Affirmative action policies that seek to redress longstanding racial exclusions have been hotly debated ever since their introduction in the 1960s and ‘70s, especially at universities. On August 1, The New York Times reported that the Justice Department plans to investigate and sue universities over affirmative action policies “deemed to discriminate against white applicants.”
While there has long been Constitutional precedent for these programs, the Supreme Court has always evaluated them on a case-by-case basis, and has sometimes struck them down.
The landmark case that established a legal precedent for affirmative action in higher education was University of California v. Bakke in 1978. Allan Bakke, a white man, was in his mid-30s when he applied to 12 medical schools, including University of California Medical School at Davis. After all of these school rejected him, Bakke sued the school at Davis—which had rejected him twice—because he argued that the school had discriminated against him by admitting students of color with lower medical scores than his.
At the time, Davis’ medical school reserved 16 out of 100 spots in each year’s new class for students of color. In that case, the question posed to the court was whether the policy violated the 14th Amendment’s equal protection clause and the Civil Rights Act of 1964.
The court’s opinion? “No and yes,” according to Oyez, a law project by Cornell’s Legal Information Institute and other organizations. That’s because even though the court determined “the use of race as a criterion in admissions decisions in higher education was constitutionally permissible,” it ruled that racial quotas were not, and ordered the school to admit Bakke. In other words, the court said that affirmative action was okay in some contexts, but not that specific one. Today, the University of California has no affirmative action policy.
The response to the decision was mixed because it disappointed both sides of the debate. Supporters of affirmative action called it a setback, while opponents were troubled that it had legitimized the use of race as a consideration in admissions. Bakke went on to graduate from the medical school at Davis and become an anesthesiologist. Because he eschews media attention, little is known about his life after the decision. When the news site SFGATE contacted him in 1998, Bakke said, “I have never spoken about this and don’t intend to do so now,” and hung up.
Since then, the Supreme Court has cited University of California v. Bakke to rule both for and against university affirmative action programs. In 2003, it used the case’s logic to uphold the University of Michigan Law School’s policy of considering applicants’ race, arguing that it did not discriminate against a rejected white applicant.
The very same day, the court used the 1978 ruling to strike down the University of Michigan’s undergraduate affirmative action program in a different case. With that second decision, the court ruled that the university had discriminated against two white applicants by automatically giving non-white applicants 20 points on a 150-point admissions scale. The most recent Supreme Court ruling on this subject was 2016’s Fisher v. University of Texas, in which the court ruled that the university’s consideration of race had not resulted in discrimination against a rejected white applicant.
The complicated legal precedent for affirmative action programs paints an unclear picture of the future for these types of policies. According to The Atlantic, there are several pending lawsuits against other university affirmative action programs. And if the Justice Department proceeds with its plan, there will likely be many more.