Last Term, the Supreme Court turned down two invitations to resolve the constitutionality of affirmative action in college and university admissions. In May 2001, the Court for the second time declined to review a Fifth Circuit decision holding that the use of racial preferences to achieve diversity in the student body serves no compelling interest. A few weeks later, the Court let stand a conflicting Ninth Circuit decision that upheld a .law school affirmative action policy on the ground that "educational diversity is a compelling governmental interest that meets the demands of strict scrutiny." The legal controversy over admissions preferences intensified in August 2001 when the Eleventh Circuit invalidated the University of Georgia's undergraduate affirmative action policy on the ground that it was not narrowly tailored. With the Sixth Circuit's recent decision upholding the University of Michigan Law School's affirmative action policy and yet another ruling expected soon, the debate will soon come to a full boil. Facing an array of divergent lower court opinions on the issue, the Supreme Court may well decide in the next few months that the time for a final resolution has come. Although the most recent legal challenges to racial preferences in university admissions vary in their details, they are unified by a common narrative - the same narrative that animated Allan Bakke's lawsuit against the Davis Medical School over twenty years ago. Bakke won admission to the medical school after convincing the Supreme Court that the school's practice of setting aside sixteen out of 100 seats in each incoming class for minority students was an unconstitutional racial quota. The record shows that Bakke was, in fact, a highly qualified applicant. His undergraduate grades and standardized test scores were excellent, far better than the averages for minority students admitted through the set-aside. Yet the medical school rejected Bakke's application, even as it admitted minority applicants in numbers large enough to fill the sixteen-seat quota. This prompted Bakke to complain that affirmative action cost him a letter of admission, and the success of his lawsuit confirms what so many people find unfair about affirmative action: By according substantial preferences to minority applicants, affirmative action causes the displacement of deserving white applicants like Allan Bakke and the plaintiffs now following in his footsteps.
The Causation Fallacy: Bakke and the Basic Arithmetic of Selective Admissions,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol100/iss5/4