably be in order. For suggestions, see "The Doubting Game" section of "Teaching Critical Thinking" on this website. At a minimum, each question should be clear, free of dubious assumptions, and answerable. Next, consider with the class which questions the group regards as most important. Can students answer any of them? If there are questions requiring outside reading and inquiry, they might be the subject of later independent and small-group projects.

3. Assignment: Student Reading 2:
After they read the two case studies, students should prepare themselves to answer the questions that follow and then write the assigned paragraph.

Student Reading 2:

Two Case Studies of Affirmative Action

Case Study 1: Regents of the University of California v. Bakke

In 1973 and 1974, Allan Bakke, a white applicant, was rejected for admission to the medical school at the University of California. The university had maintained two admissions programs, including a special one that admitted some African Americans, Chicanos, Asians and American Indians but no whites. It had established a quota of a minimum of 16 students of color for the 100-student medical school. Bakke sued, claiming that he was denied admission in favor of less qualified students of color.

In 1978 the US Supreme Court, with Justice Lewis Powell writing a decision for the 5-4 majority, ruled against the university's racial quota system and for Bakke. The court declared that "racial and ethnic classifications of any sort are inherently suspect and call for the most exacting judicial scrutiny." The court argued that "the goal of achieving a diverse student body is sufficiently compelling to justify consideration of race in admissions decisions under some circumstances." However, the court said, a special admissions program is unnecessary for achieving this goal and was therefore invalid under the equal protection clause of the 14th Amendment. That amendment states, in part, "No state...shall deny to any person within its jurisdiction the equal protection of the law." Bakke was then admitted to the medical school at the University of California.

Ask students:

  • Why do you suppose that the Court regarded the racial quota system of the University of California as "inherently suspect" and "calling for the most exacting judicial scrutiny"?
  • What might it have found "inherently suspect"?
  • Why do you suppose that it viewed "the goal of achieving a diverse student body as compelling"?
  • What do you suppose it meant by stating that "consideration of race in admissions decisions under some circumstances" was justified?
  • What kinds of "circumstances" might the Court have had in mind?

Case Study 2: Hopwood v. University of Texas Law School

In 1992, Cheryl Hopwood and three other white applicants were denied admission to the University of Texas Law School despite having better qualifications than some people of color who were admitted under an affirmative action program. A 10-7 majority of the Fifth Circuit Court of Appeals ruled that the university's interest in having a diverse student body was not a sufficient "compelling interest to support the use of race as a factor in admissions." The majority outlawed any preference based on race. The US Supreme Court declined to rule on the case because the affirmative action program at issue was no longer in force at the university.

Ask students:

  • Why do you suppose that the Court of Appeals ruled that the university's interest in having a diverse student body was not a sufficient "compelling interest to support the use of race as a factor in admissions"?

Then ask students to answer the next two questions in one well-developed paragraph:

  • In what ways are the two cases and the Courts' decisions on them similar?
  • How are they different?
  • Consider the differences between the two decisions. Which do you prefer? Why?



1. Discuss the assigned questions.

2. Divide the class into groups of three to share their paragraphs. Have them discuss the effectiveness of the reasoning in each paper, then select the one they regard as best.

3. Have a sampling of the selected papers read to and discussed by the class.

4. Assignment: Student Reading 3, which asks students to consider a hypothetical affirmative action case, to imagine themselves justices on the Supreme Court, and to write a reasoned decision.

(Note to teacher: The case described in this reading is closely modeled on the recent University of Michigan law school case, Grutter v. Bollinger, and in fact uses some of the language from Justice Sandra Day O'Connor's written judgment for the 5-4 majority, which ruled in favor of the university. You may want to withhold this information from students until their own decisions have been discussed in class.)

Student Reading 3:

An Affirmative Action Case for Your Decision

Directions: Read the following affirmative action case. Then imagine that you are a Supreme Court justice. Write an essay in which you state a decision and the reasoning that supports it.

Case Study: Jones v. Collins University

Alyssa Jones, a white applicant to the law school at Collins University with a 3.8 grade average, was rejected by the university. She filed suit, alleging that the university discriminated against her on the basis of race in violation of the Fourteenth Amendment. She alleges that the university rejected her because it uses race as a predominant factor, giving applicants who belong to certain racial and ethnic groups significantly greater chance of admission than students with similar credentials from disfavored racial groups. Jones requests compensatory and punitive damages, an order requiring Collins University to offer her admission, and an injunction prohibiting the university from continuing to discriminate on the basis of race.

The law school at Collins University states that its goal is to assemble a class that is both exceptionally academically qualified and broadly diverse. The university employs 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. For example and among other factors, it considers applicants who have lived or traveled widely abroad and are fluent in several languages; who have overcome personal adversity and family hardship; who have exceptional records of community service; and who have records of unusual intellectual achievement.

As part of its goal and as one factor among many, the law school seeks to enroll a critical mass of students of color. In the context of its individualized examination of each applicant, the law school considers it a plus for an applicant to be black, Latino, or Native American. The law school declares that this policy promotes cross-racial understanding, helps to break down racial stereotypes, better prepares students for an increasingly diverse workforce and society and opens paths to leadership to talented and qualified individuals of every race and ethnicity.



There are a number of ways the teacher might proceed, among them:

1. Have students with opposing points of view read their papers aloud, and then have a class-wide discussion.

2. Have students form small groups, and ask each student in the group to read their paper to the others. Ask each group to select the paper they regard as most compelling for presentation to and discussion by the class.

3. Organize a fish bowl: Ask five to seven students representing differing points of view to sit in a circle in the middle of the room. Everyone else makes a circle of chairs around the fish bowl, but only students in the fish bowl can speak. Give each person in the fish bowl a couple of minutes to present a point of view. The facilitator (either the teacher or a student) then asks the fish bowl group for clarifying questions and further comments. After 15 minutes or so, students from the larger circle can be invited to replace students in the fish bowl by tapping one of the latter on the shoulder and moving into that student's seat. Fish bowls give students a chance to address an issue in some detail and they promote good listening skills.


After students become aware that the Jones case is closely modeled on a recent, very important case involving the law school of the University of Michigan, have them read the following excerpts from Justice O'Connor's decision for the 5-4 majority and from the dissent by Chief Justice William Rehnquist in Student Reading 4. Ask students to be prepared to answer the questions that follow.

Student Reading 4:

Grutter v. Bollinger: The Supreme Court Decision on Affirmative Action (6/23/03)

From the Decision by Justice O'Connor

"For the reasons set out below, today we endorse Justice Powell's view (in the Bakke case) that student body diversity is a compelling state interest that can justify the use of race in university admissions....The law school's interest is not simply to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin. That would amount to outright racial balancing, which is patently unconstitutional. Rather, the law school's concept of critical mass is defined by reference to the educational benefits that diversity is designed to produce. These benefits are substantial....numerous studies show that student body diversity promotes learning outcomes, and better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.

"...In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity. All members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training....and education necessary to succeed in America....

"....a race-conscious admissions program cannot use a quota system....Instead a university may consider race or ethnicity only as a 'plus' in a particular applicant's file without insulating the individual from comparison with all other candidates.... individualized consideration demands that race be used in a flexible, non-mechanical way... We are satisfied that the law school's admissions program... does not operate as a quota.... and is 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. The importance of this individualized consideration in the context of a race-conscious admissions program is paramount."

From the Dissent by Chief Justice Rehnquist

"The Law School claims it must take the steps it does to achieve a 'critical mass' of underrepresented minority students. But its actual program bears no relation to this asserted administrators explain generally that 'critical mass' means a sufficient number of underrepresented minority students to achieve several objectives: To ensure that minority students do not feel isolated...; to provide adequate opportunities for the type of interaction upon which the educational benefits of diversity depend; and to challenge all students to think critically and re-examine stereotypes....In practice the law school's program bears little or no relation to its asserted goal of achieving 'critical mass'....

"From 1995 through 2000, the law school admitted between 1,130 and 1,310 students. Of those between 13 and 19 were Native American, between 91 and 108 were African Americans, and between 47 and 56 were Hispanic. If the law school is admitting between 91 and 108 African-Americans in order to achieve 'critical mass,' thereby preventing African-American students from feeling 'isolated' would think that a number of the same order of magnitude would be necessary to accomplish the same purpose for Hispanics and Native Americans....the law school's disparate admissions practices with respect to these minority groups demonstrate that its alleged goal is simply a sham....

"The law school has offered no explanation for its actual admissions practices and, unexplained, we are bound to conclude that the law school has managed its admissions program, not to achieve a 'critical mass,' but to extend offers of admission to members of selected minority groups in proportion to their statistical representation in the applicant pool. But this is precisely the type of racial balancing that the Court itself calls 'patently unconstitutional.'"

For discussion

1. Why does the Court view student body diversity as "a compelling state interest that can justify the use of race in university admissions"?

2. What do you understand the Court to mean by its reference to "leaders with legitimacy in the eyes of the citizenry"?

3. What does the Court regard as an unconstitutional use of race and ethnicity by a university admissions program?

4. How can the use of race and ethnicity by a university admissions program be constitutional, according to the Court?

5. According to Justice Rehnquist, why is the university's stated "critical mass" goal "simply a sham"?

6. Why does he conclude that the university's admissions program is unconstitutional?

7. Which of the two opinions do you favor? Why?


Topics for Further Inquiry

You might ask students to explore — individually or in small groups — any of the student questions left unanswered.

Or, explore other aspects of the affirmative action issue. Among the many other possibilities are the following, which are stated topically but which would best be pursued after students frame their inquiry in the form of a question. Samples follow the first two items.

1. Plessy v. Ferguson, 1896
On what grounds did a majority of the Supreme Court reach the conclusion that "separate but equal" facilities for whites and African Americans were constitutional? On what grounds did Justice John Marshall Harlan dissent?

2. Brown v. Board of Education of Topeka, 1954
On what grounds did a unanimous Supreme Court reverse the decision in Plessy v. Ferguson? How would you explain two such different interpretations of the constitution as represented by these two decisions?

3. The Dred Scott Decision, which declared, in Justice Roger Taney's words, that a black man "had no rights which the white man was bound to respect."

4. President Truman's Executive Order 9981, which ordered integration in the armed services.

5. The Civil Rights Act of 1964, the most comprehensive civil rights legislation ever enacted by the US

Additional Background Information

The Supreme Court's ruling against the University of Michigan's undergraduate school affirmation action program

At the same time as the law school decision, the Supreme Court ruled in a 6-3 vote that the University of Michigan's affirmative action program for its undergraduate school was unconstitutional because of its use of a point system based in part on race (Gratz v. Bollinger).

Writing for the majority, Chief Justice Rehnquist declared that the university's policy "automatically distributes 20 points [in a 150-point system] to every single applicant from an 'underrepresented minority' group, as defined by the university." This "automatic distribution of 20 points has the effect of making the factor of race decisive for virtually every minimally qualified underrepresented minority applicant," Rehnquist wrote. Respondents contend that 'the volume of applications and the presentation of applicant information make it impractical for (the undergraduate program) to use the admissions system upheld by the court today in Grutter. But the fact that the implementation of a program capable of providing individualized consideration might present administrative challenges does not render constitutional an otherwise problematic system."

In a dissent, Justice Ruth Bader Ginsburg wrote:

"We are not far distant from an overtly discriminatory past, and the effects of centuries of law-sanctioned inequality remain painfully evident in our communities and schools.... Unemployment, poverty and access to health care vary disproportionately by race. Neighborhoods and schools remain racially divided. African-American and Hispanic children are all too often educated in poverty-stricken and underperforming institutions. Adult African-Americans and Hispanics generally earn less than whites with equivalent levels of education....Irrational prejudice is still encountered in real estate markets and consumer transactions..."

"The racial and ethnic groups to which the college accords special consideration (African-Americans, Hispanics and Native Americans) historically have been relegated to inferior status by law and social practice; their members continue to experience class-based discrimination to this day. There is no suggestion that the college adopted its current policy in order to limit or decrease enrollment by any particular racial or ethnic group, and no seats are reserved on the basis of race. Nor has there been any demonstration that the college's program unduly constricts admissions opportunities for students who do not receive special consideration based on race. The stain of generations of racial oppressions is still visible in our society, and the determination to hasten its removal remains vital."

Briefs submitted to the Supreme Court in the University of Michigan cases

a. Bush Administration Brief

The Bush administration filed a brief with the Supreme Court urging that the University of Michigan programs be declared unconstitutional. On January 15, 2003, President Bush said, "I strongly support diversity of all kinds, including racial diversity in higher education. But the method used by the University of Michigan to achieve this important goal is fundamentally flawed. At their core, the Michigan policies amount to a quota system that unfairly rewards or penalizes prospective students based solely on their race. [Such programs] create another wrong and thus perpetuate our divisions."

President Bush regarded as a better plan one that, as in Texas, allows all students in the top ten percent of their high school classes to attend state universities no matter how bad the school or how low their SAT scores. Similar plans exist in a Florida plan that accepts automatically the top 20 percent and a California plan that accepts the top four percent. "The reason the Texas plan is particularly worth considering, though it is not a panacea, is that they have combined it with outreach, with scholarships, with mentoring," said Lani Guinier, a law professor at Harvard (New York Times, 1/19/03). Critics say that the percentage plans don't provide enough spaces for minority students in undergraduate universities, do nothing for graduate programs, and in any case depend upon racial segregation of high schools.

b. Briefs in Support of University of Michigan

More than 300 organizations representing educational groups, corporations, former military and defense officials, and labor unions filed briefs supporting the University of Michigan programs.

Kenneth Frazier, senior vice president and general counsel at Merck, the pharmaceutical company, said, "The work we do directly impacts patients of all types around the globe. Understanding people is essential to our success."

Admiral Dennis C. Blair, who retired last year as the commander in chief of the Pacific Command, recalled high racial resentment during the Vietnam War when minorities were heavily represented among enlisted men but not the officer corps. "We need to take special measures to ensure there are race-conscious policies of admissions at universities, so they can go on to become part of our officer corps. We need these officers both for their own talent, and so that we have an armed forces that is not split the way it was early in my career." Said Blair: "the argument is combat efficiency." (New York Times, 2/18/03)

Reaction to the Michigan programs and to the Supreme Court Grutter and Gratz decisions

Despite his earlier, publicly-stated opposition to both Michigan programs as basically quota systems, President Bush praised the Court "for recognizing the value of diversity on our nation's campuses....Today's decisions seek a careful balance between the goal of campus diversity and the fundamental principle of equal treatment under the law."

The president of the University of Michigan, May Sue Coleman, said the decision was a "tremendous victory."

James P. Hackett, chief officer of Steelcase, an office furniture company that helped lead the corporate effort to back the university position, said, "This was less about affirmative action or quotas than about the university leadership having the ability to ensure diversity. For me that's the strong connection to business." (New York Times, 6/24/03

George Will, a Newsweek columnist, wrote: "Michigan's supposed solicitude for minorities is an aspect of a national scandal. Nationwide 45 percent of African-American young people have their life chances irrevocably blighted by never receiving high school diplomas....Yet what are the nation's educational and opinion-forming elites obsessing about? The defense of Michigan's racial preferences." (Newsweek, 6/23/03)

Eric Foner, a law history professor, wrote, "we should not lose sight of the fact that corporate globalization has had a devastating impact on the black working class by hastening deindustrialization, and that military service offers many nonwhites the opportunity to advance socially only by taking part in wars abroad. It is a sign of the times that it required an appeal to the demands of globalization and an imperial foreign policy to persuade the Court to uphold affirmative action in higher education." (The Nation, 7/14/03)

Armstrong Williams, a syndicated columnist, wrote, "If the goal of affirmative action is to create a more equitable society, it should be need-based. Instead, affirmative action is defined by its tendency to reduce people to fixed categories....As a result [they] rarely help the least among us. Instead, they often benefit the children of middle- and upper-class black Americans who have been conditioned to feel they are owed something....As a child growing up on a farm, I was taught that personal responsibility was the lever that moved the world. That is why it pains me to see my peers rest their heads upon the warm pillow of victim status." (Newsweek, 1/27/03)

Clint Bolick, vice president of the Institute for Justice, said, "It's outrageous that the majority in favor of these racial preferences was formed by Republican appointees. Conservatives will want to make sure that anyone appointed to the court in this administration is a strong and sure opponent of racial preferences." (New York Times, 6/24/03)

Orlando Peterson, professor of sociology at Harvard, wrote, "Domestically, Congress regularly passes laws that favor special interests—veterans, millionaire ranchers, farmers, oil-well owners, holders of patents about to expire, people with home mortgages—many with no economic justification, all costing billions of tax dollars. Why, then, the obsession with the principle of colorblindness, especially among right-wing activists who otherwise exhibit little enthusiasm for the equality principle enshrined in the Declaration of Independence?" (New York Times, 6/22/03)

Poll Results on Affirmative Action

A New York Times/CBS News poll in January 2003 found that 53 percent of those surveyed favored programs that "make special efforts to help minorities get ahead." The public is less supportive when programs involve quotas (New York Times, 6/24/03).

Newsweek polls, however, report that 73 percent of whites oppose preferences for blacks and Hispanics; and that among people of color, 56 percent oppose preferences for blacks (Newsweek, 1/27/03). Results seem to depend, at least in part, on the precise wording of the question.

Impact of University Affirmative Action programs

In their book The Shape of the River (1998),William Bowen and Derek Bok, former presidents of Princeton and Harvard, respectively, analyzed the records of 45,000 students at elite universities. They found that "without race-sensitive admissions, white applicants' chances of being admitted to selective universities would have increased only slightly, from 25 to 26.2 percent." However, black applicants' chances "were greatly enhanced by affirmative action," they found. What's more blacks were "more likely to go to graduate or professional school than their white counterparts and more likely to be leaders of community, social service or professional organizations after college." (Newsweek, 1/27/03)

This lesson was written for TeachableMoment.Org, a project of Morningside Center for Teaching Social Responsibility. We welcome your comments. Please email them to: